Jackson et al. v. Clymer

• Decision Date: 29 May 1862
• Citation: 43 Pa. 79
• Court: Pennsylvania Supreme Court
• Parties: Jackson <I>et al. versus</I> Clymer, for use, &c.

Page 79

43 Pa. 79

Jackson et al. versus Clymer, for use, &c.

Supreme Court of Pennsylvania.

May 29, 1862.

ERROR to the Common Pleas of Berks county.

COPYRIGHT MATERIAL OMITTED

John S. Richards, C. K. Robeson, and John Banks, for plaintiffs in error, argued that the defence was improperly rejected, that a portion of the consideration of the agreement on which this suit is brought, and the moving cause which induced the defendants to enter into it, was the transfer of the thirteen barges, of which immediate possession was to be given, but of which the defendants received but ten.

The three papers were executed at the same time, and were parts of one transaction. The same consideration entered into all of them, and the delivery of these boats to the defendants was a material part of the consideration: Makepeace v. Harvard College, 13 Pick. 301.

That the true consideration of a deed may be proved by parol, is held in Jack v. Dougherty, 3 Watts 156, citing the words of Justice Parker in Bullard v. Briggs, 7 Pick. 533.

When the cause of action which the defendant wishes to set off arises out of the same transaction as that on which the plaintiff founds his action, the whole controversy may be settled by the same jury: Stiegelman v. Jeffries, 1 S. & R. 487; Gogel v. Jacoby, 5 Id. 122; Morgan v. The Bank of North America, 8 Id. 73; Shaw v. Badger, 12 Id. 275; Philips v. Lawrence, 6 W. & S. 150, 155; Patterson v. Hulings, 10 Barr 507; Falconer v. Smith, 6 Harris 132; Strawbridge v. Cartledge, 7 W. & S. 399. The damage we sustained from the failure of consideration is a good defence to this action pro tanto. If not allowed, the defendants will suffer the greatest injustice, and will have no remedy.

B. Frank Boyer, J. D. Davis, Charles Davis, and H. W Smith, for defendants in error, contended that the ruling of the court below was proper; that the defendants had, by this arrangement, secured a preference over other partnership creditors; that the parties to the two agreements were not the same, nor did the parties ever consider the two agreements as one contract; that in Jack v. Dougherty, 3 Watts 156, the evidence was admitted to rebut the presumption of fraud arising from the apparent consideration in the deed, while evidence of defendants in this case was all admitted, but failed in making out any other consideration than that mentioned in the real estate contract, the agreement sued on — that is, the defendants to pay the liens on the property and plaintiff to make a deed to them.

The authorities from 1st, 5th, 8th, and 12th S. & R. are not in point; the defence offered in those cases by way of set-off, was between the same parties. Here defendants are sued by D. R. Clymer for the use of his separate creditors and the offer was to set off a claim for damages against the firm of Norton & Clymer.

The cases cited from 10 Barr 507, as to failure of consideration in whole or part, and from 6 Harris 132, as to matters of defence immediately connected with the transaction sued on, and impeaching the consideration of the contract, were cases of a failure of consideration by the party suing, and not another and distinct party, as in this case.

This contest is...