156 Pa. 414 | Pa. | 1893
Opinion by
The exclusion of the testimony of Ritter as to the assignment to him of plaintiff’s claim was error. What was proposed to be proved was not a verbal acceptance of a bill of exchange, draft, or order for the payment of money, which the act of May 10, 1881, P. L. 17, requires tobe in writing, but an assignment to a creditor by a debtor of a claim for money due the latter by a third person. It is not entirely clear that it is within the statute at all, but whether it is or not, the objection can only be raised by the acceptor for whose benefit the statute was passed. The language is “ no person shall be charged as an acceptor,” etc. If Hower had paid Ritter in obedience to the verbal assignment, there could be no question that such payment would be a good defence. So if he sets up the order here and the verdict should be for him on that ground, he would be estopped from setting up the statute hereafter against Ritter. Whether such a verbal assignment is revocable or not may depend largely on the circumstances, which were not allowed to be put in evidence, and in any event the fact of revocation was for the jury. The first, second, fifth and sixth assignments are sustained.
There was also error in the qualification of the defendant’s second point, and in the general charge on the subject of the plaintiff’s conduct. Defendant discharged the plaintiff and claimed that no wages were due him, because he got drunk, drove defendant’s team recklessly, and used it in hauling for other people, besides the still more serious accusation that he had sold some of defendant’s feed for the team and pocketed the money. As to the last item the learned judge instructed the jury correctly that if it was true it was such a breach of trust as would prevent a recovery. But as to the other matters the jury were told without qualification that “ his being drunk while off duty would not be such misconduct as would prevent his recovery.” This was much too broad. He might never be actually drunk on duty and yet have been so drunk while off, as to be incapable of the faithful and efficient performance of his
The levy under the fi. fa. should also be set aside, and the appellant relieved from the costs of it. At the time the fi. l’a. was issued there was an attachment sur judgment by a creditor of the plaintiff, of which plaintiff had notice. The defendant, as garnishee in that attachment, was entitled to an opportunitj1to protect himself. Whether plaintiff’s claim against defendant was exempt from attachment was a question the latter as garnishee was not bound to decide at his own risk. Plaintiff could have gone into court and tested that, on a rule to dissolve the attachment, but his conduct in paying the jury fee, entering judgment and issuing a fi. fa. three days after service of the attachment, shows an intention to harass the appellant, which the court should not have permitted to be successful. Getting the attachment out of the way subsequently by assignment to Mr. Everitt did not cure the improper imposition of costs on appellant by the fi. fa.
Judgment reversed and venire de novo awarded.