Humphrey v. O'Donnell

165 Pa. 411 | Pa. | 1895

Opinion by

Mr. Justice Green,

The bond of indemnity given by the defendant O’Donnell with surety, to the Crescent Pipe Line Company, contains the following recital, “ And whereas the said The Crescent Pipe Line Company has in its hands certain moneys amounting to twenty four hundred forty seven dollars and fifty eight cents, retained by it in its hands, under a claim for forfeiture, which claim it now proposes to release, and pay over said money to said O’Donnell upon the condition that he shall forthwith apply, the same to the payment of claims against him along the line of said work so far as said money will go.”

It is simply impossible to regard this recital as anything less than an absolute assertion that at the date of the bond, April 17, 1893, the Crescent Pipe Line Company had in its hands $2,447.58 under a claim for forfeiture which claim that company proposed to release, and pay over the money to O’Donnell upon condition that he would pay it over at once in payment of claims against him along the line of .the work he had been doing for the company on a contract which was previously recited in the bond. In the next clause of the bond O’Donnell agreed to accept the money for the purpose mentioned, “ and on account of his claim against said company,” but reserving the question as to the amount of moneys'coming to him in the hands of the company until settlement was made, and agreed to pajr all other claims against him for 'or on account of the work done for him under the contract.

The condition of the bond was that if 'O’Donnell paid, “ out of the said moneys now paid to him,” all claims against him along the line of'the work, “ and-shall also save and keep harmless the said company from any attachments against it, and especially one in the name of Rachel Humphrey issued out of the Court of Common Pleas No. 3, of Allegheny county, Pennsylvania, at No. 386 of February Term, 1892, then this obligation to be void, otherwise to be and remain in full force and virtue.”

The bond was delivered to the company and the $2,447.58 paid to O’Donnell, and on the same day an agreement in writing was executed between O’Donnell and the company, to refer to five persons the question as to how much was coming to O’Donnell for extra work on his contract with the company. These persons subsequently made their report, the precise result of which does not appear in the paper-books. But the president of the company, W. L. Mellon, being examined, testified that, in addition to the $2,447.58, the company owed O’Donnell “ about $395,” on the basis of the report of the referees, or if a certain sum of $125.85 was allowed as extra work the amount still owing would be $521.52. Now the attachment in execution in this case had been issued and served in January, 1893, and the president, Mr. Mellon, testified that he knew of the attachment at the time of its service, and that the money, $2,447.58, was paid after the attachment was served and while it was pending. In addition to that when the company paid that money they took a bond of indemnity from O’Donnell indemnifying them against this very attachment. So that it appears of record that, after the attachment was served, and with a full knowledge of it, the company, having in its hands -$2,447.58 for the account of O’Donnell for work done under his contract unless it was forfeited, but which claim of forfeiture they released, paid him that money, accepting his agreement to pay it out in a certain way, and a bond of indemnity against this particular writ of attachment in consequence of their payment to him of this money. As to these fundamental facts there was no dispute. The offers of testimony which were rejected could not possibly have mitigated the force or the legal effect of these facts. If the company made a wrong payment, or an overpayment, to O’Donnell, they can resort to their bond of indemnity but they cannot defeat the effect of the attachment by paying out money accruing under their contract with him, after the service of the writ. Nor can they engage this plaintiff in a contest over the whole merits of their controversy with O’Donnell, in view of the undisputed fact that they paid to O’Donnell much more money than the whole amount claimed in the attachment, after the writ was issued and served. Whether they chose to regard it as a gift is a matter of no moment. It was money in their hands on account of their contract with O’Donnell, held only under a claim of forfeiture which they released, and as such it was unquestionably subject to the attachment of his creditor. The assignments of error are all dismissed.

Judgment affirmed.

Mr. Chief Justice Sterrett dissented.