Lasser v. Philadelphia Nat. Bank

• Decision Date: 23 March 1936
• Docket Number: 380
• Citation: 321 Pa. 189,183 A. 791
• Parties: Lasser, Appellant, v. Philadelphia National Bank
• Court: Pennsylvania Supreme Court

183 A. 791

321 Pa. 189

Lasser, Appellant, v. Philadelphia National Bank

No. 380

Supreme Court of Pennsylvania

March 23, 1936

Argued January 10, 1936

Appeal, No. 380, Jan. T., 1935, by plaintiff, from judgment of C.P. No. 2, Phila. Co., March T., 1933, No. 197, in case of Samuel J. Lasser, assignee of Wright Metal, Inc., v Philadelphia National Bank. Judgment affirmed.

Assumpsit. Before MILLAR, J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff. Judgment entered for defendant n.o.v Plaintiff appealed.

Error assigned, among others, was judgment n.o.v.

The judgment is affirmed.

Joseph A. Keough, with him Levi, Mandel & Miller, for appellant.

S. B. Fortenbaugh, Jr., with him Shields, Clark, Brown & McCown, for appellee.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW and BARNES, JJ.

OPINION

MR. JUSTICE MAXEY:

Plaintiff seeks, in this action of assumpsit, to recover the sum of $4,085, alleged to have been had and received by defendant to plaintiff's use. At the trial, the jury returned a verdict in favor of plaintiff, but the court below entered judgment for defendant n.o.v., whereupon plaintiff appealed.

The facts follow: Wright Metal, Inc., is a fabricator of metal office partitions; it now operates under an assignment for benefit of creditors. In 1930, this company (hereinafter referred to as Wright) entered into an agreement with David Lupton Sons & Company of Philadelphia (hereinafter referred to as Lupton), that the latter was to handle the Wright partitions under an arrangement whereby payment for the partitions was to be made to Wright only as Lupton was paid by its customers. Although Wright thus assumed the credit risk involved, each order, as filled by Wright, was entered on its books as a charge against Lupton, and Lupton rendered bills to its customers in its own name -- these bills including its profit or "commission" on the sale and also the cost of labor and other materials furnished. In June, 1931, Lupton, finding itself in financial difficulty, negotiated with the defendant bank a series of loans, the arrangement being that as each loan was made, Lupton would assign certain of its accounts receivable to the bank as security. When Lupton received payment from its debtors on these accounts, the payments were turned over to the bank and the proceeds deposited in a special account out of which the loans were liquidated. Among the accounts receivable so assigned were five representing, inter alia, sales of Wright partitions. Plaintiff's claim is made up of the net amounts due it in these five instances. The arrangement between the bank and Lupton continued until the latter's bankruptcy on March 30, 1932. In the liquidation of the Lupton business the bank has collected from the assigned accounts receivable, as of December, 1933 (the date originally set for trial), $85,000 in excess of the loans for which they were pledged. At that time, however, Lupton still owed the bank $143,000 for which no security had been given, and $77,000 advanced for expenses of liquidation. Prior to the bankruptcy, Wright had no dealings with the bank.

Appellant's principal contention is that the arrangement between it and Lupton was that of an undisclosed agency -- that Lupton was acting simply as its agent selling on commission, but billing the buyers in its own name because of its larger organization and older, better-established reputation -- and that therefore the portions of the assigned accounts representing sales of its partitions are its property. When the testimony is read in the light most favorable to plaintiff, as it must be on plaintiff's appeal from a judgment entered for defendant n.o.v., it may be conceded that plaintiff...