246 Pa. 78 | Pa. | 1914
Opinion by
This is an appeal from the refusal of the court below to enter judgment for plaintiff, for want of a sufficient affidavit of defense. The docket entries are not printed, but it is stated that the action is in assumpsit. In the statement of claim, it is averred that plaintiff is a corporation engaged in the manufacture of straw board boxes bound with metal edges, and defendant is a corporation engaged in the business of punching flat wire and thereby making it available as metal strips; that at various dates in 1911 plaintiff bought, paid for, and caused to be delivered to defendant at its factory in Montrose, Pa., flat wire to the amount of 24,009 pounds; that plaintiff delivered the wire to defendant solely for the purpose of being punched and made available as metal strips for plaintiff, and that defendant agreed to punch the same and immediately thereafter to return it to plaintiff so punched, for a certain price, which plaintiff agreed to pay; that defendant punched the wire, but in violation of its agreement, failed to return any part of it to plaintiff, but sold and delivered it to various persons, and received in payment various sums of money, aggregating at least $2,071.83, which was a fair and reasonable market price for the wire; that plaintiff protested against defendant’s action in the premises, and defendant stated that it would pay the plaintiff the exact cost of the wire, which was $2,071.83, or else would order similar metal wire, and return the exact quantity to
It is suggested by counsel for appellee, that the court below is the best judge of its own rules; that principle is, of course, recognized and accepted, but there is nothing in this record to show that the court below, under
We agree with the contention of counsel for appellant, that the claim of “set-off” made in the suit in the Federal Court, cannot in any proper sense be regarded as a bar to the maintenance by the plaintiff of its claim in the present action; the numerous authorities which they cite in support of their argument fully sustain their position. See Filbert v. Hawk, 8 Watts 443; Stroh v. Uhrich, 1 W. & S. 57; Russell v. Miller, 54 Pa. 154; Gilmore v. Reed, 76 Pa. 462; Somerset Colliery Co. v. John, 219 Pa. 380; Cochran v. Cutter, 18 Pa. Superior Ct. 282; Snyder v. Lingo, 30 Pa. Superior Ct. 651. Counsel for appellee cite the case of Penna. R. R. Co. v. Davenport, 154 Pa. 111, as authority for the contrary view. That decision is not to be extended in any way beyond its own specific facts. It cannot be held to overrule the sound principle, supported by abundant authority, that the mere pendency of a suit upon a claim, will not prevent the same claim from being used as a set-off in another action; or vice versa, that the introduction of a claim as a set-off in one action, will not create a bar to a suit in another court, in a direct action upon the same claim.
The assignments of error are sustained, the action of the court below in discharging the rule for judgment, is reversed, and judgment is here entered for plaintiff in the sum of $2,071.83, with interest from December 1, 1911.