Citation Numbers: 1 Pa. 168
Judges: Gibson
Filed Date: 7/15/1845
Status: Precedential
Modified Date: 2/17/2022
The opinion of this court was delivered by
As the order to stay proceedings on Post’s execution was based on an arrangement which failed without the wilful default, so far as appears, of either party to it, justice requires that each should be restored to the position he held before the order was given. The conditions of the arrangement are not very distinctly stated; but it seems that Post had levied his execution on the personal property of Henry M. Naglee, under a judgment recovered on a bill drawn by the latter on John and William Newbold, nominally in favour of Means, who endorsed it, however, for the drawer’s accommodation; and that John Naglee, who had a subsequent execution, entered into an agreement to purchase Post’s judgment. It was agreed by him, acting ostensibly for Stiles, but actually for himself, and by Post’s agent in Philadelphia, that the note of Henry M. Naglee, endorsed by John Naglee and Son, for $>1100, at four months, or $>1050 cash, should be deposited, with Post’s assignment of his judgment, in the hands of Storm for delivery over respectively to Post and Stiles; “ provided that no act had been done by any of the parties interested, that would in anywise effect any advantage favourable to the said Means, or operate to the prejudice of the said Henry M. Naglee; which is hereby guarantied against.” It was admitted thatPost had not deposited the assignment with Storm, and it was not proved that Naglee had deposited either money or note to meet the contingency; so that it is impossible to say by whose default the plan was disconcerted. No time was appointed for carrying it into effect; but it was stipulated that the matter should be closed on the receipt of the assignment by Storm, which, however, never took place; and it was taken for granted in the court below, that the failure was produced by Post’s inability to execute the contract by reason that something had occurred to vary the responsibility .of Means or Henry M. Naglee, which Post could not control; and that the legal consequences of the order to suspend must remain with him who had disqualified himself. But the place of the business was
Judgment reversed, and venire de novo awarded.