Connor v. Schildt

Opinion by

Orlady, J.,

This action of assumpsit is to recover a semiannual payment of a ground rent reserved in a deed.^ Charles Schildt was not served, and it is not necessary to pass on the effect of the judgment entered against him since he was not in the court below and therefore his rights are not before us on this appeal. Rafferty was served as a terre-tenant and filed an affidavit of defense in which he alleges that the plaintiff, being the owner of a ground rent of $60.00 per annum on a lot of ground, agreed with Charles Schildt, who was the owner of the lot, for the better securing of the gronnd rent, to contribute the sum of $600 for the erection and construction of a dwelling house on said lot. A copy of the contract is attached to the affidavit of defense. He also alleges that Charles Schildt erected the building according to the plans and specifications and, “having fully complied with his contract in all respects,” assigned it to the deponent; and of this the plaintiff had notice. Of the sum of $600, the plaintiff paid $430, leaving a balance of $170, payment of which having been refused, the defendant (Rafferty) brought suit for it in the court of common pleas, which suit is still pending and undetermined.

The court below made absolute a rule for judgment for want of sufficient affidavit of defense, and John E. Rafferty brings this appeal.

The ground rent was an existing obligation at the date of the contract between Connor and Schildt, which contract specifies the conditions under which Connor was to make the seven instalments, aggregating $600. Among the payments were “ $100 when a full release of liens is signed by all the parties furnishing work or material for or about the erection of said house and delivered to the party of the second part by the party of the first part, and the balance of $100 when the street improvements are made and receipts .for the payment of the charges therefor are delivered to the party of the second part.” There is no averment of a delivery of the release and receipts mentioned, and in view of the statement of a pending and undetermined action in another forum for the sum here claimed as a set-off, the affidavit is evasive in not specifying the particular time and manner of compliance with the conditions of the contract under which he claims title: Moore v. Susquehanna Mutual Fire Ins. Co., 196 Pa. 82. The damages are not liquidated by the plaintiff’s statements, and whether from the affidavit of the defendant they should be so considered, depends upon conditions, the performance of which he does not allege. A set-off based on unliquidated damages as proposed in this affidavit cannot be allowed. Set-offs are allowed in order to prevent multiplicity of suits, and should not be the cause of new disputes. If allowed, they might “ throw open a perpetual rent to a perpetual dispute by an unwritten alteration of its amount, and thus make set-offs to be the cause of strifes instead of a way of ending them: ” Leibert v. Heitz, 193 Pa. 590. The defendant elected before the institution of the suit to pursue another remedy in order to recover the amount he- claims as a set-off in this action, and he should not complain if he is allowed to pursue it.

The judgment is affirmed.