Moody v. Willis , 41 Miss. 347 ( 1867 )

Harris, J.,

delivered the opinion of the court.

Willis sued Moody on a special contract for $1000, for superintending the building of the court-house at Canton, as architect.

The declaration was in the name of Willis; at the foot of the declaration a memorandum appears, signed by counsel for plaintiff, stating that the action is brought for the use of Willis’s wife. On the back of the agreement sued on there appears an endorsement, assigning to Mrs. Willis, for a valuable consideration, all plaintiff’s right, title, and interest to said contract or agreement, dated 23d October, 1866. On the trial, when plaintiff offered to read this contract — without the endorsement thereon — to the jury, the defendant objected; this objection was overruled by the court, and agreement read. Defendant did not then read or offer to read the assignment on the back of said contract, to the jury, but relied on his objection to said contract made to the court, that by the endorsement on this contract, the legal title to said agreement was transferred to his wife, and no action could be maintained thereon in his name.

The court ruled correctly on this subject. The plaintiff had a right to read so much of said paper as established the contract sued on. An assignment on the same paper, transferring to another the plaintiff’s cause of action thereon, was a matter of defence, under proper pleadings, to be established by the defendant; and it was his duty, therefore, if he designed to rely on such transfer, at the proper time to read, or offer in evidence, such transfer, in support of his defence. Having failed to show that the assignment was read, or offered in evidence, on the trial, he cannot here insist on this point as ground of error.

Another ground of error relied on here is the judgment of the court sustaining plaintiff’s demurrer to defendant’s plea of offset.

The offset relied on was a judgment or decree of the Chancery Court in favor of defendant Moody against plaintiff Willis and another, for a much larger sum than was claimed by plaintiff'in this action. The-pleawas in all respects formal and regular, specially describing the judgment relied on as an offset, and filing a copy thereof.

To this plea there was a demurrer, because the plea was no defence to the action ; and 2d, because the joint decree cannot be set off in this action.

It is clear that under our system, there was perfect mutuality, as between Moody and this defendant, as to the matter stated in the plea of set-off. It was a several indebtedness of Willis to Moody — although there was another defendant bound to Moody also, by the decree. That another party also owed the same amount to Moody, does not destroy the several character of the indebtedness, or destroy the mutuality of indebtedness as between Willis and Moody.

If the.action had been in favor of two plaintiffs, and the indebtedness of one plaintiff to the defendant relied on, this would have been a want of mutuality in the demands; or if the action had been by Willis alone against Moody and another defendant, and the offset relied on had been in favor of one defendant alone, there would have been a want of mutuality. The reason upon which the rule of mutuality is founded, is an obvious one — it is to avoid outside issues and to promote finality in legal proceedings. To allow one defendant, when jointly sued with another, to bring into litigation in the same suit his individual private transactions with the plaintiff, would be to multiply issues ; and when the suit was determined between the plaintiff and defendants, to leave for another settlement or law-suit the adjustment of accounts between the defendants, growing out of tbe preceding suit. And so, when there are several plaintiffs and one defendant, the indebtedness of one of the plaintiffs to the defendant is not mutual, so far as the other two plaintiffs are concerned.

It was error therefore for the court to sustain the demurrer to this plea. And the demurrer should have overruled for this error. Let the judgment be reversed, and cause remanded for further proceedings.