Lake Shore Banking Co. v. Fuller

• Decision Date: 05 October 1885
• Docket Number: 48
• Citation: 1 A. 731,110 Pa. 156
• Parties: Lake Shore Banking Company el al. v. Fuller, Assignee
• Court: Pennsylvania Supreme Court

1 A. 731

110 Pa. 156

Lake Shore Banking Company el al. v. Fuller, Assignee

No. 48

Supreme Court of Pennsylvania

October 5, 1885

Argued May 14, 1885

ERROR to the Court of Common Pleas of McKean county: Of July Term 1885, No. 48.

Feigned issue, wherein J. M. Fuller, Assignee of J. W. Humphrey individually, and of J. W. Humphrey and A. A. Aspinwall trading as J.W. Humphrey and Company, was plaintiff, and the Lake Shore Banking Company, Merchants' National Bank of Dunkirk, New York, the First National Bank of Franklinville New York, the State Bank of Randolph, New York, and F. A Newell were defendants.

The material facts of the case were as follows: J.W. Humphrey &amp Co. were dealers in what is called "oil well supplies," which consist of engines and other machinery and tools used in putting down and operating oil wells. They had stores at Bradford and Clarendon, in the counties of McKean and Warren, Pennsylvania, and at Richburg and Bolivar, in the county of Allegany, New York. The firm was composed of J. W. Humphrey and A. A. Aspinwall, doing business as J.W. Humphrey & Co. J. W. Humphrey resided at Bradford and Aspinwall resided at Corry, Pennsylvania. On January 19th, 1883, the said firm, having become embarrassed, confessed judgments by a series of judgment notes, dated January 16th, 1883, to W.O. Wright, Dow & Co., Lake Shore Banking Co., Merchants' National Bank of Dunkirk, First National Bank of Franklinville, the State Bank of Randolph and F. A. Newell, each of whom held notes which they had discounted for J.W. Humphrey & Co. on their endorsement, averaging in amount in round numbers from ten to seventy thousand dollars. These judgments were confessed without the knowledge of the parties in whose favor they were made and executions were placed in the hands of the sheriff of McKean county on the same day, upon which he seized all the property of Humphrey and J.W. Humphrey & Co., in said county. On the same day these judgments were confessed, viz., January 19th, 1883. J. W. Humphrey and wife executed a letter of attorney at Bradford to A. A. Aspinwall authorizing him to make an assignment for the benefit of creditors. On January 20th, Aspinwall executed and delivered to Henry Weiskettle a general deed of assignment in trust for the benefit of the creditors of J. W. Humphrey and J.W. Humphrey & Co. By this assignment a large number of creditors were preferred, among others were all the defendants in this issue.

This deed of assignment was executed and delivered at Olean, N.Y., first recorded in Allegany county, New York, where bond and inventories were duly approved and filed as provided by the laws of New York, and afterwards the deed was recorded in McKeen county, Pa. On April 3rd, 1883, on petition of Morris, Tasker & Co., et al., creditors of J.W. Humphrey & Co., representing, inter alia, that Henry Weiskettle was irresponsible and had neither filed bond, or inventories in this state, and that he was mismanaging and neglecting said trust, the Court of Common Pleas of McKean county removed said Weiskettle and appointed J. M. Fuller in his place. Weiskettle appealed to the Supreme Court from the order removing him, but his appeal was dismissed. (See Weiskettle's Appeal, 7 Outerbridge, 522.)

On the same day that Weiskettle was removed, the court, on petition of J.M. Fuller, assignee, Morris, Tasker & Co., et al., general creditors of J.W. Humphrey & Co., made the following order

"Now, April 3, 1883, on consideration of the petition of creditors and the assignee above named and the depositions and evidence presented therewith, the court direct that a feigned issue be formed to be tried by a jury, in which J. M. Fuller, assignee, shall be plaintiff, and W. O. Wright and others shall be defendants, as set forth in the caption hereto, the counsel of the plaintiff to file a declaration in assumpsit as upon a wager, and the defendants to file a special plea in bar and with a joinder in the issue. The questions to be submitted are: First, whether the notes on which the defendants in this issue have entered judgment in the Common Pleas of McKean county against J. W. Humphrey and J.W. Humphrey & Co., were given to hinder, delay or defraud the general creditors of the said J. W. Humphrey and J.W. Humphrey & Co. Second, whether the notes were made or intended to be made as a part of the assignment for the benefit of creditors made on the 19th of January, 1883, and executed by J. W. Humphrey and J.W. Humphrey & Co. the 20th January, 1883, and to secure or cause preference thereby. The proceedings upon execution now issued to stay until the determination of this issue, the lien of fi. fas. to remain."

