Allen v. Maddox
Supreme Court of Iowa
Appeal from PolJc District Oourt. Action to foreclose a mortgage, commenced' December 14, 1872. The defendant in his answer, by way of set-off, pleaded that on the 11th day of April, 1867, he sold and delivered to the firm of Smith, Allen & Co., merchandise, for which the sum of $94 still remains due and unpaid.
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Appeal from PolJc District Oourt. Action to foreclose a mortgage, commenced' December 14, 1872. The defendant in his answer, by way of set-off, pleaded that on the 11th day of April, 1867, he sold and delivered to the firm of Smith, Allen & Co., merchandise, for which the sum of $94 still remains due and unpaid. To this answer plaintiff demurred: 1. Because the claim set up in the answer is barred by the statute of limitations. 2. The demand is not upon plaintiff, but upon the firm of Smith, Allen & Co., and therefore not subject to be pleaded as a set-off. The demurrer was sustained, and…
1Opinion of the CourtBeck, J.
I. If the claim pleaded by defendant be either a counter-claim or set-off, it is conceded that, under Kevision Sec. 2752, it is not barred by the statute. It is not asserted that it is a counter-claim, which can only be a cause of action “arising out of the contract or transaction set forth in the petition, as the foundation of the plaintiff’s claim, or connected with the subject of the action.” Nev., Sec. 2888.
*125The demand then must be, if pleadable at all in the action, either a set-off or cross-demand. To determine which of these it is, constitutes the task imposed upon us by this case.
Revisi…
2Cases cited3 opinions
- Ballinger v. TarbellSupreme Court of Iowa · 1864
- Hunt v. Chicago & N. W. R. R.Supreme Court of Iowa · 1868
- Redman & Fear v. Malvin & CloudSupreme Court of Iowa · 1867
3Cited by6 opinions
- Hoaglin v. C. M. Henderson &. Co.Supreme Court of Iowa · 1903
- Council Bluffs Savings Bank v. GriswoldNebraska Supreme Court · 1897
- First Nat. Bank of Indianola v. MaloneCourt of Appeals for the Eighth Circuit · 1935
- Sherman v. HaleSupreme Court of Iowa · 1888
- Linscott v. LinscottSupreme Court of Iowa · 1952
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