Central School Supply House v. School Board , 1898 Pa. Super. LEXIS 128 ( 1898 )

Opinion by

Orlady, J.,

The Central School Supply House of Chicago, 111., being the sole owner of copyright and patents for the manufacture, publication and sale of certain politico-relief maps for use in schools, made a contract in writing with one A. D. Meloy by which he was to purchase, and have the exclusive right to sell these products in counties and cities therein mentioned. Pursuant to the right given to him at a regularly convened meeting of the board, when all the members were present, Meloy made a contract with the directors of South Middleton township to sell to them certain maps and cases for the sum of $456, and, as evidence of the contract, a resolution was regularly minuted of the action taken, and, as exhibited in evidence, a paper of the folloAving form was given to Meloy:

“ Carlisle, Pa., July 16th, 1896.

“ Mr. Adam Baker, Treasurer of South Middleton toAvnship School District, County of Cumberland, State of Pennsylvania, pay to the Central School Supply House per A. D. Meloy, or order, four hundred and fifty-six dollars, being payment relief maps, for which this Avill be your sufficient voucher on settlement of your account, payable January 1st, 1897.

“ By order of the Board,

“ P. G. Maters, President.

“Attest: W. F. Gardner, Secretary.”

On July 24,1897, Meloy sold this paper to Jacob LiAdngston for $420, and indorsed it as follows: “A. D. Meloy, Central School Supply House, per A. D. Meloy,” and the same day he sent to the supply hotise his check for $300, and noted thereon, “on account of South Middleton.” This check was received by the supply house, by it indorsed, and finally returned to the bank on which it was drawn, and was charged toMeloy’s account, and on the trial below it was in evidence as a canceled check.

The maps and cases were shipped by railroad service, and were received at the station by the members of the school board, who had met for the purpose of inspecting them. All of the members were present at this meeting, although they did not convene as a board, nor make a minute of any action then taken, but executed a paper in the following form, viz:

“ Hatton, Pa., August 7th, 1897.

“Mr. A. S. Baker, Treasurer of South Middleton Township School District, County of Cumberland, State of Pennsylvania, pay to the Central School Supply House, or order, four hundred and fifty-six dollars, being payment for politico-relief maps for which this will be your sufficient voucher on settlement of your account payable January 1st, 1897. 6 per cent, interest after due.

“By order of the Board,

“F. G. Myers, Pres.

“Attest: W. F. Gardner, Sec.”

This paper and a bill which accompanied the goods, in which there was an item of charge for the cases for the maps, were given to the treasurer.

The following day the treasurer called upon Meloy and asked for an explanation of the discrepancy between the amount of the bill rendered by the Supply House and the contract price of the maps. Meloy asserted that the charge for the covers was an error, and to correct it he indorsed on the back of the bill as follows: “Covers were furnished by A. D. Meloy,” and then requested the treasurer to give to him the warrant dated August 7, so that he could send it to the Supply House with his explanation of the transaction. He informed the treasurer that, on July 24, 1897, he had sent to the Supply House the sum of $300, which was all that was due on this order, and he exhibited the check stub in support of his statement.-

The treasurer refused to deliver the warrant of August 7 to Meloy, but sent it to tbe Supply House, who subsequently brought suit upon it against the school district to No. 92, September term, 1897, which action is still pending.

It was admitted that the maps and covers were of the kind and value ordered by the school board, and were in use in the schools of the district, by order of the board, at the time of the trial of this case in the court below.

The defendant contended that the paper dated July 16,1897, was only an order for the goods, and that it had been fraudulently altered by the insertion of the words “per A. D. Meloy.” It is idle to call the paper of July 16, 1897, an order for goods, and the one of August 7, 1897, a warrant for their payment. The first was a warrant in form the same as the second, and, when delivered, rendered the issuance of the second one not only unnecessary but irregular. Meloy might not have had the technical right to formally assign the warrant to Livingston, and yet, the Supply House would be bound by his act if it knowingly received and retained the fruits of the assignment. The corporation could have sold its claim against the district and would have been liable to Meloy only .for his proportion of it. The same equitable result is secured if the company knowingly gets out of the fund the full share to which it is entitled, and the use plaintiff contended that this had been done. On the trial, the president of the School Supply House, who had signed the contract with Meloy for his company, was called as a witness for the defendant, and neither he nor the counsel for defendant objected to the use of the Central School Supply House as the legal plaintiff in the suit then on trial, though that objection is raised before us. The legal plaintiff had the right to be heard in regard to the unauthorized use of his name, and to demand immunity from costs, but as no complaint was made in this respect, we must presume that it was satisfied: Saeger v. Hunk, 148 Pa. 77. After such silence the question cannot now be raised. It is true that orders drawn by the president of a board of school directors on the treasurer of a school district are not negotiable bills, or orders, but mere warrants for the payment of money to the persons to whom they are issued, to be disbursed by the treasurer under authority of law: Bank v. School District, 81* Pa. 307; Maneval v. Jackson, 141 Pa. 426. But, in this case the statement sets out the whole transaction and alleges that Meloy sent to the Central School Supply House its portion of the amount. The suit is not on the warrant, but on the contract back of it, and the equitable plaintiff’s claim is that Meloy and the Central School Supply House have been paid in full, of any claim they or either may have against this defendant, out of the money paid by him to Meloy, and the court was specially requested to submit this question to the jury in the plaintiff’s second point, which was refused by the court. While the authority of Meloy to sell or indorse the paper, of July 24,1897, to Livingston, was denied by the defendant, the undisputed evidence shows that at the time Livingston bought it from Meloy, it was in the same condition as when offered in evidence, and of the $420 he paid to Meloy, $300 were received by the Supply House. It is not necessary to discuss the conduct of Meloy in the light of his relation to the Supply House, nor of that corporation, in seeking to recover the whole $456 under the second warrant, while they have $300 as proceeds of the first warrant, nor of the liability of the defendant on the apparent duplication of its liability under the warrant of August 7, which was signed by the officers after they knew a similar one for the same indebtedness was then outstanding. The defendant was not called upon to pay more than it had contracted to pay for the goods, it accepted and had used them, and could have fully protected the school district by paying the money into court, where the parties claiming the fund could assert their right to it. The use plaintiff was entitled to have the jury say, under the evidence, whether the money furnished by him to Meloy had been applied as suggested in his second point. The fifth assignment of error is sustained. The learned trial judge instructed the jury, viz: “If there was fraud in obtaining the order and fraud in its alteration after it was given, then your verdict should be for the defendant; if not, then your verdict should be for the plaintiff for the amount of the claim.”

There was no evidence in the case which imputed fraud to Livingston. The alleged act of Meloy in inserting “per A. D. Meloy,” did not injuriously affect the defendant. The amount of indebtedness was not increased, nor date of payment changed as the Supply House asserted that in the suit brought by it each was correct. The defendant’s sole risk was created by its attempt to adjust the accounts between Meloy and the Supply House. And whether the insertion of “per A. D. Meloy” in the warrant of July 16, 1897, was a fraud or not, by which the defendant would be relieved from paying the amount it promised to pay for the maps, would depend largely on facts which are not shown by this record.

The judgment is reversed, the costs to be paid by appellee, and a venire facias de novo awarded.