269 Pa. 388 | Pa. | 1921
Opinion by
We might dismiss this appeal with the observation that, where plaintiff in the court below presses for a summary judgment for the entire claim for want of a sufficient affidavit, which is refused, and, to sustain the appeal to this court, abandons a portion of the claim as to which the affidavit was admittedly good, we will not reverse the court below and direct judgment for the balance of the claim in controversy where no request was made for such judgment; but as to both items the affidavit was sufficient. We held, in Fulton v. Bomberger, 262 Pa. 43, under the Act of May 14, 1915, P. L. 483, that the plaintiff might take a rule for judgment for want of a sufficient affidavit of defense to the whole or any part of the claim, and that the court did not commit error in entering judgment for a part of it; but no such request was made in the court below in the present case.
Plaintiff’s claim consisted of two items: first, balance due on a drawing account; second, a dividend unlawfully taken by defendant. A rule was entered for judgment for the whole amount, and defense to the entire claim was specifically challenged for insufficiency, as appears in the motion for judgment. The affidavit was sufficient as to the second item, not only because of the nature of the resolution declaring the dividend but, as stated by appellant, it was a “de facto dividend...... and a division of profits of the corporation made by and between all of the stockholders,” the company being solvent at the time, and the rights of creditors not impaired.
As to the balance due on the drawing account: The Powers Company was engaged in the business of selling automobile tires; its principal creditor was the Hood Tire Company, the use-plaintiff. The Powers Company, becoming heavily involved with the Hood Company, agreed to liquidate its indebtedness under agreement of July 1, 1919, wherein a demand promissory note, dated July 1, 1919, for $30,000, interest at nine per cent, was to be given the Hood Company, to be paid at the rate of
After receiving payment on three of the notes, the Hood Tire Company refused to accept a further payment of $1,000 on another note. It took possession of the books, papers and place of business of the Powers Company, transferred the stock held as collateral to its own name, giving, as a reason, default in payment of the balance of the $30,000 note. No effort was made to sell the collateral at public or private sale, and the new officers elected were controlled by the Hood Company. Defendant waived objection to these acts as long as it facilitated the use-plaintiff in realizing upon the collateral pledge for the payment of the $30,000 note, but charges that, through this wrongful conversion, the Hood Company took over the assets of the Powers Company, consisting of accounts receivable, stock and other articles specifically enumerated in plaintiff’s statement, and, instead of applying them under the terms for which the collateral was held, applied them to the liquidation of the general debts of the company. Plaintiff avers that the transfer of these assets and accounts receivable was pursuant to resolutions of the Powers Company, wherein these assets were to be transferred for the liquidation of
Additional claim is made that the value of the assets taken was largely in excess of the value stated by plaintiff, more than sufficient to pay the note, and for this reason he is entitled to apply the sum loaned on the $100-per-week basis as a set-off to the drawing account. More is averred, but we have stated sufficient to make it clear the court did not err in refusing summary judgment. It does not do to say the stock of the Powers Company was of no value. It was of value for the purpose of securing control of that company.
We express no further opinion on the record as presented. Defendant should be given an opportunity to prove the facts suggested.
The appeal is dismissed with a procedendo.