Robinson v. Safford , 57 Me. 163 ( 1869 )

Dickerson, J.

On the 4th day of January, 1867, the plaintiff made an assignment of all his property for the benefit of all his creditors, under the statutes of this State, and the defendant duly became a party thereto. On account of the conflicting claims of the creditors, the assignee brings this action to obtain an adjudication upon the state of the accounts as between the defendant and himself as assignee of the plaintiff.

The plaintiff testifies, and' the assignee claims, that as the accounts stood Jan. 4, 1867, the defendant was indebted to the plaintiff in the sum of $6,119.57. The defendant files his account in set-off in the sum of $28,159.40 over and above the amount credited to him in the plaintiff’s account; and the question presented is what items, if any, in the defendant’s account in'set-off the estate of the plaintiff, in the. hands of the assignee, is legally chargeable with.

The right to set .off one demand against another, in this State, is wholly regulated by statute. Call v. Chapman, 25 Me. 128. A claim to be available, in set-off, must be due and payable at the time of the commencement of the plaintiff’s action. A mere liability of the defendant for the plaintiff, existing at the time, but not satisfied by the former till after the commencement of the suit, cannot be allowed in set-off. Houghton v. Houghton, 37 Me. 72.

While it might be desirable for the assignee to have a general adjudication upon the whole subject of the pecuniary relations between the assigner and the defendant, it is only competent for the court to decide the single question presented hi this action; to do this the court has only to apply the law of set-off, as above stated, to the facts in the case. The fact that there has been an assignment for the benefit of creditors does not modify or change the rights of the parties under the statute authorizing a set off of mutual claims. The plaintiff gains no advantage, in this respect, nor does the defendant lose any of his rights on this account.

No question arises with respect to the first three items in the defendant’s account, amounting to $590.

The charge of Dec. 13, 1866, — “ fifty shares stock Rolling Mills, $5,000,” accrued prior to tbe assignment. This stock was sold by tlie plaintiff under a power of attorney from the defendant, the amount charged was received by him and he testifies that this sum should have been credited to the defendant at the time of the sale of the stock. This charge is a proper item to be allowed in set-off.

The sum of $5,000, paid by the defendant as indorser of the plaintiff’s note of Nov. 19, 1866, was not paid till June, 1868, several months after this action was commenced, and is not allowable in set-off against the plaintiff’s claim in this action. The liability was a contingent one, and no actual indebtedness had accrued to the defendant prior to the commencement of this suit.

The drafts drawn on Foster, Candler & Co., by the defendant for the accommodation of the plaintiff, amounting to $8,500, are placed on a different footing from the last item considered. In these cases, though the defendant’s liability was originally contingent, it had ripened into an absolute claim against the plaintiff before the commencement of this suit, by reason of the defendant’s paying the drafts. It is clear that the statute of set-off allows such claims to be filed.

The plaintiff’s note of Oct. 1, 1866, for $2,000, indorsed by the defendant, had not been paid by him when this suit was brought; and that item in the defendant’s account cannot be properly filed in set-off in this action.

Under his power of attorney from the defendant, the plaintiff pledged one hundred shares of the Portland Company stock to the Portland Savings Bank, on May 26, 1866, as security for his note of $7,500 upon which he obtained that sum. In order to get possession of his stock the defendant was obliged to pay the plaintiff’s note, amounting to $7,653, on the 26th Aug., 1866. This item must be allowed in set-off in accordance with the principles before stated. The two items paid for protest, amounting to $4.63, should also be allowed.

In accordance with the foregoing statement, the amount to be allowed in set-off is ($21,747.63) twenty-one thousand seven hundred and forty-seven dollars and sixty-three cents. From this sum there is to be deducted the plaintiff’s claim of $6,119.57, leaving a balance due the defendant of fifteen thousand six hundred and twenty-eight dollars and six cents; and this is the amount on which the defendant is entitled to a dividend from the plaintiff’s estate, so far as that question can be determined in this action.

Appleton, C. J.; Cutting, Danforth, and Tapley, JJ., concurred.