Gawthrop Co. v. Fibre Specialty Co., 257 Pa. 349

257 Pa. 349 | Pa. | 1917

Opinion by

Me. Justice Wauling,

This is a question of distribution in an insolvent estate. On April 28,1913, receivers were appointed for the Fibre Specialty Company, a corporation. Prior thereto, on. July 23, 1912, the company for value gave George W. Taft a demand note for $5,000. J. W. Brainard was official treasurer of the company; and in 1903 gave a bond in $5,000, with Taft and James W. Worrall (now deceased) as sureties, conditioned for the faithful performance of his duties as such treasurer. June 26, 1913, Mr. Taft made an assignment of his estate, specifically including the $5,000 note, to Harry W. Chalfant, for benefit of creditors. In 1914, the receivers filed an account and an auditor was appointed to make distribution thereof; to whom the Taft note was presented by the assignee, and a dividend amounting to $2,157.15 awarded thereon. Mr. Brainard while treasurer of the company made default, by reason of which the receivers brought suit against him and Ms sureties on the bond in the Court of Common Pleas of Chester County, at the January term, 1915, and recovered a verdict for $3,-809.02, on which judgment was entered and affirmed by this court, in case of Marshall v. Brainard, 253 Pa. 35. Brainard and Taft being insolvent, this judgment was, on April 20, 1916, paid by appellants as executors of James M. Worrall, deceased; to whom one-half of the judgment was thereupon assigned.

After the award of the dividend to Chalfant on the Taft note, the claim against Brainard and his sureties on the bond having been brought to the attention of the court below, it was there ordered that the dividend be retained by the receivers until the final determination of the action on the bond, which was done. The receivers in a subsequent final account charged themselves with the $2,157.15 dividend, which the auditor thereafter awarded appellants by way of contribution from Taft as their cosurety. The learned court below sustained exceptions to the auditor’s report, and by final decree ordered the dividend paid to Chalfant on the Taft note. And from that decree this appeal was taken. The $5,000 note was a matter entirely separate and apart from the treasurer’s bond and had no connection with Mr. Brainard or Ms account with the company. Appellant’s right to contribution or subrogation arose when they paid the judgment. Then they were equitably entitled to an assignment of the judgment, and also of any collateral or other property held by the receivers to secure the payment of the bond. But they were not entitled to the dividend awarded to the Taft note as that was an entirely separate matter. The note was a part of Taft’s general estate and appellants had no .special equity in that. Except as to matters connected with the bond appellants are merely creditors of Taft to one-half the amount they paid on account of the surety bond; and they only became such creditors when they paid the judgment on April 20, 1916. Prior to that time they had no claim against Taft. See Modern American Law, Vol. VIII, page 224.

^ It is not easy to see how appellants can secure preference over other creditors whose claims were in existence at the time of the assignment; for as a general rule the rights of creditors are fixed as of that date: Sweatman’s App., 150 Pa. 369; Jamison & Co.’s Assigned Est., 163 Pa. 143; Potter v. Gilbert, 177 Pa. 159; Chestnut Street Trust & Saving Fund Co.’s Assigned Estate, 217 Pa. 151. Except as to rights,and property connected with the transaction, the claim of a cosurety for contribution is no higher than that of any other claim, and subrogation, which is fotinded upon equity and benevolence, will never be granted to the prejudice of other rights of equal or higher rank: Fritch v. Citizens’ Bank, 191 Pa. 283; Knouf’s App., 91 Pa. 78; Grand Council of Penna. Royal Arcanum v. Cornelius, 198 Pa. 46; Shimp’s Assigned Est., 197 Pa. 128. Claims against an insolvent estate which were in existence at date of the assignment, would seem at least to have as strong an equity as one thereafter arising, even though the obligation out of which it arose antedated the. assignment. “It is not a liability to pay, but actual ■ payment to the creditor, which raises the equitable right to be subrogated to his remedies”: Kyner v. Kyner, 6 Watts 221; Hoover v. Epler, 52 Pa. 522; Forest Oil Company’s Appeals, 118 Pa. 138. Subrogation will never be enforced to defeat a superior or even an equal equity: Robeson’s App., 117 Pa. 633. A case quite similar to this in principle is that of Farmers & Drovers’ Bank v. Sherley et al., 75 Ky. 304,

Creditors of Taft acquired no special rights because of the transfer of the note to Chalfant, as an assignee for benefit of creditors stands in the place of the assignor (Potter v. Gilbert, 177 Pa. 159), and not in that of a bona fide holder for value. In Marshall v. Brainard, supra, it' is held that the Taft note could not be interposed as a set-off against the suit on the treasurer’s bond. Whether or not such bond should have been set off against the claim on the note does not seem now important ; in any event it was not so used; and the real question here is as to the equitable rights to the fund in question between the Worrall Estate and other creditors of Taft. The question as to the validity of - the assignment to Chalfant is not before the court. The other assignments of error do not seem to require special consideration.

Where the lower court makes a general decree sustaining exceptions to an auditor’s report, and the controlling exceptions are well taken, and the right decree is entered, an appellate court will not reverse because such general decree seemingly sustains some minor exceptions that were not well founded; nor because of minor inaccuracies in the opinion filed with the decree. However, the opinion in this case indicates a correct understanding of the facts and legal principles applicable thereto'.

The decree is affirmed at the costs of appellants.