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easily settled in the domestic forum, C. P. of

Montgomery Co. when it is known that the law expects of

Egolf & Son v. Casselberry et al. married persons mutual concessions, for- Mechanic's Lien-Statements-Time. bearance and even submission to great

The statement of claim under the act of June wrongs, often would under a different 17, 1887, P. L. 409, must be verified by affidavit legal system end in disastrous and per- or the lien will be stricken off. Such claim manent separations, disgraceful to the must be filed within thirty days from the time parties, distressing to their children and the last work was done by the claimant. humiliating to their friends. When peo Motion to strike off lien, ple understand that they must live to

Wagner & Knipe, Esgs., for motion. gether, except for a few reasons known to the law, they learn to soften by mutual Franklin March, Esq., contra. accommodation the yoke which they December 4, 1893. SWARTZ, P. J.know they cannot shake off ; they become The claimants file their lien against a good husbands and good wives, from the leasehold interest. They make their denecessity of remaining husbands and mand "against the building hereinafter wives; for necessity is a powerful master mentioned erected upon a certain leasein teaching the duties it imposes.” It hold.” They request the Prothonotary would do no harm if in these days of to file their lien "against the above menhasty separations these solemn and im- tioned and described improvements and pressive words were printed on the face upon the above mentioned and described of every marriage certificate.

lot or leasehold to the extent of the inIt remains only to refer briefly to the terest of Franklin Stelts, the tenant or grounds on which the plaintiff bases his lessee above named therein." charge of cruel treatment. Assuming his It is evident that the claim is based evidence to be true, as has been seen we upon the act of Assembly approved June must, it establishes that on one occasion 17, 1887, P. L. 409. If not, then there the defendant slapped him in the face; is no authority for the lien, for we are that three or four days afterwards, while not aware of any other act which authorhe was down, she kicked him on the izes the filing of a lien against such leasehead and face, but the consequent injury hold interests in the county of Montseems to have been trilling; that she gomery. wrote him abusive letters, some of which Section second of the act of 1887 prowere anonymous ; that she did not occupy vides: "Every person entitled to a lien the same room with him; that she entered by the provisions of this act shall file in up a judgment note that he had given her, the office of the Prothonotary of the and in other ways, but of this the evi- Court of Common Pleas of the county dence is exceedingly slight, attempted to wherein said leasehold, lot or parcel of ruin his business; that she made extrava- ground is located, within thirty days gant purchases on his credit for her own from the time the last work or labor was use, at a time when he was in embar- done, a statement of his claim or demand, rassed circumstances; and that she had verified by affidavit.” alienated from him his children's affec Section third of the act provides: tions. It needs no argument to show that "Every such debt as aforesaid shall be a these charges fall far below the legal re- lien as aforesaid for the period of thirty quirements. We think therefore that no days after the last work shall be done, error was committed in entering a com- although no claim shall have been filed pulsory nonsuit, and that it all we decide. therefor, and no longer.” We do not decide that the plaintiff any The claim before us is not verified by more than his wife, is responsible for affidavit, and this alone is a sufficient their present strained relations. Indeed ground to strike off the lien : Gibbs v. it would be almost wholly exceptional if Peck, 77 Penna. St. R. 86. when the bottom facts were reached it It is also clear that the claimant lost did not turn out that there has been his lien by failure to file the statement wrong on both sides.

within thirty days from the time the last And now, November 27th, 1893, the work was done or material furnished. motion to set aside the judgment of non According to the bill of particulars the suit is overruled.

last material was furnished May 12,

Vol. VII.

No. 32.

ness

***k Legal Record. no other way did he obtain possession of the

property and effects entrusted to him. THURSDAY, JAN. 18, 1894.

There is no intimation in the affidavits that

there was anything done by the debtor or the 1893. The lien was not filed until Sep- parties to the agreement, with the intention tember 8, 1893.

to hinder, delay or defraud creditors. The The third section of the act provides preference

, if any, was made, was one which for a period of thirty days, aithough no the debtor had a right to make. claim shall have been filed therefor, and

It does not lie in the mouth of C. E. Ehreno longer. The last work done refers to which he has acted.

liart to deny or dispute the authority under

If he knew that his the work of the claimant and not to the principals had no right to give it, he is percompletion of the building.

sonally responsible. The lien is stricken off.

Motion for judgment for want of sufficient affidavit of defence.

Geo. J. Benner and Wm. Arch. McC. P. of

Adams Co. Clean for motion.
Johns v. Ehrehart.

