35 A. 686 (Pa. 1896), 55, Oyster v. Short

• Judge: Before STERRETT, C.J., GREEN, WILLIAMS, MITCHELL and DEAN, JJ.
• Parties: D. C. Oyster v. Alfred Short and C. R. Earley. Appeal of Perry R. Smith
• Docket Number: 55
• Date: 05 October 1896
• Court: Pennsylvania Supreme Court
• Citation: 177 Pa. 589,35 A. 686

Page 686

35 A. 686 (Pa. 1896)

177 Pa. 589

D. C. Oyster

v.

Alfred Short and C. R. Earley. Appeal of Perry R. Smith

No. 55

Supreme Court of Pennsylvania

October 5, 1896

Argued: May 4, 1896

Appeal, No. 55, July T., 1895, by Perry R. Smith, from decree of C.P. Elk Co., Sept. T., 1893, No. 3, distributing funds of an insolvent bank. Affirmed.

Exceptions to report of E. P. GEARY, Esq., master, distributing funds of an insolvent bank.

The facts appear by the opinion of the Supreme Court.

Error assigned was in overruling exceptions to master's report.

Decree affirmed and appeal dismissed at the cost of the appellant.

W. S. Hamblen, with him Geo. A. Jenks, for appellant. -- The appellant was entitled to set off the certificates against his notes: Farmers D.N. Bank v. Penn Bank, 123 Pa. 283; Brown v. Clark, 14 Pa. 469; Ward v. Tyler, 52 Pa. 393; McGowan v. Budlong, 79 Pa. 470; 20 Am. & Eng. Ency. of Law, 130; Daniels' Negotiable Instruments, sec. 781; Beach on Receivers, sec. 192; 20 Am. & Eng. Ency. of Law, 132, 135; Artisans' Bank v. Treadwell, 34 Barb. 553; Beach on Receivers, 1744; Colt v. Brown, 12 Gray (Mass.), 233; Hade v. McVay, 31 Ohio 231; Cox v. Volkert, 86 Mo. 505; Clarke v. Hawkins, 5 R.I. 219; Davis v. Stover, 58 N.Y. 473; Cook v. Cole, 55 Iowa 70; Van Wagoner v. Paterson Gas Light Co., 23 N.J. 283; State Bank v. Bank of New Brunswick, 3 N.J. Eq. 266; Berry v. Bret, 6 Bosw. (N.Y.) 627; Jordan v. Sharlock, 84 Pa. 366; Ellmaker v. Franklin F. Ins. Co., 6 W. & S. 439; Speers v. Sterrett, 29 Pa. 192; Halfpenny v. Bell, 82 Pa. 128; Act of 1705, Sm. Laws, 49; Scammon v. Kimball, 92 U.S. 362; Schuler v. Israel, 120 U.S. 506; Carr v. Hamilton, 129 U.S. 252; Scott v. Armstrong, 146 U.S. 499; North Chicago Rolling Mill Co. v. St. Louis Ore & Steel Co., 152 U.S. 596; Lindley on Partnership, 655; Rose v. Hart, 2 Smith's Leading Cases, 308; Mann v. Dungan, 11 S. & R. 75; Stewart v. Nat. Security Bank, 6 W.N.C. 399; Chipman & Holt v. Ninth N. Bank, 120 Pa. 86; Long v. Penn. Ins. Co., 6 Pa. 421; Beaver v. Beaver, 23 Pa. 167.

Geo. R. Dixon, with him S.W. Smith and L. Rosenzweig, with them Geo. A. Rathbun and C. B. Earley, for appellee. -- The appellant had no right of set-off: Chipman & Holt v. Ninth Nat. Bank, 120 Pa. 86; 22 Am. & Eng. Ency. of Law, 283, 301; Burrill on Assignments, sec. 403; Beaver v. Beaver, 23 Pa. 167; Bosler v. Exchange Bank, 4 Pa. 32; Farmers' & Mechanics' Bank's App., 48 Pa. 57; Roig v. Tim, 103 Pa. 115; Fera v. Wickham, 31 N.E. 1028; Richards v. LaTourette, 23 N.E. 531. Long v. Penn. Ins. Co., 6 Pa. 421; Smith v. Hill, 8 Gray (Mass.) 572; Kensington Bank v. Shoemaker, 11 W.N.C. 215; Thomas v. Winpenny, 13 W.N.C. 93; Tinley v. Martin, 80 Ky. 463; McGowan v. Budlong, 79 Pa. 472; Kessler v. L.L. Angle, 2 W.N.C. 23; Sprigg v. Granneman, 36 Ill.App. 102.

Before STERRETT, C.J., GREEN, WILLIAMS, MITCHELL and DEAN, JJ.

OPINION

Page 687

[177 Pa. 591] MR. JUSTICE GREEN:

The Ridgway Bank closed its doors on June 22, 1893, and by notice posted on its windows, gave public information of its suspension. Four days later, on June 26, 1893, the court of common pleas of Elk county appointed receivers to take possession of and administer the assets of the bank. In the meantime the appellant who was indebted to the bank upon several notes amounting to $2,400, which had been discounted by the bank, obtained from one W. S. Hamblen two certificates of deposit, one for $1,500, and one for $1,000, issued by the bank to him for money deposited with the bank. These certificates were obtained by a written agreement made between Smith and Hamblen on June 24, 1893, which recites the ownership by Hamblen of the certificates and also as follows, "And whereas the said Perry R. Smith has certain notes payable at the Ridgway Bank to the order of W. W. Mattison, and whereas it is contemplated that an assignment will be made by said Ridgway Bank," and then provides, "Now therefore it is agreed by the parties hereto that if the said Perry R. Smith may be able to apply the said certificates of deposit in payment of said notes, that at the time of said payment the said Perry R. Smith will pay to the said W. S. Hamblen the value of said certificates, but if said certificates cannot be applied in payment of said notes, but that a pro rata of the assets of the said bank are applied in payment of said certificates that then the...