author: Willard, J.,

text:
    I. N. Miller and James E. Galer, partners, doing business as the Great Western Copying Co. v. The Iron City Mutual Fire Insurance Co., Appellant.

      Insurance — Effect of draft given in settlement.

    A draft given, in the settlement of an insurance claim on which payment was subsequently refused is not such a conclusive and final payment as will preclude a valid defense by the company in a suit on the policy.

      Insurance — Fraud—Sufficiency of affidavit of defense.

    An affidavit of defense in a suit to recover on a draft given in settlement of a fire loss, is sufficient which positively avers fraud in making up proof of loss and fraudulent misstatement as to amount and value of goods destroyed, and that the draft was so issued under belief that the facts contained in the proof of loss were true as therein stated, whereas they were not true but false and fraudulent.
    Argued April 12, 1897.
    Appeal, No. 55, April T., 1897, by defendant, from judgment of C. P., No. 1, Allegheny Co., June T., 1896, No. 497, in favor of plaintiff for want of a sufficient affidavit of defense.
    Before Rice, P. J., Willard, Wick-ham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Assumpsit on a draft given in settlement of an adjustment of a fire insurance policy. Before Stowe, P. J.
    It appeared from the evidence that plaintiff suffered a loss of his stock of pictures, office furniture, etc., which were insured in three companies (of which the defendant company was one, to the extent of $1,116.66. The fire occurred July 17, 1895. On February 13, 1896, proof of loss was filed showing a loss of $2,298.24 which was reduced on adjustment to $1,600. Defendant’s adjuster drew a draft on the company to the order of the plaintiff at sixty days for defendant’s fehare of the said adjustment, which amounted to $533.33. This draft was accepted by the company February 13, 1896. The draft was not paid when due, and upon suit being brought the defendant company filed an affidavit of defense alleging, inter alia, as follows •:
    On February 13, 1896, when the draft sued upon was given, this affiant and other officers of defendant company, believed the statements contained in said proofs of loss (exhibits “ B ” and “ C ”) to be true, and upon the strength of that faith and belief, the draft was drawn, accepted arid delivered. That shortly after the draft in question was given, defendant company received information that aroused its suspicions and led to an investigation, which resulted in showing that plaintiffs’ representations as to the character, amount and value of the property lost were false and fraudulent. Example: “Eighth item, schedule B, ‘ Exhibit C,’ hereto attached, first fifteen lines claims for eight hundred and twenty crayons, water colors, etc., valued at $1,451.45, which statement was false and fraudulent, and must have been made knowingly and for the purpose of deceiving the defendant company, and defendant company was thereby deceived and induced to issue to the plaintiffs the draft sued upon.
    “ The defendant company avers that the actual cash value of the crayons, water colors, etc., above referred to, valued by plaintiff's at $1,451.45, was not in excess of $200. And further, that the draft sued upon was obtained by the above and other false and fraudulent representations of the plaintiffs; all of which defendant company expects to be able to prove on the trial of this case.”
    The court entered judgment in favor of the plaintiff for $348.93. Defendant appealed.

      Error assigned was the entry of judgment.

      O. Q. Brock of lams $ Brock, for appellant.

      May 3, 1897:
    The appellee submitted no paper-boolt.
   Opinion by

Willard, J.,

In Dennis v. Insurance Company, recently decided by this court (4 Pa. Superior Ct. 225), we held that a draft given by an insurance company in settlement of a claim for loss by fire was not a payment of the claim where the amount of the draft was based upon proof of loss sworn to by the insured, where there was also evidence of fraud on the part of the agent of the insurance company in instructing and directing the insured to state his loss in the proofs far below its true value. In the case before us the suit was for the recovery of $533.33 upon a draft given by the appellant to the appellees in settlement of a loss by fire under a policy of insurance forming the contract between the parties. The draft is fully set forth in plaintiff’s statement of claim and copy thereof attached. By an examination of appelleé’s proofs of loss, exhibits A and B attached to and made part of the affidavit of defense, it appears that the appellee had insurance in three companies amounting to $3,500, one third in each company; that the sound value of the property insured at the time of the fire was $4,112.95 ; that the loss or damage by fire was $2,506.17; most of the loss, to wit, $1,957.93, is fully set forth in the eighth item of schedule B, in that item claim being made for eight hundred and twenty crayons of the value of $1,451.45. It is positively averred in the affidavit of defense that in making up the proofs of loss the appellee knowingly and fraudulently misstated the number of crayons destroyed, and the value thereof, as they actually lost not exceeding one hundred and fifty in number and the cash value thereof did not exceed $200.00. It is further stated and averred in the affidavit that the draft was issued by the appellant for its proportionate share of the loss, under the belief that the facts contained in the proofs of loss were true as therein stated; and further, that they were not true, but false and fraudulent, being knowingly and fraudulently made by the appellee for the purpose of deceiving thé appellant.

