North Penn Iron Co. v. International Lithoid Co., 217 Pa. 538

North Penn Iron Co. v. International Lithoid Co.

217 Pa. 538 | Pa. | 1907

Opinion by

Mr. Justice Brown,

In this foreign attachment the plaintiff, a creditor of the defendant, Edward O. Brice, attached moneys in the hands of the garnishee alleged to be due to him as royalties under a license agreement executed by him on June 29, 1901. By this *540agreement he is to receive a minimum royalty of $1,500 every six months. On December 3, 1903, he wrote the garnishee a letter in which he stated: “ I take this opportunity of notifying you that on October 5,1903,1 transferred and sold by good and sufficient deed of assignment all my right, title and interest in and to the license issued by me to the International Lithoid Company, on the 29th day of June, 1901, to S. M. Brice. All moneys that become due and payable to me will hence become due and payable to her. S. M. Brice has instructed her attorney, Mr. Joshua Pusey, to serve notice of revocation of the license issued to the International Lithoid Company by me, at the proper time. If you desire to anticipate this notice, kindly make check' to the order of S. M. Brice, and mail same to the above address.” After the receipt of that letter the royalties accruing under the license agreement were paid to S. M. Brice, the first payment having been made in December, 1903, and the last one in January, 1906.

At the trial the garnishée produced what purported to be the assignment by the defendant to S. M. Brice, referred to in his letter, the same having been handed to it by Joshua Pusey. After proving the defendant’s signature to the assignment by a witness familiar with his handwriting, it was offered in evidence, but objected to on the ground that its execution had not been properly proved, the two subscribing witnesses not having been called. This objection was sustained and the assignment excluded. The witnesses to it lived in New York, where it purports to have been executed, and as it did not appear that proper effort had been made to procure their testimony, the court cannot be said to have committed error in not permitting proof of its execution by secondary evidence..

But why should the letter of the defendant of December 3, 1903, to the garnishee have been excluded ? The genuineness of his signature to it was properly established by the testimony of a witness familiar with his handwriting, and, if the garnishee had never seen the assignment to which it refers, it would have been sufficient notice and authority from him to pay the royalties to another. He could not recover them if paid in pursuance of such notice, and what he cannot recover his attaching creditor cannot get, provided that his direction to pay them to another was not in fraud of its rights as one of his creditors. *541Under no condition could he recover what has been paid S. M. Brice, even if the royalties were a gift to her ; but if a gift to her at a time when he was indebted to the appellee, such gift would be void as to it. In his charge to the jury, directing a verdict in favor of the plaintiff, the learned trial judge said that even if the execution of the assignment had been properly established, it was to a person, if in existence, who was the wife of the defendant, and that the presumption of the law was that it was a gift to her and void as to creditors. Th'e assumption of the fact by the court that S. M. Brice is the wife of E. C. Brice was not justified by the evidence. She may be, but it was not so proven. The plaintiff offered no testimony on the subject, and from that of the two witnesses called by the garnishee who were asked about Sally Brice, it does not appear that she was his wife. On the contrary, William D. Tarnall testified that he had lived near the defendant, that he knew his wife, and that her name was Maud O. Brice. Albert S. Barker, the other witness, testified that Sally M. Brice was said to have been the wdfe of E. C. Brice, but that he did not know what his wife’s name was.

The letter of December 3, 1903, being in itself full authority to the garnishee to pay and full protection from any further claim by the defendant that the royalties be paid to him, it must have the same effect against the claim of the appellee, whose rights rise no higher than his, unless it can show either that the direction to pay was to one who was his wife and she cannot show that it was not in fraud of creditors, or if the payee was not his wife, that she was one to whom he assigned the royalties in fraud of his creditor’s rights.

The garnishee is a mere stakeholder of the rcyalties due under the license agreement and ought not to be subjected to the liability to pay them twice. Such liability may be incurred if this judgment on a verdict directed by the court is allowed to stand. The right of the appellant was to have the case go to the jury on the letter. The second, fourth and fifth assignments are sustained, and the judgment is reversed with a venire facias de novo.