Domestic Sewing Machine Co. v. Saylor , 1878 Pa. LEXIS 57 ( 1878 )

Mr. Justice Paxson

delivered the opinion of the court,

This record presents but a single question. John L. Saylor brought suit’against the Domestic Sewing Machine Company (defendants below) to recover the contract price for thirteen wagons which he alleges he constructed for them. The defendants claimed a set-off, and gave in evidence a joint and several contract in the form, of a bond, signed by Saylor with other parties, the condition of which was “that if the above bounden, Emanuel Plippard, his heirs, executors and administrators, shall well and truly pay or cause to be paid any and every indebtedness or liability now existing, or which may hereafter in any manner exist, or be incurred on the part of the said E. Hippard to the said Domestic Sewing Machine Company, whether such indebtedness or liability shall exist in the shape of book accounts, notes, renewals, or extensions of notes or accounts, acceptances, endorsements or otherwise. * * Then this obligation to be void ; but otherwise to remain in full force and virtue.” This instrument, although in form a bond, and designated as such in defendants’ notice of set-off, was not sealed, and. was objected to for that reason. The defendants then changed their pleas to meet the exigencies of their defence, and introduced evidence tending to show consideration. It was then properly admitted in evidence. The plaintiff denied that' Hippard was indebted to the company, and there was conflicting evidence upon this point. The learned judge practically withdrew the question of fact from the jury by instructing them that “the surety has a right to be satisfied that there is a debt owing before he can be called upon to pay. There must be a settlement and adjustment of accounts between Hippard and the defendants before Saylor can be held responsible, and you must be satisfied that there was a settlement of accounts and balance struck before you can give defendants a verdict.” We think this instruction was erroneous. It would undoubtedly have been more convenient for the purposes of the trial had there been a settlement of accounts between Hippard and the company and a balance struck. This, however, is but the argument ab inconvenienti, as such prior settlement is not required by any rule of law. It was not a question between partners where a balance can only be ascertained by a settlement or an action of account render The contract being several as well as joint the company could have sued Saylor upon it either with or without joining the other parties. That he was a surety can make no difference in this respect. Whether a surety can be proceeded against in the first instance depends to some extent upon the form of the obligation which he signs. If then the company could have sued Saylor and recovered for the indebtedness of Hippard, there seems no good reason why they may not avail themselves of the same cause of action by way of set-off. The practical difficulties upon the trial could be no greater than in the case of unliquidated damages for breach of contract, and it has been repeatedly held that such damages may be set off: Shaw v. Badger, 12 S. & R. 275; Steigleman v. Jeffries, 1 Id. 477; Hubler v. Tamney, 5 Watts 51; Nickle v. Baldwin, 4 W. & S. 290; Thomas v. Shoemaker, 6 Id. 179; Phillips v. Lawrence, Id. 152; Ellmaker v. Fire Ins. Co., Id. 439; Speers v. Sterrett, 5 Casey 192; Hunt v. Gilmore, 9 P. F. Smith 450; Halfpenny v. Bell, 1 Norris 128. Our Defalcation Act is very broad in its terms. It allows the defendant to give any “bond, bill, receipt, account or bargain in evidence.” But I do not propose to discuss this act at length. It has been in force since 1705, and ought by this time to be generally understood. Here, in answer to the suit, the defendants allege that the plaintiff is indebted to them upon this bond. That such indebtedness may be set off is too plain for argument.

Judgment reversed and a venire facias de novo awarded.