Wilson et al. v. Zimmerman (No. 1).

to the Lancaster Electric Light, Heat and Power Company. This company received from the insurance companies who had policies on the Wabank plant, for the loss of the same, the sum of $9,250.00, and this money appears to be retained up to this time by the said company, and it has refused to pay over the same, as provided for in the agreement between Zimmerman and the plaintiffs. It is to recover this money that the present action was brought. The affidavit of defense filed by the defendant does not at this time raise any question of fact, but asserts that the plaintiffs cannot recover because the statement fails to set forth or allege any promise by the defendant in the original agreement or the supplemental agreement that he would individually and personally pay to the plaintiffs the amount of the insurance, if any, paid to the Lancaster Electric Light, Heat and Power Company. At this time the sole question presented to the Court is, whether the defendant is liable to pay this money because of the failure of the Lancaster Electric Light, Heat and Power Company to do so.

We cannot see how there can be any difficulty in the proposition thus raised. The contract, in both the original and supplemental agreements, was between the plaintiffs and Zimmerman. There was no contractual relation between the Wilsons and the Lancaster Electric Light, Heat and Power Company. The supplemental agreement provides that the Lancaster Electric Light, Heat and Power Company shall pay the amount of this insurance to the plaintiffs, and the defendant bound himself, his heirs, executors, administrators, and assigns, to see that this was done. We, therefore, are of the opinion that there is no merit in the question of law thus raised, and unless there is some other defense going to the merits of the action, he is bound to pay the amount, or to see that the Lancaster Electric Light, Heat and Power Company does so.

Section 20 of the Act of May 14, 1915, P. L. 483, provides that "the defendant in the affidavit of defense may raise any question of law without answering the averments of fact in the statement of claim; and any question of law so raised may be set down for hearing and disposed of by the Court. If, in the opinion of the Court, the decision of such question of law disposes of the whole or any part of the claim, the Court may enter judgment for the defendant, or make such other order as may be just. If the Court shall decide the question of law so raised against the defendant, he may file a supplemental affidavit of defense to the averments of fact of the statement within fifteen days."

Therefore, in accordance with the view above expressed, we decide the question of law raised against the defendant, but he is entitled to file a supplemental affidavit of defense within fifteen days, and we, therefore, order and decree that he shall file a supplemental affidavit of defense within that period, or the plaintiffs may move for judgment for want of a sufficient affidavit of defense.

(See next case.)

Agreements paid.

Court of Common Pleas of Lancaster County

Wilson et al. v. Zimmerman (No. 2).

Liability of parties - Time to pay moneys agreed to be

The defendant entered into an agreement with the plaintiffs to buy their shares of stock in a hydro-electric company, the plaintiffs agreeing to pay all the debts of the company. Subsequently the company's power plant having burned, the defendant executed with the plaintiffs a supplemental written agreement by which the purchase price of the stock was reduced and the defendant agreed, for himself and his assigns, that the proceeds of the fire-insurance policy, if any, when collected by the company should immediately be paid over to the plaintiffs. On suit for the insurance money, and rule for judgment on the affidavit of defense, Held, that payment of the insurance money paid to the company, could not be withheld pending the adjustment of claims in litigation against the company by other parties, as defense in this case.

Rule for judgment as to that part of the plaintiffs' claim as to which the affidavit is insufficient. August Term, 1918, No. 126.

Chas. W. Eaby and Pritchard, Saul, Bayard & Evans, for rule.

John E. Malone and John A. Coyle, contra.

June 26, 1920. Opinion by LANDIS, P. J.

