Jack v. Klepser , 196 Pa. 187 ( 1900 )

Opinion by

Mr. Justice McCollum,

.The single question to be considered and determined on this appeal is whether the learned court below erred in deciding that the deposits specified in the third and fourth paragraphs of the case stated were legally a subject of set-off against the promissory note and indebtedness specified in the second paragraph thereof.

At the time of the failure of the bank the note described in the second paragraph of the case stated was not due, but this fact was no obstruction to the exercise, by Klepser and Woodcock, of their right to set off against the note the deposit mentioned in the third paragraph: Jordan v. Sharlock, 84 Pa. 366.

The deposit mentioned in the fourth paragraph of the case stated was the property of the firm of Woodcock and Curry, and Woodcock was also a member of the firm of Klepser and Woodcock. Curry, shortly after the failure of the bank, transferred his interest in the deposit to Woodcock who claimed to have a legal right to set off the deposit against the note of which Klepser and Woodcock were makers, and D. M. Kelpser was payee and indorser, and who, for value received, transferred the same to the Martinsburg Deposit Bank and guaranteed the payment thereof.

In Wrenshall v. Cook, 7 Watts, 464, the sole bar to the set-, off presented by the defendant was the failure to include in the case stated the consent of his copartners. In Tustin v. Cameron, 5 Wharton, 379, it was held “that the defendants might set off a debt due by the plaintiff to a company or partnership of which the defendants were members; the other members of the company or partnership authorizing the same.” The principle discussed in Wrenshall v. Cook, supra, is not a mere dictum. It was enforced in Tustin v. Cameron and has not been departed from in any of our cases since. It is apparently applicable to the case at bar, the equity of which appears to require its enforcement.

In Smith & Co. v. Myler & Aber, 22 Pa. 36, Woodward, J., in delivering the opinion of the court said, inter alia, that “ a joint claim may be set off by one of the owners in an action against Mm for his own proper debt, provided he have the express assent of his copartners, and there are no third interests to be prejudiced,” and that “this assent may be given after action brought.” - The cases referred to as supporting these views were those cited above, and Craig v. Henderson, 2 Pa. 261, Solliday v. Bissey, 12 Pa. 347, and Hart v. Porter, 5 S. & R. 200. One of two or more defendants may set off his individual claim against the plaintiff’s joint claim; Miller v. Kreiter, 76 Pa. 78, and cases cited therein.

No good reason appears for denying to Woodcock the right to set off the deposit in question against the note in suit. It constitutes an equitable and just defense and there is in the cases since Tustin v. Cameron no visible obstruction to the allowance of it. We therefore concur in the conclusion arrived at M the clear and logical oprnion of the learned judge of the court below. •

Judgment affirmed.