Kelly v. Fahrney

Citations

• 123 F. 280
• 59 C.C.A. 298
• 1903 U.S. App. LEXIS 3991

Syllabus

<p>1. Assumpsit—Defense Admissible under General Issue.</p> <p>In an action of assumpsit defendant may show, under a plea of the general issue, that plaintiff by his own act prevented defendant from performing the contract sued on, and the fact that such act amounted to a fraud does not require it to be specially pleaded, since the fraud is not of the essence of the defense.</p> <p>3. Contract—Action for Breach—Defenses.</p> <p>Plaintiff and defendant, who were both stockholders in a corporation, entered into a contract by which defendant agreed, for a consideration to be rendered by plaintiff, to transfer to him a stipulated amount of stock in the corporation. All the stock which defendant owned, excepting two shares, had been obtained from plaintiff, as the latter knew, and the certificate of transfer had not been recorded as required by the law of the state where the corporation was organized, which provided that, unless so recorded, the transfer should be void as against creditors. EelcL, that proof that plaintiff, before he became entitled to the stock under the contract, procured an action to be brought against himself by a creditor, and all the stock owned by defendant, except the two shares, to be attached and sold to pay his own debt, constituted a good defense to an action by plaintiff for failure to deliver the stock under the contract.</p>