Dismissal of the defendant's counterclaim and confirmation of the judgment of the cantonal court

Facts

Albert Keller wished to purchase pigs from Theodor Mathis. On January 7, 1959, Mathis sold 60 pigs to Keller for a price of 8,323 CHF, demanding cash payment. Keller promised to pay within two to three days by bank transfer. Before Keller paid, Franz Peter, who claimed to have a 12,608 CHF claim against Mathis, repurchased the pigs from Keller at a higher price. Peter then assigned his claim against Mathis to Keller, so that the latter could offset it against his debt to Mathis. Mathis then sued Keller for payment of the price of the pigs. Keller refused to pay, invoking the offset against the claim assigned by Peter. The cantonal court upheld Mathis' claim. Keller appealed.

Considerations

The Federal Tribunal considers that the defendant Keller waived the offset by promising payment within two to three days. Although he was not aware of Peter's claim at the time of this promise, the Federal Tribunal considers that Keller should have known that Mathis was demanding cash payment and that his promise of…