Henry S. Mitchell vs. James C. Sellman, 5 Md. 376

Tuck, J., delivered the opinion of this court. The appellee sued the appellant in assumpsit, on ¡he 2nd May 1850. He declared upon, a promissory note of the defendant, to him as payee, dated January 15, 1846, payable at four months, for $S94. The declaration also contained the money counts, and an insimui computassent. The defen. dant appeared at July term, 1851, the first after the process was served, which commenced on the 21st July, and at that term he filed four pleas which are set out in the record, and also notices of accounts in bar. These notices and the second plea were afterwards withdrawn.

The plaintiff joined issue on the first plea, non assumpsit, and demurred generally to the third and fourth. At the same term the defendant prayed leave to file an additional plea, which was granted, whereupon he pleaded actio non accrevit. The plaintiff prayed an imparlance until the next term, at which he entered a ne recipiatur to the plea of limitations, which the court refused to allow, and required him to reply to that plea, W’hich W'as done.

After the pleas had been put in, the plaintiff filed in court two. promissory notes of the defendant to him; one for $894, mentioned in the declaration, and another for $895.69, dated 31st January 1846, at four months. The court having sustained the demurrers to the third and fourth pleas, the parties went to trial upon the pleas of non assumpsit and limitations, and the verdict and judgment being against the defendant, he appealed. We will dispose of the points presented in the order in which they arise on (he record. We are of opinion that the demurrer to the third plea was properly ruled with the plaintiff.

It was merely an offer on the part of the defendant, to set off a debt due to him by Sellman, Musgrove &- Crook, against one due by him to Sell-man individually; which most clearly cannot be done. But we think that the demurrer to the fourth plea should have been overruled.

It avers that before the debt was contracted, for which the note mentioned in the declaration was passed, the defendant had rented to Sellman, Musgrove & Crook, a fishing landing, and that at the time the debt was contracted, it was agreed between the plaintiff and defendant, that (he amount should be deducted from the rents annually accruing from the fishery; and that at the commencement of the suit, these parties owed him more than the amount of the note for which he claimed a set-off. We cannot doubt that this was an available defence.

The plaintiff at the time of the contract, made this agreement with the defendant; why should he not be held to its performance? The pinchases for which the note was given might never have been made, but for this arrangement, as to the mode of payment. If the tenants in settling among themselves, had, under this agreement, paid so much of the rent to Sellman, there could not be a doubt that they would have been discharged pro tanto. If he can be bound, Sellman is equally liable when he seeks to recover the amount of his claim.

Taking the note does not, as between the original parties, vary the principle, in the absence of anything to show that the note merged the original agreement, or was taken as a substitute for it. The justice of the case is apparent, as between the parties, and Sellman, as partner iti the fishery, had authority to arrange with the defendant the mode of paying the rent. It could make no difference to the partners that so much of the rent was to be settled with Sell-man instead af Mitchell. But the question is clear of difficulty upon authority.

Although as a general rule a joint debt cannot be set off against a separate one, nor a separate debt against a joint one, yet, it may be done by express agreement between the parties to that effect. Babbington on Set-Off, 37, (6 Law Lib.,) Collyer on Partnership, sec. 764. 2 Taunt., 170, Kinnerley vs. Hossack, 1 Chiity's Pl., 571. Bourne vs. Benett, 4 Bing., 423. Lovel vs. Whitridge, 1 McCord, 7. 7 Wendell, 326. Story on Partnership, sec. 395. Several objections to this plea were taken by the appellee’s counsel, which we think, cannot be sustained. No new consideration was necessary for the agreement.

It was not a new one made after the note was given. This mode of payment was provided for in the original transaction. If the defendant had at that time paid Sellman by an order on the firm for so much of the rent, could it be said that the order was nudum pactum9 No averment of readiness to perform the agreement, on the part of die defendant, was necessary. There was nothing for him to do. The parties had rented the landing. The agreement between plaintiff and defendant was an application of so much of the rents; and all that Sellman had to do was to credit the rents on the note, as they became due.

The legal import of the plea is that the note was paid, and so much of the rent also discharged. It is not a case of unliquidated damages. The amount of the note and'the rent due, are clearly stated-, and, looking to the plea itself, it leaves nothing to be ascertained. The objection that the plea relates only to one of the notes-cannot avail. It answers all that it professes to answer. There is only one note declared upon.

