Blair, Adm'R, v. Wood

• Citation: 108 Pa. 278
• Court: United States State Supreme Court of Pennsylvania
• Decision Date: 26 January 1885
• Parties: Blair, administrator, <I>versus</I> Wood.

108 Pa. 278

Blair, administrator, versus Wood.

Supreme Court of Pennsylvania.

January 9, 1885.

January 26, 1885.

January 9th, 1885.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ. CLARK, J., absent

ERROR to the Court of Common Pleas, No. 1, of Philadelphia County: Of January Term, 1884, No. 253.

Charles C. Lister, for the plaintiff in error.—The agreement signed by the administrator and the defendant did not in any manner alter the legal status of the parties. It simply prevented the plaintiff from suffering a nonsuit, but did not prevent the entry of a compulsory nonsuit under the Act of 1836, as in the case of an absent plaintiff, nor change the defendant's position in the least. Under the pleadings, his claim arose as a set-off, and the settlement of plaintiff's claim voluntarily extinguished his right to recover under the plea of set-off so far as this action is concerned. If the defendant had any right to proceed in the cause after the extinguishment of plaintiff's claim, then manifestly it was, under the pleadings, for a certificate for amount in excess of plaintiff's claim by way of set-off. It has long been the settled law of this state that in an action by A against B, the defendant cannot set off an account for goods sold to A and another as partners: McDowell v. Tyson, 14 S. & R., 300; Archer v. Dunn, 2 W. & S., 361; Jackson v. Clymer, 43 Pa. St., 79; Sherwood v. Yeomans, 98 Id., 453.

The doctrine has been carried to a greater extent, because, even though the matter arose out of the same transaction, in an action by a partner for his individual debt, an unsettled claim against the firm cannot be set off; Milliken v. Gardner, 37 Pa. St., 456. In Walker v. Eyth, 25 Id., 216, Eyth sued to recover his individual debt, and an offer to set off against it a debt due by Walker & Eyth as partners, was not allowed. In that case as here, Walker was a non-resident, had subsequently died, and his estate was insolvent, all of which was urged in support of the claim, but it was held that the claim of Eyth was his separate estate, and he had a right to appropriate to his separate creditors. To allow set-off in this case would permit defendant to defeat plaintiff's claim by a claim against the partnership and thereby compel the other partners to pay the debt of the member of the firm out of the partnership funds to the prejudice of the others. The administrator would also be concluded by the judgment on this verdict, and defendant permitted to participate in the distribution of the estate of plaintiff's intestate as a separate creditor. Upon principle and authority the objection should have been sustained.

A. Sydney Biddle, for the defendant in error.—A firm debt being a joint and several liability, Wood could have recovered judgment against Joseph M. Lupfer in his lifetime for a debt due him by the firm of J. M. Lupfer & Co.: United States v. Lewis, 2 W. N. C., p. 35; Lewis v. United States, 2 Otto, 618. It follows that in an action by Joseph M. Lupfer, in his lifetime, against Wood, the latter under the defalcation Act could have set off his claim against Lupfer's firm. Although the decisions in Pennsylvania are not in harmony on this question, the latest case is directly to the point as just stated: Domestic Sewing Machine Co. v. Saylor, 5 Norris, 287. This case undoubtedly overrules three of the five cases cited by plaintiff in error, namely: McDowell v. Tyson, Archer v. Dunn and Milliken v. Gardner. The last of them was cited to the court in the Sewing Machine Case, and the other two seem to have been overlooked. Justice PAXSON, after reviewing many of the cases, concludes: "That such indebtedness may be set off is too plain for argument." The only subject for regret is that this court did not explicitly overrule Milliken v. Gardner, and other similar cases, which remain (as is shown by the brief of the plaintiff in error) as pit-falls to...