Assigned Estate of Selser

Supreme Court of Pennsylvania April 13, 1891

Assigned Estate of Selser, 141 Pa. 529 (Pa. 1891)

21 A. 777; 1891 Pa. LEXIS 1099

Cueiam, McCollum, Mitchell, Paxson, Sterrett, Williams

Opinion of the Court

Pee Cueiam :

The appellant assigns error to the allowance of the claims of Isaac Jeanes & Co. and Coon Brothers & Co. Neither requires an extended discussion. That of Isaac Jeanes & Co. is objected to principally upon the ground that it is usurious. The alleged usury consists mainly in adding interest to principal in the accounts as furnished from time to time, the effect of ■which, the appellant contended, was to allow interest upon interest ; and it was alleged that some of the loans were at a higher rate of interest than six per cent. On the other hand, it was conceded that some were at a less rate than six per cent. It does not appear very clearly what the average rate would be; nor is it material, as yearly settlements were made between Isaac Jeanes & Co. and Selser & Brother, and no objection made by the latter. The appellant is an unsecured creditor of Selser & Brother, and has no standing to object to these settlements. It is not now unlawful for a debtor to pay more than six per cent; and a creditor has no right to attack such a transaction, unless the agreement to pay a higher rate was part of a scheme to cheat and defraud creditors. There was nothing in the case from which such an inference could be fairly drawn.

*537Nor do we see any reason why Coon Brothers & Co. should not have been awarded a dividend out of the assigned estate. It is true, the auditor found that the agreement of May 1,1886, by wbicb Selser & Brother authorized Coon Brothers & Co. to retain all dividends to be paid by tlie assignees of J. H. Larzallere & Co., was in full satisfaction of the claim of the former for tbe loss on the tomatoes bought on the joint account. The learned judge below, however, reversed this finding of tbe auditor, and, for reasons which we think sufficient, beld that the assignment of tbe Larzellere dividend was made by Selser & Brother to Coon Brothers & Co. merely on account of any such loss, not in satisfaction thereof. The evidence fully justified this finding.

The decree is affirmed, and the appeal dismissed at the costs of the appellant.

Reference

Full Case Name: ASSIGNED ESTATE OF SELSER & BROTHER
Cited By: 5 cases
Status: Published
Syllabus: 1. Where, prior to an assignment for creditors, accounts were stated yearly by a creditor, with usurious interest charged, and notes given by the debtor for the balance shown on settlement, other creditors, in the absence of fraud, have no standing to except to the allowance of the notes, including such interest, out of the assigned estate. 2. It is not now unlawful for a debtor to pay more than six per cent interest; and a creditor has no right to attack such a transaction, unless the agreement to pay a higher rate was part of a scheme to cheat and defraud the other creditors of the debtor: Per Mr. Chief Justice Paxson. [See act of May 28, 1858, P. L. 622.J (a) A debtor, prior to an assignment for creditors, assigned to a creditor, jointly interested with the debtor in a trade in tomatoes, “ all dividends to be paid” thereafter out of another assigned estate, “to be held in lieu of any loss that may be sustained in the said sale of tomatoes bought for the joint-account trade: ” 3. The parol testimony, submitted in explanation of the ambiguity in the assignment, was sufficient to authorize the court below to reverse the finding of an auditor that the assignment was made as a discharge of the creditor’s claim, and to award to the balance unpaid thereby a dividend out of the debtor’s estate. 4. The rule that parol testimony is inadmissible to contradict or vary the terms of a written instrument, is applied only to suits between the parties to the instrument. It cannot affect third persons, who, otherwise, might be prejudiced by writings from which a part of the truth was omitted: Per Arnold, J.