Speers v. Sterrett

• Decision Date: 04 January 1858
• Citation: 29 Pa. 192
• Parties: Speers <I>versus</I> Sterrett.
• Court: Pennsylvania Supreme Court

Page 192

29 Pa. 192 Speers versus Sterrett. Supreme Court of Pennsylvania. January 4, 1858.

ERROR to the Court of Common Pleas of Fayette county.

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Kaine, for plaintiff in error.—Unliquidated damages cannot be admitted as a set-off in this case: Shoup v. Shoup, 3 Harris 361. It is certainly not the law that, at any time after a man is sued, he can go out and buy up notes or claims, and make a set-off at the trial, and thus mulct the plaintiff in costs: 1 W. & S. 418; Pennell v. Grub, 1 Harris 554.

J. B. and A. Howell, for defendant in error.—Speers should have shown that he inquired of Sterrett, before he bought the note, whether he had any defence to its payment, and that he had given him notice of the assignment: Rider v. Johnson, 8 Harris 90. The claim for unliquidated damages, set up by the defendant, was properly admitted: Carman v. The Franklin Insurance Co., 6 W. & S. 155; Act of 1705. Set-off is the creature of positive law, and exists only where it is authorized by statute; our act allows it only in favour of defendant, and there consequently cannot be such a thing as set-off against set-off: Ulrich v. Berger, 4 W. & S. 19; Gable & Hughes v. Parry & Randolph, 1 Harris 181; Huling v. Hugg, 1 W. & S. 488; Pennel v. Grubb, 1 Harris 554; Scott v. Sheakley, 3 Watts 50.

The opinion of the court was delivered, January 4, 1858, by KNOX, J.

This suit was brought upon a note given by Moses Sterrett to B. F. Weston for $100, dated April 27, 1854, payable one year after date. When Weston transferred the note to Spear, for whose use the suit was brought, does not distinctly appear. Upon the trial, the defendant proposed to give in evidence as a set-off two notes given by Weston to Jacob Hart for $15 each, dated

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11th December, 1852; one payable in one year, and the other three months and twenty-one days after date. No objection was made to the reception of these notes in evidence, but the Court of Common Pleas was requested to charge the jury that unless the defendant had shown that he was the owner of the notes before the commencement of the suit, he was not entitled to a credit for the same.

To this proposition the learned judge who presided, answered that the possession of the notes at the trial, by the defendant, was sufficient evidence to entitle him to offset them against the plaintiff's claim. In this we think there was error. A...