Walsh et al. v Baldridge et al.

Equity Specific Performance-Executors-Power to Sell Real Estate— Terms of Written Agreement.

Equity decreed specific performance of a written agreement for the sale of real estate where defendants, the vendees, refused to accept the deed proffered by plaintiffs, the grantors, and entered judgment against the defendants for the unpaid balance of the purchase money, as well as the execution of a bond and mortgage provided for in the agreement.

In Equity. No. 700 October Term, 1918. C. P. Allegheny County.

George J. Shaffer, for plaintiffs.

Horace J. Thomas, for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW.

WASSON, J., December 12, 1919.-The plaintiffs brought their bill asking for specific performance of a contract for the sale and conveyance of certain lands situate in the Township of Patton, County of Allegheny, State of Pennsylvania. The defendants filed an answer. From the pleading and evidence we reached the following findings of fact and conclusions of law.

FINDINGS OF FACT.

(1) That Mary E. Walsh, one of the plaintiffs, is the widow and Executrix of the estate of Moses P. Walsh, deceased, who died December 28, 1916, having first made his Last Will and Testament dated April 14, 1911, which is duly probated and registered in the Office of the Register of Wills of Allegheny County in Will Book Vol. 141, page 190.

(2) That Jennie Walsh, one of the plaintiffs, is the widow and Executrix of the estate of Richard E. Walsh, who died January 29. 1902, having first made his Last Will and Testament dated September 27, 1901, duly probated and registered in the Office of the Register of Wills of Allegheny County in Will Book Vol. 70, page 27.

(3)

That Peter Double, by Deed dated February 28, 1888, recorded in the office of the Recorder of Deeds of Allegheny County, Pennsylvania, in Deed Book Vol. 595, page 353, granted and conveyed to James W. Breen, an undivided one-third interest in the premises described in paragraph Third of the Bill of Complaint.

(4) That said undivided one-third interest in said premises was conveyed by James W. Breen and wife by Deed dated January 9, 1889, and recorded in the Office of the Recorder of Deeds of Allegheny County, Pennsylvania, in Deed Book Vol. 635, page 83, to Moses P. Walsh and Richard E. Walsh.

(5) That the remaining undivided two-thirds of said premises was conveyed by said Peter Double by Deed dated February 28, 1888, and recorded in the aforesaid Recorder's Office in Deed Book Vol. 597, page 300, to Moses P. Walsh and Richard E. Walsh, partners, doing business as M. & R. Walsh.

(6) That on or about April 8, 1898, the partnership existing between Moses P. Walsh and Richard E. Walsh, partners doing business as M. & R. Walsh, was dissolved and all debts paid.

(7) That on September 8, 1917, the defendants entered into a written agreement with the plaintiffs for the purchase of certain real estate and that Exhibit "A" attached to and made part of the Bill of Complaint is a true and correct copy of said agreement.

(8) That prior to October 1, 1917, the plaintiffs, by their agents, supplied to the defendants at their request, all the deeds, maps, papers and other information relative to the real estate mentioned in said agreement.

Walsh et al. v Baldridge et al.

(9) That on December 22, 1917 plaintiffs tendered to defendants Deed of Special Warranty for the premises described in paragraph Third of the Bill of Complaint.

(10) That at the time of tender of said Deed plaintiffs delivered to defendants written notice, of which Exhibit "B" attached to the Bill of Complaint is a true and correct copy.

(11) That the defendants refused to accept said Deed or to pay the consideration price for said premises, or any part thereof.

CONCLUSIONS OF LAW.

(1) That at the time of the death of Richard E. Walsh he was seized with Moses P. Walsh, as tenants in common, in fee simple of the premises described in paragraph Third of the Bill of Complaint.

(2) That under the Will of Richard E. Walsh power to sell and dispose of his interest in said premises was given to his widow and Executrix. Jennie Walsh.

(3) That Moses P. Walsh, at the time of his death, was seized of his aforesaid undivided interest in said premises, and that by his will power to sell and dispose of the same was given to his widow and Executrix, Mary E. Walsh.

