MacHado v. Borges

[502]

SLOSS, J.

The defendants appeal from the judgment. The findings disclose this state of facts: On May 1, 1907, the defendant Borges for a good and sufficient consideration made and delivered to the plaintiff his four promissory notes. Nothing has been paid on said notes and the sum of two thousand six hundred and forty dollars is due plaintiff for principal and interest thereon. On April 20, 1911, Borges obtained a judgment against plaintiff for $945.07 and costs. This judgment was on April 24, 1911, assigned by Borges to defendant Gabriel, his attorney, to secure Gabriel for attorney’s fees and costs incurred and paid in the action in which the judgment was given. The fees and costs have not been paid. Gabriel, when he took the assignment, had no knowledge of plaintiff’s claim against Borges. Borges is insolvent. ’

On these facts the court concluded that plaintiff was entitled to the relief asked by him, viz., that the judgment of Borges against him be offset against plaintiff’s claim on the notes. Judgment was entered accordingly.

By a bill of exceptions it is made to appear that there had been personal service of summons on Machado in the action brought against him by Borges and that Machado did not in said action set up his demand on the four notes by counterclaim.

The judgment here assailed embodies the correct legal result of the facts found.

It is well settled that a court of equity will compel a set-off of mutual demands, where such relief is necessary to enable the party claiming the relief to collect his claim.

(Russell

v.

Conway,

11 Cal. 93;

Hobbs

v.

Duff,

23 Cal. 596.)

The insolvency of the party against whom the relief is sought affords sufficient ground for invoking this equitable remedy.