If the other can be said to be-in the record, merely from being filed in the cause, it was not on file when the pleas were put in. “Every plea must answer the whole declaration or count; or rather all that it assumes, in the introductory part, to answer, and no more. If a plea begin as an answer to part, and is, in truth, but an answer to part;, as if a defendant, in trespass for taking two sheep, plead that the plaintiff ought not to have his action as to one, because he took that one doing damage on his close, it is sufficient as far as it extends.” 1 Chitty's Pl., 523.

The objections as to want of d'efence and prayer for judgment do not apply to this plea,. Whether they can be sustained against the third plea we need not enquire,.as- that demurrer was ruled good on another ground. The next question arises on the plaintiff’s exception to the refusal of the court to strike out the plea of limitations. As the verdict and judgment were for the plaintiff, and he has not appealed, this exception is not necessarily before us. But as the record will be remanded, it is deemed proper to pass upon the point decided below.

The ruling of the court is not inconsistent with the rules of court set out in the record. This plea will not be received after the rule day has passed, unless the declaration be amended. But here the lime for pleading had not expired. At the term at which the first four pleas were filed,, the defendant obtained leave to file an addiSional plea. At this time he was not under rule io plead. In the case of Gardiner vs. Miles, 5 Gill, 94, the court held that the filing of additional pleas was not an abandonment of those previously on the record.

Here the question is, whether the plea of limitations can be filed as an additional plea, with the leave of the court, within the time that the rules would have allowed if he had not filed any pleas before, but had been put under rule plea to the first plea day after appearance? The terms of the rules sanction what was done, as we think. This not being a plea to the merits, is more rigidly dealt with than some other defences.

The restrictions imposed, however, are not to be extended by construction, beyond the terms employed, especially in a case where it does not appear that the plaintiff has suffered by the course pursued. This exception is affirmed. The first exception on the part of the defendant presents a question as to the admissibility of a lease and a modification thereof, offered by the plaintiff.

After the plaintiff had proved by witnesses, Wilson and Sellman, certain declarations on the-part of the defendant in reference to his debts to the plaintiff, and his claim for rent against a firm of which the plaintiff was a member, the defendant proved by Mr.

Carpenter that the plaintiff had said that the rent was $700 per annum, whereupon the plaintiff offered the paper set out in the exception “for the purpose of showing that the amount of rents was subject to certain deductions, and that said rent was payable by the lessees therein named,” to which the defendant objected; but the evidence was admitted by the court. It is settled as a rule of evidence, that improper testimony offered on one side does not justify the introduction of irrelevant matter by the other party. Walkup vs. Pratt, 5 H. & J., 56.

We do not perceive what connection there was between this proof offered by the plaintiff and the issues in the cause. The same is true of the evidence of Carpenter. The pleas were non assumpsit and limitations. The amount of the rent had nothing to do with these issues nor with the case, inasmuch as the court had sustained the plaintiff’s demurrer to the plea, proposing to rely on an agreement between the parties as to the application of these rents to the debt sued on. If issues had been framed on that plea, (his evidence on the part of the defendant and that offered by the plaintiff would have been admissible.

This ruling of the court we must therefore reverse. The second exception taken by the defendant raises two> questions upon the statute of limitations: — 1st, as to the sufficiency of the declarations of the defendant, proved by Wilson, in relation to the note for $>894; and 2nd, as to those proved by Sellman in relation to both notes offered in evidence. The defendant said to Wilson that the first note was correct, but he could not pay it out of the money due by the witness to him, (as witness had proposed,) as he had other uses for said money.

In the same conversation the defendant added, that thertf were unsettled accounts between plaintiff and him, and he did not know how much he would owe plaintiff on a settlement; but he said nothing about any rent being due to him from plaintiff.” These admissions place this part of the case within the reason of the third rule laid down in Oliver vs. Gray, 1 H. & G., 216, 217. They import a present subsisting debt, but accompanied by declarations, which, if true, exempt the defendant from a moral obligation to pay.

If there were unsettled accounts between the parties, equity and good conscience did not oblige him to pay this note without his credits being allowed. The evidence does not show what was the character of these unsettled claims. They may have been such as were barred by limitations, and if so, the defendant might be subjected to the very risks mentioned by the Court of Appeals — the probability of the creditor’s availing himself of the acknowledgment but rejecting the qualification. The plaintiff must take the admissions of the debtor as (hey are made.

