1887 GREENE v. HARRIS. Gwynne J. tain prescribed specifications, and to be delivered at certain times, at certain prices to be paid as in the agreement specified, and the plaintiff then deposited with the defendant a sum of about $5,000 as a security for the due fulfilment of the contract upon his part. On the 2nd March, 1880, they had entered into an agreement for the building by the defendant for the plaintiff of 50 platform cars, to be delivered at certain times and for certain prices in the agreement specified. In the year 1882 both parties insisted that the agreement of July 3rd, 1880, had been violated by the other, and they instituted, upon the same day, as is said, proceedings in the Supreme Court of the Province of New Brunswick each against the other. The above plaintiff filed his declaration in the action commenced by him on the 13th September, 1882, and in the first count of that declaration he set out certain breaches of the agreement of the 3rd of July, 1880, which he alleged had been committed by the defendant, and in the second count he set out certain breaches of the agreement of the 2nd March, 1880, which he also alleged had been committed by the defendant. The declaration contained a third count upon the common money counts. On the 25th of October, 1882, the defendant pleaded several pleas in answer to the alleged breaches set out in the first and second counts, and to the third count he pleaded "never indebted," and a set-off for work and labour and materials furnished, goods sold and delivered, goods bargained and sold, money paid, laid out and expended, etc., etc., etc. Nothing, so far as appears, was done in the above action during the remainder of the year 1882 or in 1883; and it was probably because of delay upon the part of the plaintiff in prosecuting that action that Harris, upon the 12th June, 1883, filed his declaration in the action brought by him against Greene. In that declaration he relied upon certain matter which, as he contended, were breaches committed by Greene of the agreement of the 3rd July, 1880; his declaration contained also a common indebitatus count for matters identical with those which he had pleaded by way of set-off to the action brought by Greene against him. By a bill of particulars in this action, Harris furnished a debtor and creditor account, commencing on the 16th September, 1881, and terminating the 11th September, 1882, on the debit side of which he seems to have charged for all the work, etc., of making the carriages contracted for by the agreement of the 3rd July, 1880, and for other work, which consisted partly of extra work upon those carriages beyond what the specifications called for, and partly of other work wholly dehors the contract, amounting in the whole to.. and he gave credit on the credit side for. .$26,885.66 23,116.97 .$3,768.69 The amount for which Greene was entitled to credit under the agreement of the 3rd July, 1880, was $17,000.00, so that the above balance claimed by Harris was so claimed as due to him wholly independently of the agreement of the 3rd July, 1880, and was recoverable only under the common indebitatus count of his declaration. To this declaration Greene, upon the 19th October, 1883, pleaded specially to the first count and “never indebted” and payment to the second count. The action of Greene v. Harris came on for trial in March, 1884, and at the trial Harris offered no evidence in support of his plea of set-off, although under that plea he might have given evidence of every sum recoverable under the indebitatus count of his declaration in his action against Greene; a verdict appears to have been rendered in favour of Greene for $160 damages upon the first count of his declaration, and by the verdict leave was reserved to him to move the court to increase the verdict by the sum of $4,500 on the common count if the court should be of opinion that Greene was entitled to that sum. This sum appears to have been claimed in respect of the deposit by way of 1887 GREENE บ. HARRIS. Gwynne J. 1887 GREENE v. HARRIS. Gwynne J. security placed in the hands of Harris by Greene, which could be recoverable only if the payments agreed to have been made by Greene had been made. It thus appears that at the time of the rendering of this verdict Harris voluntarily abandoned a legal right, which he had and which, of course, it was competent for him to abandon if he pleased, of claiming under his plea of setoff whatever sum was recoverable by him under the common indebitatus count in his action against Greene. That sum, whatever it was, was the subject of a legal set-off. The above verdict in Greene v. Harris was rendered some time in March, 1884, and on the 19th April, 1884, Greene in consideration of the sum of $5,000, then due by him to one Lynott, assigned to Lynott the money due from Harris to Greene, for which the above verdict had been rendered, "and also the sum of money on deposit in the hands of Harris, which was sued for in the said cause, and for which leave was reserved to move the court to increase the verdict given as aforesaid, and also interest on the said deposit and also all