Hibert v. Lang

• Decision Date: 07 January 1895
• Docket Number: 131
• Citation: 165 Pa. 439,30 A. 1004
• Parties: Victor Hibert v. F. X. L. Lang, Appellant
• Court: Pennsylvania Supreme Court

30 A. 1004

165 Pa. 439

Victor Hibert v. F. X. L. Lang, Appellant

No. 131

Supreme Court of Pennsylvania

January 7, 1895

Argued October 25, 1894

Appeal, No. 131, Oct. T., 1894, by defendant, from order of C.P. No. 2, Allegheny Co., April T., 1894, No. 578, making absolute rule for judgment for want of sufficient affidavit of defence. Reversed.

Rule for judgment for want of sufficient affidavit of defence in assumpsit on bond.

From the record it appeared that the action was brought against defendant for the purpose of recovering the sum of $299.10 on a bond of F. X. Woog, upon which bond defendant and Edward D Wingenroth were sureties severally.

E. D Wingenroth filed an affidavit of defence as follows:

"E. D. Wingenroth, agent of the said defendant in this behalf, being by me duly sworn, saith, That the defendant has a just and legal defence to the plaintiff's claim. That the plaintiff is justly and legally indebted to the said ED. D. Wingenroth, a co-bondsman of the defendant, and is the defendant in an action brought to recover the same debt at No. 577, April term, 1894, in the sum of $246.90, as per statement thereof thereto attached and made part thereof; and the said Wingenroth desires that the same be set off in this action. That the said debt is a good set-off and defalcation in this action and is wholly due and unpaid."

Rule for judgment absolute. Defendant appealed.

Error assigned was above order.

Judgment reversed and procedendo awarded.

James Fitzsimmons, for appellant. -- Two defendants sued jointly may set off a debt due to one of them: Childerston v. Hammon, 9 S. & R. 68; Stewart v. Coulter, 12 S. & R. 252; Henderson v. Lewis, 9 S. & R. 379; Crist v. Brindle, 2 Rawle, 121; Balsley v. Hoffman, 13 Pa. 603; Miller v. Bomberger, 76 Pa. 79; Craig v. Henderson, 2 Pa. 261; Murray v. Williamson, 3 Bin. 135; Rider v. Johnson, 20 Pa. 192; Wrenshall v. Cook, 7 Watts, 464; Hugg v. Brown, 6 Whart, 468.

The fact that defendant and Wingenroth were sued separately would make no difference in this action as they were jointly liable.

In case of partnership it has been uniformly held that a member of a firm, with the assent of his copartners, may set off, in an action against him individually, a debt due to the firm by the plaintiff in the action: Montz v. Morris, 89 Pa. 392.

Breck & Vaill, for appellee, submitted a paper-book in which they argued as follows: Where two persons bind themselves severally in a bond, it is, in the absence of express words implying a joint liability, the same as if each of the covenanters had executed separate bonds on the same paper, and a joint action cannot be maintained against them, but each must be sued separately: Chitty on Contracts, 354; Bacon's Abridgement, 254.

If, however, there existed anything in the bond creating a joint as well as a several liability, plaintiff would have his choice of suing the bondsmen jointly or severally, which choice he exercised in this case by suing severally.

Appellant not having obtained this alleged set-off by purchase or assignment, he is precluded from using it here, on the or assignment, he is precluded from using it here, on the authority of those cases which hold that a set-off cannot be used by a defendant against a plaintiff if the right of set-off was not acquired by the defendant until after the institution of the suit: Stewart v. Ins. Co., 9 Watts, 126; Huline v. Hugg, 1 W. & S. 418.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE MITCHELL:

The foundation of set-off is the prevention of circuity of action. It is therefore the general rule that the cross demands must be held by the same persons and in the same rights, so that actions may be maintained thereon each against the other. But the whole doctrine is founded on equitable principles. It has frequently been held that our defalcation act is much broader than the English statutes and it was said by Chief Justice GIBSON in Frantz v. Brown, 1 P. & W. 257, that "Set-off was originally nothing more than an equitable defence which the legislature has thought fit, in plain and simple cases, to subject to the jurisdiction of the courts of common law, reserving to chancery its original jurisdiction of cross demands which do not fall within the statute. . . . The courts would be competent to do complete justice without the statute, as is shown by their having frequently gone beyond it," instancing Childerston v. Hammon, 9 S. & R. 68, where it was held that two defendants sued jointly may set off a debt due by plaintiff to one of them, and this although the set-off was not a debt of the plaintiff but of one for whom he was alleged to be a mere trustee. And to the same point is Stewart v. Coulter, 12 S. & R. 252, where the decision was expressly put on equitable grounds and subject to the limitation that no superior equity be shown in a third person. In the same line of illustration may be noted Crist v. Brindle, 2 Rawle, 121, where it was...