73 Pa. 211 | Pa. | 1873
The admission in evidence of the written contract under which the school-house was built is assigned as error. The objection to its admission is predicated of the fact that the instrument in its commencement purports to be an agreement between “ The Controllers of the Public Schools of the First District of Pennsylvania,” of the first part. It is, however, signed and attested on the part of the first party, by the mayor of the city, and duly sealed with its corporate seal. A short time after its execution the contract was duly approved by ordinance of councils. The sureties given by Lockhardt for his performance of the contract, were at the same time and in like manner approved. From time to time during the progress of the work, the city paid the instalments as they severally became due, according to the terms of the contract. After its completion the city took possession of the house, and have continued in the possession and enjoyment thereof.- After all these recognitions and ratifications on the part of the city, it is too late for her successfully to deny that she was a party to the contract.
The fifth, sixth, seventh and eighth assignments are based upon the Act of 28th of May 1715, which provides for the assignment of bonds, specialties and notes in writing. The form of the suit in this case, however, does not admit of the application of that act. That act provides a mode of assignment by which a suit may be brought in the name of the assignee only. This action is brought in the name of the original party to the contract for the use of the assignee. This assignment is not made according to the Act of 1715. This suit is not brought under it. The plaintiff is unaffected by its provisions. The claim to recover is not put upon an alleged agreement made with the equitable plaintiffs, but upon the one made with Lockhardt, from whom they have an equitable assignment.
The remaining alleged errors that were pressed relate to the assignment made by Lockhardt to Pyle & Hansell, and notice thereof to the city. It is contended by the plaintiff in error that when Lockhardt made said assignment he had no interest to assign; that it was made four days only after the execution of the contract, and before he had done anything under it. We think this position is not sound. It is well settled that a contract may be assigned so as to vest in the assignee the equitable right to the proceeds, although the money may not have been due or earned at the time of the assignment. It is often done by builders and other contractors to enable them to procure the materials necessary to fulfil their contracts. This was the case in Scott v. Morris, 4 Simons 607, in which the assignment was held good. Nor does it make any difference, if, instead of a debt now due, the assignment is of money, which is expected to become due at a future day to the
The only remaining question is, that of notice to the city. Did she have such notice of the assignment and letter of attorney from Lockhardt to Pyle & Hansell, and their claim under it, as to prevent the subsequent payment by the city to Lockhardt, from being interposed against a recovery in this action. No objection is taken to the form of the notice given, but to the official upon whom it was served. It was urged upon the argument that the assignee should have given notice to the city controller or to the city treasurer. There is much force in the suggestion that if the assignees had given written notice of their rights to the city controller he would have retained the warrant, subject to the order of the assignees. It would be well if the law designated that officer as the person to whom it should be given, in such cases. In the absence, however, of any such law, we think notice to other officials equally valid. The jury found that notice had been given to the board of controllers of public schools, to the councils, and to the city solicitor. This the learned judge held upon the point reserved, was notice to the city.
By the Act of March 3d 1818, § 7, Smith’s Laws 65, it is made the duty of the controllers to examine all accounts of moneys disbursed in erecting, establishing and maintaining the several schools within the district. The Act of the 15th of February 1832, 1 Pamph. L. 80, makes five members of the controllers a quorum for the making of orders, for the payment of money, and the transaction of business generally. There would then seem to be great propriety in giving notice to this board, which was most directly interested in looking after the subject-matter for which the money was to be paid. In Danville Bridge Company v. Pomeroy et al., 3 Harris 151, it was held, that notice to the engineer of a company appointed to supervise and direct the work of an alteration in the structure by the builder, was notice to his principals.
In Trenton Bank v. Canal Co., 4 Paige 127, it was ruled, that notice to the agent, when it is the duty of the agent to act upon such notice, or communicate it to his principal in the proper discharge of his duty as agent, is notice to the principal, and applies to the agents of corporations as well as of others. In this case three official branches of the city having been notified, we must hold the notice sufficient to charge the city therewith. The court committed no error in entering judgment in favor of the plaintiff below upon the points reserved.
Judgment affirmed.
