Opinion
No. 3139.
Decided April 15, 1940.
Waiver cannot confer jurisdiction of the subject-matter where it does not exist, though irregular procedure, in a court having jurisdiction of the subject-matter, may be waived.
A defendant, in anticipation of suit against himself by a foreign corporation on an undisputed debt, took an assignment from another non-resident whose claim the defendant then knew to be unliquidated and in dispute between his assignor and the corporation. The defendant having made himself assignee of the claim for the apparent purpose of forestalling the collection of the debt has no right of equitable set-off.
ASSUMPSIT, to recover a balance of $586.41 upon a specification for goods sold and delivered. The case was heard by a referee. At the trial the defendant admitted the correctness of the plaintiff's specification, but claimed the allowance of a set-off. The set-off is based upon an alleged debt due from the plaintiff to Harry Bronstein, a brother of the defendant. Two days prior to the date of the plaintiff's writ, Harry assigned this claim to the defendant. It is unliquidated and disputed.
The referee found certain facts incorporated in a preliminary report. Pending such further hearing as may be required, the referee recommended a transfer here of two questions: (1) whether the alleged claim of Harry Bronstein can be used as a set-off against the admitted debt of the defendant to the plaintiff, and if so (2) to what extent the referee should state the account if he should find that the amount due from the plaintiff to Harry exceeds that due from the defendant to the plaintiff. These questions have been transferred without ruling by Johnston, J.
The plaintiff is a New York corporation not doing business here. Harry Bronstein is a resident of Massachusetts. The defendant is a resident of New Hampshire.
Sullivan, Dolan Dudley (Mr. Dolan orally), for the plaintiff.
Samuel A. Margolis, by brief and orally, for the defendant.
It is suggested, though without the record, that counsel for the plaintiff consented to the hearing of the set-off and waived all objections to the court's jurisdiction in that respect. Irregular procedure in a court having jurisdiction of the subject-matter may be waived by a party. Kimball v. Fisk, 39 N.H. 110; Harris v. Parker, 66 N.H. 324. But waiver cannot confer jurisdiction of the subject-matter where it does not exist. Little v. Dickinson, 29 N.H. 56, 61; State v. Kennison, 55 N.H. 242; Mansfield v. Holton, 74 N.H. 417,421. The question of the jurisdiction to pass upon the set-off is before us.
The defendant relies upon the case of Arcadia Knitting Mills, Inc. v. Company, 89 N.H. 188, as authority for his contention that he is equitably entitled to maintain his claim for a set-off. In the case cited it was held that equity and justice required the court to take jurisdiction of a set-off against the plaintiff, a foreign corporation not doing business in New Hampshire, hence not subject to service here. The set-off was an unliquidated claim of the defendant against the plaintiff, and the rights and dealings of no third party were involved. The equitable ground for permitting the litigation of the set-off was the hardship to the defendant of pursuing his remedy in a foreign jurisdiction after the plaintiff had invoked the jurisdiction of the defendant.
In the case now presented, the set-off was not originally a claim of the defendant against the plaintiff, but that of the defendant's brother, a stranger to the controversy upon which this action was brought. With apparent design to help this stranger and to embarrass the plaintiff in the collection of an undisputed claim, the defendant immediately prior to the beginning of suit took from his brother an assignment of a claim against the plaintiff which the defendant then knew to be in dispute.
If Harry had desired to bring an action on it, he would have had to go to New York. As far as the set-off is concerned, the defendant has no more equitable right to invoke the jurisdiction of our courts than was possessed by Harry. It is no more a hardship for him to sue in Harry's name in New York than it would have been for the assignor in whose shoes he stands. In this case the equities lie with the plaintiff.
Since the answer to the first question is, no, the second question requires no consideration.
Case discharged.
All concurred.