Riley v. Eigo

Opinion by Reeder, J., The affidavit of defense sets out that the plaintiff and defendant subsequent to the loan upon which suit is brought entered into a partnership for the purpose of carrying on a retail coal business; that the plaintiff withdrew from the partnership in March, 1895, and that some time thereafter the defendant paid a bill for coal amounting to $440, one half of which should be set off against the amount $110, which the plaintiff sues for. This affidavit of defense is defective and insufficient in several particulars. There is no allegation that the amount was paid by the defendant before the suit was brought. In Huling v. Hugg, 1 W. & S. 418, Justice Rogers says, “ A debt or demand to be set off under the statute must be an existing debt or demand at the time of the commencement of the suit: Carpenter v. Butterfield, 3 Johns Cases, 145; Jefferson County Bank v. Chapman, 19 Johns, 324.” This decision was either followed or approved in a long line of decisions, viz: Pennell v. Grubb, 13 Pa. 552; Smith v. Ewer, 22 Pa. 116; Speer v. Sterrett, 29 Pa. 192; Zuck v. McClure & Co., 98 Pa. [142] 541; Roig v. Tim, 103 Pa. 115; Gunis Barritt & Co. v. Cluff, 111 Pa. 512. The affidavit of defense is defective also in that it attempts to set off a single partnership transaction against an individual debt. There is no claim in the affidavit of defense that upon - a settlement of the partnership accounts an indebtedness from the plaintiff to the defendant would be found to exist, but that in a single isolated transaction the defendant paid a debt one half of which was due from the plaintiff as a member of the firm. For anything we can gather from the affidavit of defense there may have been a much larger amount due to the plaintiff from the defendant upon a settlement of the partnership accounts than the single account paid by the defendant and set up as a defense in his affidavit. But there is a much more radical and sweeping defect in the affidavit of defense. Even though the affidavit of defense had declared that upon a full settlement of the partnership accounts the plaintiff would be indebted to him in an amount greater than his claim the affidavit of defense would still have been insufficient unless it had also stated that this amount-had been ascertained and determined by a settlement of the partnership account. In Roberts v. Fitler, 13 Pa. 265, Justice Burnside said, “ On a plea of set-off the defendant offered in evidence the various sums which he had paid for and advanced to the partnership of Carr & Roberts. ' This offer involved the settlement .of their partnership accounts without even an allegation of there being anything due the defendant out of the partnership. The court were right in rejecting the offer.” In Sennett v. Johnson, 9 Pa. 336, the Supreme Court say, “The evidence offered was properly rejected because it is not the subject of set-off. The whole matter proposed to be proved involved settlement of partnership accounts which can only be properly settled in an action of account render.” In Klase v. Bright, 71 Pa. 186, Justice Williams says, “There can be no pretense that the defendant was entitled to set off one half of the amount .which he had paid on account of the partnership indebtedness if the plaintiff was not indebted to the partnership -by reason of such payments. Whether he was indebted or not could only be ascertained in a settlement [143] of the partnership accounts which could not be made by a jury in this action. The only mode provided by law for the settlement of partnership dealings is by a bill in equity or an action of account render.” In Leidy v. Messinger, 71 Pa. 177, The Supreme Court say, “But a partner cannot maintain assumpsit against his copartner to recover the excess of his advances unless there has been a settlement of the partnership accounts and a balance has been struck. And this rule applies whether the subject-matter or property of the partnership has ceased to exist or not. It would beget an intolerable multiplicity of suits to allow one partner to sue another for contribution as often as he paid moneys or made advances on account of the partnership. To prevent such burdensome litigation the law has wisely provided that the partnership accounts shall be settled in one proceeding either by an action of account render or by a bill in equity, and that in the absence of an express promise to pay assumpsit will not lie by one partner against another for advances until there has been a settlement of the partnership accounts.” In Crow v. Green, 111 Pa. 637 it is said, “The case comes within the perfectly familiar rule that one partner cannot sue another partner for a partnership transaction except by bill in equity or an action of account render.” In Murray v. Herrick (171 Pa. 21), Justice Green says, “ As the present action is brought by one who was a partner against another who was a copartner in the same business to recover contribution for an alleged excess of payments by the plaintiff of partnership debts, and as there is no pretense that there has been a settlement of the partnership accounts it is clear the present action cannot be sustained.” It must be conceded that McFadden v. Erwin, 2 Wharton, 37, determines this question differently, and if that case stood alone, by reason of its authority we would have to hold that under a plea of set-off a jury could inquire whether the plaintiff was indebted to the defendant upon unsettled partnership account, and if so to allow such indebtedness as a set-off against the plaintiff’s claim. But all the more recent decisions decide the question differently as we have already shown. Judgment affirmed.