He cannot disprove them so as to take the benefit of such portions as are favorable to his case and avoid the effect of other portions. We think that the meaning of these statements is, that the defendant had executed the note, but he did not then acknowledge it as a debt, because there were unsettled accounts between the plaintiff and himself, the state of which he did not know. The evidence of Wilson, for these reasons, was insufficient, for the purpose for which it was offered. We entertain a different opinion, however, as to the evidence of Alexander Sellman.

According to his statement the defendant “admitted that both notes were due and unpaid, and then and there said he would settle said two notes, provided he was credited with the rents due to him for his fishing shore by Musgrove & Co., of which concern the plaintiff was a member; that the plaintiff was willing to settle said rents in the way proposed, but he and defendant could not agree on the amount due by said firm for rents, because plaintiff claimed to charge certain expenses against the rents, which defendant would not allow, (and which the witness specifies.”) The decisions in Maryland upon this question are reviewed in Ellicott vs.

Nichols, 7 Gill, 96, (he result of which is that there must be a promise, express or implied: ^Tt is not the mere acknowledgment of a subsisting debt which removes the bar.

Where a debt is admitted to be due the law raises a promise to pay it: and it, is this new promise, either made in express terms or deduced from an acknowledgment as a legal implication, which is to be regarded as reanimating the old promise or as imparting vitality to the remedy.” “If a party admits a debt to be due, but at the same time refuses to pa}' it, upon insufficient grounds, the law will raise a promise to pay it, in invitum, and against the will of the debtor.” In such cases the question is not as to the intent of the debtor in using the words on which the creditor relies as evidence of the new promise, but what

interpretation does the law place upon them? for it seems that he may be held liable against his will to re-assume the responsibility of the debt. Applying these principles and the third and fourth rules stated in Oliver vs. Gray, we do not perceive how the defendant can avoid the claim of the plaintiff. He admitted that both notes were due and unpaid, and said he would settle them upon the terms proposed by himself.

The case is expressly within the words of the decisions referred to so far as the acknowledgment goes; and the only question is, whether the subsequent expiessions as to the ¡node of payment can be construed (o be a refusal to pay on sufficient grounds? The debt due by Musgrove & Co. to the defendant was not the subject of set off against this claim in the absence of an agreement to that effect. If he had placed his demand for that mode of settlement on the ground of an agreement between himself and Sellman, one of the partners, that one should be set-off against the other, the case would have been different.

There would then have been no moral obligation on him to pay the note while his creditor was refusing to carry out an agreement as to the mode of payment. According to the admission the note was due and unpaid. If so, it made no difference in point of law whether Musgrove & Co. paid their debts or not. By the law his was to be paid without reference to theirs. The partnership creditors were entitled to be paid first to the extent of assets; but, by the condition annexed to his promise he requires to be paid in full, or at least without reference to the sufficiency of the joint property to pay other joint debts.

The debtor has no right to qualify his promise by-annexing any condition or assigning any excuse he may choose. It must be one that the law deems sufficient. In Frey vs. Kirk, 4 G. & J., 509, the debtor admitted that the cause of action was unpaid, but said he had been discharged by the insolvent laws. The court held that this was not the admission of a subsisting debt, but a denial of its existence, because the law had discharged it. But in Keplinger vs. Griffith, 2 Gill & Johns., 296; Brookes vs. Chesley, 4 Gill, 205; Carter vs.

Cross, 7 Gill, 43; it was held that the qualifications accompanying the admissions of the debt were not of such a character as avoided the legal effect of the acknowledgment. Upon the whole we are of opinion, that the terms proposed by defendant, even if rejected by the plaintiff, furnished no valid objection to the payment of the notes. We approve of the ruling of the court as to the evidence of Sellman, but dissent as to that of Wilson; and if the prayer as offered had been rejected, merely, the exception would have been affirmed.

But the court, without discriminating between the witnesses, instructed the jury that the evidence was sufficient to remove the bar of the statute as to both notes. The instruction submitted to the jury the evidence of both these witnesses, when, as we have said, that of Wilson was insufficient. We therefore reverse the judgment on this exception. Judgment reversed and procedendo awarded.