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ERTEL v. MCCLOSKEY (07/20/50)

July 20, 1950

ERTEL
v.
MCCLOSKEY



COUNSEL

William F. Quinlan, and Victor Frey, Philadelphia, for appellant.

Hubert P. Earle, Thomas E. Comber, Jr., Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.

Author: Reno

[ 167 Pa. Super. Page 122]

RENO, Judge.

Ertel, assignee of The Drake of Philadelphia, Inc., owner of the hotel of that name and hereafter called Drake, sued McCloskey for $1975.28, a debt due to Drake by McCloskey, which Drake assigned to Ertel. Jury trial was waived and the trial judge found for defendant. Plaintiff's exceptions were dismissed by the court en bank; judgment was entered for defendant; and plaintiff appealed.

On September 10, 1942, McCloskey leased an apartment in Drake for two years from October 16, 1942, and agreed to pay $250 a month rent. In addition he agreed to pay all restaurant and service charges which, if not paid promptly, were, under the terms of the lease, payable as additional rent. Defendant and his wife occupied the apartment until November 1, 1943, when he left her. She remained there, and before August 9, 1944, there was due and unpaid on the lease $1975.28. On or about July 15, 1944, Drake distrained her furniture and chattels in the apartment. She had not signed the lease. To secure release of her furniture and permission to remove it, she paid Drake $250 on July 26, 1944, and on August 9th she gave Drake the check of Victor Frey, Esq., her attorney, payable to Drake for $1325.28, and her personal note payable October 15, 1944 for $400. She paid the note at maturity.

An instrument in writing, signed by an agent for Drake, recited attendant facts, and provided: 'The Drake of Philadelphia, Inc., in consideration of the foregoing payment, does hereby assign, transfer and set over to Philip Ertel, as evidence by separate writing, executed by it on the same date as these presents, all of its right, title and interest to the total claims of $1,975.28, * * *.' Mrs. McCloskey was not allowed to move the furniture until Frey's check cleared the bank on August 18, 1944, and then the proper officers of Drake

[ 167 Pa. Super. Page 123]

    executed an instrument (which for an unknown reason was dated August 14, 1944) whereby '* * * in consideration of the payment to it of the sum of $1.00 and other good and valuable considerations, the receipt whereof is hereby acknowledged, and intending to be legally bound hereby, does hereby assign, transfer and set over to Philip Ertel, * * * all of its right, title and interest of, in and to its claim for rent and charges in the nature of rent, constable costs and fees (made necessary by reason of the said Frank McCloskey's default in the payments of rent), in the amount of $1,975.28, arising from and growing out of the lease dated September 10, 1942, by and between The Drake * * * and Frank McCloskey for Apartment * * * of the Drake Hotel, * * * up to August 15, 1944; and does hereby grant to the said Philip Ertel the right to use its name in any proceedings which may become necessary in an attempt to enforce and collect the said claim by him against Frank McCloskey.' Ertel's action was based on the second assignment.

I. Ertel is Mrs. McCloskey's brother, and, although a consideration of $1 is recited, he paid nothing for the assignment. As between Ertel and Drake the defense of lack of consideration was not available, since the assignment was under seal and evidences the signer's intention 'to be legally bound.' Act of May 13, 1927, P.L. 985, § 1, 33 P.S. § 6. Nor was the defense available to McCloskey. The debtor may not question the motive or purpose underlying the assignment, or set up lack of consideration as a defense. 6 C.J.S., Assignments, § 132. Since a chose in action may be the subject of a gift, Licey v. Licey, 7 Pa. 251, 47 Am.Dec. 513, no consideration is necessary to the validity of an assignment. Bond v. Bunting, 78 Pa. 210.

II. The court below refused recovery, holding that payment of a debt by the third ...


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