Philadelphia v. Lockhardt

• Decision Date: 17 March 1873
• Citation: 73 Pa. 211
• Court: Pennsylvania Supreme Court
• Parties: Philadelphia <I>versus</I> Lockhardt, to the use of Pyle & Hansell.

73 Pa. 211

Philadelphia versus Lockhardt, to the use of Pyle & Hansell.

Supreme Court of Pennsylvania.

February __, 1873.

March 17, 1873.

February __ 1873.

Before READ, C. J., SHARSWOOD, WILLIAMS and MERCUR, JJ. AGNEW, J., at Nisi Prius

Error to the District Court of Philadelphia: No. 433, to January Term 1871.

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R. N. Willson and C. H. T. Collis (with whom was G. D. Budd,) for plaintiff in error.—The contract was not in accordance with Acts of April 21st 1855, § 11, Pamph. L. 267, providing that contracts shall be in the name of the city of Philadelphia, and April 21st 1858, § 5, Pamph. L. 386, providing that no contract shall be binding on the city unless authorized by law, or an ordinance of councils, and sufficient appropriation be previously made by councils. The assignment was the grant of a thing not in existence and therefore invalid: Perkins, tit. Grant, pl. 65; Bacon's Maxims, Reg. 14; Lunn v. Thornton, 1 Manning, G. & S. 380. The assignment was not within the Act of May 28th 1715: 1 Smith's Laws 90, enabling an assignee to sue in his own name. There was nothing in existence that could be assigned: Fairlie v. Denton, 4 Barn. & Cress. 395; Crowfoot v. Gurney, 2 Moore & Scott 473; s. c. 9 Bing. 372. The reservation was of the whole evidence, and therefore bad: Winchester v. Bennett, 4 P. F. Smith 510.

J. G. Johnson for defendant in error.—The contract was for the benefit of the city, and being in the name of the controllers will not vitiate it: Angell & Ames on Corp., pl. 185; Dillon on Municipal Corp., pl. 121, 123, 131; Robinson v. St. Louis, 28 Missouri 488. The assignment was not governed by the Act of May 28th 1715. Lockhardt was the legal plaintiff with the equitable ownership in Pyle & Hansell, and the assignment being in good faith no act of Lockhardt's could defeat it: 1 Parsons on Contracts 227, and cases cited in note; Rodick v. Gendell, 1 De. G., M. & G. 763; Jones v. Farrell, Id. 208; Stocks v. Dobson, 4 Id. 11; Phillips v. Bank, 6 Harris 394; Jones v. Witter, 13 Mass. 304; Anderson v. Van Alen, 12 Johns. 342; Dawson v. Coles, 16 Id. 50. Knowledge acquired by the agent of a corporation in the performance of official duties is notice to the corporation: Bank v. Schaumberg, 38 Missouri 228; Trenton Bank v. Woodruff, 1 Green's Ch. 117; Bridge Co. v. Phœnix Bank, 3 N. York 156; Black v. C. & A. R. R. 45 Barb. 40; Trenton Bank v. Canal Co., 4 Paige 127; Danville Bridge v. Pomroy, 3 Harris 151. A contract may be assigned so as to give the assignee the title to the proceeds: Morrell v. Wootten, 16 Beav. 197; Leslie v. Guthrie, 1 Bing. N. C. 697; Lott v. Morris, 4 Simon 607; Bell v. London & N. W. Railway, 15 Beav. 548. That the debtor is a municipal corporation makes no difference: Bracket v. Blake, 7 Metc. 335; Crocker v. Whitney, 10 Mass. 319; Field v. New York, 6 N. York 179.

The opinion of the court was delivered, March 17th 1873, by MERCUR, J.

The admission in evidence of the written contract under which the school-house was built is assigned as error. The objection to its admission is predicated of the fact that the instrument in its commencement purports to be an agreement between "The Controllers of the Public Schools of the First District of Pennsylvania," of the first part. It is, however, signed and attested on the part of the first party, by the mayor of the city, and duly sealed with its corporate seal. A short time after its execution the contract was duly approved by ordinance of councils. The sureties given by Lockhardt for his performance of the contract, were at the same time and in like manner approved. From time to time during the progress of the work, the city paid the instalments as they severally became due, according to the terms of the contract. After its completion the city took possession of the house, and have continued in the possession and enjoyment thereof. After all these recognitions and ratifications on the part of the city, it is too late for her successfully to deny that she was a party to the contract.

The fifth, sixth, seventh and eighth assignments are based upon the Act of 28th of May 1715, which provides for the assignment of bonds, specialties and notes in writing. The form of the suit in this case, however, does not admit of the application of that act. That act provides a mode of assignment by which a suit may be brought in the name of the assignee only. This action is brought in the name of the original party to the contract for the use of the assignee. This assignment is not made according to the Act of 1715. This suit is not brought under it. The plaintiff is unaffected by its provisions. The claim to recover is not put upon an alleged agreement made with the equitable plaintiffs, but upon the one made with Lockhardt, from whom they have an equitable assignment.

The remaining alleged errors that were pressed relate to the assignment made by Lockhardt to Pyle & Hansell, and notice thereof to the city. It is contended by the plaintiff in error that when Lockhardt made said assignment he had no interest to assign; that it was made four days only after the execution of the contract, and before he had done anything under it. We think this position is not sound. It is well settled that a contract may be assigned so as to vest in the assignee the equitable right to the proceeds, although the money...