Montz v. Morris

Mr. Justice Sterrett 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 [395] error was erroneously rejected on the ground that the question propounded to the witness was leading ; and that embraced in the third assignment was excluded on the broad ground that evidence of set-off was not admissible under the pleadings. This of course was error. The defendant below had a clear right to prove the account and show the assent of his partners to the use he proposed to make of it. After excluding what was, perhaps, the most available defence the defendant had, under the circumstances, the way was made comparatively clear for a verdict against him. The only other ground of defence, viz.: that the debt sued for was contracted by the defendant’s firm and not by himself individually, was greatly prejudiced, if not nullified, by that part of the charge specified in the sixth assignment, in which the jury were told, in substance, that the plea of set-off was practically an admission by the defendant that he himself had contracted the debt in suit. The reason given by the court for attributing'this novel effect to the plea of set-off was, because “ otherwise it would be absurd for the defendant to claim the right of a set-off as against the plaintiff’s claim.” This, with other portions of the charge complained of, was calculated to prejudice'and mislead the jury. Judgment reversed, and a venire facias de novo awarded.