Patterson v. Hulings

• Decision Date: 11 June 1849
• Citation: 10 Pa. 506
• Court: Pennsylvania Supreme Court
• Parties: PATTERSON <I>v.</I> HULINGS.

10 Pa. 506

PATTERSON v. HULINGS.

Supreme Court of Pennsylvania.

June 11, 1849.

IN error from the Common Pleas of Juniata.

Reed, for plaintiff in error.—1 S. & R. 477; 5 Ib. 122.

Mathers, contrà.

June 11. BELL, J.

As the case is presented by the record — and we can judge of it but from that — it seems impossible to distinguish it, in principle, from Steigleman v. Jeffries, 1 S. & R. 477. That was an action brought upon a promissory note, given for the price of some burr-stones, purchased by the defendant from the plaintiff. By way of answer, the defendant was permitted to give evidence tending to prove a warranty of the stones, and a breach thereof.

The present is an action upon a bond given to secure a portion of the purchase-money of a house and lot, sold by the plaintiff to the defendant, with a covenant to deliver the possession on the 1st of October or November, 1838. For answer, the defendant, as I understand it, offered to show the plaintiff did not perform this covenant, but continued to retain possession of the premises until April, 1839; during which time he suffered them to deteriorate and decay, to the damage of the defendant.

The defence, in Steigleman v. Jeffries, was put by the court upon the broad and comprehensive language of our defalcation act, and was treated as being strictly a set-off under that act. But subsequent cases, in which the soundness of that determination is recognised as a conclusion, show that the notion of set-off was ill founded. In Heck v. Shener, 4 S. & R. 249, the older case is reviewed by the court, and it is shown the defence permitted was not properly set-off, but a reply, springing from the same transaction, and tending, from its very nature, to defeat the plaintiff's right to call for payment of a worthless commodity he had warranted to be good. The present chief justice said it was admissible, not as a set-off, but because it was not such. He put it upon the true ground, that it was matter affecting the consideration of the contract sued upon, and, therefore, competent to defeat the action; for, if the consideration failed, in whole or in part, the plaintiff's right to recover must also fail pro tanto. In this, he pointed out the distinction between it and Kachlin v. Mulhallon 2 Dall. 237. There, the consideration of the bond upon which the suit was brought, was untouched by the subsequent conduct of the plaintiffs — of which the defendant offered proof — being entirely independent of it. "But," said the judge, "if the matter had affected the consideration of the contract, there is no doubt but, by the equitable practice of Pennsylvania, it might have been given in evidence under the plea of payment." Heck v. Shener was decided on this ground, as was also the subsequent case of Gogel v. Jacoby, 5 S. & R. 117, where the distinction between Steigleman v. Jeffries, and Kachlin v. Mulhallon, and Dunlop v. Speer, 3 B. 169, is pointed out. In the first of these cases, the late Chief Justice Tilghman disclosed the ground of the decisions. After showing that, as the law then stood, damages flowing from...