36 Pa. Super. 336 | Pa. Super. Ct. | 1908
Opinion by
The plaintiff in this action of replevin filed a statement
William Seifert, one of the defendants, filed an affidavit of defense in which he admitted that the defendants had acquired possession of the boiler and engine in the manner set forth in the plaintiff’s statement, and that the defendants had failed to pay the monthly installments of rent according to the terms of the contract of bailment. His affidavit averred, as a defense to this action of replevin, that: “Some time during the summer of 1906, the said William Seifert demanded an accounting from Charles P. Snyder of the partnership assets received by him, and Myer Strouse was mutually agreed upon by the partners to state' their account, from which it was ascertained that the said Charles P. Snyder was indebted to the partnership fund to the said William Seifert in the sum of $174.84, which he still owes.” The affidavit further averred, that Charles P. Snyder furnished to Harry Deibert, use plaintiff, the sum of $58.74, the consideration named in the assignment of September 27, 1905, and the said Harry Deibert took the said assignment for the said Charles P. Snyder, and transferred his alleged right, title and interest in said engine and boiler by assignment on January 29; 1907, to John A. Sprenger, the plaintiff, to secure the said John A. Sprenger for an indebtedness due him from the said Charles P: Snyder. The affidavit then states the ground upon which the appellant claimed the right to hold the engine, thus: “Your deponent avers that he is holding the said engine to secure him in part for the moneys due on said partnership account of said Charles P. Snyder.” The learned judge of the court below made absolute the rule for judgment for want of a sufficient affidavit of defense, and Seifert appeals.
. The affidavit of defense did not and could not allege that Seifert had a lien upon this boiler and engine for the debt of Snyder. Even had Snyder been the plaintiff in this action, Seifert could not have set off a debt due him against the de
The learned counsel representing the appellant argues that this case is ruled by those authorities which- hold that a partner who takes a renewal of the lease of the premises where the joint trade is carried on, in his own name and for his own individual benefit, is a trustee for the partnership, and cites Johnson’s Appeal, 115 Pa. 129. That case was presented by a bill in equity for an accounting and settlement of the partnership business. The firm had been dissolved, but the term of the lease under which they held the premises where the
The affidavit of defense does not allege that Sprenger had notice or knowledge, at the time he acquired title to the boiler and engine, that Snyder had furnished the money with which Deibert bought of the knitting company. It is a well-settled rule that implied trusts will not be enforced against a bona fide purchaser of the legal title from an original trustee for a valuable consideration, and without notice of the equity of the person in whose favor the trustee holds. The assignment to Sprenger purported upon its face to be for a valuable consideration and the affidavit of defense does not aver that it was not so. The affidavit states that the assignment to Sprenger was made to secure him for an indebtedness due him from Snyder, but it does not state whether that indebtedness had been pre-existing or was contracted at that time. We must assume that the defendant made his affidavit as strong as the
The transactions between the knitting company and Deibert, and the latter and Sprenger did not involve a sale of a chose in action. The legal title to the boiler and engine, with the right to the rental and to take possession in case the defendants failed to pay, was what each of the purchasers in turn acquired. Seifert could have retained possession of the property by paying the rental according to the terms of the lease, but this he failed to do. The assignments of error are overruled.
The judgment is affirmed.