R. & A. Heckscher & Co. v. Amer. T. & I. Co.

Citations

• 137 Pa. 421
• 20 A. 804
• 1890 Pa. LEXIS 983

Syllabus

<p>(а) An affidavit of defence in a suit to recover $3,841.87, as the price of iron sold, did not deny the right of the plaintiffs to sue in their own name, but averred that the iron was purchased by the defendant from the manufacturers, for the sale of whose iron the plaintiffs were the sole agents;</p> <p>(б) That on a certain date the plaintiffs’ principals, “ being then indebted in the sum of $3,841.87 to the defendant,” assigned the claim in suit to the defendant by a written transfer, set out in the affidavit, of which assignment the plaintiffs were then and there notified by presentation; whereby said claim was paid by the defendant.</p> <p>(c) The transfer referred to was in the form of an order addressed to the plaintiffs, directing them to pay to the defendant, on demand, $3,841.87, out of funds in their hands, or to come into their hands, from iron sold or to be sold to the defendant, “ after paying hands in accordance with our agreement,” for value received:</p> <p>1. As the affidavit did not allege an acceptance of the order by the plaintiffs, the defendant acquired by it no other right to the fund mentioned than the drawers had, and that right, as defined in the order, extended only to the balance remaining after payment of hands in accordance with the previous agreement.</p> <p>2. Wherefore, as the existence of such a balance could not be assumed, it was essential that this be averred in-the affidavit; not averring it, : and therefore not showing title to an existing fund applicable by the law in payment of the plaintiffs’ demand, the affidavit of defence was insufficient to prevent judgment.</p>