Collins v. Waddle
Supreme Court of Missouri
In support of the error assigned in this case, the pltf. relies on Chittyon Bills, p. 126-7, 8, 9, 30, and notes. The defendant in error contends that the set-off is not 'allowable — 1. Old Rev. code, p. 143, sec. 1, shows that ■there is no set-off allowable, when the note is payable “without defalcation,” so that this plea is prohibited by the statute. 2. But if this were not so, the set-off could not be allowed, because the defendant Collins, has agreed that it should not…
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In support of the error assigned in this case, the pltf. relies on Chittyon Bills, p. 126-7, 8, 9, 30, and notes. The defendant in error contends that the set-off is not 'allowable — 1. Old Rev. code, p. 143, sec. 1, shows that ■there is no set-off allowable, when the note is payable “without defalcation,” so that this plea is prohibited by the statute. 2. But if this were not so, the set-off could not be allowed, because the defendant Collins, has agreed that it should not be claimed. The words “without defalcation” mean that he would not claim a set-off; and it is against his own formal…
1Opinion of the Court
Opinion of the court delivered by
McGirk Judge*
Waddle brought an action by petition and summons, Statement of the 1ft the circuit court of St. Louis county, against Collins caKe' on an assigned note. The petition states, that on 21, day *453of October 1833, the defendant made the note, whereby hé promised on the 1st May 1834, to pay to John Darniel or order, five hundred and fifty dollars, negotiable and payable in Br. B. U. S. at St. Louis, without defalcation. That on the 9th May 1835, Darniel assigned the note to William J^yers. That on 26 th May 1836, Myers assigned the same to Waddle.…
2Cited by2 opinions
- Cutler v. CookSupreme Court of Missouri · 1883
- Hunleth v. LeahySupreme Court of Missouri · 1898