Moeser v. Schneider , 158 Pa. 412 ( 1893 )

Opinion by

Mr. Justice Thompson,

The affidavit of defence, for the insufficiency of which the court below entered judgment against appellant, sets forth that he was employed by Edward Knuchel to collect an inheritance for him ; that Knuchel was indebted to Frederick Jampen ; that in order to pay this indebtedness and secure him for money which he was about to advance, he directed appellant to prepare an assignment of this inheritance to Jampen,- and that he did so, a copy of which is annexed to the affidavit. By this instrument Knuchel and his wife acknowledged themselves indebted for board and lodging and money loaned, and they bind themselves to pay the same with the money from the inheritance. The affidavit then avers that on the faith of this assignment the said Jampen loaned Knuchel the further sum of two hundred and fifty dollars, making a total indebtedness of four hundred and fifty-six dollars and fifty cents ; that Knuchel signed and deposited this instrument with appellant and ordered him to pay Jampen ; that he accepted said assignment as' an order to pay and promised Jampen to pay the fund to him when received; that the amount of the inheritance so received was less than $456.

While the instrument was intended as an assignment of the inheritance it does not operate as such; yet, taking it in connection with the balance of the affidavit an equitable assignment of the fund is sufficiently averred. The fund which was coming to Knuchel was to be assigned to Jampen as a payment for his indebtedness. For this purpose Knuchel having executed the acknowledgment and having ordered appellant to pay to Jampen, appellant promised Jampen to do so. Knuchel was entitled to the fund as an inheritance, and appellant was employed to collect it for him. The facts averred in the affidavit show an appropriation of it to the payment of the indebtedness due Jampen, and a direction to pay him. They amount to au equitable assignment of it.

In Nesmith v. Drum, 8 W. & S. 10, it is said : “ An equitable assignment is an agreement in the nature of a declaration of trust, which a chancellor, though deaf to the prayer of a volunteer, never hesitates to execute when it has been made on a valuable, or even good consideration. Could there be a more explicit declaration than the order before us ? Drum and Collins draw on their lawyer for the proceeds of an action against Hawkins, which they declare in the order to have been appropriated to payment of their note in the Warren Bank, on which Wheelen, the payee, was one of their sureties. If this appropriation was a condition of the contract of suretyship it rested on a valuable consideration; if it was not it rested on a good one, which is equally available.” In Ruple v. Bindley, 91 Pa. 296, it is said: “ The form is immaterial so that there be a clearly expressed intention of an immediate transfer of the right to the assignee. Where one was indebted to a number of persons and remitted a sum of money to B, with orders to give specific parts to certain creditors, it was held that B became trustee for those creditors, and they thereupon acquired such an interest in the trust fund as could not be divested by an attachment against the debtor, though some of the creditors had no notice of the trust before the service of the attachment: Sharpless v. Welsh, 4 Dall. 279. An order to the drawer’s attorney to pay to W the amount of a note on H when collected, is an assignment of the fund, by the agreement of the parties, and cannot be revoked, even if the draft was not accepted by the drawee.” Clearly Knuchel could not successfully deny the assignment; if so, his administrator, standing in his shoes, cannot do so.

It is contended by appellee that this case comes within the grasp of the act of assembly of May 10, 1881, P. L. 17, which provides that no person shall be charged as an acceptor on a bill of exchange, draft or ordei', drawn for the payment of money, exceeding' twenty dollars, unless his acceptance shall be in writing, signed by himself or his lawful agent. But such is not the case. The objection, as decided by this court, can only come from the acceptor. In Ulrich v. Hower, 156 Pa. 419, in which the plaintiff, by a verbal agreement, assigned and appropriated a certain amount to a creditor, and the defendant being informed of this agreed to pay the balance to such creditor, Mr. Justice Mitchell said: “ 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 to be in writing, but an assignment to a creditor by a debtor of a claim for money due the latter by the 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.’ ”

Judgment reversed and procedendo awarded.