187 A. 306 | Pa. Super. Ct. | 1936
Argued April 17, 1936. Viewers appointed by the court below filed a report in which they set forth that the borough of Farrell (now city of Farrell) had appropriated a piece of land of which the Beechwood Improvement Company, Limited, was the owner at the time of the appropriation, and assessed the damages chargeable against the borough of Farrell (now city of Farrell) by reason of the appropriation. The viewers concluded their report by stating that the petitioner (use plaintiff) was not entitled to the damages assessed, and that there was no one in existence entitled to receive the same. Exceptions filed by the *546 petitioner to the report of the viewers were dismissed by the court below. Petitioner appealed from the order of the court below dismissing its exceptions.
The viewers having found that the land in question was appropriated and that damages for this appropriation were chargeable against the appellee, the question raised for determination by this appeal is whether such damages are payable to the appellant.
The Beechwood Improvement Company, Limited (hereinafter referred to as company), was a limited partnership association organized under the Act of June 2, 1874, P.L. 271 (
After hearing, the viewers filed their report; and their conclusion that appellant was not entitled to receive the damages, in the absence of a formal assignment, was approved by the court below. The viewers prepared an exhaustive report in which, in addition to their findings of fact, they made a painstaking analysis of the legal questions involved. However, we find no precedent cited in the report of the viewers, in the opinion of the court below, or by the appellee, that ineluctably *547 requires the conclusion reached by the viewers and the court below.
The rights of the appellant are based on the effectiveness of the resolutions of the board of managers of the company, adopted on December 26, 1923, to operate as an assignment of the company's claim for damages for the land appropriated. The board of managers of the company, on December 26, 1923, adopted the following resolutions:
"Further resolved that The Beechwood Improvement Company, Limited, does hereby grant and convey, sell, assign, transfer and set over unto Booth Flinn, Limited, its successors and assigns, all the real property of this association, together with the appurtenances thereto belonging, and wheresoever situate and all the assets of this including stocks, bonds, money in bank, accounts receivable, claims and demands, rights, privileges and equities and personal property of every kind, nature and character.
"Further resolved that the Chairman and Secretary of this Association be and they hereby are authorized and directed for and on behalf of this association and under the corporate seal thereof, by proper deeds, bills of sale, assignments or other proper writings, to grant and convey, assign, transfer and set over to Booth Flinn, Limited, all the property of this association, real, personal and mixed, including stocks, bonds, money on hand or on deposit, and all assets, claims, rights, and equities of whatsoever kind and nature, so that Booth Flinn, Limited, shall have, possess and enjoy said property, rights and privileges, in fee simple and absolutely, as fully and to all intents and purposes as now possessed and enjoyed by this association.
"Further resolved that the Chairman and Secretary of this Association be and they hereby are authorized and directed to sign, execute and acknowledge for and on behalf of this association and under its name and *548 corporate seal, such deeds or other papers, writings as may be requisite and necessary, before any person having authority to take acknowledgments under the laws of the Commonwealth of Pennsylvania.
"Further resolved that inasmuch as this association has ceased to do business and has disposed of all its assets, that a meeting of the stockholders of the association be called forthwith to consider the dissolution and winding up of this association."
On the same day, immediately following the meeting of the board of managers, there was held a meeting of the members of the company, at which the following resolutions were adopted:
"Resolved that The Beechwood Improvement Company, Limited, a limited partnership association, organized under and by virtue of the provisions of the Act of June 2, 1874, P.L. 271, and its supplements, be and the same is hereby dissolved:
"Further resolved that a statement of the dissolution of this association, signed and acknowledged by all the stockholders thereof, be recorded in the office of the Recorder of Deeds of Allegheny County, Pa. reciting the foregoing resolution.
"Further resolved that notice of the dissolution of this association be published in the Pittsburgh Legal Journal, Pittsburgh Gazette Times and the Pittsburgh Press in accordance with law, the said advertising to be signed for and on behalf of this association by George H. Flinn, Chairman and D.O. Jones, Secretary for the time being, for the particular purpose.
"Further resolved that inasmuch as all the assets of this association have been distributed according to law, viz. to its only creditors, Booth Flinn, Limited, that liquidating trustees be and the same are hereby dispensed with."
No formal assignment of the claim to the appellant *549 was executed by the chairman and secretary of the company.
In view of the plainly expressed intention of an immediate transfer, followed by the dissolution of the company and the termination of the power of disposition, no formal document was required to effectuate an assignment to the appellant of the company's claim for compensation for the land appropriated. The reasonable and proper disposition of such a controversy is on the facts evidencing a plain intention rather than on formalities. We cannot say, as appellee would have us say, that there is no one entitled to the damages which the viewers have awarded. In any event, we would be inclined to avoid such a result; but it is manifest to us that the appellant is entitled to the damages payable for the land appropriated, and that this right is derived by virtue of the resolutions of the board, operating as an equitable assignment by the company to the appellant.
Appellee, in its brief, admits that, prior to its dissolution on December 26, 1923, the company had a claim against the borough of Farrell, under sections 6 and 8 of article 16 of the Constitution of Pennsylvania, because of the borough's appropriation of its 8-foot strip of land for street purposes, and that the claim could pass by assignment. The appellee also graciously states that it does not seek to evade liability for the appropriation, and is willing to pay the damages when the person entitled thereto has been legally determined. But it urges upon us that the resolutions of the board of managers of the company, without the execution and delivery of a supplemental assignment, cannot operate as an assignment by the company to the appellant, or entitle the appellant to the damages awarded. Under the facts in this case, such contention cannot be sustained.
It is conceded that the appellant had no title to the *550
land which was appropriated, and it is not disputed that the company's claim for compensation was assignable. Linton v.Armstrong Water Co.,
The resolutions in this case were more than a simple declaration of intention to assign in the future. We unhesitatingly say they constitute an equitable assignment. The appellant was the only creditor of the company. The company had ceased to do business and was winding up its affairs. The resolutions of the board of managers clearly express an intention of an immediate transfer of all of the assets of the company, including its claims, demands, rights, and privileges, to the appellant. See Ruple v. Bindley,
The company being entitled to compensation from the appellee and the same not having been paid, no particular form of words or particular form of instrument was necessary to make a valid assignment of the claim to the appellant. In Fett's Estate,
Nor was it necessary that the express consent of the appellant to the assignment be shown. Where, as here, the assignment was beneficial, consent will be presumed until the contrary appears. See Smith v. Bank of Washington, 5 Serg. R. 318; Henderson etal. v. Hughes,
Also the fact that the appellant was the sole creditor of the company furnishes sufficient consideration for the assignment.
The court below, in its opinion dismissing appellant's exceptions to the report of viewers, relies on Guthrie Byles'sAppeal,
Order of the court below dismissing exceptions to report of viewers is reversed, and the record is remitted for proceedings in accordance with this opinion. *553