It is admitted in the affidavit of defense that the defendant, by agreement dated the 28th day of November, 1917, agreed to purchase. from the plaintiffs all of the outstanding shares of stock of the Lancaster Electric Light, Heat & Power Company, and certain real estate, particularly set forth in said agreement, a copy of which is attached to the plaintiffs' statement and marked "Exhibit A."; that on the morning of the 28th of November, 1917, before the signing of said agreement, the Wabank Plant, which was included therein, was destroyed by fire; that by reason of said fire, plaintiffs agreed to reduce the purchase price set forth in the agreement by the amount of $20,000 par value of bonds of the Second Liberty Loan of the United States, and the defendant agreed that the amount of insurance paid to the Lancaster Electric Light, Heat & Power Company for the loss on the Wabank Plant by reason of the said fire should be paid to the plaintiffs immediately upon the same being collected by the Lancaster Electric Light, Heat & Power Company. By the supplemental agreement it was provided as follows:

"2. Zimmerman agrees that the amount of insurance paid to the Lancaster Electric Light, Heat & Power Company for the loss on the Wabank Plant by reason of said fire shall be paid to Wilsons immediately upon the same being collected by the Lancaster Electric Light, Heat & Power Company."

It is admitted that, although the statement alleges that the Lan

Wilson et al. v. Zimmerman (No. 2).

caster Electric Light, Heat & Power Company received from the insurance companies for the loss on the said Wabank Plant the sum of $9,250.00, the said company actually received, on or before January 15, 1918, the sum of $9,187.65, and that, although the defendant was requested to pay over the said sum to the plaintiffs, he has refused to do so, alleging that he is not indebted to the plaintiffs for the same or any part thereof, nor has the Lancaster Electric Light, Heat & Power Company paid it to the plaintiffs in his relief. The amount claimed in the statement is the sum of $9,250.00, with interest from January 15, 1918. The affidavit of defense asserts that, in the original agreement of November 28, 1917, it was provided, inter alia, as follows:

6. Wilsons agree to pay all the debts of the Lancaster Electric Light, Heat & Power Company, with the exception of the aforementioned bonds aggregating $200,000 with interest, but Zimmerman agrees that such proportion of the earnings of the company as may have been earned and accrued up to the day of the settlement, or so much as may be needed, shall be paid Wilsons, to be applied to the payment of such debts of the company. It is not intended by this provision to cover a note of four thousand dollars ($4,000) of the Lancaster Electric Light, Heat & Power Company, held by the Conestoga National Bank and endorsed by G. Searing Wilson."

The defendant avers that he has paid debts of the Lancaster Electric Light, Heat & Power Company which the said plaintiffs were to pay under this clause in the agreement, amounting to $3,726.01, and that, in addition, he has paid to the plaintiffs the sum of $5,250.00, making a total of $8,976.01; that in addition to the sum of $9,187.65 which he received from the insurance companies as aforesaid, he received from the Edison Electric Company $765.27, rental for distribution belonging to the Lancaster Electric Light, Heat & Power Company, from October 1 to November 28, 1917; that there was a balance in the Conestoga National Bank to the credit of the Lancaster Electric Light, Heat & Power Company, to which the plaintiffs were entitled, amounting to $15.45; and that the total amount of the credits due to the plaintiffs was $9,968.37, leaving an apparent balance due from the defendant to the plaintiffs of $992.36.

As a further defense, the defendant avers that there is a contingent or possible liability of the Lancaster Electric Light, Heat & Power Company, to the Commonwealth of Pennsylvania, for state tax on corporate loans for the year 1914, of $518.70; for the year 1915, of $663.10; and for the year 1916, of $690.97, making a total for the three years of $1,872.77; that suit was brought for this amount in the Courts of Dauphin County by the Commonwealth against the Lancaster Electric Light, Heat & Power Company, but a judgment was entered in favor of the defendant company, from which judgment an appeal has been taken to the Supreme Court of this state, where the same is now pending and undisposed of; that the United States Government

Wilson et al. v. Zimmerman (No. 2).

has claims against the said Lancaster Electric Light, Heat & Power Company, in amended returns for Internal Revenue Tax against said company for the year 1914 of $128.21, for the year 1915 of $55.24, and for the year 1916 of $83.51, making a total claim by the government of $266.96; that there is likewise pending in the Court of Common Pleas of Lancaster County a suit by one, J. William Anderson, against the Lancaster Electric Light, Heat & Power Company, for $61.30, which suit still stands open upon the record; and also suits in the same Court, one of which was instituted by Edgar G. Aument and another by Susanna Burk, against said company, both of which remain open and undisposed of. The defendant attempts to set forth all these contingent liabilities of the said company against the present claim of the plaintiffs.

