Toppan v. Jenness
Superior Court of New Hampshire
Assumpsit, for goods sold,and delivered. The defendant, with the general issue, gave a notice of set-off. There was no controversy as to the plaintiff’s claim. One of the items of set-off, was an order for twenty-five dollars, drawn by one Dennet,-upon the plaintiff, in favor of the defendant, dated December 8,1847, and accepted by the plaintiff in writing, as follows : “ December 25,1847. Accepted, payable when four bureaus are ready and delivered in Portsmouth.
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Assumpsit, for goods sold,and delivered. The defendant, with the general issue, gave a notice of set-off. There was no controversy as to the plaintiff’s claim. One of the items of set-off, was an order for twenty-five dollars, drawn by one Dennet,-upon the plaintiff, in favor of the defendant, dated December 8,1847, and accepted by the plaintiff in writing, as follows : “ December 25,1847. Accepted, payable when four bureaus are ready and delivered in Portsmouth. S. Toppan,” The action was commenced on the first day of January, 1848. There was conflicting evidence as to the point whether four…
1Opinion of the CourtBell, J.
The Revised Statutes, ch. 187, § 10, p. 376, seem to us entirely decisive as to the question whether the defendant could avail himself of the order of Dennet and the plaintiff’s acceptance, as a set-off. “ No debt or demand shall be set off as aforesaid unless a right of action existed thereon at the commencement of the plaintiff’s action.” The right of action upon the acceptance, depended entirely upon the fact whether the condition, upon which the acceptor had agreed to pay, was performed or not; and as no right of action could exist till then, if; could not be set off by the terms of the…
2Cases cited1 opinion
- Pemigewasset Bank v. BrackettSuperior Court of New Hampshire · 1829