Leslie v. Kite
| Decision Date | 19 July 1899 |
| Docket Number | 397 |
| Citation | 192 Pa. 268,43 A. 959 |
| Parties | Robert W. Lesley and John W. Trinkle, copartners, trading as Lesley & Trinkle; McAvoy & McMichael, Limited; Joseph L. Siner and Josiah Thompson, trading as J. Thompson & Co., Appellants, v. J. Sellers Kite and Robert Moore, copartners, now or late trading as J. Sellers Kite & Co., and the City of Philadelphia, Thomas M. Thompson and George S. Webster |
| Court | Pennsylvania Supreme Court |
Argued March 22, 1898
Appeal, No. 397, Jan. T., 1897, by plaintiffs, from decree of C.P. No. 1, Phila. Co., March T., 1897, No. 1171, dismissing bill in equity. Affirmed.
Demurrer to bill in equity.
The material averments of the bill are set forth in the opinion of the Supreme Court.
Error assigned was decree dismissing the bill.
Decree affirmed and appeal dismissed at appellants' costs.
John G Johnson, with him John Scott, Jr., Henry P. Brown, John A Siner and Joseph J. Broadhurst, for appellants. -- It is perfectly competent for the city of Philadelphia to enter into a contract for the doing of work upon condition that the consideration shall be paid partly to the contractor directly, and partly to those who will aid him in the performance: Sample v. Hale, 34 Neb. 220; 2 Beach on Contracts, sec. 1151.
Where a person receives a fund for the purpose of liquidating the indebtedness of one with whom he contracts, such third person may sue directly: Brown v. Title and Trust Co., 174 Pa. 456; Benner v. Weeks, 159 Pa. 504.
The contractors by their demurrer admitted that sums are owing to the complainants to the amount stated, nearly sufficient to absorb the retained funds. As they are not entitled to draw the money withheld to compel payment of subcontractors' claims, is there not an equitable right in those interested in the fund thus withheld to demand its collection by a receiver and its appropriation to their benefit? As it was never supposed the contractor would refuse to aid those entitled to the fund in its collection, no remedy for such refusal was expressly provided. Under these circumstances, is it not competent for a court of equity to utilize a fund clearly subject to the equitable claims of the subcontractors: People v. Comptroller, 77 N.Y. 46; Ketchum v. St. Louis, 101 U.S. 314; Roe v. Scanlan, 32 S.W. 216; Lyman v. City of Lincoln, 38 Neb. 794; Hutchings v. Miner, 46 N.Y. 456; Brewer v. Dyer, 7 Cushing, 337; Bank v. The Mayor, 97 N.Y. 355; Mechanics' and Traders' Nat. Bank v. Winant, 123 N.Y. 265.
William Findlay Brown, for appellees. -- Section 3 of the ordinance of June 27, 1895, relied upon by complainants for their relief, was repealed by the ordinance of October 25, 1895: Newbold v. Pennock, 154 Pa. 595.
Section 3 of the ordinance of June 27, 1895, if not repealed by the ordinance of October 25, 1895, is ultra vires of councils and void in attempting (1) to provide a new remedy for the collection of debts, and (2) to constitute the city of Philadelphia a trustee to execute a purely private trust: Whelen's App., 108 Pa. 197; Williamsport v. Com., 84 Pa. 487; R.R. Co. v. Ervin, 89 Pa. 75; Klingler v. Bickel, 117 Pa. 326; Norristown v. Norristown Ry. Co., 148 Pa. 87; Philadelphia v. Fox, 64 Pa. 169; Geist's App., 104 Pa. 351; Philadelphia's App., 86 Pa. 179.
The remedy sought by this bill is against public policy, being merely a substitute for an attachment sur judgment against the city of Philadelphia (before, however, obtaining judgment), or for a lien against public works: Erie v. Knapp, 29 Pa. 173; Philadelphia's App., 86 Pa. 179; Philadelphia Granite and Blue Stone Co. v. Douglass, 14 Pa. C.C.R. 234; Peerless Brick Co. v. Philadelphia, 1 Pa. Dist. Rep. 91.
