Montz v. Morris

1. A member of a firm may, with the assent of his co-partners, set-off, in an action against him individually, a debt due to the firm by the plaintiff in the action. 2. Proof of the account and of the assent of the partners to its use, are all that is required; it is not necessary that the account should be assigned to the defendant.

Error to the Court of Common Pleas of Luzerne county: Of January Term 1879, No. 142. This was an action brought by Thomas Morris, before an aider-man, against J. A. Montz, for the price of a cow sold to defendant. The alderman gave judgment for the plaintiff and defendant appealed to the Common Pleas. The pleas were non-assumpsit, payment, &c., which were amended during the trial, by adding “ payment with notice of defalcation, set-off and payment with leave.” At the trial, before Stanton, J., it appeared that Montz was a member of the firm of Landmesser & Co. To this firm Morris owed about one hundred dollars. When Montz bought the cow, he credited Morris with the price, fifty-five dollars, on the firm books. Without paying anything on his account, Morris demanded the money for the cow, claiming it was sold to Montz and not to the firm. Defendant offered to show that, after giving credit to the plaintiff for all payments, including that' of the cow, there remained a balance due to Landmesser & Co., from the plaintiff, of sixty-nine dollars. Plaintiff objected, upon the ground that any indebtedness of Morris to the firm could not avail the defendant in this case, he having no assignment of the claim, and that the firm debt could not be set-off against an individual debt; and further, that the offer was not made to prove indebtedness prior to the bringing of this suit. The court sustained the objection, on the ground that there was no assignment of the claim. (First assignment of error.) The defendant proposed to ask a witness : “ You have already stated that you are one of the partners ; state whether or not you assent to the use of the book-account of the firm by Mr. Montz as an off-set in this case ?” The court refused to allow the question, on the ground that it was leading. (Second assignment.) The defendant then offered the written assent of the members of the firm to the use of the account of said firm by Montz as a set-off. The court rejected this evidence for the reason that evidence of set-off, under the pleadings, was not then admissible. In the general charge, the court, inter alia, said: “You have the right, we say, to find, from the manner in which defence was made, how the defendant himself regards this case. Because it is a light to you in reaching a conclusion, to know whether the defendant, in the face of his own testimony; in the face of the testimony of the plaintiff, believes that he was acting for the firm or for himself. [You will notice that in this case there is more than the mere issue that he did not buy for himself. The defence filed yesterday, with our consent, a plea of set-off. That, as we construe it (for it is proper for us to give construction to the pleading in this ease) is in the nature of admission that this contract is between this plaintiff and this defendant; for otherwise it would be absurd for the defendant to claim the right to a set-off as against the plaintiff’s claim.”] A partner, when sued individually, may set-off a firm account: Wrenshall v. Cook, 7 Watts 464 ; Tustin v. Cameron, 5 Wharton 379 ; Craig v. Henderson, 2 Barr 261; Burke v. Maxwell’s Admrs., 31 P. F. Smith 139. No assignment of claim has ever been held necessary. All that was needed was the assent of the firm. The assent of the other members of the firm may be given to the-use of its accounts as set-off, by one of its members, in his individual suit, after suit brought, and upon the trial of the case: Smith & Co. v. Myler & Aber, 10 Harris 40 ; Hart v. Porter, 5 S. & R. 200; Silberburg v. Pincus, 6 Phila. 533 ; Todd v. Lorah, 25 P. E. Smith 155. The evidence offered under the first assignment of error was inadmissible under the plea of “ non-assumpsit and payment,” and for the further reason that in the offer made defendant did not attempt to show that he either had the assent of his copartners to use their claim as a set-off against his individual liability in this case, or that he held an assignment of their claim for that purpose; or that the debt alleged to be due the partnership, was contracted previous to the "commencement of this suit. After plaintiff rested it was too late for defendant to amend by adding the plea of set-off: 1 Tr.. & Haley Pr. 473; Glazer v. Lowrie, 8 S. & R. 498.