Opinion
October 8, 1929.
December 12, 1929.
Judgments — Petition to open — Averments — Sufficiency.
On a petition to open a judgment, the evidence established that a judgment had been entered against the defendant for want of an affidavit of defense in an action of assumpsit. The defendant, a contractor, was indebted to a sub-contractor who assigned certain rights under a sub-contract to the plaintiff. In addition to the amounts due under the assigned sub-contract, the sub-contractor also owed the plaintiff on other accounts. The sub-contractor assigned its claim against the defendant to the plaintiff and gave notice of the assignment to the defendant. Subsequently, the defendant desired to make payment but was unable to find the plaintiff. A payment was made to the sub-contractor after being informed by it that the assignment to the plaintiff had been rescinded. There was no evidence, however, of the rescision of the assignment. The sub-contractor later made payments to the plaintiff but they were applied to the portion of its account which was in excess of that owed by the defendant under the terms of the assignment.
In such circumstances, the rule to open the judgment was properly refused.
A petition to open a judgment will be refused where no facts are proven that would have prevented the court from entering a judgment for want of an affidavit of defense if they had been embodied in the pleadings.
Debtor and creditor — Payments — Application of payments to certain accounts.
A debtor may direct how payments are to be applied to an account if they are made voluntarily.
Appeal No. 34, October T., 1929, by defendant from judgment of C.P., No. 2, Philadelphia County, September T., 1927, No. 479, in the case of F.R. Phillips Sons Co., a corporation, by Harry J. Ebrey, Receiver, v. F.K. Worley Corporation.
Before PORTER, P.J., TREXLER, KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Petition to open a judgment entered for want of an affidavit of defense. Before LEWIS, J.
The facts are stated in the opinion of the Superior Court.
The court refused to open the judgment. Defendant appealed.
Error assigned, among others, was refusal of the defendant's motion.
C.B. Wagoner, and with him J.W. McWilliams and Charles S. Wesley, for appellant.
Frederick H. Warner, and with him Emanuel Zausmer, for appellee.
Argued October 8, 1929.
Alterman and Canin were indebted to Phillips Sons Co. They executed and assigned to it a contract they had with the Worley Corporation, together with all sums due thereunder. A written notice of the assignment was sent to the Worley Corporation, who recognized it by making substantial payments thereunder to the appellee.
This suit was brought to recover the unpaid balances under the assigned contract.
Judgment was entered for plaintiff, appellee here, for want of an affidavit of defense, which the appellant seeks to open. The appellant paid the balance due under the assigned contract to Alterman and Canin upon representations of Alterman that their assignment to Phillips Sons Co. had been rescinded. It is contended by the appellant that Alterman and Canin had agreed with the appellee to pay it the amount they collected from the Worley Corporation, and that certain sums were paid in accordance with that plan, and, further, that there was an agreement between counsel that judgment should not be entered in this action without giving the defendant an opportunity to file an affidavit of defense.
It is conceded that the assignment of the contract never was cancelled. The appellant was misled by the false statement of Alterman into paying money to him and Canin when it was not indebted to them. The unsuccessful endeavor of the appellant to locate Phillips Sons Co., whose office in the Pennsylvania Building had been closed, did not justify the appellant in accepting the word of Alterman or paying the money to his firm, except at its peril. The validity of the assignment was not impaired and their indebtedness to Phillips Sons Co. was not discharged by the payment of money to Alterman and Canin, who had parted with all their rights in the contract.
The appellant endeavored to prove through Alterman that there was an agreement between his company and Phillips Sons Co. to apply the payments made by Alterman and Canin to Phillips Sons Co. to the amount that the Worley Corporation owed them under the assignment. Alterman's recollection was defective and his testimony vacillating. The alleged arrangment, which he was unable to recall with any distinctness, was emphatically denied by the attorney for this appellee, and, although Alterman stated that he was accompanied at one of his interviews by an attorney, his testimony was uncorroborated. The payments made by Alterman and Canin were applied by Phillips Sons Co. to their indebtedness of $1,470.40 over and above the credit received by the assignment of the Worley Corporation contract. As there was no sufficient proof of an agreement or direction upon the part of the creditor, the debtor had no right to apply the payments to the indebtedness of another firm. The appellant invokes the principle that when a debtor makes payment to his creditor he may direct how his payments should be applied, provided the payment is voluntarily made. We recognize that doctrine, but in this case no agreement or direction was proven.
There apparently was an agreement between counsel in regard to giving the defendant an opportunity to file an affidavit of defense, but, as the lower court well says, there were no facts proven that could have been embodied in an affidavit of defense that would have prevented the court from entering a judgment on the pleadings.
The assignment of error is overruled and judgment of the lower court is affirmed.