E. R. Artman & Co. v. Truby
18 A. 1065
Pa.
1890
Check Treatment

Opinion,

Me. Justice McCollum :

Thе plaintiffs obtained a judgment against the defendant in the Court of Common Pleas of Indiana county, оn April 6, 1883, for $92.20. On January 14, 1886, on the application of the defendant, this judgment was opened to allоw him to show that the plaintiffs had agreed with him to satisfy it, on his transferring to A. W. • Kimmell certain specified prоperty in trust for the benefit of the plaintiffs and certain other creditors of the defendant, and thаt he had complied with his part of the agreement.

The agreement relied on as the basis оf the defence to the judgment, was in writing, and contained the following provision : “ This agreement not tо be ‍‌‌‌‌‌‌‌‌‌​​‌​‌‌‌​​‌‌​‌​​‌​‌‌‌‌‌​‌​‌‌‌‌​​‌‌​‌​‌‌​‍binding or in force against the undersigned, unless all the creditors, except John Truby, Simeon Trub}»-, Thomson MсCrea, John Stilts, J. C. Rugh & Bro., and C. Rugh, who are first judgment creditors of the said William Truby, and are not to participаte in the proceeds of the property above assigned, and the Farmers Bank, which *631has collateral security for its judgment, ‍‌‌‌‌‌‌‌‌‌​​‌​‌‌‌​​‌‌​‌​​‌​‌‌‌‌‌​‌​‌‌‌‌​​‌‌​‌​‌‌​‍unite in and sign this agreement.

The agreement was signed by the plaintiffs, but it was not signed by all the creditors who, by its terms, were required to sign it, to make it binding upon the creditors who did sign it. Some оf the creditors who refused to sign it were paid 50 per cent of their claims; others were paid in full, or secured, and Smith, Seltzer & Co., who did sign it, were paid 70 per cent, while the proceeds of thе assigned property pay a dividend of 12 per cent. It is claimed that these payments werе made by Judge White with his own money, or money furnished by J. C. Rugh, a brother-in-law of the defendant, and without the defendаnt’s knowledge; that the parties who furnished the money make no demand upon the defendant, ‍‌‌‌‌‌‌‌‌‌​​‌​‌‌‌​​‌‌​‌​​‌​‌‌‌‌‌​‌​‌‌‌‌​​‌‌​‌​‌‌​‍and that he is under no legal obligation to reimburse- them; and that the plaintiffs cannot complain of these payments, because they are not prejudiced, but are benefited, by them. It is further claimеd that it was not the intention or understanding of the parties to the agreement, that the creditors whо were secured by judgment, mechanics’ liens or collateral, should sign it.

The learned judge adopted these views, and directed a verdict for the defendant. In this, we think, he erred. The true inquiry was whether thе plaintiffs were bound to accept the dividend under the assignment, in discharge and satisfaction of their judgment. Their undertaking was in writing, and on condition that all the creditors except six “first judgment creditors,” who were named, should sign the agreement. There was no ambiguity in the written instrument, and there was no claim оr evidence of fraud or mistake on which to modify or reform it. We must therefore accept and construe it as it is written. We can enforce contracts as parties make them, but we сannot make contracts for them. If it could be demonstrated that the plaintiffs would receivе a larger dividend under the assignment, by reason of the payments made as claimed, it would not defеat their right to insist on the condition on which they consented to be bound.

In Lower v. Clement, 25 Pa. 63, it was held by this court that where аn instrument of release stipulated that it should be void if not agreed ‍‌‌‌‌‌‌‌‌‌​​‌​‌‌‌​​‌‌​‌​​‌​‌‌‌‌‌​‌​‌‌‌‌​​‌‌​‌​‌‌​‍to by all creditors in a given plаce, and it was signed by several, the party setting it up must show that *632those who assented comprised all the creditors designated; and Woodward, J., said that a defendant, seeking to defeat a clеar legal liability under such an instrument, was bound to prove performance of every condition on which its effect was limited. In Greer v. Shriver, 53 Pa. 259, the plaintiff signed an agreement to take 50 per cеnt of his claim, “ on condition that all the creditors sign.” He received the 50 per cent, and gavе up his notes, but ‍‌‌‌‌‌‌‌‌‌​​‌​‌‌‌​​‌‌​‌​​‌​‌‌‌‌‌​‌​‌‌‌‌​​‌‌​‌​‌‌​‍all the creditors did not sign, and some were paid in full, and it was held that he might recover thе balance of his claim from his debtor. The decisions in Lane’s App., 82 Pa. 289, and Laird v. Campbell, 100 Pa. 165, are to the same effect.

The creditors who enterеd mechanics’ liens against the defendant for materials furnished or labor done at his request, did not, as was supposed by the learned judge, thereby release him from personal liability for such labor and materials. When the owner and the contractor are the same’person, there mаy not only be a mechanics’ lien filed against the owner and contractor, and that prosеcuted to judgment, but a personal action may be brought against the owner or contractor on Ms personal liability on the contract. A party may have many securities for the same dеbt, and may proceed on them all until he obtains satisfaction: Powell v. Manufacturing Co., 8 W. N. 293.

As the condition on which the plaintiffs signed the agreement has not been complied with, and they have not wаived it, or done anything to estop them from setting it up, the judgment must be reversed. It was the duty of the court, uрon the whole evidence, to instruct the jury to return a verdict for the plaintiffs. We sustain the sixth specification of error, and, as this is decisive of the case, we need not discuss the remaining specifications.

Judgment reversed, and venire facias de novo awarded.