
    ABINGTON BUILDING ASSOCIATION VS. MELCHER.
    An auditor’s decision as to the ownership of a judgment in favor of A and •against B, is a bar to an action for damages brought by B against A for .refusing to assign the judgment.
    Error to Common Pleas of Montgomery County. No. 78 July Term, 1883.
    
      Plaintiff and defendant were judgment creditors of John and Edward Berrell, who had made an assignment for the benefit of their creditors. The assignee had, under an order of Court, made a sale of Berrell’s property clear of judgments, for such a price that neither claim would be paid. Melcher’s judgment was for $1,000, and was prior to the Saving Fund judgment foils,832.50. The association then made a proposition to Melcher that they would try to have the sale set aside, if he would release his claim for $200. He signed the following paper r “Jany. 2, ’77. I do this day agree to take from proceeds from the sale two hundred dollars from the said sale for my claim which I do hold at present from John Berrell and Edward Berrell, his son, which I do hold $1,000 against both properties. I do agree to take from the Jenkingtown Building Association, in case they buy the two properties of John Berrell,' Sr., to take for my balance two hundred dollars, to be in full. Adam Melcher.”
    The association then employed' counsel and had the sale set aside, and at the second sale they ran it up to an amount sufficient to pay Melcher’s judgment and nearly $1,300 of their own claim. They tendered Meleher the $200 before the second sale. He refused to accept.” The auditor who distributed the fund held that the writing did not constitute an agreement binding upon the parties. Standing alone it seems wanting in the essential parts to make it an agreement. There is but one party to it. The association does not agree to pay the plaintiff $200. There is no mutuality expressed in it. There is no agreement on the part of the association with the plaintiff* at all. It is nothing more than a proposal on the part of the plaintiff to the association to take $200 for his judgment under the representations made by them. It was not accepted by them at the time, and if construed as a proposed contract, it must have been acceded to by both parties at the time it was written. At the time the engagement was all on one side, and before the other side went to make it mutual or binding the plaintiff had a right to withdraw his offer, which in this case he did.” The auditor thereupon awarded payment of the judgment in full to Melcher, who collected it. The Abington Building Association then brought an action of assumpsit for the amount of the judgment, less $200, ugainst Melchor. Tlie judge (Ross) directed a verdict for the defendant, and promised to dispose of the legal questions upon the motion for a new trial. Tie died without rendering a decision, and his successor declined to grant a new trial without hearing argument or delivering an opinion. The association then took a writ of error, complaining of the action of the Court in directing a verdict for defendant.
    G. R. Fox and J. A. Strassburger, Esqs., for plaintiff in error,
    ■argued that the trouble and expense of the association in having the first sale set aside was sufficient consideration. That the .association adopted and acted on the agreement, and that made it mutual. A conditional contract may be made; Corson vs. Mulvany, 13 Wr. 98; Kerr vs. Day, 2 Harr 112. The auditor could not go behind the judgment; Dyott’s Appeal, 2 W. & S. 557; Lennig’s Appeal, 12 Norris 307. This action is for damages for the breach of a parol contract, and the matter is, therefore, not res ad judicata ; Kelsey vs. Murphy, 26 Pa. 84.
    
      H. K. Weand, Esq., contra,
    
    argued that the auditor had passed upon the same question now sought to be raised. He had the right to determine who owned the judgment; Souder’s Appeal, 57 Pa. 498; it is res adjudicate, Marsh vs. Pier, 4 Rawle 273; Cist vs. Ziegler, 16 S. & R. 282. Melcher was not bound in equity to pay; Kilheffer vs. Kerr, 17 S. & R 319. The form of actiou makes no difference; Finley vs. Hanbest, 30 Pa. 190; Brenner vs. Moyer, 10 W. N. C. 565. A contract is not binding unless it binds both; Offerman vs. Packer, 26 L. I. 205.
   The Supreme Court affirmed the judgment of the Court below on May 12, 1884, in the following opinion:

Per Curiam.

This claim appears to have been previously adjudicated by a ■Court of competent jurisdiction. Bnder the facts proved and the circumstances stated in the charge of the Court we see no ■error in the instructions to the jury.

Judgment affirmed.  