Commonwealth ex rel. Mentzer v. Sides

176 Pa. 616 | Pa. | 1896

Opinion by

Mr. Justice Green,

Whatever may be the effect of the paper signed by John W. Mentzer, dated September 8, 1890, it was certainly of no binding force as to the defendant Sides until he had notice of it and of its contents. The paper purports to be an agreement on the part of John W. Mentzer that his income as prothonotary should be paid over to Allen W. Mentzer, and that he, John W. Mentzer, would keep a strict account of the daily income of the office, and would deposit the same in bank to his own credit as prothonotary, and pay it over to Allen W. Mentzer, “from time to time as he may require it.” The literal meaning of tins paper is, that John W. Mentzer should himself collect the income, deposit it in bank to his own credit, and then pay it over himself to Allen W. Mentzer. If John W. Mentzer was to collect the income he must necessarily have control of it in order to obtain it from those from whom it had to be collected, and the duty of paying it over to Allen W. Mentzer was a personal duty to be performed by himself. This feature of the instrument does not bear the character of an absolute assignment of the income, at least as far as third persons were concerned. Such persons having any part of the income in their hands would still be bound to pay it to John W. Mentzer upon his demand. So far as the assignments of error in this case are concerned, however, it is not of much importance how that question is considered, because in any event the defendant, Sides, unless he had notice of the paper, was in no degree bound by it. So long as he was in ignorance of it, any payment he would make, either to John W. Mentzer, or to any person to. whom he directed it to be paid, was a perfectly good payment, which would relieve him from any liability to Allen W. Mentzer. If this were not so A. W. Mentzer might keep the paper in his pocket until all the income of John W. Mentzer in the hands of Sides had been paid over to John W. Mentzer, or other persons upon his order, and then come upon Sides and compel him to pay it all over again. As a matter of course this could not be done.

Upon the trial the defendant offered to prove that he had paid out a part of the fees in his hands belonging to John W. Mentzer, to A. S. Bard, and to other persons not named, at the instance and request of John W. Mentzer, and before he, Sides, had any notice of any assignment or transfer to A. W. Mentzer. This offer was rejected on the theory that the paper of 1890 was an absolute transfer of all of John W. Mentzer’s interest in the moneys in the hands of Sides, and that John W. Mentzer’s right to any of the money had ceased. It is extremely doubtful, to say the least, whether this would be so on the fair construction of the paper, when the rights of third persons were sought to be affected, but it was grave error to reject this offer of proof in any event, for the simple reason that the payments were made without any knowledge of the paper on the part of Sides. Most assuredly he was not bound by it unless he was notified of its existence, and it was a part of the offer of proof which must be accepted as verity that he had no such notice.

Tins view of the case disposes of all the assignments of error and they are all sustained.

Judgment reversed and new venire awarded.