Gourley v. Walker
Supreme Court of Iowa
Appeal from Montgomery Circuit Court. Action upon an account brought before a justice of the j eace. The defendant pleaded a general denial, and also a counter-claim for money which the defendant alleged was due him as executor of the estate of one Edward Walker, deceased. The plaintiff moved to strike out the counter-claim. The justice sustained the motion. The parties then proceeded to trial upon the plaintiff’s claim, and judgment was rendered for the plaintiff.
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Appeal from Montgomery Circuit Court. Action upon an account brought before a justice of the j eace. The defendant pleaded a general denial, and also a counter-claim for money which the defendant alleged was due him as executor of the estate of one Edward Walker, deceased. The plaintiff moved to strike out the counter-claim. The justice sustained the motion. The parties then proceeded to trial upon the plaintiff’s claim, and judgment was rendered for the plaintiff. The defendant then sued out a writ of error from the circuit court to test .the correctness of the ruling of the justice in…
1Opinion of the Court
Adams, Ch. J.
In our opinion the circuit court erred. The defendant, in pleading as a counter-claim the debt due to his testator’s estate, undertook to set off the debt due the estate in discharge of his own liability. It is evident that lie cannot be allowed to discharge his liabilities in that way. Any agreement which he .might make for the discharge of *81Ills liability in consideration of the discharge of the plaintiff’s liability to the estate would not be valid. The plaintiff would remain liable to the estate. It has been held repeatedly that a partner has no power to apply firm assets in…
2Cited by3 opinions
- Countiss v. WhitingAppellate Court of Illinois · 1940
- Headington ex rel. School Fund v. SmithSupreme Court of Iowa · 1901
- Sanford v. FossMissouri Court of Appeals · 1894