J. C. Neely and Edward Chapin,

contra. Assignments-AgencyLiabiliiy. Martin & Co. assigned their accounts to Martin & Co. on the 23rd day of July,

November 9, 1893. McCLEAN, P. J.Johns with authority to collect and receive the same, and apply the proceeds to their indebted- 1891, assigned in writing all their books

to him without further accounting to of accounts, &c., to Samuel L. Johns, them, the amount of the indebtedness being with authority to Johns to collect, receive fixed. A second judgment was afterward and apply the same to their indebtedness entered for an additional sum. afterward Johns authorized defendant to col- to him without further accounting to lect and adjust said accounts. A few days them, the indebtedness to Johns being set later an agreement in writing was made be out on that day, as $10,362. A second tween Johns and certain creditors of Martin & judgment was afterwards entered in faCo., by which all parties appointed Ehrehart as

vor of Johns for an additional sum. their agent to collect the accounts, and agreed that after Johns' claim was paid the balance re

A few days later Johns authorized the maining after deducting costs, should be paid Defendant Ehrehart to collect and adjust to the creditors who signed the agreement. the said book accounts. Defendant collected the sums and applied the proceeds to the payment of other claims

A few days further on, Johns enters against Martin & Co. Defendant averred that into an agreement in writing with certain the judgment confessed to Johns was fraudu- creditors of Martin & Co., agreeing to lently confessed and for more than was due. stay executions on his two judgments, HELD, not to be a sufficient defence.

which were then in the hands of the The only authority the defendant has in the Sheriff and to turn all book accounts, premises is that given in writing by the plain- stock, &c., of Martin & Co., in the hands tiff and other creditors who signed the agree, of Ehrehart as agent, he to collect the ment. His duty is fixed. He was not invested book accounts, &c. and to sell and dispose with judicial power in the distribution of the proceeds. He was not to act and execute, and of the stock, &c., and the amount of afterwards attempt to negative and destroy the Johns' entire claim, $11,562 as agreed authority which created his functions.

upon, to be paid to him by Ehrehart out It is not material what representations were

of the first monies realized from collecmade by Johns as to the amount of his judg- tions and sales. The parties of the other ment or as to the probable amount of percent- part agree to appoint Ehrehart their age that might be realized by the other parties, agent to collect and convert into money, which latter would manifestly be a matter of and further agree and in the said writing opinion or conjecture. Fraud without the concurrence of injury affords no ground for relief. authorize and direct that out of the first

proceeds of the collections and sales, It was Ehrehart's duty to execute faithfully Ehrehart shall pay Johns $11,562, the his subordinate and ministerial part under the balance remaining after costs and ex: agreement, and not to attempt to repudiate or vitiate the authority principals

. He was penses to be applied to the payment of to serve them in the way plainly pointed out to the claims of the creditors of the second him, and which he has undertaken to do. In part, who signed the agreement.

The plaintiff avers that the defendant mittee were responsible for the indebtedcollected the accounts and sold and dis- ness for which the check was given by posed of the stock, and that from these Quay as chairman; and it differs likewise proceeds, there is due and owing to the from the other case cited, of Seyfert, plaintiff the amount agreed upon, $11,- Mellanus & Co. v. Lowe, 7 W. N. Č. 39, 562, less the sum paid the plaintiff, for in which the plaintiffs were dealing with which the defendant is entitled to a the Gas Company, when they took the credit.

note from Lowe, president. The ground of defendant's liability is The defendant after realizing the prothus distinctly stated. There might have ceeds undertakes arbitrarily to divert arisen a question whether the action them from the purpose distinctly agreed should not have been account render, upon in the instrument under which he rather than assumpsit.

acted. The defendant has however plead in

When the defendant comes to the debar, not in abatement and no such ques- fence of fraud in the confession of the tion is suggested by the affidavits of de- judgments to the plaintiff, the averment fence. On the contrary the defendant is that they were fraudulently confessed admits the contract.

and entered for the sum of two thousand

dollars more than was due. The plainHe knew the terms of it, and proceeds tiff does not seek to collect this alleged to execute his part of it. He has collect- excess of $2,000. A reduction of that ed a large amount of money in pursu- amount was made when the agreement ance of the authority with which he was

was entered into. And how are the clothed. Not only so but he sets out in parties of the second part to that agreehis affidavits a full, detailed and presumment prejudiced? Johns had all the asably a fair account of his transaction of sets of the firm debtor of Martin & Co. the agency

in his own hands. He had all their acHe shows book accounts col

counts; he had a lien upon all their aslected

.

