146 A. 448 | Pa. | 1929
The facts in this case are not really in dispute. On May 5, 1921, the use plaintiff, Mahlon F. Bloss, was treasurer of defendant township. It, sometime previously, with the approval of the State Highway Department, had purchased from the Galion Iron Works Manufacturing Company a stone crusher for use in the improvement of the public roads in the township, the cost of which was to be paid in installments. The day named, the agent of the Iron Works offered the township supervisors to discount the price of the crusher 2% if they would pay him cash for it. They were unable to accept the offer because the township did not have the necessary funds in its treasury. Bloss then offered to make the payment out of his own pocket, provided the supervisors would agree to refund the amount to him out of the yearly tax payments which would be received the following month. The supervisors agreed to this and Bloss paid the agent the amount due $2,038.40 and took from him a receipt in full. Bloss had previously made advances to the township in connection with the road work it was doing, so that the total amount of his expenditures for its account footed up $2,500. When taxes sufficient to pay him came in, the township found itself in such financial shape that if he were paid, it could not carry on its road improvement program, whereupon he offered to waive present payment and to permit the work to proceed, provided the supervisors gave him a note for $2,500, payable in a year, which they did. The note was not paid and he brought suit on it. The court below in that action, for reasons which do not clearly appear from the record, but apparently because it was of opinion that the note represented an indebtedness, so far as the stone crusher part of it was concerned, beyond the power of the supervisors to contract in the form in which it was evidenced, permitted recovery only for advancements, exclusive of the stone crusher, amounting to $461.50, holding that, *72 "Plaintiff is not entitled to recover by this direct action in his name the cost of the stone crusher, $2,038.40, though he may be so entitled in an action by the seller of same to his use," and directed judgment for the less sum without prejudice to the enforcement of the rest of his claim by an appropriate action. Following this outcome of the suit on the note, Bloss procured an assignment from the Iron Works of its claim against the township, dating the assignment back to the time he had made the payment, and, following the court's suggestion, brought this suit in the name of the Iron Works to his use. The case by agreement was referred to Hon. Henry A. Fuller, former president judge of the 11th Judicial District, as referee, who found against the township for the amount claimed with interest. His finding was approved by the court below, which entered judgment against the township from which it appeals.
Appellant treats the transaction as though it were an outright loan of money by Bloss, pointing to the entry on its minutes when the $2,500 note was given in June, "Borrowed from M. F. Bloss, May, $2,500," as proof that it was a loan. The undisputed facts, however, show that initially it was not; that it was a temporary advancement made in the township's behalf. If at that time the Iron Works had assigned its contract to him, there could be no question of his right to recover; that he thereafter took the township's note as evidence of its indebtedness could not obscure the real transaction as it originally arose. The appellant takes the position that the supervisors of a township cannot borrow money on the credit of the township except in extraordinary emergencies such as a destructive flood (Potters National Bank v. Ohio Township,
Appellant argues that the contract with the Iron Works had been extinguished by the payment made to it and that it could not be revived by an assignment to Bloss as use plaintiff so as to support this action. If the township had borrowed the money from Bloss and made the payment, this might be so, but this is not what was done. In International Harvester Co. to use of Brandt v. Tuscarora Township,
It is also argued that the prior suit on the note is res judicata as to the pending action. In view of the manner in which that suit was disposed of without prejudice to the bringing of the action now before us, the bar of res judicata could not arise. To quote from an article by the present Chief Justice in 38 Yale Law Journal 299, MOSCHZISKER'S Legal Essays, pages 59-60: "A suit dismissed, on demurrer or otherwise, for some formal or technical defect, such as misjoinder or nonjoinder of parties, a mistaken form of action, or premature bringing of action, is no bar to a subsequent suit on the same cause of action. Judgments of the kinds indicated should be considered as concluding only the technical points decided, unless they in fact go to *74
the merits of the case." "A judgment sustaining a demurrer to a petition for want of form and of proper parties merely decides that the suit cannot be sustained in that form against these parties, and it is not a bar to another suit for the same cause of action": Detrick v. Sharrar,
The judgment is affirmed.