Wood v. Kerkeslager

• Decision Date: 22 June 1909
• Citation: 225 Pa. 296
• Parties: Wood, Appellant <I>v.</I> Kerkeslager.
• Court: Pennsylvania Supreme Court

225 Pa. 296

Wood, Appellant

v. Kerkeslager.

Supreme Court of Pennsylvania.

April 19, 1909.

June 22, 1909.

Argued April 19, 1909.

Appeal, No. 110, Jan. T., 1909, by plaintiffs, from order of C. P. No. 5, Phila. Co., June T., 1908, No. 2,606, discharging rule for judgment for want of a sufficient affidavit of defense in case of William Wood and John P. Wood copartners, trading as William Wood & Company, v. Irvin Kerkeslager et al., Trustees of the Bankrupt Estate of Alexander Crow, Jr., and the Land Title & Trust Company.

Before FELL, BROWN, MESTREZAT, POTTER and STEWART, JJ. Reversed.

John G. Johnson, with him W. B. Linn, for appellants.— Crow alone could not revoke Patton's trusteeship: Blackstone v. Buttermore, 53 Pa. 266.

Crow's trustees in bankruptcy stand in his shoes and have no other rights than Crow had: Hewit v. Berlin Machine Works, 194 U. S. 296; Thompson v. Fairbanks, 196 U. S. 516; York Mfg. Co. v. Cassell, 201 U. S. 344; Thomas v. Taggart, 209 U. S. 385.

The Land Title & Trust Company's position was stakeholder for claimants: Philadelphia v. Lockardt, 73 Pa. 211; Watson v. McManus, 221 Pa. 41.

Though a municipality may, under some circumstances pay and disregard a partial assignment (Appeals of Philadelphia, 86 Pa. 179, 182; Geist's Appeal, 104 Pa. 351), this does not discharge the assignor of his liability under his contract. It is simply a rule of convenience to prevent a municipality from being subjected to the annoyance of paying numerous persons or being subject to many suits, where there was originally but one obligee, and that on a contract, something very different from an eminent domain obligation.

But, at bar, the city is not subjected to the annoyance of several suits, as the money was paid to a stakeholder by agreement of all the parties in interest, releasing the city in full. Therefore, even if the assignments were partial instead of entire, the reason for the application of the rule against partial assignments drawn against municipalities having disappeared, the rule disappears and equity should prevail: Soley's Est., 15 W. N. C. 351; Jarecki Mfg. Co. v. Hart, 5 Pa. Superior Ct. 422; U. S. v. Vaughan, 3 Binney, 394; Noble v. Thompson Oil Co., 79 Pa. 354.

W. W. Porter, of Porter, Foulkrod & McCullagh, and James F. Campbell, with them Joseph L. Greenwald, for appellees.—The attempted assignments are for part of a fund due by the city to the assignor, and having never been accepted by the city, are invalid, and create no lien to the prejudice of other creditors: Philadelphia v. Lockhardt, 73 Pa. 211; Watson v. McManus, 221 Pa. 41; Philadelphia's App., 86 Pa. 179; Geist's App., 104 Pa. 351; Schaffer v. Cadwallader, 36 Pa. 126; Bunyea v. Robinson, 8 Del. Co. 275; Penn Iron Co. v. Lancaster, 14 Lanc. L. R. 177; McManus v. School Dist., 4 Kulp, 439.

The assignments to the plaintiffs were not good in equity even as against an ordinary debtor: Christman v. Russell, 81 U. S. 69; Trist v. Child, 88 U. S. 447; Manderville v. Welch, 18 U. S. 277; Jermyn v. Moffit, 75 Pa. 399; Geist's App., 104 Pa. 351.

The power of attorney by Crow to Patton was revocable: Watson v. Bagaley, 12 Pa. 164; Blackstone v. Buttermore, 53 Pa. 266; Yerkes's App., 99 Pa. 401; Walker v. Walker, 125 U. S. 339; Johnson v. Ravitch, 99 N. Y. Supp. 1059; Silverman v. Penna. R. R. Co., 141 Fed. Repr. 382; Mueller v. Nugent, 184 U. S. 1; Robinson v. Elliott, 89 U. S. 513; Bank v. Hunt, 78 U. S. 391; Norton v. Switzer, 93 U. S. 355; In re Baird, 126 Fed. Repr. 845.

