Halfpenny v. Bell

• Decision Date: 29 May 1877
• Citation: 82 Pa. 128
• Parties: Halfpenny <I>versus</I> Bell, to the use of Apsley <I>et al.</I>
• Court: Pennsylvania Supreme Court

Page 128

82 Pa. 128

Halfpenny versus Bell, to the use of Apsley et al.

Supreme Court of Pennsylvania.

May 17, 1876.

May 29, 1877.

May 17th 1876.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, and WOODWARD, JJ. WILLIAMS, J., absent

Error to the Court of Common Pleas of Blair county: Of May Term 1876, No. 3 S. Calvin, for plaintiff in error, cited Hunt v. Gilmore, 9 P. F. Smith 450.

H. W. Baldridge, for defendant in error.—The defendant's right of action arose quasi ex delicto, and out of a transaction altogether distinct from the debt sought to be recovered: Gogel v. Jacoby, 5 S. & R. 122; Hood v. Kean, 11 Id. 295. Rights of action arising in separate and distinct covenants, under seal, cannot be set off against each other: McQuaide et al. v. Stewart et al., 12 Wright 198. The defendant sought to set off damages alleged to be due to him for floating logs through land of which it appeared that he was a tenant in common with one Nole. Set-off can be allowed only where parties have a mutual right to sue each other: Henderson v. Lewis, 9 S. & R. 379; Everson v. Fry, 22 P. F. Smith 326.

Mr. Justice PAXSON delivered the opinion of the court, May 29th 1877.

It was held in Hunt v. Gilmore, 9 P. F. Smith 450, that unliquidated damages arising ex contractu from any bargain, may be set off under the Defalcation Act of 1705, 1 Sm. Laws 49, whenever they are capable of liquidation by any known legal standard. Tested by this rule, the offer of evidence embraced in the plaintiff's assignment of error ought to have been received. That the damages were unliquidated, and that the offer was to prove a set-off arising out of a distinct and separate cause of action, is not material. There was no difficulty under the well-settled rules of law in liquidating the damages; that they arose out of a separate cause of action constitutes no objection. Matters growing out of the same transaction, as a general rule, are the subjects of an equitable defence; our Defalcation Act allows other and totally distinct transactions to be proved by way of set-off, in order to avoid circuity of action. We see no reason why the defendant below should not set off as a defence to the note in suit, the damages, if any, sustained by him under the agreement of 13th of June 1868. The objection that such damages arise from tortious acts, is not tenable. The agreement, although inartificially drawn, is a covenant to repair. Under it Bell, the plaintiff below, acquired the right to...