Krimm v. Devlin

Opinion by

Mr. Justice Fell,

This appeal is from an order of the court making absolute a rule for judgment for want of a sufficient affidavit of defense in an action on a mortgage. The defense set up is based on a written agreement made at the time the mortgage was assigned to the plaintiff, who holds it as treasurer of the Williamsport Planing Mill Company. It is conceded that unless by the terms of this agreement the mill company was bound to deliver building materials directly to the defendant, there is no valid defense to the action.

The circumstances under which the agreement was made, as shown by its recitals and the averments of the affidavit, were these: The mill company had contracted with John Parker to furnish him with a large amount of lumber and mill work, and he had contracted with the defendant to furnish the lumber and mill work for eighty houses that the defendant was building. When a part had been furnished to the defendant, he defaulted in his payments to Parker, and Parker defaulted in his to the mill company. The latter refused to furnish more material to Parker unless paid for that which had been fur? nished, and secured for the balance. The defendant owed Parker $8,500, and Parker owed this amount to the company. Suit had been brought against Parker, and liens filed against the houses, and the operation was at a standstill.

The parties then came together and agreed with each other as follows: First, that the defendant should execute a mortgage to Parker for $5,000 in part payment of the balance due him, and that Parker should assign this mortgage to the company on account of his indebtedness to it. This is the mortgage in suit, and it was accepted by the company in payment as far as. it went. Second, that the defendant should execute to Parker a second mortgage for $3,500, which he was to assign to the company as collateral security for the balance due. Promissory notes were to be given with the mortgage by the defendant to Parker and to be indorsed by him to the company. Third, that as additional collateral for the payment of the balance of $3,500, Parker was to give his own mortgage for $6,000 to the company. It was further agreed that the defendant should arrange with a trust company to secure the payment in cash for materials delivered thereafter under the contract between himself and Parker; that the company should discontinue the proceedings it had commenced against Parker for the collection of the amount due by him, the costs of the suit to be paid by the defendant. The dispute arises over a part of the agreement found in the article by which provision is made to secure the balance of the debt then due by' Parker to the company, which is as follows : “ All sash, blinds, shutters, bay windows, bay window cases and show stills to be delivered within fifteen days after the consummation of this agreement, and the balance as ordered, so that the whole thereof shall be delivered within sixty days after such consummation.

Unless this part of the agreement gave rise to a direct obligation on. the part of the company to the defendant, he has no standing to defend this action because of loss resulting from delay in delivery. The agreement made no change in the relation in which the parties had stood to each other. The defendant was in default in not having paid Parker. He was unable to pay, liens had been placed on his houses, and work was stopped. Unless the company could be induced to carry out its contract with Parker notwithstanding its breach, the disaster would be complete. The company made a concession by accepting a mortgage in part payment, and security from Parker for the balance due by him and to become due ; and it agreed to resume the delivery of materials. The prior agreement between the company and Parker was not abrogated. Deliveries wore not to be made by the company to the defendant, and he assumed no liability to it. It could not have maintained an action against him for the price of materials furnished, and it became in no way liable to him. The parties stood precisely as they had stood before with two independent contracts. The only change affected by the agreement was as to the manner and time of payment. We find nothing in it nor in the averments contained in the affidavits that sustains the contention that there was a contractual relation between the company and the defendant as to future deliveries.

The judgment is affirmed.