Opinion
October, 1895.
L.B. Bunnell, for appellant.
Lippmann Ruck, for respondent.
The plaintiff brings this action to recover of the defendant the amount due to him as assignee of Benedict Fowler for goods sold and delivered.
Upon the trial the defendant withdrew from consideration every defense except an alleged claim for imperfect goods, goods returned, and the sum of $462, which she claimed she had paid the plaintiff's assignors prior to the date of the assignment.
It appears from the evidence that about November 20, 1894, H.W. Benedict, one of the plaintiff's assignors, obtained from B.W. Williams his promissory note for $462, dated November 20, 1894, payable to the order of Benedict Fowler two months after said date, which he indorsed in the firm name and took to S.A. Friedline, the defendant's manager, and asked him to negotiate the sale of the same.
Mr. Friedline took this to August Kohn, who, upon the defendant's guaranteeing the payment of the note at its maturity, advanced the amount thereof.
The note was not paid by the maker and the defendant paid it about the 24th day of January, 1895.
This is the history of the transaction which constitutes the basis of the defendant's counterclaim of $462 and the right of set-off against the demand of the plaintiff herein.
It appears in the evidence that in one of her answers herein the defendant made this note the basis of a counterclaim as one of her defenses to the cause of action set forth in the complaint.
The records of this court show that the plaintiff demurred to that defense on the ground that it was insufficient in law on the face thereof, and that on the 31st day of January, 1895, the demurrer was sustained.
It is clear from an examination of the evidence in this case that the set-off alleged in the fifth paragraph of the defendant's answer is founded on the promissory note.
Respondent's counsel by his brief admits it, but contends that the law is not as claimed by the appellant.
It is also admitted and the evidence shows that this note was not due and payable at the time of the making of the general assignment herein, but long after.
It is well settled, however, that in an action by an assignee the defendant cannot offset a note made by the assignors which fell due after the assignment of the subject of the action was made.
This defendant then had no right to offset this note against the demand in suit.
An allowance to a party by way of offset is always founded on an existing demand in presenti and not one that may be claimed in future. Martin v. Kunzmuller, 37 N.Y. 396; Fera v. Wickham, 135 id. 223, 228, 229; Myres v. Davis, 22 id. 489.
The case of Maas v. Goodman, 2 Hilt. 275, cited by the respondent, is not the law, nor does the case of Chance v. Isaacs, 5 Paige, 592, aid the respondent, for both of these cases are overruled. (See Martin v. Kunzmuller, 37 N.Y. 402, 403.)
At page 403, DAVIES, Ch. J., says: "We have held that if at the time of the assignment the defendant has no present debt due and payable by the assignor, he has no set-off and that he cannot set off against a debt due and payable by him to the assignor a debt of his which matures afterwards."
The trial judge erred in permitting this offset to be considered by the jury, and the judgment is, therefore, reversed and a new trial granted, with costs to the appellant to abide the event.
VAN WYCK, Ch. J., and FITZSIMONS, J., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.