He could have held at bay all the Proceeds of sale of stock. ... 8,660.04 other creditors. The parties of the sec

ond part in consideration of the forbearTotal

$12,284.90 ance of Johns, agree to and with him to Disbursements, expenses, &c. . $10,254.15 appoint Ehrehart their agent to collect,

convert and apply as expressly provided

in the instrument. $2,030.75

The arrangement was Further costs, expenses and

manifestly at the instance and in the incommissions

.$ 650.00 terest of these other creditors. They were

to receive the benefit of any surplus reAdmitted balance

$ 1,380.75 maining after the payment of the reAccounts uncollected

.$ 4,221.19

duced amount to Johns, for the payment

of their claims, they, and not all the credThe only authority the defendant has itors of Martin & Co. in the premises is that given in writing by the plaintiff and other creditors who

Johns had been the most vigilant, the signed the agreement. His Juty is fixed. parties of the second part next, and any He was not vested with judicial power for, although it does not appear that any

remaining creditors were left unprovided in the distribution of the proceeds. He

such were known at the time. There was was not to act and execute, and afterwards attempt to negative and destroy no such thing as a general assignment of the authority which created his functions. assets for the benefit of creditors. The balance of proceeds of collections It is beyond controversy that the parand sale is in the hands of Ehrehart. No ties of the second part fully recognized one clse but himself is liable for this the prior grasp that Johns had of every amount, and herein the case against him thing that afterwards by the agreement, Jiffers from that of Markley v. Quay, was put into the hands of Ehrehart

. 8 W. N. C. 145, cited by Mr. Chapin, in How can these parties of the second part which all the members of the State Com-i or any of them complain? How have

they. in any way been injured? They to it, but in law fraudulent as to execustand just where their voluntary contracı tion creditors not assenting to it. placed them. Would they be in any bet The plaintiffs in two of the attachment ter position if Johns had proceeded with executions, viz., Rufus Krug and F. X. his executions and the collection of the Smith, are also parties to the agreement. book accounts under the assignment to By their participation in the transactidii himself? Certainly not. And it is not they are precluded from the effort to material what representations were made

avoid it. by Johns as to the amount of his judgments or as to the probable amount or whose debt is now represented by a note

If the Hanover Savings Fund Society, percentage that might be realized by the other parties, which latter would mani- with warrant of attorney executed by festly be a matter of opinion or conjec- Martin & Co., et al., May 6, 1893, was a ture. How were they injured even if the creditor at the date of the agreement, it representations were incorrect and un n- does not follow that it was excluded true? Fraud without the concurrence of fraudulently from the sale by Martin & injury affords no ground for relief; Wil- Co. to the designated creditors. It is not liams v. Kerr, 152 Pa. 565.

even assertel so in the affidavit of jeThere has been no attempt made by fence, and no ground in fact or law is any one to impeach or open the judg- shown why the sale should be treaied as ments to Johns. The firm debtor does voil. The act of Martin & Co.,as evidencnot complain. They do not aliege fraud, ed by the instrument signed by them, ist but it is Ehrehart who does, the man of August, 1891, was a direct, absolute, whose duty it was to execute faithfully unconditional sale of their stock of cigars, his subordinate and ministerial part un- tobacco, &c., to the creditors named der the agreement, and not to attempt to therein, embracing all the execution credrepudiate or vitiate the authority of his itors. It is nowhere asserted that this sale principals. He was to serve them in the was not for a full price or value. A sale way plainly pointed out to him, and for a full price with no reservation, for which he has undertaken to cio. In no the purpose of paying certain debts and other way did he obtain possession of with that intent, is a lawful and honest the property and effects entrusted to him. transaction ; The York Co. Barik v. CarThere is no intimation in the affidavits ter, 38 Pa. 454. It is not even asserted

in our case that Martin & Co. were insolthat there was anything done by the

vent. debtor or the parties to the agreement,

In Wallace v. Wainright, 87 Pa. with the intention to hinder, delay or de- 263, the assignment for review in that fraud creditors. The preference, if any

Case, recited the inability of the assigners was made, was one which the debtor had to satisfy their creditors, and the assiga right to make.

nees had no beneficial interest whatever

in the claims assigned to them. In the Something was sail upon the argu- case at bar the legal title to the property ment of this motion about other executions being out at the same time that the purchasers. The Jebtors had no fur

was vested in the creditors who became Johns' were, in 1891. These other execu- ther connection with it. The debtors tions were returned by order of attorney were not a party to the agreement whichi for the plaintiffs, and this attorney was authorized Mr. Ehrehart to collect and the same Mr. Ehrehart who is the de

