Delp v. Bartholomay Brewing Co.

OPINION,

Mr. Justice Clark :

On the 31st of January, 1887, Bingham & Spencer, who were lessees and proprietors of the Hotel Albemarle, in the city of Pittsburgh, executed a bill of sale to Sebastian Delp for the leasehold, with the furniture, fixtures, etc., and generally of the personal property, used in, or belonging to, the hotel, including the stock of liquors on hand, with the outstanding claims, bills payable, etc. The consideration expressed was $3,500 to Bingham, $5,000 to Spencer, and the “further consideration of the said Sebastian Delp assuming to pay about $23,500 partnership debts of the late firm of Bingham & Spencer, proprietors,” etc., “made in the furnishing and improving said hotel.” Contemporaneously with the execution of the bill of sale, a bond was executed by Delp to Bingham & Spencer, in .the sum of $30,000, conditioned that the said Delp would thereafter indemnify Bingham & Spencer from the payment of any and all of the debts of the firm, contracted in “furnishing and running” the Hotel Albemarle, “presently due and to become due, of and from all actions,” etc. Possession was taken at once and thereafter the hotel was constructed by Delp.

Mr. Delp testifies that he could not get an itemized statement of the indebtedness, but Bingham & Spencer told him, at the time, that these debts would not exceed from twenty thousand to twenty-two thousand dollars, and their bookkeeper confirmed this statement; whilst their actual indebtedness exceeded this sum several thousand dollars. The bookkeeper, admitting that he told Mr. Delp the indebtedness was from twenty-two thousand to twenty-three thousand dollars, says that he gave Delp an itemized statement of the debts to that amount; that this statement was made on January 4, 1887; that the house was running at a loss of $2,500 per month, and the loss from January 4th to February 1st was to be added to this amount. However this may be in fact, we must assume from the verdict of the jury under the instructions of the court, contained in the answers to the defendant’s fifth and sixth points, that if any misrepresentations were made by Bingham & Spencer, as to the extent of their indebtedness, they were not made in fraud or with any intent to deceive Delp, but rather in ignorance of the indebtedness as it actually Tbe amount stated in tbe bill of sale was approximate only; tbe indebtedness was estimated at “ about §23,500; ” and, according to tbe testimony and the tenor of the writings executed by Delp, it is plain that be assumed tbe payment of tbe whole as it might ultimately appeal'. Delp himself says that Bingham & Spencer at first estimated the amount of their debts at §15,000, afterwards at 118,000, then at §20,000. The bookkeeper fixed bis estimate at §22,000, and finally the bill of sale expressed the amount at “ about §23,500.” If this is true, it was certainly apparent to Delp that Bingham & Spencer had but little knowledge of their real condition, and common prudence would have suggested the propriety of insisting upon an accurate statement and a contract with specific reference thereto. If by entering hito a loose contract he has made a bad bargain, it is his own fault, and we cannot disturb well settled rules of the law to relieve him.

Brewing Company was not a party to this contract, and the general rule of the law is, that no one can sue on a contract to which he is not a party, but there are several very well recognized exceptions to that rule. “ Among the exceptions,” as we said in the very recent case of Adams v. Kuehn, 119 Pa. 85, “ are cases where the promise to pay the debt of a third person rests upon the fact that money or property is placed in the hands of the promisor for that particular purpose; also, where one buys ont the stock of a tradesman to take the place, fill the contracts, and pay the debts of the vendor; these cases, as well as the case of one who receives money or property on the promise to pay or deliver to a third person, are eases in which the third person, although not a party to the contract, may he fairly said to he a party to the consideration on which it rests: in good conscience the title to the money or thing which is the consideration of the promise passes to the beneficiary, and the promisor is turned in effect into a trustee.M This doctrine, asserted in a long line of cases, embracing Blymire v. Boistle, 6 W. 182; Torrens v. Campbell, 74 Pa. 472; Kountz v. Holthouse, 85 Pa. 235; Hostetter v. Bollinger, 117 Pa. 611; and Adams v. Kuehn, supra, with many others, has become so firmly imbedded in our jurisprudence that it can be no longer questioned.

assets of the Hotel Albemarle were placed in Delp’s hands, under the agreement that he would take the place of Bingham & Spencer in the payment of their debts. Delp, by the very terms of the agreement, held the property and effects of Bingham & Spencer for the benefit of such of their creditors as had just claims contracted in the course of their business; he assumed the payment of these debts, and the property was put into his hands for this express purpose. Whether thereby a technical trust was created is not material. It has always been held that the creditor in such a case has a right of action to compel payment in accordance with the agreement. The act of April 26, 1855, requiring a promise to pay the debt or to answer for the default of a third person, has no application: Stoudt v. Hine, 45 Pa. 30; Clymer v. De Young, 54 Pa. 118; Taylor v. Preston, 79 Pa. 486.

It is contended, however, that the debt in suit was not contracted in the “ furnishing and improving ” of the hotel, and was, therefore, not embraced within the terms of the contract. To furnish, in its ordinary acceptation, is to supply or provide; and, as the bill in suit was for liquors furnished or supplied for use in the hotel, it would be difficult to draw a distinction which would, by the mere force of the language employed, exclude this .claim. Besides, it is manifest that the parties so understood their contract; for, in the bond of indemnity, executed at the same time, the debts are defined as those contracted during the continuance of said firm “in furnishing and running ” the hotel. If anything more were wanted to explain any supposed ambiguity in the contract, we might allude to the interpretation which the parties themselves have put upon it in the mode of its performance. In the statement of the debts paid by Delp, without objection, we find bills for other liquors, for oysters, natural gas, flour, fish, meat, milk, ice, etc.; indeed, if the testimony is believed, he paid one hundred dollars on the bill now sued upon and promised to pay the balance.

Upon a careful examination of the whole case we find no error, and

The judgment is affirmed.