As we said in an opinion handed down in the same case on April 17, 1920 [see preceding case]: "The contract, in both the original and supplemental agreements, was between the plaintiffs and Zimmerman. There was no contractual relation between the Wilsons and the Lancaster Electric Light, Heat & Power Company. The supplemental agreement provides that the Lancaster Electric Light, Heat & Power Company shall pay the amount of this insurance to the plaintiffs (immediately upon the same being collected by it), and the defendant bound himself, his heirs, executors, administrators and assigns, to see that this was done. We, therefore, are of the opinion that there is no merit in the question of law thus raised, and unless there is some other defense going to the merits of the action, he is bound to pay the amount, or to see that the Lancaster Electric Light, Heat & Power Company does so."

As we have before stated, the defendant admits that there is due and owing to the plaintiffs the sum of $9,968.37, less $8,976.01, leaving a balance admittedly due of $992.36.

Under the supplemental agreement, the insurance moneys were to be paid to the Wilsons at once, and it follows that whatever sums were not paid bear interest. While the stipulation in the original agreement was that the Wilsons were to pay all the debts of the Lancaster Electric Light, Heat & Power Company, that provision had nothing to do with the supplemental agreement concerning the insurance moneys; and if it turns out that the Wilsons did not pay or do not pay all the debts of the company, they can be compelled to do so under the original contract. In our judgment, however, the defendant was not entitled to hold back these insurance moneys on that account.

Interest is claimed by the plaintiffs on $9,968.37 from February 15, 1918. While it is likely that some interest on the moneys retained is due by the defendant to the plaintiffs, we have no means of ascertaining the true amount. When the sum of $5,250.00 of the moneys collected was paid to the plaintiffs is not set forth in the affidavit of defense, or "Exhibit A," attached thereto. Presumably, it was about September or November, 1918. The bills paid for debts of the company ranged from February 21, 1918, to November 17, 1918. The

Wilson et al. v. Zimmerman (No. 2).

plaintiffs' statement does not give credit for the sum of $5,250.00; but their reply admits that sum was paid by the defendant to them. There seems to me to be no way of getting at the correct amount of interest due, except as to that which would accrue on the payments of $3,726.01, which would be a comparatively small sum, and on the actual amount admitted to be due. The item which is clear and distinct is the $992.36, and for this amount we think judgment should at this time be entered in favor of the plaintiffs, with interest from March 12, 1918, amounting to $1,128.31, and this is accordingly done.

Rule made absolute and judgment for plaintiffs.

Orphans' Court of Lancaster County

Estate of Emanuel Eby, dec'd.

Legacy to church-Lack of identification.

A legacy to "The Union Church" and "the Cemetery adjoining" is properly disallowed on adjudication for lack of identification, but in this case the decree was opened to allow the exceptants an opportunity to identify it.

Exceptions to adjudication. December Term, 1919, No. 37.

Chas. E. Workman, for exception.

Wm. M. Hollowbush and Wm. C. Rehm, contra.

October 14, 1920. Opinion by SMITH, P. J.

Emanuel Eby died testate November 23, 1919, having made his will on the preceding 29th of October. Its second paragraph is as follows:

"I give and bequeath unto the Union Church the sum of Two Hundred Dollars in trust, the interest and income thereof to be used in maintaining in good and presentable order and appearance our family plot in the Cemetery adjoining and belonging thereto, in which are buried my wife and son and in which it is my wish and will that my remains also be interred."

The refusal to declare it operative is the subject of exceptions. There is nothing to show what the Union Church is, where it is or that it is, an adjacency to it is indeterminable and a cemetery problematical. Neither the nominated trustee nor the cestui que trust has been iden

tified.

The exceptions are dismissed, but the decree is opened to give the exceptants an opportunity to distinguish the "Union Church" and the "Cemetery adjoining and belonging" to it.