Case v. Maxey
Before: Murray
Synopsis
It is no defence to a note, given by one partner to the other, for his interest in land held jointly by both, that the payee of the note had deceived his partner, the maker, in the division of partnership stock, and was indebted therefor in an amount equal to, or greater than, the sum due on the note.
As such a division has nothing to do with the consideration of the note, it cannot be set up as a counter claim or defence to the action on the note.
If the defendant has been deceived in the division of the stock, he should file Ms bill for a discovery and account.
When such a defence was set up in the answer in an action on the note, Held that all of the answer, except that portion admitting the execution of the note and denying the indebtedness, was properly stricken out.
The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Terry concurred.
The order of the Court below striking out a portion of the answer was proper, as it was no defence to the action.
It is not alleged that the note sued upon was given in payment for a division of the cattle; on the contrary, it appears that it was given for the defendant’s interest in the ranch and money expended in bringing the cattle across the plains.
If the plaintiff has been deceived in the division of the stock, as he alleges, he should file his bill for a discovery and account; but as such division had nothing to do with the consideration of the note sued on, it cannot be set up as a counter claim, or equitable defence to this action.
When this case was here before, this point was not made, and the judgment was reversed on account of the insufficiency of the referee’s report.
Judgment affirmed.
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