No claim can be made by the appellants through Patton as trustee for them, since Patton is not a party to the record, and has never made any demand.

Crow's claim against the city, being for injuries resulting to his property by the right of eminent domain, was a personal right, not capable of assignment to the plaintiffs: Com. v. Shepard, 3 P. & W. 509; Sibbald's Est., 18 Pa. 249; Schuylkill, etc., Nav. Co. v. Decker, 2 Watts, 343; Patten v. Wilson, 34 Pa. 299; Marsh v. R. R. Co., 204 Pa. 229; Spofford v. Kirk, 97 U. S. 484.

OPINION BY MR. JUSTICE BROWN, June 22, 1909:

Alexander Crow, Jr., was the owner of certain real estate in the city of Philadelphia, and, in October, 1906, was notified that the city would, three months thereafter, take his property for a parkway. In January, 1907, the city took possession of the land and some time prior to March 5, 1907, condemnation proceedings were instituted for the assessment of the damages to be paid to Crow. He appointed J. Lee Patton, Esq., a member of the Philadelphia bar, as his attorney to present and collect his claim for compensation. On March 5, 1907, Crow, Wood & Company, the appellants, and Patton entered into an agreement, of which the following is a copy:

"Articles of agreement made this 5th day of March, 1907, by and between Alexander Crow, Jr., of the city of Philadelphia, hereinafter called the first party, and William Wood and John P. Wood, copartners, trading as William Wood & Company, in the city of Philadelphia, hereinafter called the second party, witnesseth:

"For valuable consideration and for the sum of $1.00 paid to the first party by the second party, the receipt whereof is hereby acknowledged, the first party does hereby assign, transfer and set over unto the second party the sum of $17,914.59 with interest from date hereof, out of the amount of compensation presently to be determined and payable by the city of Philadelphia to the first party in the matter of the opening of the Parkway between Logan Square and Spring Garden street, a right of action for said compensation being now vested in the first party, covering the taking of premises used as a spinning mill at 21st and Shamokin streets, approximately 180 feet on the north line, 126 feet on the east line and 180 feet on the west line. The first party further agrees that his claim for said compensation against the city shall be presented by J. Lee Patton, attorney at law, and that said J. Lee Patton shall receive and collect said compensation from the city, and out of the sum so collected, after first deducting the necessary expenses of collecting the same, the usual attorney's fee, and such charges as the city solicitor shall first require to be paid, and the claim of the Third National Bank for forty thousand dollars ($40,000) and interest, shall then before making any other payments of any kind or character, first pay therefrom the aforesaid amount, $17,914.59, with interest from date hereof, hereby constituting, directing and empowering said J. Lee Patton, the agent of the first party, to make said payment to the second party, hereby likewise constituting, directing and empowering the second party to receive from said J. Lee Patton said sum in payment of the obligation created by these presents, the receipt of said second party to be a sufficient voucher in the hands of said J. Lee Patton of said payment in accordance herewith. The appointment of said J. Lee Patton to receive said compensation from the city and the direction to apply the specified portion thereof immediately after the payment of expenses and counsel fees and the claim of the Third National Bank, to the payment of the sum herein assigned is irrevocable, and the first party further expressly warrants that he has done nothing, directly or indirectly, prior to the signing of this agreement, which can or may in any manner affect the carrying out of the mutually expressed intention hereof.

"It is understood and agreed that if between the date hereof and the date of the receipt of the second party from J. Lee Patton of any moneys hereunder, the first party shall deliver to the second party yarns, the purchase price, according to a statement to be furnished by the second party, of all the yarns so delivered shall be deducted at the time of the settlement with J. Lee Patton from the sum of $17,914.59 and interest, and that the balance only shall be paid hereunder and that the price of yarns so delivered shall not otherwise become due and payable.

"In witness whereof we have hereunto set our hands and seals the day and year above written.

                                        "ALEXANDER CROW, JR. (L. S.)
                                        "WILLIAM WOOD AND COMPANY
                                                   "By JNO. P. WOOD
                "Witness
                 "HUMBERT B. POWELL
                 "B. V. BACHTELL.
                

"Philadelph...