his, Greene's, right, title and demand in and to said verdict and deposit, and to the said verdict as increased by the Supreme Court and all benefit and advantage whatever that can or shall, or may, be obtained by reason or means of the same, or any, judgment signed or execution thereupon had, sued or executed, or which shall, or may, be recovered or obtained"; and Lynott was thereby constituted the attorney irrevocable of Greene to prosecute in Greene's name, but to Lynott's own sole use, the said suit to judgment, etc., etc. Notice of the execution of this assignment appears to have been given to Harris by a copy of the assignment being delivered to him on the 16th August, 1884. On the 18th February, 1884, Harris appears to have recovered a judgment in his action against Greene by a confession of judgment given by Greene for $3,179. This sum is sworn to have been confessed by Greene as part of the sum claimed by Harris in his action as recoverable under the common indebitatus count in his declaration in that action, and that it had no relation whatever to the cause of action alleged in the first count of that declaration. That this is so, I think, might be inferred from the bill of particulars in Harris v. Greene. However, it is sworn to and not denied, and, moreover, if part of it was in respect of any damages recoverable under the first count, it would not affect the question before us, for a sum recoverable under that count did not constitute matter of either legal or equitable set-off to the action of Greene v. Harris. In Hilary Term, 1885, but on what day is not stated, the Supreme Court of New Brunswick granted a rule to enter a verdict for Harris upon the second count and for the plaintiff for $4,500 on the common count pursuant to the leave reserved in the action of Greene v. Harris. Now, assuming Lynott to have been a bonâ fide purchaser for value of the rights and choses in action purported to have been assigned to him by the instrument of the 19th April, 1884, it is quite clear that Harris could not, after having voluntarily abandoned the legal right which he had of protecting himself under his plea of set-off in Greene v. Harris, assert afterwards as an equity the right in virtue of any judgment he might recover in the action brought by him against Greene to defeat the right acquired by Lynott as a purchaser for value, by setting off the one judgment against the other. That is a point sufficiently concluded by authority. Lynott could not upon any recognized principle of equity be deprived of the rights purported to be transferred to him by the instrument of the 19th April, 1884, if he be a purchaser for value, and the only question appears to be whether, inasmuch as the consideration for the assignment was an old debt due to him by Greene, that qualifies in any degree his right to claim as a purchaser for value. The case was not argued upon any such contention, and no case was cited to the effect that an over-due debt being the consideration would prejudice Lynott's claim as a purchaser for value, and I do not think it can. It was 1887 GREENE V. HARRIS. Gwynne J. 1887 GREENE 0. HARRIS. Gwynne J. suggested in an affidavit not made by Harris, but by a person on his behalf, that the assignment to Lynott had been made for the sole purpose of trying to attach the whole amount of the Greene v. Harris judgment without deducting the amount of the Harris judgment against Greene. That, if true, would affect the bona fides of the transaction, but the charge is completely answered by the affidavit of Lynott, who swears that at the time of the assignment to him Greene was, and still is, indebted to him in a sum exceeding the $5,000 mentioned in the assignment as the consideration therefor. The assignment is absolute against Greene, who could not by confession of judgment or otherwise detract in the slightest degree from the assignment so made by him. The question before us is not one of equitable set-off at all, the doctrine of equitable set-off does not affect the question before us. The only set-off of any description which Harris had against Greene's action was a legal setoff, and that he waived and abandoned, and while it was so waived and abandoned Lynott became purchaser for value of the action and of the fruits of the action in which, but for such abandonment, Harris could have protected himself. What the defendant now claims as an equity is a right to recoup himself for his folly or his negligence in not availing himself of his legal set-off in Greene v. Harris by depriving Lynott of the benefit of his purchase for value of that action and the causes of action therein, and of the fruits of such action. The judgment in the court below appears to have proceeded on the assumption that if Lynott, notwithstanding his being a bonâ fide assignee for value of Greene's action and the judgment recovered thereon, should have to bring an action upon that judgment against Harris, the latter would have a legal right to set-off his judgment in that action, as the action would be brought in Greene's name, and Jenner v. Morris (f) is cited in support of this proposition. (f) 3 DeG. F. & J. 45. |