Judges: ADAMS, J.:
Attorneys: G.P. Garrett, for appellant.
Maguire, Voorhis Wells, for appellee.
Filed: Feb. 13, 1942
Latest Update: Mar. 02, 2020
Summary: This appeal brings for review a final judgment for defendant on a plea of set-off. The defendant is a non profit corporation, engaged as a cooperative marketing agency. Plaintiff, a former association member, sued to recover the value of two retain certificates. Defendant countered with a plea of set-off basing same on a charge that plaintiff while a member of the association sold his fruit in disregard of his contract to market same through the association and thereby incurred a liability of fi
Summary: This appeal brings for review a final judgment for defendant on a plea of set-off. The defendant is a non profit corporation, engaged as a cooperative marketing agency. Plaintiff, a former association member, sued to recover the value of two retain certificates. Defendant countered with a plea of set-off basing same on a charge that plaintiff while a member of the association sold his fruit in disregard of his contract to market same through the association and thereby incurred a liability of fif..
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I concur in what is said in the opinion prepared by Mr. Justice Adams. My reason for doing so is this: Proodian sued in his personal right; defendant filed plea of set-off, to which replications were filed. Proodian then, with leave of court, amended his declaration so as to make the suit one to recover damages in behalf of the wife of Proodian, but the plea of set-off continued to stand as a claim against C.S. Proodian personally and not against him in a representative capacity as the agent and alta ego of his wife.
So the claim of set-off was not alleged to exist against the user-plaintiff but one alleged to exist against Proodian personally, and the judgment was so rendered.
Set-off may only be maintained where a separate action to enforce the claim could be maintained. See Worden v. Gillett, 275 Fed. 654; Gregory v. McNealy, 12 Fla. 578; Roth v. Bowman,103 Fla. 923, 138 So. 774.
The defendant may have a cause of action against C.S. Proodian as alleged in the plea of set-off, but that claim may not be enforced in a suit prosecuted by
Proodian in his representative capacity as agent for his wife to enforce a claim in favor of his wife, because the involved claims are not mutual.
