Miller & Reist v. Kreiter ex rel. Bomberger

76 Pa. 78, 2 Foster 267, 1874 Pa. LEXIS 156

• Court: Supreme Court of Pennsylvania
• Decided: May 25, 1874
• Status: Published

Opinion

Mr. Justice Gordon

delivered the opinion of the court, May 25th 1874.

Reist, the defendant, by his endorsement of the note drawn by Kreiter to Hostetter, became surety for Kreiter. Hence, as soon as the note was protested, June 10th 1871, and Reist’s liability as endorser became fixed and absolute, he was entitled to call upon the maker to exonerate him from such liability, and that even before demand was made upon him for payment: Beaver v. Beaver, 11 Harris 167. His right of set-off, as against any claim Kreiter had against him, may be said to have originated from this period. When, therefore, he paid the note on which he was endorser, May 20th 1873, he was, by force of his equitable status, put in the same position as if he had paid it at the time of protest. Again, as there is no evidence of the date of the assignment to Bomberger of the non-negotiable note drawn by Miller & Reist, on which this suit is founded, and as Reist had no notice thereof previously to the service of the summons, January 25th 1872, as against him, it could be effective only from that date; for the rule is, that the period from which to determine the rights of the assignee and defendant is not the date of the assignment, but the time when the latter had notice: Northampton v. Balliet, 8 W. & S. 311. It follows, therefore, that Reist’s equitable set-off having arisen before the assignment to Bomberger, he had the right to defalk his claim against the note in suit, and the court should so have ruled.

The counsel for the defendant in error is mistaken in the supposition that one of two or more defendants may not set off his individual claim against the joint claim of the plaintiff. The converse of this is held in Childerston v. Hammon, 9 S. & R. 67, and Archer v. Dunn, 2 W. & S. 361.

Judgment reversed, and a venire facias d& novo awarded.