Harman v. Bannon

Irving J., delivered the opinion of the Court. The appellee sued the appellants upon a promissory note for three hundred and fifty-four dollars and fifty cents, dated the first day of April, 1886. The note was executed and delivered to Philip H. Watts, who brought suit thereon, and was afterwards legally declared to he a lunatic. Michael Bannon was appoiirted his committee, and by leave of the Court, was made party plaintiff in the suit.

To the 'narr. the appellants pleaded, among other things, ⁴²⁷ that the plaintiff is indebted to the defendants in an amount greater than the plaintiff’s claim, which they are willing to set off against the plaintiff’s claim; and the only question in the Case arises on that plea. The plaintiff called the defendant, Darius Harman, as a witness, who testified that the note was actually signed five days after its date, and that the consideration therefor was 134-2 cords of wood at §1.55 per cord, a lot of tobacco at §84.00, and a liorse-cart for §5.00. He testifies that these articles were all bid off at a public sale, (made by M. Baimon, professing to act as agent of Philip H. "Watts,) of which no memorandum was made; and at the time no money was paid, or any of the property delivered; that subsequently he saw Watts, who agreed that appellants should be permitted to convert all this wood into charcoal on his, Watts’ land, whereupon the defendants signed the note; and he would not have signed it without such agreement: that subsequently he built two charcoal pits with the wood on Watts’ land, and was then driven off and refused permission to coal the wood; and he was compelled to haul it off and sell it at great loss, he having already contracted for the sale of his coal at a considerable advance on the price per cord he paid lor the wood.

Other witnesses also testified that Watts told them of his agreements to let defendants coal his wood on his land, and proved the refusal afterwards to permit it, and testified as to the extent of the loss defendants had suffered. Upon this state of facts the appellants asked the following instruction: “If the Court find from the evidence, that the note sued on was given for a lot of cord-woocl. and tobacco and a cart, purchased from Philip Watts; and shall further find that at the time of giving the note sued on, it was understood and agreed between the defendant, Darius Harman, and Philip Watts, that the said Harman should be allowed to convert into charcoal' ⁴²⁸ the wood so as aforesaid purchased, on the premises of said Watts; and shall further find that the said Harman was prevented by said Watts from converting said cord wood into charcoal, that then the ’defendant is entitled to off-set or recoup against the plaintiff’s claim such sum as the Court may find the defendant, Darius Harman, lost by reason of such prevention.” The case was tried before the Court without the intervention of a jury, and the Court rejected this prayer, and found for the plaintiff for his whole claim. The plaintiff asked no instruction. The onty question, therefore is, was this prayer properly rejected?

According- to the plaintiff’s own proof, the giving of the note for the wood, and the agreement that the wood might be made into coal on the payee’s land, were part of the same transaction, and the agreement that the wood might be coaled on the payee’s land, was the inducement to the appellants agreeing to pay the price for the wood which was stipulated for