Gelber v. Western Nat'l Bank
| Decision Date | 27 February 1913 |
| Docket Number | 148-1912 |
| Citation | 53 Pa.Super. 155 |
| Parties | Gelber v. Western National Bank |
| Court | Pennsylvania Superior Court |
Argued December 12, 1912
Appeal by James McGorrey, from judgment of C.P. No. 2, Philadelphia Co.-1910, No. 300, on verdict for William A. Gelber in case of William A. Gelber v. Western National Bank and James McGorrey.
Assumpsit based upon an oral agreement of sale.
The facts are stated in the opinion of the Superior Court.
The court gave binding instructions for William A. Gelber.
Verdict and judgment for William A. Gelber for $ 391. James McGorrey appealed.
Errors assigned were refusal of various offers of evidence and in giving binding instructions for plaintiff.
Thomas Ridgway, for appellant. -- The deposit receipt or trust paper is merely supplementary to the parol contract of sale declared upon in the statement of claim: Steel v Loeb, 5 Pa.Super. 238.
Parol evidence was admissible: Diehl Mfg. Co. v. Elec Co., 49 Pa.Super. 257; Sloss-Sheffield Steel & Iron Co. v. Iron Co., 46 Pa.Super. 164; Yinger v Youngman, 30 Pa.Super. 139; Campbell v. Erb, 35 Pa.Super. 436; Martin v. McCune, 8 Pa.Super. 84; Gandy v. Weckerly, 220 Pa. 285; Perkiomen R. R Co. v. Bromer, 217 Pa. 263; Clinch Valley Coal & Iron Co. v. Willing, 180 Pa. 165; Juanita Bldg. & Loan Assn. v. Hetzel, 103 Pa. 507.
This record is in no condition for a judgment on a verdict: Bechtel v. Sheafer, 117 Pa. 555; Brink v. Spencer, 14 Pa. Dist. 570.
Charles L. Smyth, for appellee.
Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ. Rice, P. J., and Porter, J., dissent.
This ought to have been a very simple case to review on appeal, but the manner in which it has been handled by counsel and the court seems to require a lengthy statement of its history and facts before it can be intelligently decided.
Greenwald & Company had a wholesale liquor license at No. 719, Vine street, Philadelphia, and they had a lease of the premises. On March 29, 1910, the receiver in bankruptcy of said firm sold the right to the license and privilege of renewal and the lease and fixtures at public sale to William A. Gelber who is now plaintiff and appellee in this suit. It is alleged that Gelber assumed liability for the rent of the premises No. 719, Vine street, from April 1, 1910, and at the time of the sale paid $ 75.00 to the receiver. Gelber immediately sought to sell his interest in the license and premises and advertised for a purchaser and received in answer thereto a postal card, dated April 10, 1910, signed by McGorrey who was a bar tender employed by one Gallagher who conducted a retail liquor saloon elsewhere in Philadelphia. It appears that Gallagher called on Gelber and they negotiated for McGorrey in regard to the purchase of what Gelber had to sell and they finally went to the office of Thomas Ridgway, Esq., and there Gelber met McGorrey and it was agreed, upon certain conditions, that Gelber would sell for the sum of $ 391, to McGorrey, what the former had bought from the receiver of Greenwald & Company, and at the office of Mr. Ridgway the following writing was drawn and signed by James McGorrey:
" I, James McGorrey, deposited this 14th day of April, A.D. 1910, the sum of three hundred and ninety-one dollars ($ 391) with the Western National Bank, Philadelphia, in trust, nevertheless, upon the following terms: If the License Court sitting on April 29, 1910, grant the transfer from the Trustee in Bankruptcy to me of the wholesale liquor license at 719 Vine Street, formerly belonging to Greenwald & Company, the said sum is to be paid to William A. Gelber, 209 Central Trust Building; and if said transfer is refused, said sum of three hundred and ninety-one dollars is to be returned to me, unless the ground of said refusal is my incapacity or undesirability."
It further appears that on April 15, 1910, at a meeting of creditors the referee in bankruptcy of Greenwald & Company approved the sale to Gelber, and by consent of all parties in interest, McGorrey was substituted in the place of Gelber as the purchaser. It is also alleged that on the same date Gelber paid the rent ($ 66.17), for the premises 719 Vine street for the month of April, 1910. McGorrey did not file any application for the transfer of the license at No. 719 Vine street to himself and the license was not transferred to him. On May 11, 1910, Mr. Ridgway, as counsel for McGorrey, demanded payment from the bank of the said $ 391 by a letter in which he stated: " The record of the court shows that the transfer was not granted to McGorrey; the money therefore cannot be paid to Mr. Gelber and the transfer being refused, the money should be returned to McGorrey, the failure to transfer to him not being based upon his 'incapacity or undesirability.'"
The money was also demanded from the bank by Gelber and on refusal to pay it to him, he brought suit against the bank and the latter being a mere stakeholder obtained leave of court and thereupon paid the said money into court. Thereupon a rule to show cause was issued why William A. Gelber and James McGorrey should not interplead as to the ownership of the money which had been deposited in the Western National Bank and by the bank paid into court. This rule being made absolute, what the counsel ought to have done was to prepare the papers and have a feigned issue framed between Gelber and McGorrey to try and determine the title to the money in court. But instead of so proceeding, appellee's counsel took depositions and made an abortive attempt to get the money by that method. The court refused to order the money paid to the plaintiff. Plaintiff's counsel then issued a scire facias against McGorrey, appellant, and served him with a statement of claim and a rule to file an affidavit of defense. The appellant then filed an affidavit of defense protesting that the proceeding was irregular and illegal and that he ought not to be called upon to file an affidavit. But later, instead of moving to strike off the scire facias for the purpose of compelling the plaintiff to proceed with the feigned issue, as ordered by the court, the defendant pleaded non assumpsit, payment, and set-off, with leave, etc., and went to trial. At the trial the learned court took the view that the writing of April 14, 1910, signed by James McGorrey and Charles F. Wignall,...
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