36 Pa. Super. 73 | Pa. Super. Ct. | 1908
Opinion by
January 11 and March 19, 1901, respectively, Celia H. Armstrong, executrix of the estate of Levi Houston, deceased, and “The Levi Houston Company,” by D. W. Shollenberger, Secretary and Treasurer, executed two several promissory notes, for $2,500 and $5,000, respectively, payable four months after their dates, which notes were discounted by the appellant. At the same time there were deposited with the appellant, as collateral security for said notes, bonds of the American Wood Working Machinery Co.
The notes contained the following provision: “We authorize the holder of this note, upon non-performance of these terms at maturity, to sell either at public or private sale, without demanding payment of this note or the debt due thereon, and without further notice, and apply the proceeds, or as much thereof as may be necessary, to the payment of this note and all necessary expenses and charges, holding us responsible for any deficiency.”
April 27, 1901, Celia H. Armstrong was discharged as executrix of the estate of Levi Houston, deceased, and Robert F. Allen, the appellee, was duly appointed administrator d. b. n. c. t. a. and trustee of said estate, by the orphans’ court of Lycoming county.
Default being made in the payment of the notes and notice having been given by the appellant to the appellee and other parties in interest, of its intention to make sale of the collateral bonds, under the terms of the notes above mentioned, the appellee filed a bill in equity, seeking to restrain the appellant from further proceedings in the matter of the sale of the collateral “not on the ground of any irregularity of appellant’s proceeding, but on the ground of the non-liability of the maker of the note.”
After hearing on its merits, the appellee’s bill was dismissed at the costs of the plaintiff, and thereupon appellant continued its proceeding to sell the collateral, and did sell the same, and,
The action here is to recover from the defendant the said two items retained by it as necessary expenses and charges, or so much thereof as remained in its hands, after paying the amount of the said two several notes.
The only question here is whether or not the expenses connected with the defense of the bill in equity filed by the plaintiff against the defendant, in which the authority of Celia H. Armstrong as executrix to make the said notes was denied, were properly chargeable, as necessary expenses and charges authorized in the provisions thereof-relating to the sale of the collaterals therefor.
The case was tried, without a jury, before the president judge of the 48th District specially presiding. •
The court, having found the facts as above epitomized, found, as its fourth conclusion of law, “That the plaintiff is entitled to recover the said sum of $323.17, being for the sum of $9.50 retained for printing equity answer; and $313.67 to apply upon counsel fees, together with interest thereon from September 10, 1902.” This conclusion is supported by an elaborate opinion, in which as to all its essentials we concur.
The bill in equity was in no sense a part of the necessary expenses and charges of making sale of the collateral securities deposited with the said notes. Whatever may have been the causes which led to the removal of the executrix of the estate of Levi Houston, who was one of the makers of the notes, it is, nevertheless, true that the plaintiff was appointed as her successor and felt it incumbent upon him to question the right of the executrix to execute and negotiate the notes. This was a proceeding entirely distinct from the sale of the collateral. It is true that it called a halt upon the proceedings to sell, but was in no sense a part of them.
The court below cites a number of authorities, more or less directly in point, but that which in our mind fully covers the present controversy is DeCoursey v. Johnston, 134 Pa. 328.
Ballingall v. Hunsberger, 16 Pa. Superior Ct. 117, has no application to the present case. That was a case in which the holder assumed to protect the collaterals held by him by presenting them, through counsel, before an auditor, in order to secure the pro rata dividend to which they were entitled. The Services thus rendered were directly in connection with the preservation of the collaterals and inured to the benefit of the owner, and, as said by our Brother Orlady in that case, “It was the bounden duty of the defendant to protect the collateral deposited with him, not only to bring it before the auditor, but to secure for it the dividend to which it was entitled.”
There was no allegation here that, in the bill in equity, the court awarded counsel fees to the defendant, and, in the absence of an express decree awarding the same, we are of the opinion that the defendant had no right to retain the amount of counsel fees and other costs in the bill in equity from the
Judgment affirmed.