Hindmarch v. Hoffman

• Citation: 18 A. 14,127 Pa. 284
• Decision Date: 28 June 1889
• Docket Number: 113
• Parties: W. H. HINDMARCH v. EDWARD HOFFMAN
• Court: United States State Supreme Court of Pennsylvania

18 A. 14

127 Pa. 284

W. H. HINDMARCH v. EDWARD HOFFMAN

No. 113

Supreme Court of Pennsylvania

June 28, 1889

Argued May 1, 1889

ERROR TO THE COURT OF COMMON PLEAS OF ERIE COUNTY.

No. 113 January Term 1889, Sup. Ct.; court below, No. 198 February Term 1887, C.P.

On March 2, 1887, a declaration in the common counts was filed in an action of assumpsit brought by William H. Hindmarch against Edward Hoffman, claiming the sum of $400. The defendant pleaded non-assumpsit, with leave, etc.

By agreement in writing, the cause was submitted to the decision of the court, without a jury, under the act of April 22 1874, P.L. 109, and on February 22, 1888, the court GUNNISON, P.J., filed the following decision:

FINDINGS OF FACT.

On the morning of October 10, 1885, one Richard Savanack stole from the plaintiff, in Buffalo, N.Y., a sum of money, $400 of which upon the same day he deposited with the defendant, to be returned to him or upon his order. There is no allegation that the defendant knew the money was stolen at the time, and as a fact I find he did not know it. He was afterwards notified by the attorney for the plaintiff that the plaintiff claimed the money, that it had been stolen from him by Savanack, and after this notice he paid it, upon the order of Savanack, to Messrs. Brundage, Weaver & Bell, of Buffalo receiving from them a bond to indemnify him against any liability to any other person for the money. Upon his refusal afterwards to pay the amount to the plaintiff, this action in assumpsit was brought.

CONCLUSIONS OF LAW.

I have been unable to find any authority sustaining the right to maintain assumpsit in a case of this kind. The rules governing the action are well established, and require that there should be privity of contract, express or implied, between the parties, in order to maintain it: Finney v. Finney, 16 Pa. 380; Wells v. Stewart, 5 Binn. 325; Allen v. Irwin, 1 S. & R. 549. "To maintain assumpsit, privity of contract, either express or implied, is necessary. The mere fact of one man's money coming into the hands of another does not, in law, raise such an implied promise as will sustain an action therefor:" Hoopes v. Stott, 2 Chester Co. R. 40. "A plaintiff cannot waive a tort and proceed in assumpsit, except where there is a contract, either express or implied:" Boyer v. Bullard, 102 Pa. 555; Bethlehem Bor. v. Perseverance Fire Co., 81 Pa. 445.

In this case there certainly was no express promise made by the defendant to pay the money deposited with him to the plaintiff. The express contract, on the contrary, was that he should repay it to Savanack, who deposited it with him. There being such an express promise, it cannot be said there was an implied promise to pay it to the plaintiff. Such a promise would be inconsistent with, and, if performed, would defeat the performance of the express promise to pay Savanack. It would be absurd to say such a promise could be implied in this case.

In each of the cases cited by the plaintiff's counsel as authority for this action, there was a promise either express or implied. In Lee v. Gibbons, 14 S. & R. 105; Aycinena v. Peries, 6 W. & S. 243; and McCafferty v. Brady, 19 W.N. 553, the opinions of the court show that the decisions were based upon express promises. In McAllister v. Hoffman, 16 S. & R. 147, and Forscht v. Green, 53 Pa. 138, the Supreme Court decided that money bet upon an election could be recovered by the person depositing it with the stakeholder if demanded before payment to the winner, on the ground that such a bet, being prohibited by law, there was an implied promise on the part of the stakeholder to repay the money to its legal owner. The case of McCullough v. McCullough, 14 Pa. 295, is not in point. It was there decided that "when one takes the personal property of another, the owner may waive the tort and maintain assumpsit for its value." But this action is not against the taker of the money. If it were against Savanack, the principle would apply. In that case the law would imply a promise to repay.

I am clearly of the opinion that the plaintiff cannot recover in this action.

And now, February 22, 1888, the prothonotary is directed to file this decision and give notice of its filing to the parties or their attorneys, and if no exceptions are filed hereto within thirty days after giving such notice, the prothonotary is directed to enter judgment hereon against the plaintiff and in favor of the defendant.

Exceptions filed by the plaintiff to the foregoing decision were subsequently dismissed, and judgment entered in favor of the defendant. The plaintiff thereupon took this writ, specifying that the court erred:

1. In deciding that the action of assumpsit could not be maintained upon the findings of fact stated in the decision.

2. In directing the entry of judgment in favor of the defendant, and in not entering judgment in favor of the plaintiff.

Judgment reversed and judgment is now entered in favor of the plaintiff and against the defendant for four hundred dollars with interest from May 24, 1886, and costs.

Mr. Theo. A. Lamb (with him Mr. C. L. Baker), for the plaintiff in error.

Submitting that the action of assumpsit could be maintained, and that the plaintiff was entitled to judgment, counsel cited: Clarke v. Shee, 1 Cowp. 197; Mason v. Waite, 17 Mass. 558; Sergeant v. Stryker, 1 Harr. (N.J.) 464 (32 Am. Dec. 404); 2 Greenl. Ev., 13th ed., §§ 102, 120; McCullough v. McCullough, 14 Pa. 295; McAllister v. Hoffman, 16 S. & R. 147; Forscht v. Green, 53 Pa. 138; Rohm v. Borland, 5 Cent. R. 562.

Mr. S. M. Brainerd, for the defendant in error:

The cases cited by the court below sustain the conclusion that assumpsit would not lie. There was neither an express nor an implied promise to pay the money to plaintiff, and no privity of contract between the parties: 1 Chitty Pl., 99; Willet v. Willet, 3 W. 277.

Before PAXSON, C.J., STERRETT, WILLIAMS, McCOLLUM and MITCHELL, JJ.

OPINION

JUSTICE STERRETT:

This case having been submitted for trial, without a jury, according to the provisions of the act of April 22, 1874, P.L. 109, the learned president of the Common Pleas found the facts substantially as follows:

On the morning of October 10, 1885, Richard Savanack stole from plaintiff, in Buffalo, N.Y., a large sum of money, four hundred dollars of which he afterwards, on the same day deposited with defendant, to be returned to him or upon his order. When defendant received the money, he was ignorant of the fact that it had been stolen from plaintiff by Savanack, but, while it was still in his possession and under his control, he...