(4) That the written agreement executed September 8, 1917 between plaintiffs and defendants was an agreement for the sale by the plaintiffs to the defendants of the real estate described in paragraph Third of the Bill of Complaint, in fee simple, subject to agreement of Dickson, Stewart & Co., dated May 23, 1864, and recorded in the Office of the Recorder of Deeds, of Allegheny County, Pennsylvania, in Deed Book Vol. 174, page 113. and agreement of New York-Cleveland Gas Coal Co., dated June 24, 1887, and recorded in the Recorder's Office of Allegheny County, Pa., in Deed Book Vol. 572, page 270.

(5) That plaintiffs have and did have on October 1, 1917, power to convey a good and marketable title for said premises in accordance with the terms of said agreement.

(6) That the deed tendered to the defendants by the plaintiffs on December 22, 1917, was good and sufficient and in accordance with the terms of said agreement.

(7) That the plaintiffs have complied with all the terms and conditions of said agreement and are still ready, willing and able to comply with said agreement.

(8) That the defendants are indebted to the plaintiffs in the sum of $9.750.00, with interest from October 1, 1917, the interest thereon, together with $4,750.00 of the principal, to be paid upon delivery to them by the plaintiffs of a Deed of Special Warranty for the premises described in paragraph third of the Bill of Complaint, in fee simple, subject to the conditions and restrictions set forth in the said agreement between plaintiffs and defendants, and the balance, or $5,000.00 to be due and payable in three (3) years from October 1, 1917, and to be secured by a common bond and mortgage on said premises, bearing interest at the rate of six per cent. per annum, payable semi-annually, with sixty days Sci. Fa. 5 per cent. attorney's commission, tax and insurance clauses, to be of even date with said deed and to be delivered to the plaintiffs by the defendants upon delivery of said deed.

(9) That all taxes and water rent due upon said premises since the year 1917 be paid by defendants.

(10) That costs of this prosecution be paid by the defendants.

A bank, summoned as garnishee, was held liable for money deposited subsequent to the service of the writ and the plea that at no time was the defendant out of debt to it on overdrafts so that there was no money due the defendant was unsound.

As between a defendant in an attachment execution and a bank served as garnishee, the latter could effect payment of overdrafts by setting them off against or applying to them the deposits as made subsequent to the service of the writ, but it could not ignore the writ except at its peril, and when it per→ mitted defendant to overdraw his account for varying advances, the bank waived its rights and was liable to the execution plaintiff.

While a garnishee in an attachment execution may set off a cross-demand, it must have been in existence before the writ was served. After the satisfaction of such a demand, the garnishee occupied no favored position.

Defendant's Motion for Judgment N. O. V. and Rule for New Trial. No. 31 February Term, 1918. C. P. Sullivan County.

E. J. Mullen, for plaintiff.

J. G. Scouton, for defendant.

TERRY, P. J., September 2, 1919.-The plaintiff, on February 1, 1918, entered judgment against John Fiorini on a note for $150, and the same day issued an attachment execution thereon, naming the First National Bank of Mildred as garnishee. The writ was served on the bank that day. In April following, the garnishee, answering interrogatories, denied having any assets belonging to the defendant, and September 6, 1918 pleaded nulla bona.

Upon the trial it appeared that when the attachment execution was served, the defendant had overdrawn his account with the bank to the amount of $208.92. From that date until the plea was entered he deposited in said bank from time to time an aggregate of $5,402.60, but had constantly overdrawn said account by checking it out, the bank honoring his checks as if he had there the requisite amount to meet them.

The defence of the garnishee was that as at no time during said period was the defendant out of debt to it on overdrafts, and as the attaching creditor must recover through the defendant, there was no debt or money due from the bank to the defendant to attach. This may seem plausible, but it is unsound. It is settled that money coming into the hands of the garnishee after the service of an attachment execution is bound thereby: Sheetz v Hobensack, 20 Pa. 412; Mahon v Kunkle, 50 Pa. 216; Glazier v Jacobs, 250 Pa. 357. True, when the writ was served the defendant's account was overdrawn, but thereafter he made deposits largely in excess of the plaintiff's judgment. Unquestionably, as between the defendant and the bank, the latter could effect payment of the overdrafts by setting them off against, or applying to them, the deposits as made. But it could not ignore the writ served upon it except at its peril. Not only was the bank under no obligation to adopt the accomodating practice followed, but it was contrary to proper banking principles: The Lancaster Bank v Woodward, 18 Pa. 357. When, after the service of the attachment execution, the bank repeatedly permitted the defendant to overdraw his account and thus become its debtor for other and varying advances, it must be deemed to have waived, in favor of the plaintiff, its said right of setting off such recurring overdrafts against the continuing deposits claimed on the trial. Certainly, after the satisfaction of the overdraft immediately preceding the service of the attachment execution, the bank occupied no favored position. By such service it was duly apprised of the plaintiff's standing as defendant's creditor, and of its own duty in the matter. It is not pretended that subsequent deposits were made upon any

