Domestic Sewing Machine Co. v. Saylor

• Decision Date: 11 March 1878
• Citation: 86 Pa. 287
• Parties: The Domestic Sewing Machine Co. <I>versus</I> Saylor.
• Court: Pennsylvania Supreme Court

86 Pa. 287

The Domestic Sewing Machine Co. versus Saylor.

Supreme Court of Pennsylvania.

February 13, 1878.

March 11, 1878.

February 13th 1878.

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

Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1877, No. 20 E. Coppee Mitchell, for plaintiffs in error.—Our Defalcation Act of 1705 is much more sweeping in its terms than the English statute. Under our act unliquidated damages arising from any bargain may be set off, whenever they are capable of liquidation by any known legal standard: Hunt v. Gilmore, 9 P. F. Smith 450; Steigleman v. Jeffries, 1 S. & R. 477; Shaw v. Badger, 12 Id. 275; Hubler v. Tamney, 5 Watts 51; Nickle v. Baldwin, 4 W. & S. 290; Thomas v. Shoemaker, 6 Id. 179; Phillips v. Lawrence, Id. 152; Ellmaker v. Fire Ins. Co., Id. 439; Speers v. Sterrett, 5 Casey 192; Halfpenny v. Bell, 1 Norris 128.

The question raised here is then could the sewing machine company have maintained an action upon their bond against Saylor, without first ascertaining the exact amount due them by Hippard? The court charged the jury that they could not. This, we submit, was plain error. The obligation given by Saylor and others, to the defendants, is expressly joint and several by its terms — on breach of the condition either one of the obligors might be sued. Each one is severally indebted to the obligors in the whole amount. They can have but one satisfaction, it is true, but they can have it all from any one they choose, and leave them to settle equities between themselves: Walter v. Ginrich, 2 Watts 204.

The fact that one or more of the obligors were sureties can make no difference: Bank v. Barrington, 2 P. & W. 27; McCaraher v. Commonwealth, 5 W. & S. 21; Wayne v. Bank, 2 P. F. Smith 352; Beyerle v. Hain, 11 Id. 226.

Josiah Funck and William H. Livingood, for defendant in error.—The set-off was not within the letter or spirit of the statute. That provides that "if two or more dealing together be indebted to each other," &c.

The plaintiff was not indebted to the defendant. The corporation alleged it had an unliquidated claim against Hippard; it was this claim which was offered as a set-off.

It is clearly settled that the debts which can be set off must be such as are due in the same right: Ex'rs of Darroch v. Adm'rs of Hay, 2 Yeates 208; Waln v. Hewes's Ex'rs, 5 S. & R. 468; Potter v. Burd, 4 Watts 15; Steel's Ex'rs v. Steel, 2 Jones 64; Wolfersberger v. Bucher, 10 S. & R. 10. As to this, our statute is the same in effect as the British: Stuart v. Commonwealth, 8 Watts 74; Carman v. Garrison, 1 Harris 158; McCracken v. Elder, 10 Casey 239; Milliken & Co. v. Gardner, 1 Wright 456; Lorenz's Administrators v. King, 2 Id. 93; Jackson et al. v. Clymer, 7 Id. 79; Russell v. Miller, 4 P. F. Smith 163; Wharton v. Douglass, 26 Id. 275.

A contract by parol, which includes an unsealed writing, needs a consideration to support it: Kennedy's Ex'rs v. Ware, 1 Barr 450; Whitehill v. Wilson, 3 P. & W. 413; Campbell's Estate, 7 Barr 100; Crawford's Appeal, 11 P. F. Smith 52. The word "bond," ex vi termini, imports a sealed instrument: 1 Bouvier's Law Dictionary 186. Mutual promises to ground an action must be both made at the same instant of time; Whitall v. Morse, 5 S. & R. 361. A mere voluntary compliance by one who had not previously agreed to it, does not render the other liable: Johnston and Lyon v. Fessler, 7 Watts 48; Shupe v. Galbraith, 8 Casey 12; Snyder v. Leibengood, 4 Barr 307. If regarded in the nature of an offer to become responsible for the payment of Hippard's future liabilities to the company, if he himself would not do so, then Saylor should have had notice of its acceptance: Patterson v. Reed, 7 W. & S. 144; Emerson v. Graff, 5 Casey 358; Kellogg v. Stockton & Fuller, Id. 460; Kay v. Allen, 9 Barr 320; Unangst v. Hibler, 2 Casey 150.

Mr. Justice PAXSON delivered the opinion of the court, March 11th 1878.

This record presents but a single question. John L. Saylor brought suit against the Domestic Sewing Machine Company (defendants below) to recover the contract price for thirteen wagons which he alleges he constructed for them. The defendants claimed a set-off, and gave in evidence a joint and several contract in the form of a bond, signed by Saylor with other parties, the condition of which was "that if the above bounden, Emanuel Hippard, his heirs, executors and administrators, shall well and truly pay or cause to be paid any and every indebtedness or liability now existing, or which may hereafter in any manner exist, or be incurred on the part of the said E. Hippard to the said Domestic Sewing Machine Company, whether such indebtedness or liability shall exist in the shape of book accounts, notes, renewals, or extensions of notes or accounts, acceptances, endorsements or otherwise. * * Then this obligation to be void; but otherwise to remain in full force and virtue." This instrument, although in form a bond, and designated as such in defendants' notice of set-off, was not sealed, and was objected to for that reason. The defendants then changed their pleas to meet the exigencies of their defence, and introduced evidence tending to show consideration. It was then properly admitted in evidence. The plaintiff denied that Hippard was indebted to the company, and there was conflicting evidence upon this point. The...