Meyer v. Pianti

• Decision Date: 14 July 1933
• Docket Number: 129-1933
• Citation: 167 A. 374,109 Pa.Super. 313
• Parties: Meyer v. Pianti et al
• Court: Pennsylvania Superior Court

167 A. 374

109 Pa.Super. 313

Meyer v. Pianti et al

No. 129-1933

Superior Court of Pennsylvania

July 14, 1933

Argued April 10, 1933

Appeal by defendant from judgment of C. P., Erie County, May T. 1929, No. 208, in the case of Arthur E. Meyer v. Caesar Pianti, and Raymond W. Bloeser, Esmeralda K. Fowler Executors of the Estate of William Bloeser, deceased, and Lyman Felheim Company, a corporation.

Attachment execution. Before Samuel E. Shull, P. J., 43rd Judicial District specially presiding.

The facts are stated in the opinion of the Superior Court.

Verdict for plaintiff was directed by the court, in the sum of $ 2,235.68 and judgment entered thereon. Defendant appealed.

Error assigned, among others, was refusal of defendant's motion for judgment non obstante veredicto.

Reversed.

Frank B. Quinn, and with him Charles H. English of English, Quinn, Leemhuis and Tayntor, for appellant.

S. L. Gilson, for appellee.

Before Trexler, P. J., Keller, Cunningham, Baldrige, Stadtfeld, Parker and James, JJ.

OPINION

Keller, J.

The proceeding below was an attachment in execution, under which the judgment creditor, (Meyer), attached in the hands of the garnishees, ((1) Bloeser's Estate and (2) Lyman Felheim Co.) any moneys due by them respectively to the judgment debtor, (Pianti), or which the last named was entitled to demand from them or either of them. Plaintiff's right of recovery in this proceeding was based on the premise that the garnishees owed money to the judgment debtor, Pianti, or had money in their hands belonging to him, which he had a legal right to require them to pay to him, except for the attachment. If Pianti had no such right, if the garnishees, respectively, had no money in their hands belonging to him, or owed him nothing which he was entitled to recover by action against them, then the plaintiff in this attachment can recover nothing from the garnishees: Austin-Nichols & Co. v. Union Trust Co., 289 Pa. 341, 346, 137 A. 461; Lane's App., 105 Pa. 49, 65. We are not here concerned with any promise which may have been made by the garnishees, or either of them, to Meyer, and on which he may have an enforceable action in assumpsit against them or either of them, (Krimmel v. S. R. Moss Cigar Co., 237 Pa. 253, 85 A. 154), if within the Statute of Frauds, (Birking v. Darnell, Salkeld 27; 1 Sm. Leading Cases 458, 484, 6th Am. Ed.). That question does not arise, and may not be considered, in this case. These preliminaries must be kept in mind.

The facts are not substantially disputed and may be stated as follows:

William Bloeser was the owner of a tract of land on East Twelfth Street, in the City of Erie, on which he proposed erecting a new building. On May 19, 1928, he entered into a contract with Caesar Pianti, as contractor, to erect the building for the sum of $ 30,540, of which 90% was to be paid the contractor from time to time, proportioned to the labor and materials incorporated in the work and the necessary materials delivered on the job, and the balance was to be paid on substantial completion of the work and full performance of the contract. On the same day Bloeser entered into an agreement with Lyman Felheim Company, which recited that he had the same day executed and delivered to the Felheim Co., as mortgagee, a mortgage on said real estate in the sum of $ 41,000 to secure present and future advances made by the mortgagee to him or for and on his behalf. The purpose of this agreement was two-fold. First, it provided what the mortgagee should do and pay, viz.: "(a) That the mortgagee shall pay from said mortgage money the existing encumbrances against the property described in said mortgage, estimated at about seven thousand ($ 7,000) dollars, so that said mortgage shall be a first mortgage and a first lien upon the property therein described. (b) That the mortgagee shall furnish to the owner or upon the owner's order to the contractor, Cesare Pianta, lumber and materials to be used in the construction of said building on the property described in the mortgage, and the mortgagee shall receive credit for the value of the materials so furnished and deduct the amount of the same from said mortgage money. (c) That the said mortgagee shall pay to Cesare Pianta, contractor, such payrolls for labor done and performed incident to the erection and construction of said building on said property as shall be approved by the owner, not however, for more than ninety (90%) per cent of the actual work performed, and the mortgagee shall receive credit for and shall be entitled to deduct the amount of such payrolls, so paid, from said mortgage money remaining in its hands. (d) That the mortgagee shall receive credit for the sum of two thousand fifty ($ 2,050) dollars, which amount it shall be entitled to deduct from the mortgage money in its hands as the consideration for the labor it shall perform incident to bookkeeping transactions that will be necessary in the matter and also as compensation to it in disposing of this mortgage to some third person, firm or corporation. (e) That any balance of said mortgage money remaining in the hands of the mortgagee after all such payments shall be made, shall when building is completed be credited upon the amount of the mortgage." Secondly, it provided that, for the purpose of assuring the mortgagee and the tenant of the first floor, (Erie Hupmobile Co.), that the interest and taxes would be paid, Bloeser thereby constituted and appointed Union Trust Co. of Erie its exclusive agent for five years, the term of the mortgage, to collect and receive all rentals to become due from the first floor of the building to be constructed, and apply the same first to the payment of insurance premiums and taxes assessed against the property, and then to the payment of interest to become due and payable on the mortgage. Any balance not required for such purpose to be paid by the agent to the owner from time to time as they might determine. Any interest not so paid by the agent was payable by the owner as provided in said mortgage. The mortgagee and the tenant of the first floor were declared to be vested with an interest in such agency and that the same was irrevocable during the term of said mortgage.

Proceeding under said agreement the Felheim Co. paid off the existing encumbrances, so as to make the new mortgage a first mortgage lien. It furnished lumber and materials to the contractor from its own yard and depot to the amount of over $ 7,000; it paid for materials, which it, in effect, bought from outside parties and furnished the contractor, because the latter had not the credit, about $ 12,000; it paid Pianti for payrolls -- not exceeding 90% -- $ 9,150; it paid itself for labor and compensation, as provided in the agreement, $ 2,050; and the difference between the principal of the mortgage and the sum of all these payments was $ 3,522.52, which Felheim Co. contends must be credited on the mortgage, so...