Bentz v. Bentz

95 Pa. 216, 1880 Pa. LEXIS 305

• Court: Supreme Court of Pennsylvania
• Decided: October 4, 1880
• Status: Published

Opinion

Mr. Justice Mercur

delivered the opinion of the court,

This alleged grievance is the denial of a set-off. The suit was on a note made by the plaintiff in error to the defendants in error as joint payees. Suit was brought in their joint names, and the set-off offered was a debt against one of them. The court rejected the offer.

As a general rule, set-off is admissible only where it is in the same right and between the same parties: Milliken & Co. v. Gardner, 1 Wright 456. To this rule there are some exceptions. Among them may be stated, when suit is brought by a surviving partner, a set-off against the late firm is allowable. So defendants sued jointly may set-off a debt due by the plaintiff to one of them: Childerson et al. v. Harmony, 9 S. & R. 68. This may be done unless there be some superior equity in a third person : Stuart et al. v. Coulter, 12 S. & R. 252. But a defendant cannot set off a debt due him by one of several plaintiffs : 1 Pars, on Cont. 739; Henderson v. Lewis, 9 S. & R. 379 ; Watson v. Hensel, 7 Watts 344; Archer v. Dunn, 2 W. & S. 361; Norcross v. Benton, 2 Wright 217. The fact that the defendants in error are husband and wife does not change the rule. She may hold, use and enjoy her separate property to the exclusion of her husband and of all other persons. The note was made to the defendants in error as joint payees. It did not rest on an agreement between them. The plaintiff in error agreed to so pay it to them jointly. No other creditor of the husband complains of the maker having so agreed. He does not offer to prove any fact showing he was induced through fraud or deceit to so make the notfe. He is in no position to gainsay the validity of his agreement. His subsequent disappointed expectations in no manner caused' by her, cannot defeat her vested lights.

Judgment affirmed.