89 Pa. 392 | Pa. | 1879
delivered the opinion of the court, March 24th 1879.
Great liberality has always been exercised in this state in the admission of either legal or equitable set-off; and it is always allowed when by so doing it is practicable to avoid circuity of action and unnecessary costs with safety and convenience to the parties concerned. Since Tustin v. Cameron, 5 Whart. 380, there has been no reason to doubt the right of one partner, with the assent of his copartners, to set-off, in an action against himself personally, a debt due to his firm by the plaintiff in the suit. This was what the plaintiff in error claimed the right to do; -and the burden of his complaint in the first three assignments of error, is that the court refused to permit it to be done. In the first place he denied his individual liability, and in answer to the allegation of the plaintiff below, contended that the claim for which he was sued individually, was the debt of Landmesser & Co., of which.he was a member, contracted by one of the partners in behalf of the firm, and the amount thereof credited to Morris on their boohs. Testimony to this effect was introduced by the defendant below; but, to meet the case presented by the plaintiff’s testimony, in case it should be believed by the jury, he also proposed, as an independent ground of defence, to present the account of the firm and, with the assent of his partners, set it off against the plaintiff’s claim. There was nothing in the state of the pleadings to forbid this, and the testimony should have been received. The reason for rejecting one of the offers was that the account of the firm against Morris, the plaintiff below, had not been assigned to the defendant. This was of course unnecessary. Proof of the account and assent of the partners to its use by the defendant as a set-off, wraS all that was required. The offer complained of in the second assignment of
Judgment reversed, and a venire facias de novo awarded.