Broughton v. McIntosh
Supreme Court of Alabama
Writ of error to tho Circuit Court of Wilcox County. APPEAL from a Justice of the Peace. In the Circuit Court, McIntosh declared against Broughton on the money counts, to which the latter pleaded non assumpsit.. At the trial it appeared that McIntosh had paid Broughton twenty dollars, in part payment for building a mill. After this payment, Broughton sued McIntosh for work and labor in building the mill, and recovered judgment for one hundred and fifty dollars.
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Writ of error to tho Circuit Court of Wilcox County. APPEAL from a Justice of the Peace. In the Circuit Court, McIntosh declared against Broughton on the money counts, to which the latter pleaded non assumpsit.. At the trial it appeared that McIntosh had paid Broughton twenty dollars, in part payment for building a mill. After this payment, Broughton sued McIntosh for work and labor in building the mill, and recovered judgment for one hundred and fifty dollars. McIntosh failed or omitted to introduce any evidence of the payment made by him, and did not interpose it as a defence to Broughton’s…
1Opinion of the CourtGoldthwaite, J.
— The charge of the Circuit Court seems to have been predicated on the supposition, that the payment created a right of action, which could be enforced as a set-off against the demand of the party to whom the payment was *104made. There is no question but it would be a good defence in whole or in part, to the action; but the defence would bear no resemblance to a set-off, which may be used, or omitted at the pleasure of the defendant. The payment was an extinguishment joro tanto of the debt, and should have been used as a defence to Broughton’s action. If then omitted, it was the fault of the…
2Cited by7 opinions
- Greenabaum v. ElliottSupreme Court of Missouri · 1875
- Beard v. BeardWest Virginia Supreme Court · 1885
- Binck v. WoodNew York Supreme Court · 1864
- Hinds v. WilesAlabama Court of Appeals · 1915
- Lea v. Branch Bank at MobileSupreme Court of Alabama · 1838
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