The complainants in this bill are neither parties nor privies to the contract in question, and therefore have no standing in this court to determine any rights thereunder: Brown v. Trust Co., 174 Pa. 443.
A court of equity will not take jurisdiction, much less appoint a receiver, in a case where a plaintiff has a plain and adequate remedy at law, or where there is a mere legal right in dispute: Passyunk Building Assn.'s App., 83 Pa. 441; Paton v. Clark, 156 Pa. 49; Smaltz's App., 99 Pa. 310; Webster v. Clark, 25 Me. 313; Taylor v. Bowker, 111 U.S. 110; Girard Nat. Bank's App., 13 W.N.C. 101; Mining Co. v. Petroleum Co., 57 Pa. 83.
There is no averment in the bill that the defendants are insolvent, which is the only proper basis for the relief sought: Suydam v. Ins. Co., 51 Pa. 398; Philadelphia's App., 5 Norris, 179; Bank v. Mayor, 97 N.Y. 356.
Before STERRETT, C.J., GREEN, DEAN and FELL, JJ.
This bill, against J. Sellers Kite & Company and others, was filed by the plaintiffs on behalf of themselves, and of all other creditors who, on account of the subject-matter thereof, might join therein and contribute to the expenses thereof.
After making certain averments of fact, as the basis of their claim for equitable relief, the plaintiffs pray that a suitable person be appointed to act as receiver of the fund now in the hands of the city and for other purposes thereinafter set forth, and that the court will order and direct:
The averments of fact referred to as constituting the grounds of equitable relief on which the plaintiffs rely are fully set forth in the bill, paragraphs one to eleven, inclusive, and need not be recited here. The sole foundation of their claim, however, is stated in paragraph four, thus:
It is upon this section that the plaintiffs rely, in connection with the fact that they furnished labor and materials to J. Sellers Kite & Company, the contractors with the city for the construction of said main sewer; which labor and materials went into said construction, and have never been fully paid for by said contractors.
The ordinance referred to is a general ordinance, containing four sections. The first authorizes the construction of several main sewers, including the one above mentioned, which the defendants, J. Sellers Kite & Company afterwards contracted to build. The second section authorized the director of public works to advertise for proposals and award contracts. The third is quoted in full above; and the fourth authorized the mayor to enter security for damages resulting to private property from the construction of said sewers. The contract awarded to J. Sellers Kite & Company for the sewer above mentioned, although dated August 27, 1895, was not fully executed until it was...
To continue reading
Request your trial
-
Warner Cable Com. v. Borough of Schuylkill Haven
...J., dissenting), quoting In re Valley Deposit and Trust Comp., 311 Pa. 495, 498, 167 A. 42, 43 (1933), and citing Lesley v. Kite, 192 Pa. 268, 274, 43 A. 959, 961 (1899). "Any fair, reasonable doubt as to the existence of power is resolved by the courts against its existence in the municipa......
-
Burns v. Paulak
...subject, however, to such restrictions, limitations, and regulations, as may be imposed by the Legislature:..." In Lesley v. Kite, 192 Pa. 268 (1899), cited and relied by plaintiff, our Supreme Court, speaking through Chief Justice Sterrett, said at p. 274: " Nothing is better settled than ......
-
In re Valley Deposit & Trust Company of Belle Vernon
...the courts against its existence in the corporation, and therefore denied: Dillon on Municipal Corporations, section 89." Leslie v. Kite, 192 Pa. 268, 274, 43 A. 959. It never been held, in this State, that the right to exercise this power to assert priority of payment passed by implication......
-
Borough of Scottdale v. National Cable Television Corp.
...indispensable." Valley Deposit and Trust Company of Belle Vernon, 311 Pa. 495, 498, 167 A. 42, 43 (1933); accord, Lesley v. Kite, 192 Pa. 268, 274, 43 A. 959, 961 (1899). "Any reasonable doubt as to the existence of power is resolved by the courts against its existence in the corporation, a......