69 Pa. Super. 138 | Pa. Super. Ct. | 1918
Opinion by
The plaintiff brought an action of assumpsit in the Municipal Court to recover the balance due for a bill of merchandise sold to the defendant. The latter not de
With respect to the first question it is not controverted by the appellant’s counsel that prior to the Practice Act of May 14,1915, an unsettled partnership account could not be set off in an action of assumpsit by one partner against another for a personal debt, the only exception being where the partnership was in one single transaction. At common law account render was the form of action for the settlement of partnership accounts and jurisdiction in equity is given by our statute but the action of assumpsit is not available for such a purpose: Ozeas v. Johnson, 1 Binney 191; Andrews v. Allen, 9 S. & R. 241; Russell v. Miller, 54 Pa. 154; Knerr v. Hoffman, 65 Pa. 126; Wharton v. Douglass, 76 Pa. 273. As it appears from the counterclaim that there never has been a settlement or statement of account between the parties the defendant’s remedy is at law by account render or by bill in equity, therefore, unless the Prae
The second question raised must be answered against the appellant’s contention. The jurisdiction of the Municipal Court in actions of assumpsit is limited to $600. The defendant introduces a counterclaim in excess of $1,500 and asks a balance in his favor. With respect to this claim he is in the attitude of a plaintiff and would have the Municipal Court enter a judgment in excess of $1,500 in his favor in an action of assumpsit. It cannot have been the legislative intention to give that court jurisdiction in adjudicating a counterclaim which it did not have in the consideration of the claim of the plaintiff. A reasonable construction of the legislation must put the contending litigants on an equality. The plaintiff could only maintain a demand for a sum not exceeding $600 and the defendant is placed under a like restriction. No reason is apparent why a discrimination should be made in favor of the defendant and the legislation on the subject we think clearly establishes a contrary condition. The question is analagous to that considered in Holden v. Wiggins, 3 Penrose & Watts
The appeal is dismissed and the judgment affirmed.