Weigley v. Conrade

• Decision Date: 03 February 1890
• Docket Number: 60,54
• Parties: W. W. WEIGLEY v. DAVID CONRADE
• Court: Pennsylvania Supreme Court

19 A. 58

132 Pa. 147

W. W. WEIGLEY v. DAVID CONRADE

Nos. 54, 60

Supreme Court of Pennsylvania

February 3, 1890

Argued January 15, 1890

APPEALS BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.

Nos 54, 60 July Term 1889, Sup. Ct.; court below, No. 1023 December Term 1883, C.P. No. 4.

On February 7, 1884, judgment was entered in favor of William W Weigley, assignee of Edward B. Williams, against David Conrade, upon a bond with warrant of attorney executed by Conrade on November 3, 1882, conditioned for the payment of $2,500 to Edward B. Williams, and assigned the same day to William W. Weigley.

On February 16, 1884, the defendant presented a petition averring in substance: That Williams was a stock broker, and that defendant had had some dealings with him, when about the middle of October, 1882, defendant saw in the papers that Williams was in financial difficulties; that Williams held cash and securities belonging to defendant, and feeling alarmed, defendant called on Williams to know the condition of his affairs, and also demanded the money and securities belonging to him; that Williams assured him that he would pay every dollar of his obligations if not pressed too hard, as with a little money he could start again in his business as a broker, and would be able inside of twelve months to pay all his indebtedness; that a few days after this Williams asked defendant for the loan of his bond for $2,500, stating that he was promised nine bonds of like amount, and with $25,000 which would be secured by these bonds, he, Williams, would resume his business as broker and within a year be able to pay all his indebtedness; that Williams subsequently showed defendant two or three of these bonds, and told defendant that he had the nine, and only required defendant's bond to make the full amount required; that thinking the enabling of Williams to go on in business might be the only way of recovering what he already owed defendant, defendant gave him a bond for $2,500, coupled with the condition that it should be used only with the nine others of like amount to secure the $25,000, with which to resume business and enable him to pay off his indebtedness; that shortly afterward defendant learned that Williams had passed his bond over to the plaintiff, Weigley, and not for the said purpose that defendant gave the bond, but, as defendant learned, as collateral security for a pre-existing debt due by Williams to Weigley. It was also averred, that at the time the plaintiff received the bond sued on, Williams was and still continued indebted to the defendant in the sum of $10,000 and that defendant had at no time executed any declaration of no set-off, at the request of plaintiff or of any one else.

A rule to open the judgment, etc., having been granted, depositions were taken and filed by both parties, showing the facts sufficiently appearing in the opinion of this court; and on March 20, 1884, after hearing and argument upon the depositions, the court, without opinion filed, entered an order making the rule absolute.

On April 4, 1885, by direction of the court, an issue was framed by a narr upon the bond, and pleas of non est factum, nil debet and set-off, with leave to give special matter in evidence of which notice was given. On May 2, 1888, the death of the defendant was suggested, and T. A. Redding and M. A. Conrade, his executors, were substituted.

At the trial on February 8, 1889, before WILLSON, J., the plaintiff read in evidence the bond in suit, and then offered the assignment, which was formal and executed by Williams, in the presence of two witnesses, the signature of the assignor having under it a double-dotted flourish, but no "L.S." at the end of it, usually designating a seal.

The defendants objected, the assignment not being under seal: [Section 8, act of May 28, 1715, 1 Sm. L. 90.]

By the court: Objection sustained; exception. a

The plaintiff then offered the record of the judgment entered on the bond.

Objected to.

By the court: Objection sustained; exception. b

The plaintiff then closed, when the court instructed the jury to return a verdict for the defendants. c

A verdict for the defendant having been returned, judgment entered, and a rule for a new trial discharged, the plaintiff took the appeal entered in this court at No. 60, assigning for error:

1, 2. The refusal of plaintiff's offers. a b

3. The instruction to find for defendants. c

The plaintiff also took the appeal entered to No. 54 in this court, assigning for error:

1. The order making absolute the rule to show cause why the judgment should not be opened.

The order of March 20, 1884, making absolute the rule to open the judgment, is reversed and set aside, at the costs of the appellee.

Judgment reversed.

Mr. John H. Colton and Mr. S. C. Perkins, for the appellant:

1. The bond and warrant in question were used for the purpose contemplated. "There was, therefore, no damage to the obligor, without which there is no relief, even in equity:" Fulton v. Hood, 34 Pa. 365, 372. Conrade himself testified in his deposition that he gave the bond to Williams "for no other purpose than to realize money on it; cash" with which to continue business; and the testimony of Weigley contained in his deposition shows that this purpose was fully accomplished. A declaration of no set-off was not needed. Inquiry by an assignee is only to discover defences that exist. Here there was none to discover. The question of constructive notice does not arise when inquiry would reveal no impediment: Ross's App., 106 Pa. 85; Eldred v. Hazlett, 33 Pa. 307.

2. "If a man will shut his eyes so that he will not see, and close his ears so that he will not hear, and has permitted other parties to change their relations by reason of his conduct, he has no claim upon the sound discretion of a chancellor:" PAXSON, J., in Steinbaker v. Wilson, 1 Leg. Gaz. R. 76, 79. Conrade gave Williams his assignable bond to raise money upon for their joint benefit. He could not be deceived by its use for that very purpose, although he himself might have contemplated a deception of the person who would advance money on the faith of it. It is sufficient, if he intended that his conduct should induce another to act upon it, and that the other, relying on it, did so act: Bidwell v. Pittsburgh, 85 Pa. 412, 417.

Mr. Chas. Henry Hart, for the appellee:

1. The opening of a judgment is entirely a matter...