Benni v First National Bank of Mildred.

express agreement as to their application. When received, they at once became subject to the writ. It may be added that while the garnishee in an attachment execution may set off a cross-demand, it must have been in existence before the writ was served upon him: Pennell v Grubb, 13 Pa. 552.

We think the garnishee cannot justly complain of the verdict. Accordingly, the rule for a new trial is discharged, and the motion for judgment for the defendant n. o. v. is refused.

In re State Automobile Insurance.

Fire-Injury by Other Cause-Damage to Other Parties--State Fund Act of May 14, 1915, P. L. 324.

Casualties to state owned automobiles, whether by fire or other cause, are covered by the state insurance fund, and loss by reason of such casualty is replaced by said fund, but no insurance should be taken out against casualties or damage to persons or non-state owned property caused by state owned and operated automobiles. The state is not liable for the torts or negligent acts of its servants.

This Department received your communication of October 30, 1919, asking to be advised as to "just what specific insurance may be placed on automobiles outside the State Fire Insurance Fund."

In answer to the above stated inquiry an opinion was rendered to you by the writer hereof, dated November 18, 1919, which was recalled by letter to you dated November 25, 1919, and which opinion is superseded and overruled by the one hereby rendered.

The Act of May 14, 1915, P. L. 524, creates a fund

"For the rebuilding, restoring, and replacing buildings, structures, equipment, or other property of the Commonwealth of Pennsylvania, damaged or destroyed by fire or other casualty."

In an opinion of this Department to the Highway Commissioner, rendered by First Deputy Attorney General Keller, under date of October 4, 1916, holding that "theft" of an automobile is not a "casualty" within the intent of the Act, it was said:

"The Act applies to the State Highway Department and covers all property of the Commonwealth. This includes automobiles and trucks purchased for the use of your Department. The fund is intended to cover the replacement of such property damaged or destroyed by any casualty, such as fire, explosion, etc. If an automobile or truck belonging to the Commonwealth, in the control or custody of the State Highway Department is damaged or destroyed by fire, explosion, collision, or other accident or casualty, you will be entitled to have it replaced out of the insurance fund created by the Act of 1915, by complying with its provisions. If you deem it necessary to provide against theft of such automobiles and trucks, you will have to take out a special policy of insurance covering such risks, the

In re State Automobile Insurance.

prohibition in the Act of 1915 against obtaining a policy of insurance being necessarily limited to the kinds of insurance provided for by the fund which it created."

Attorney General's Reports, 1915-1916, page 268.

In an opinion of this Department to the Superintendent of Public Grounds and Buildings, dated August 5, 1918, rendered by Deputy Attorney General Hargest, it was ruled that damage to a building caused by boiler explosion, even though unaccompanied by fire, is covered by the State Fund. The principle stated in the foregoing opinions governs in the determination of the question submitted by you, and it is unnecessary to restate the same at length. The State Fund covers all damage or loss to State owned automobiles resulting from fire or any other casualty. It does not relate to or cover damage done by State owned and operated automobiles to persons or non-state owned property. Inasmuch, however, as the State is not liable for the torts or negligent acts of its servants and employes, no insurance should be taken out or carried to cover the casualty or insure against the damage to persons or non-state owned property caused or occasioned by State owned and operated automobiles. As previously ruled, outside insurance may be taken out to insure State owned automobiles against theft.

You are accordingly advised that casualties to State owned automobiles, whether from fire or any other cause, are covered by the State Insurance Fund, and loss by reason of such casualty is replaced from said Fund, and consequently that no outside insurance against such casualty should be placed, and further that no insurance should be taken out against casualties or damage to persons or non-State owned property caused by State owned and operated automobiles.

Very truly yours,

EMERSON COLLINS,

Deputy Attorney General.