St. Louis Natl. Bank v. Gay

Citations

• 101 Cal. 286
• 35 P. 876
• 1894 Cal. LEXIS 1027

Syllabus

<p>Assignment of Non-negotiable Paper—Subjection to Equities—Notice of Assignment—Setoff.—The maker of non-negotiable notes which have been assigned by the payee to a third party may set off against them the note of the payee which he has purchased before notice of the assignment of the notes executed by him.</p> <p>Id.—Construction of Code.—Section 1459 of the Civil Code, which makes an assignment of non-negotiable paper subject to all equities and defenses existing in favor of the maker at the time of the indorsement, is not restrictive, and must be construed in connection with section 368 of the Code of Civil Procedure, which declares that “ the action by the assignee is without prejudice to any setoff or other defense existing at the time of or before notice of the assignment.” These two sections are not contradictory, and the rule of construction, that the expression of one thing is the exclusion of another, does not apply to the former section when considered in connection with the latter, which became law at the same moment.</p> <p>Id.— Setoff—Independent Contract—Recoupment—Counterclaim.—■ “Setoff” differs from “ recoupment” in that it is more properly applicable to demands independent in their nature and origin, while recoupment implies a cutting down of a demand by deductions arising out of the same transaction; and “ counterclaim” as used in the code includes both recoupment and setoff.</p> <p>Id.—Maturity of Setoff After Notice of Assignment.—A note may be claimed as a setoff though not due at the time the defendant received notice of the assignment of his notes to the plaintiff, if it became mature before the commencement of the action by the plaintiff.</p> <p>Id.—Rights oe Debtor—Counterclaim. — A debtor may fortify himself against the coming suit of his creditor by the purchase of any cross demands, which may be counterclaimed when that suit shall come, and between them an assignee has no standing until he shall have given notice of the assignment.</p