McGowan v. Budlong

CourtUnited States State Supreme Court of Pennsylvania
Citation79 Pa. 470
PartiesMcGowan <I>versus</I> Budlong, to use, &c.
Decision Date06 January 1876

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

Error to the Court of Common Pleas of Crawford county: Of October and November Term 1875, No. 35.

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R. Sherman, for plaintiff in error.—McGowan had a right to purchase Abbott's note to use as a set-off against Budlong, and whether he was in fact the owner of the note was for the jury: Rider v. Johnson, 8 Harris 190; Bevan v. Insurance Co., 9 W. & S. 187. McGowan could recover on the note whether he had paid anything for it or not: Byles on Bills 120, 121. The bank not having given McGowan notice of the assignment, held it subject to the defence of the note: Northampton Bank v. Balliet, 8 W. & S. 311; and having paid nothing for it, the bank had no equity against McGowan: Kountz v. Kirkpatrick, 22 P. F. Smith 376. The burden was on the bank to show that it had given notice: Loudon v. Tiffany, 5 W. & S. 367.

J. B. Brawley, for defendant in error.—Set-off can be allowed only to the bonâ fide owner of the claim: Waterman on Set-off, sect. 33; Adams v. McGrew, 2 Ala. (N. S.) 675; McDade v. Mead, 18 Id. 214; Strouse v. Eagle Ins. Co., 5 Ohio (N. S.) 59; Rider v. Johnson, 8 Harris 192.

Mr. Justice PAXSON delivered the opinion of the court, January 6th 1876.

There is but one specification of error in this case, and that refers to the rejection by the court below of the defendant's offer of the promissory note of Jenks Budlong for $3000, to the order of William H. Abbott, and by him endorsed. The defendant had pleaded set-off, and the offer was in support of said plea. This record does not show that the equitable plaintiff below paid value for the assignment of Budlong's contract, nor that the defendant had notice of the transfer. Hence there was nothing to prevent the latter from making use of the note in question as a set-off if he had legally acquired title thereto: Rider v. Johnson, 8 Harris 190; Loudon v. Tiffany, 5 W. & S. 367. Upon the question of title the defendant says in his testimony: "I bought the note from Abbott, December 22d 1873. I got it in making some settlement, and got it then. We had a running account and made a settlement; I gave him my note for it; he did not owe me; I have since paid Abbott on it $1500; he regarded it as worthless, and agreed not to claim mine if I did not get this set-off. The $1500 was...

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4 cases
  • Oyster v. Short
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 5, 1896
    ...8 Gray (Mass.) 572; Kensington Bank v. Shoemaker, 11 W.N.C. 215; Thomas v. Winpenny, 13 W.N.C. 93; Tinley v. Martin, 80 Ky. 463; McGowan v. Budlong, 79 Pa. 472; Kessler v. Angle, 2 W.N.C. 23; Sprigg v. Granneman, 36 Ill.App. 102. Before STERRETT, C.J., GREEN, WILLIAMS, MITCHELL and DEAN, JJ......
  • United States Brick Co. v. Middletown Shale Brick Co.
    • United States
    • United States State Supreme Court of Pennsylvania
    • April 25, 1910
    ...use for that purpose, which it may not (Primer v. Kuhu, 1 Dall. 452 [1 L. Ed. 219]; Rider v. Johnson, 20 Pa. 190, 192; McGowan v. Budlong, 79 Pa. 470; Skinner v. Chase, 6 Pa. Super. Ct 279, 282), so long as the transfer was actual and bona tide, making the defendant the absolute owner of th......
  • Hammond Pure Ice & Coal Co. v. Heitman
    • United States
    • Court of Appeals of Indiana
    • December 4, 1942
    ...... Dawson, 1877, 58 Ind. 408; Adams v. McGrew, 2. Ala. 675; Sprigg v. Granneman, 36 Ill.App. 102;. Tinley v. Martin, 80 Ky. 463; McGowan v. Budlong, 79 Pa. 470; 19 Ann.Cas. 325. . .          It is. true that the courts of Indiana have long recognized the. doctrine of ......
  • Hammond Pure Ice & Coal Co. v. Heitman
    • United States
    • Court of Appeals of Indiana
    • December 4, 1942
    ...1877, 58 Ind. 408; Adams v. McGrew, 2 Ala. 675; Sprigg v. Granneman, 36 Ill.App. 102;Tinley v. Martin, 80 Ky. 463;McGowan v. Budlong, 79 Pa. 470;19 Ann.Cas. 325. It is true that the courts of Indiana have long recognized the doctrine of equitable set-off and that even in certain instances, ......

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