Meeder v. Goehring

23 Pa. Super. 457 | Pa. Super. Ct. | 1903

Opinion by

Beaver, J.,

On June 5, 1901, W. E. Wilkins, whose assignee the plaintiff is, entered into a written agreement with the defendant to drill for her an oil well, upon the premises and in the manner described therein, in consideration of the sum of sixty cents per lineal foot. By the terms of the agreement, “ All money due at any time, on demand made by first party, after the completion of well, except a credit of $260 for tools and bill for wood furnished.” On the 9th of November following, the well being then unfinished, Wilkins executed a deed of voluntary assignment of all his property, real and personal, to the plaintiff. Prior to the said assignment, the defendant had paid on account of the work done, in addition to the $260 mentioned in the agreement, sundry amounts of cash, in wood, and the hire of certain tools furnished by her and in the value of tools lost by Wilkins a sum equal to or greater than the amount of work done by Wilkins under his contract. When the assignment was made, therefore, the assignee took an unfinished contract, under the terms of which the money for its execution was not due until after its completion. It was necessary, therefore, for him to complete the contract, in order to collect the price for drilling the well.

It is well to have clearly in mind, therefore, what came into his hands as a part of the assigned estate of the assignor. It was an unfinished contract which he was compelled to finish in order to secure anything for the creditors, upon which sundry payments had been made apparently in good faith. There being neither fraud nor collusion anywhere alleged or shown, why did he not take it subject to all the payments which had been made on account and subject to payment for the use of the tools and other materials furnished by the defendant, in order that the contract of Wilkins should he finished? Why were not the items of set-off set forth in the affidavit, the amount of which was subsequently agreed upon by the parties, for practical purposes as much a payment as the $260 agreed to be paid in the written agreement itself and the $200 subsequently paid to the assignee for work done by him upon the well? They grew out of the same transaction, were in effect a contribution by the defendant to the completion of the work and were apparently essential to its completion. Upon this state of facts, we cannot see that the provisions of the Act of June 4,1901, P. L. 404, change in any respect the rights of the defendant in setting up the items of set-off claimed by her and which were allowed by the court below in entering judgment upon the special verdict from what they were before the passage of that act.

The attempt is made in the argument of the appellant to distinguish between the rights of the parties now and heretofore from the factthat, under the law of voluntar}- assignments, as understood prior to the act of June 4, 1901, supra, the assignee was held to be the representative of the debtor and that, under the provisions of section 17 of said act, he is distinctly declared to be “ the representative of the creditors of the insolvent.” So far as this particular case is concerned, this would seem to be a distinction without any practical difference.

Upon the trial a special verdict was found by the jury as follows : “ The jury find that the whole amount of plaintiff’s claim against the defendant is $573.50, to which the defendant has a set-off against plaintiff’s assignor, W. E. Wilkins, amounting to $489.50. If the court be of the opinion that the set-off is legal and ought to be allowed in law, then we find a verdict for the plaintiff and against the defendant for the sum of $75.00. If the court be of the opinion, however, that the set-off is illegal and ought not to be allowed in law, then we find a verdict in favor of the plaintiff and against the defendant in the sum of $573.50.” Upon this verdict the court, in an opinion exhaustive and convincing, entered judgment for the plaintiff for $75.00. The action in so doing is practically the only alleged error.

Upon the facts as we have stated them, we can see no error in the action of the court, and its opinion in entering judgment fully vindicates that action. We can profitably add nothing to the reasons assigned by the court for its action and, inasmuch as the relevant authorities cited by it justify the entry of the judgment, we need not quote them here. Judgment affirmed.