Lemon v. Stevenson

Citations

• 36 Ill. 49

Syllabus

<p>1. Set-off — there must be mutuality as to panties. In an action upon a promissory note against several, it was pleaded that one of the makers of the note had shipped to the owners of the note, a lot of corn, to he sold by them at a stipulated time and place, and the net proceeds to be applied to the payment of the note; that they sold the corn at a different time and place, by reason of which a heavy loss was sustained, and the damages thus resulting were sought to be set off against the note. Held, that the damages being due to one of the defendants alone, there was no mutuality in the demand, and they could not, therefore, be set off against the note.</p> <p>.2. Same — subject matter of set-off must be due. But even if the damages had accrued to all the defendants, it must appear that, by the terms of the agreement, they were due, or they could not form the subject of set-off.</p> <p>3. Pleadings — taken most strongly against the pleader. Where the language of a plea is doubtful in its meaning, the most unfavorable construction must be adopted against the pleader. He is always presumed to state his ease as strongly in his favor as it will bear.</p> <p>4. Same — averments, in a plea of set-off. Where a defendant seeks to set up unliquidated damages as a set-off, he must allege that they are due and unpaid. In the absence of such averment, it may well be considered that the damages have been paid and satisfied, or may have been released or otherwise discharged.</p>