Vanderpool ex rel. Markham v. Vanderpool

162 Pa. 394 | Pa. | 1894

Opinion by

Mr. Justice Mitchell,

The defendant has made affidavit that there is nothing due on this judgment except the sum of $120 to Markham which he offers to pay, and there is also produced an affidavit of the plaintiff, Martin Vanderpool, that the proceeding resulting in the judgment was without his knowledge or consent, that the defendant at that time owed him nothing, and that, as he was then of age, no one had any authority to prosecute the suit or obtain the judgment for him. There are also produced from plaintiff a power of attorney to Crimmins, and an order on the prothonotary to satisfy the judgment.

Prima facie on this state of facts the judgment was void from the beginning, and should not only be opened but vacated absolutely and taken off the record. But it appears that other parties have intervened on the faith of the judgment and must be considered. In June 1893 an assignment was filed of record, dated June 6, 1892, and the whole trouble in the case seems to have arisen from the extraordinary misconception by the plaintiff’s attorneys, of the nature of this assignment, and their powers and duties under it. The paper is spread at large on the record, and is an assignment of the judgment by the plaintiff to A. B. Markham, “to collect and account to me therefor, after deducting his fees, expenses, and the fees and expenses of James Wood.” This is nothing more or less than a power of attorney to collect, with a pledge of the judgment as security for the fees and expenses named. The property in the judgment remains in the plaintiff, and he can resume control over it, satisfy it, or terminate the authority of the attorneys at any time, subject to the equity they have to be reimbursed their fees and expenses. It is of no consequence that, as the learned counsel for the appellee seem to think, the whole amount of the judgment is really due the plaintiff, and he is being persuaded out of it. That is his business, not theirs, and if he chooses to give away his rights for family peace or any other reason, no objection can be heard from them beyond the protection of their interest for fees and expenses incurred before notice of revocation. As to such fees and expenses the burden of proof is upon them. Markham took the assignment with a duty to account, and to pay over after deducting fees and expenses. It is upon him to show what these were, that they are proper in nature and amount, and that they rvere actually incurred in good faith before notice of any of the plaintiff’s acts which are equivalent to a revocation of the assignment, and especially before notice of the execution of the power of attorney to Crimmins in March 1893 formally revoking their authority. These, if the parties cannot agree, are matters for a jury.

Order reversed, and rule made absolute; an issue to be awarded to determine how much is equitably due to the assignees, and the judgment to be satisfied as to all above such amount.