Subsequently W. O. Wright was allowed a separate action and Dow & Co. were allowed to withdraw from the case. The formal pleadings having been filed, the issues, as to the other defendants, were tried before BROWN, P.J. of 37th judicial district.

At the trial, plaintiff offered in evidence the judgments of Dow & Co. against J.W. Humphrey & Co., and of W.O. Wright against the same party as part of the same transaction with the other judgments and as throwing light on the character of the transaction, to be followed by evidence that all these notes were executed at the same time, in the absence of the plaintiffs and delivered by the defendants to the defendants' attorney, antedated. Objected to for the reason that Dow & Co. and W. O. Wright were not parties to this issue. Objection overruled and evidence admitted. Exception. (First, second and sixth assignments of error.) Plaintiff further offered to show that J.W. Humphrey & Co. were largely indebted to other persons than defendants in the issue at the time the notes were given on which judgments were entered and that the notes given were antedated so as to make them due with a view of giving these parties a preference over the general creditors. Objected to. Objection overruled and evidence admitted. Exception. (Third and fourth assignments of error.) Plaintiff further offered to prove that J. W. Humphrey and Weiskettle were residents of Pennsylvania at the time of the assignment. Objected to as irrelevant. Objection overruled and evidence admitted. Exception. (Fifth and seventh assignments of error.) Plaintiff further offered to prove by Wieskettle, that Humphrey had told Weiskettle two weeks before the notes were given that the firm of J.W. Humphrey & Co. was insolvent and that arrangements were being made at that time to prefer the defendants in this issue. Objected to. Objection overruled and evidence admitted. Exception. (Eighth and ninth assignments of error.)

The defendants showed that the reason for antedating the notes was to make them then due; the printed blanks which were used making it more convenient to adopt that method than by erasures and interlineations, which would have been necessary had the notes been dated January 19th.

Counsel for defendants requested the court to charge, inter alia, as follows:

3. "That if the plaintiffs acquiesced in or ratified the act of the attorney who received the notes from the defendants in entering judgment thereon, after they became aware of what had been done, the judgments are as valid and obligatory as if the plaintiffs themselves or their authorized attorney had taken them and entered the judgments. Their failure to repudiate the transaction within a reasonable time, after the act of the attorney came to their knowledge, operates as an acquiescence or ratification of the act, and is as effectual as a precedent authority."

Answer. "This point is answered fully, we think, in the general charge, and substantially in the negative." (Tenth assignment of error.)

4. "That while the defendants have dominion over their property they have the right to prefer any bona fide creditor, whether contingent or otherwise, by a judgment, mortgage, sale, or transfer of their property, for an adequate consideration, and those creditors thus preferred can hold the property so secured against an assignee for the benefit of creditors of the defendants claiming under the subsequent assignment."

Answer. "This point is affirmed, but qualified and explained in the general charge, and as qualified in the general charge in its application to the case on trial." (Eleventh assignment of error.)

5. "If the defendants in the judgments gave notes on which they were entered for a bona fide consideration, knowing of their insolvency, and in contemplation of the assignment for the benefit of their creditors and with the intent to prefer the plaintiffs in the judgments over their other creditors, the judgments are valid and not fraudulent, in case the plaintiffs therein had no knowledge of the contemplated assignment when the notes were given."

Answer. "This point is answered by reference to the general charge and in substance in the negative." (Twelfth assignment of error.)

The court, after stating the fact that if Humphrey & Co., with full knowledge of their insolvency, of their own motion and without any knowledge of the defendants in this issue, executed the notes and procured them to be entered of record and caused executions to be issued thereon, such judgments would not in law be regarded as given to hinder, delay and defraud the general creditors, charged as follows:

"But while we say this, we further say that by an Act of Assembly passed in 1843 it is provided that debtors, insolvent debtors, when they make an assignment of their property for the benefit of creditors, must impose no conditions, must make no reservation, and must make no preference of one creditor or set of creditors over others." (Fourteenth assignment of error.) . . . . We say to you with some considerable hesitation, but which, so far as you are concerned, you are to take...