McCormick v. T. W. Phillips Manufacturing Co.

Opinion by

Beaver, J.,

The opinion of the court below clearly sets forth the ■facts which were practically agreed upon, the only question undetermined being the liability for costs which it was agreed should be determined by the court, as upon a case stated, on the facts as they appeared of record in the case. This question we think was properly disposed of for the reasons given by the court in its opinion.

On the trial in the court below, it was admitted by the defendants that the judgment obtained by them against McCormick, Sybert and Shakely had been paid by Susan A. McCormick, the wife of the first defendant, and that the judgment had been assigned to her prior to the satisfaction thereof, entered by their agent, Hite. When the assignment made by their attorney to the plaintiff in this case was tendered, it was promptly accepted and the amount, with interest thereon from the date of the assignment, was paid to her. No previous tender of the assignment had been made and the court held that, inasmuch as the defendants in this case restored the status quo immediately upon a tender of the assignment, they were not liable for costs.

A practically similar question is quite fully discussed and authorities cited in Buffington v. Bernard, 90 Pa. 63. The principle decided in that case seems to us to rule the one under consideration, and justified the court in the conclusion reached by it, that the plaintiff having brought her action against the defendants, without an effort, to restore the status quo, and her tender of the assignment having been accepted the moment it was tendered, and the money with interest thereon paid to her, the defendants were not liable for costs.

See also Beetem’s Admrs. v. Burkholder, 69 Pa. 249. It was there decided that, “Where a party has a right to rescind a contract and elects to do so, he must give notice to the vendor and offer to return the thing sold before suit to recover back his money, unless the thing which was the consideration of the contract be entirely worthless.”

The satisfaction entered by Hite, the agent of the defendants, in the judgment held by them against McCormick and others was not a discharge of the defendants, particularly in’ view of the fact that the satisfaction was explained by .a subsequent entry on the docket of the justice that the satisfaction was a mistake, and that the money had been paid not by any of the defendants but by the wife of one of them. Doubtless upon that state of the record, if the plaintiff had filed her assignment and issued an execution, if there were property belonging to any of the defendants from which the judgment could have been collected, she would have received her money. The judgment was, therefore, not valueless by reason of the satisfaction, and it was consequently incumbent upon her to tender the assignment to the defendants before bringing her suit.

The satisfaction having been inadvertently entered and the true state of the case entered upon the docket of the justice of the peace as soon as it was discovered by the agent, the plaintiff’s rights were not in any way impaired, as we view it, and, therefore, the necessity of restoring the status quo by her before bringing suit against the defendants.

Judgment affirmed.