Hazleton Co. v. Union Imp. Co.

Citations

• 143 Pa. 573
• 22 A. 906
• 1891 Pa. LEXIS 947

Syllabus

<p>[To be reported.]</p> <p>(a) Church contracted to construct a canal for the U. company. The contract provided for monthly estimates of work done, and for the retention by the company of ten per cent of the price on each estimate, as security for completion of the canal. On September 14, 1888, such retained percentages, to the aggregate amount of $5,788, were in the company’s hands.</p> <p>(b) On that day, Church drew an order on the company in favor of the plaintiff for $1,600, expressly payable out of Ms “ final estimate.” Acceptance of the order was refused by the drawee. Afterwards, being unable to complete the canal, Church assigned Ms contract and all moneys due on it to Monroe and others, who then made a new contract with the company for its completion.</p> <p>(c) The new contractors were to be paid the same sums that would have been paid Church, had he continued to prosecute the work in person, and upon completion of the work were to receive the percentages retained by the company on estimates for work done by Church; they agreeing to indemnify the company against all claims of others arising under the contract with Church:</p> <p>1. As Church did not complete Ms contract and never became entitled to a “ final estimate,” the fund on which he drew the order never came into existence. His interest in the retained percentages was conditional, and they never became payable to him. Wherefore, the plaintiff was not entitled, after completion of the work by Monroe and others, to recover upon the order even if regarded as an assignment.</p> <p>2. The drawer of a draft can impose no duty to pay it to the holder on one who is under no duty to pay the drawer himself, and refuses acceptance. Where there is a debt of the drawer, or a fund belonging to Mm, in the hands of the drawee, he may draw upon that fund, and clothe the drawee with the right to demand payment; bub having no right of payment himself he can confer none.</p>