Edelman v. Scholl

65 Pa. Super. 357, 1916 Pa. Super. LEXIS 84

• Court: Superior Court of Pennsylvania
• Decided: December 18, 1916
• Docket: Appeal, No. 125
• Status: Published

Opinion

Opinion by

Kephart, J.,

Since Tustin v. Cameron, 5 Wharton 880, there has been no reason to doubt the right of one partner with the assent of his copartners, to set off, in an action against him personally, a debt due to his firm by the plaintiff in the suit. 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 : Montz v. Morris, 89 Pa. 392. The answer and counterclaim set up the debt due the partnership and the plaintiff admitted in his reply to the counterclaim that he owed one hundred and seventy dollars of this debt. The reply was conclusive on the plaintiff for that amount. As stated in Montz v. Morris, supra, it was not necessary that the claim be assigned. Nor is it necessary that consent be obtained before suit. All that is necessary where the claim has been set forth in the affidavit of defense is that it appear in the evidence that the assent of the parties to its use had been given. The court was in error in excluding the counterclaim.

The judgment is reversed with a venire facias de novo.