St. Louis Natl. Bank v. Gay

McFarland, J. On February 4,1891, defendant, Gay, made and delivered to D. D. Dare two non-negotiable notes, each for two thousand five hundred dollars and interest, and each payable one year after date. On February 24,1891, Dare assigned these notes to the plaintiff. On February 12, 1891, Dare made and delivered to J. M. Collins his negotiable promissory note for five thousand dollars and interest, payable one year after date; and on October 21, 1891, said note to Collins was purchased by and regularly assigned to defendant. At the time of this purchase defendant had no notice that his note to Dare had been assigned to plaintiff; but several [288]months afterwards, on February 1, 1892, he was notified of such assignment; and at the time of such notice the note from Dare to Collins was not quite due, the date of its maturity being February 12,1892. The two notes sued on matured February 4, 1892. The present action was commenced August 1, 1892, several months after all the notes had matured. The defendant pleaded as a counterclaim the said note from Dare to Collins, and the court allowed it and deducted its amount from the judgment in favor of plaintiff. The plaintiff appeals from the judgment upon the judgment-roll; and contends that the court erred in recognizing said Collins’ note as a legal setoff.

The first contention of appellant is that the setoff was not available, because it was not acquired until after the said assignment from Dare to appellant, notwithstanding the fact that it was acquired before notice of such assignment. This contention is based on section 1459 of the Civil Code, which provides that the assignee of a non-negotiable written contract for money or personal • property takes it “ subject to all the equities and defenses existing in favor of the maker at the time of the indorsement.” But section 368 of the Code of Civil Procedure provides as follows: “In the case of an assignment of a thing in action, the action by the assignee is without prejudice to any setoff or other defense existing at the time of or before notice of the assignment; but this section does not apply to a negotiable promissory note or bill of exchange transferred in good faith, and upon good consideration before maturity.” These two sections must be construed as though they “ had been passed at the same moment of time, and were parts of the same statute.” (Pol. Code, sec. 4480.) Section 1459, is not restrictive; and the maxim expressio unius, etc., does not apply to it when considered in connection with said section 368, which became law at the same moment. The two sections are not contradictory; and therefore the rules of construction which aid in cases of contradictory provisions need not be invoked. The one