Mintz v. Tri-County Natural Gas Co.

Citations

• 259 Pa. 477
• 103 A. 285
• 1918 Pa. LEXIS 436

Syllabus

<p>Contracts — Action on several contract — Presumptionr^Set-off— Joint debt — Affidavit of defense — Insufficient averments — Corporation defendant — Affidavit by person not officer — Insufficiency— Act of May 14, 1915, P. L. 483 — Practice, C. P.</p> <p>1. A claim due from plaintiff and others, jointly, cannot be set off in; an action of assumpsit brought by plaintiff- alone, because to allow such a set-off -would compel .the latter to pay individually a debt 'for which he is’ liáble only when called upon jointly with others. , .</p> <p>2. Two or more persons sued jointly may set off a debt due by the plaintiff to any one of them, and one of two joint, obligees, with the consent of the other, may use the obligation as an equitable defense in an action by the obligor against one of them alone.</p> <p>3. At common law there are three distinct forms of obligations ex contractu: (1) joint, (2) several, and (3) joint and several. In an action on the first, it was necessary to sue all the obligors together, or the survivors of them; on the second, the obligors had to be sued separately; but on the third, the plaintiff could elect to sue separately or jointly.</p> <p>4. The question whether a contractual promise, made by two or more persons, is joint, several, or joint and several, depends upon the intention of the parties as evidenced by the language employed in the agreement under consideration, the general rule being that, in the absence of an apparent intent to the contrary, such promises are presumed to be joint, and not several or joint and several.</p> <p>5. The Practice Act of May 14, 1915, P. L. 483, providing that affidavits of defense shall be sworn to by the defendant or some person having knowledge of the facts, does not change the requirements theretofore existing for such affidavits when made by agents of corporations, who are not regular officers acting within the scope of their authority.</p> <p>6. An affidavit of defense filed on behalf of a corporation