Stevens v. Lunt , 19 Me. 70 ( 1841 )

The opinion of the Court was delivered by

Weston C. J.

It is assumed in argument, that the plaintiff knew of the assignment of the demands of Lunt and Bradley to Lunt, and that he promised to pay him either expressly or by implication. But there is nothing in the case, which proves that the plaintiff had notice of such assignment. It does not appear in the advertisement of the dissolution of the firm, and Bradley testifies that he gave him no such notice. It is insisted that the owners of the schooner Paragon, being tenants in common, the defendant, upon his account in offset, may be allowed for his part of the advances. But they were made by Lunt and Bradley as a firm, and from their partnership funds, and the plaintiff, if liable at all, must be liable to them as partners. ' If, knowing of the assignment, he had promised to pay Lunt, he would have been answerable to him alone, and not otherwise. Mowry v. Todd, 12 Mass. R. 281.

The offset filed, being not in the name of the defendant alone, but of himself and another, cannot regularly be made available as an offset under the statute. If it had had any connection whatever with the demand in suit, so as to place them in the condition of mutual credits; its allowance might hate been equitable. But it grew out of transactions altogether independent. Whether due or not, depends upon the adjustment and liquidation of other accounts between the parties. The account by which this offset may be balanced, is not before the court. It is quite apparent that the defendant never relied upon it as a matter entitling him to be discharged from the demand in suit. If he had, instead of giving his actíeptance to the plaintiff, four years after the demand filed in offset had accrued, to be held as outstanding against him, he should only have given him a receipt for so much money on account; but he accepted to pay absolutely, and actually made partial payments. And it appears to Us, that the offset, upon which the defendant insists, is neither sustained by the law or equity of the case.

Judgment on the verdict.