The case of the Winers' Nafendant in the present case.

tional Bank's Appeal, 57 Pa. 193, was an There was no objection on the part of assignment in trust by the debtor. In these other execution creditors, viz., The Watson v. Bagaley, 12 Pa. 164, there was Conewago Cigar Box Co., Limited, and a power of attorney executed by the F. X. Smith, but on the contrary they debtor to collect and pay to certain credassented to the arrangement made and itors in a prescribed order of preference, became parties to the agreement. In and this was held after the execution of Reamers Appeal, 18 Pa. 510, cited by de- the power to be virtually an assignment fendant's counsel, the arrangement in for the benefit of creditors. No one of that case was hell of course to be bin.l- I those four cases citeil by Vr. Veely, viz., ing on the parties whose counsel agreed The York Co. Bank v. Carter, The Min

convert.

In no

ers' National Bank's Appeal, Watson v. insufficiency. We must presume there Bagaley, and Wallace v. Wainright, has is no other evidence to be offered than the special features of the case in hand. what has been stated. one of them had the rights of

If there is any force whatever in the execution creditors been fastened upon objection to the sale by Martin & Co., to the property. They were all assignments the creditors designated in the instruwithin the purview of the statutes. John; ment, it must be born in mind that the had a fixed preference by judgments and executions. There is no question here those other creditors does not rest upon

There is no question here agreement between the Plaintiff and with subsequent execution creditors or or even refer to such sale. It is based purchasers. The statute of 13 Eliz, is

upon the fact of the effects being then in only aimed at intended fraud. The pay; the hands of the Sheriff, on executions isment of a debt to one creditor is no fraud sued on the judgments of Johns, and the upon another creditor, no legal injury to stock being levied on. Johns is to have him. Zuver v. Clark, 104 Pa. 222.

the benefit of his lien until the effects It does not lie in the mouth of C. E. have been converted into money or he Ehrehart to deny or dispute the authority shall have been paid. The debtor does under which he has acted. If he knew not object. that his principals had no right' to give The defendant has in his hands accordit, he is personally responsible. See I ing to his own admission, after all deChittys Pleading (40) and cases cited ductions and expenses, $1,380.75, which in note (b).

belongs to the plaintiff and which should The Hanover Saving Fund Society, no longer be kept back from the plaintiff. a Plaintiff in an attachment execution It should bear interest from the date of issued after the bringing of this suit, has the suit. not asked to intervene and make defence The defendant states that he has proin this suit although represented in the ceeded in the work assigned him as attachment by Messrs. Neely & Neely, rapidly as possible under the circumwho are counsel for the defendant Ehre- stances, but has not yet completed the hart, nor do we know that their inter- same; and shows that there remains yet vention would have produced a different in his hands uncollected book accounts result.

amounting to $4,221.19. Defendant says he is prepared to The plaintiffs entitled to judgment for show by the paper writings set forth in $1,380.75, the amount admitted with inplaintiff's statement and by other com- terest from January 7, 1893, and le can petent evidence that the written transfer proceed with his suit for the recovery of or bill of sale of their property by Mar- a further sum, if dissatisfied with the extin & Co., to their creditors dated Aug- hibits made by the defendant. ust 1, 1891, is really and legally an as

It would seem right and equitable that signment for the benefit of creditors the defendant should be allowed reason(with a preference which is void) and able expenses and commissions. The inures to the benefit of all the creditors authority under which he has been acting of Martin and Co.

provides for the payment of costs and We think the sixth objection, made by expenses. the plaintiff to this allegation is well

The judgment in this case sustaining made. The defendant gives his

the motion, is also to stand as an ascerclusion of law, not facts. The writing is tainment of the amount of uncollected the evidence of the agreement, and we book accounts, as being $4,221.19, so far have no facts stated of anything that as the plaintiff may be interested therein, should or could legally be received as if so accepted by him. evidence that the transfer inures to the benefit of all the creditors. See Clark

The plaintiff is entitled to have execuv. Allen, 132 Pa. 42, citing Martin v. tion for the collection of $1,380.75 with Bevens, 67 Pa. 459. The supplemental interest thereon from January. affidavit furnishes nothing wliatever in Judgment for plaintiff according to reply to Plaintiff's sixth specification of foregoing opinion.

CON

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