Pollard & Brant, Inc. v. Stein

• Decision Date: 12 July 1923
• Docket Number: 12-1923
• Citation: 81 Pa.Super. 374
• Parties: Pollard & Brant, Inc., Etc., v. Stein, Appellant
• Court: Pennsylvania Superior Court

81 Pa.Super. 374

Pollard & Brant, Inc., Etc., v. Stein, Appellant

No. 12-1923

Superior Court of Pennsylvania

July 12, 1923

Argued April 11, 1923

Appeal by defendant, from order of C.P. Somerset County-1921, No 72, refusing to open judgment in the case of Pollard & Brant Inc., to use of R. T. Pollard, J. H. Judy, W. H. Miller, J A. Wallace, Lee W. Pollard, Fred Brandt, B. J. Hanna, M Alice Hanna, B. F. Waltz and First National Bank, Berlin, Pennsylvania, v. George P. Stein.

Rule to show cause why judgment should not be opened. Before Berkey, P. J.

The facts are stated in the opinion of the Superior Court.

The court discharged the rule. Defendant appealed.

Error assigned was the order of the court, quoting it.

Joseph Levy, for appellant. -- The defendant having a just claim against Pollard & Brant, Inc., and being deprived of any means to enforce his claim by reason of the dissolution of that corporation is entitled to his remedy by way of equitable set-off through this proceeding: Harper v. Kean, 11 S. & R. 278; Beaty v. Bordwell, 91 Pa. 438; Hilbert v. Lang, 165 Pa. 439; Laughlin v. Conn, 191 Pa. 150.

Charles H. Ealy, and with him Charles F. Uhl, for appellees. -- To a judgment there can be no set-off of a debt not in judgment: Thorp v. Wegefarth, 56 Pa. 82; Long v. Morningstar, 212 Pa. 458; Hershey v. McLaughlin, 17 Pa.Super. 87; Curry v. Morrison, 40 Pa.Super. 301.

Before Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.

OPINION

TREXLER, J.

We are asked to review the action of the lower court in refusing to open a judgment. The petition of Stein, the defendant, recites that on the 4th of August, 1919, he purchased from Pollard and Brant, Inc., and Fred Brant and Lee W. Pollard a coal mining property, paying $ 5,000 on account, and at the time the deed was delivered, giving a mortgage for $ 18,000; that as part of said transaction, the defendant and Pollard and Brant, Inc., entered into articles of agreement, which read as follows: " It is hereby agreed between the parties hereto as a part of the entire transaction involving the sale and purchase of said property, that the said George P. Stein shall assume and carry out a contract entered into between H. H. Lineaweaver & Co., Inc., of Philadelphia, __ Pa. __, and Pollard and Brant, dated March 26, 1919, for furnishing 2,400 net tons of coal of which approximately 1,500 tons remain to be furnished, from the mine operation on said tract," that under said contract he delivered four carloads of coal consigned to Henry G. VonHeine, amounting to $ 592.47 and that on August 4th, he had delivered eleven tons to complete the loading of a car amounting to $ 24.75, making a total of $ 617.22; that on September 17th, Pollard and Brant notified him to suspend further shipments of coal, that all the coal furnished by him to Henry G. VonHeine, under the contract aforesaid, was furnished on account and credit of said Pollard and Brant, Inc., that he frequently requested it to pay him the money due for said coal, and said corporation through its proper office frequently promised to pay, but have always neglected and refused to pay him or any part thereof, that the price of $ 2.85 per ton instead of $ 2.35 as set forth in the contract between Pollard and Brant, Inc., and Lineaweaver was caused by the increase of wages; that Pollard and Brant, Inc., closed its corporate existence, the assets of said corporation having been distributed; that inasmuch as the furnishing of said coal was specifically made a part of the entire transaction involving the sale and purchase of the coal property and the execution and delivery of said mortgage and bond to secure the balance of purchase money, he has the legal and equitable right to set off the amount due him against the said mortgage and bond, that judgment has been entered under the warrant contained in the mortgage bond and a fieri facias issued.

It seems to be well settled that it is poor practice to open a judgment to establish a defense which has originated since the rendition of it. " To a judgment there can be no set-off of a debt not in judgment. One judgment may be set off against another, through the equitable powers of the court, but to a judgment ripe for execution, there can be but one answer to wit: Payment pure and...