Smith v. Penn American Plate Glass Co.

This was an appeal from a decretal order, directing the appellant to pay out of the funds in his hands the claim of the appellee, amounting to $641.27. The appellant was by deed of trust, dated May 23rd, 1908, appointed trustee for the benefit of the creditors of Henry P. Rieger. He duly accepted the trust and the Circuit Court of Baltimore City assumed jurisdiction over the trust estate. The appellee filed a petition alleging that it was a creditor of Rieger to an amount exceeding $645.00, and that he claiméd to be a creditor of the Mount Olivet Cemetery Co. of the District of Columbia for a sum in the neighborhood of $2,000.00; that Rieger agreed upon a settlement of the amount due by him to the appellee for the sum of $645.00, and assigned to the petitioner his claim against the Mount Olivet Co. to that extent; that the company accepted the assignment, set aside that amount from the sum due by it to Rieger, and placed it to the credit of the appellee, who, for the convenience of one of the representatives of the Mount Olivet Co., arranged to take the money the next day; that it was not convenient for that company to deliver the money as arranged, and hence appellee did not receive it when expected.

It is then alleged that some considerable time thereafter Rieger executed the deed of trust to the appellant, who, without acquainting the Court with the arrangement between Rieger and the appellee, secured an order to compromise the claim of Rieger against the Mount Olivet Company, and. by giving a bond of indemnity to it, induced that company to pay over the amount due by it to Rieger, including the $645.00. The appellant filed an answer denying that there had been an assignment by Rieger to the appellee, as alleged in the petition, and admitting that he had received $912.55 from the Mount Olivet Company in settlement of Rieger’s claim. ⁶⁹⁷ The material facts of this ease are substantially these: The Engineering Contracting Oo. and Mr. Rieger were associated in the construction of a vault at Mount Olivet Cemetery, Mr. P. S. Simmons being the architect in charge. The Engineering Contracting Oo. took charge of the construction and Mr. Rieger of the marble and the glass furnished by the appellee. The appellee was to furnish to Rieger the materials and he was to do the installing — was to furnish the labor, pay off the hands and was to receive ten per cent, above the installing for his trouble, in addition to his regular commissions for sales.

The evidence is not very clear, as to how the contract with the Mount Olivet Co. was made — whether by Rieger alone or by him and the Engineering Oo., although the latter is spoken of as a joint contractor. At any rate, the appellee gave the Mount Olivet Oo. a notice of a lien it proposed to file for the balance due it by Rieger, and as the amount named was more than that company had in hand after paying the Engineering Contracting Oo. it became necessary for the three parties — the Engineering Oo., the appellee and Rieger — to agree upon the amounts due the two former, before the architect would allow any more money to be paid out by the Mount Olivet Company. Mr. Waldman, the representative of the Engineering Oo.; Mr. Rosenthal, representing the appellee, and Mr. Rieger met in Baltimore, where it was finally agreed that the Engineering Oo. should have $700.00 in full of its account and that the amount due the appellee was $641.27. The witnesses agree as to these amounts, but they differ as to whether there was an assignment by Rieger of $641.27.

The amount agreed upon was paid the Engineering Oo. The testimony of Mr. Rosenthal, on the one side, and that of Mr. Rieger, on the other, is conflicting as to the extent of the agreement between them. They agree that the amount due by Rieger to the appellee was ascertained, but Rieger denies that there was an assignment, or that there was intended to be an assignment of the amount in the hands of the Mount Olivet Oo. The evidence of Mr. Waldman, who was present, does not