Groetzinger v. Latimer , 146 Pa. 628 ( 1892 )

Per Curiam:

The affidavit of defence does not deny the defendant’s liability for the use and occupation of the warehouse in question, but he attempts to set off damages caused by the plaintiff in having “ maliciously, illegally, and wrongfully” issued landlord’s warrants against him, seized his goods, and thereby injured his commercial credit. That the warrant was illegal was settled in Latimer v. Groetzinger, 139 Pa. 207. That case, however, has no further bearing upon this. The matters averred in the affidavit of defence cannot be set off in an action ex contractu, for the reason that they sound in tort and would form the subject of an action ex delicto. It is well settled that matters sounding in tort, arising out of a different transaction, cannot be given in evidence as a set-off: Gogel v. Jacoby, 5 S. & R. 117; and in Ahl v. Rhoads, 84 Pa. 319, it was said by Justice Woodward: “The right of a defendant may be regarded as established, to set off against a plaintiff’s demand, any damages capable of liquidation and for which an independent action ex contractu could be maintained. This may be stated as the general result of the authorities, extending especially from Nickle v. Baldwin, 4 W. & S. 290, to Hunt v. Gilmore, 59 Pa. 450. But, broad and liberal as the construction has been, it has never authorized the admission of proof of damages arising from a technical tort.” The law upon this subject is too well settled to require elaboration.

Judgment affirmed.