Burger v. Burger

135 Pa. 499 | Pa. | 1890

Opinion,

Mb,. Chief Justice Paxson:

This was an attachment-execution in the court below. Judgment was given against Bausman, one of the garnishees, upon his answer to the interrogatories filed by the attaching creditor. From this judgment, Bausman has appealed.

The answer admits the receipt of $1,737.50 from Henry Burger, the defendant in the execution, and that he (Bausman) deposited the money in the Farmers’ National Bank of Lancaster to the credit of “ J. W. B. Bausman, attorney for Henry Burger.” Thus, upon the books of the bank, the money belonged to Henry Burger, and neither the bank nor Burger’s attorney could be heard to deny it was his: Cit. N. Bank v. Alexander, 120 Pa. 476; First N. Bank v. Mason, 95 Pa. 113. If, in point of fact, the money was not that of Burger, but belonged to a third party, the true owner could give notice of his claim to Bausman and the bank, and would be entitled to recover it if he succeeded in establishing such claim.

It was alleged, however, that this money belonged to the creditors of Burger, and in his additional answer'the garnishee says: “ At the meeting of the creditors of Henry Burger held December 1,1887, the creditors present agreed to bring no suits against him until January 1, 1888, and made it a part of this agreement, and as a condition thereof, that he should deposit the sum of $1,787.50 to be used and applied as set forth in the answer hereinbefore filed, and the creditors did bring no suits until after January 1, 1888. John Adam Burger, the attaching creditor,.....was not present at said meeting.’1' It was contended that this created a trust for creditors. But what creditors? There was no specific appropriation of the fund to anjr particular creditor or creditors. No creditor appears or was named to whom the money was to be applied, and it is not pretended that it was to go to all of his creditors.

The whole transaction was in parol; had it been in writing, it would have inured to the benefit of all the creditors, and, if not recorded within thirty days, the money would have been liable to attachment. At best, it was an attempt to make a parol assignment, which would not come within the recording acts, and which would inure to a portion only of the creditors. It might, perhaps, have succeeded, had there been- an irrevocable appropriation of the money to particular creditors. Until so appropriated, the money remained the money of Burger, and was liable to the attachment. Mr. Bausman, if an agent or trustee at all, was only so for Mr. Burger. As was said in Beans v. Bullitt, 57 Pa. 221: “We have gone very far in favoring what are called equitable assignments or appropriations, but never so far as to hold that an agent directed to pay money generally, without specification of amount, or of the person of the payee, as distinguished from others, is a trustee for any other than the principal.”

Judgment affirmed.