If the particular averment as to the difference between the number and value of the crayons actually destroyed by fire, and the number and value as sworn to in the proofs of loss is true and can be established on the trial, then it will necessarily appear that the draft was given for a much larger amount than the appellant was liable to pay. If, further, it was fraudulently obtained as averred, the affidavit was sufficient to carry the ease to the jury. There was no admission of any amount due by the defendant, and where the affidavit is good as to any part of the claim without such admission, judgment cannot be entered for any part not so admitted: Reilly v. Daly, 159 Pa. 605; Muir v. Shinn, 2 Pa. Superior Ct. 24.

[n this case it will be observed that no rule of court was relied upon in the entry of the judgment.

The judgment is reversed and a procedendo awarded.


source: Caselaw Access Project

license: Public Domain

text:
    Appeal of Verona Borough.

      Road law — Assessment of benefits — Opening streets.

    No assessment for benefits resulting'from the opening of a street can be legally imposed upon properties not abutting upon the line of the street which is the subject of the improvement.
    Front street, in the borough of Verona, extended for a certain distance southerly from South street in said borough, terminating, however, as a cul de sac, it was extended by proceedings under the Act of May 16,1891, F. L. 76, and the jury assessed benefits against certain owners of properties fronting on said Front street, but not on the newly extended portion thereof. i7eM,>that such assessments are illegal, as the properties do not adjoin directly upon the improvement.
    Argued April 12, 1897.
    Appeals, Nos. 57, 58 and 59, April T., 1897, by Verona borough, from decree of C. P. No. 1, Allegheny Co., Dec. T., 1895, No. 663, sustaining exceptions to benefits assessed by the report of viewers, and striking same from the said report and decreeing that the amount of said benefits be paid by the borough of Verona.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ'.
    Affirmed.
    Exceptions to report of the jury of view. Before Slagle, J.
    Viewers were appointed under the act of 1891 to ascertain damages and assess benefits according to the terms of the act for the opening of Front street, in the borough of Verona, which terminated in a cul de sac at a point southerly from South street, through to James street; the jury assessed the damages at $3,040, and apportioned the damages as benefits, inter alia, — $359.63 against Felix R. Brunot, $382.11 against F. W. Bealefeld, $254.74 against John C. Spindler, who were owners of property on said Front street, which property did not, however, abut on the line of improvement measured by the new portion of the street.
    Exceptions were filed alleging error in the assessment of non-abutting property. These exceptions were sustained by the court below, who directed such benefits to be stricken from the report of the viewers, and the amounts of benefits assessed against them to be paid by the Borough of Verona. The Borough of Verona appealed.

      Error assigned was in directing that the benefits assessed against Bealefeld, Spindler and Brunot be stricken from the report of the viewers, and that the amount of benefits assessed against them be paid by the borough of Verona.

      A. H Rowand, with him H H. Rowand,, for appellant.
    — In cases of this character the Supreme Court has practically decided that where the benefits are peculiar to the property they can be assessed against those deriving said benefits : Aswell v. Scranton, 175 Pa. 173.
    The facts of the Morewood Avenue case, 159 Pa. 20, are not applicable to this case, but under the reasoning of that case we are entitled to refer to it as authority for this case.
    Viewers appointed to assess damages and benefits for the widening and opening of part of a borough street are not confined in the assessment of said benefits to property abutting upon that part of the street embraced in the proceedings, but have power to make such assessments upon land lying anywhere along the line of the whole street: In re Main Street, 137 Pa. 590.

      J. M. Hunter, of Hunter ¿- Beatty, with him Hilary B. Brunot, for appellees.
    — This case is ruled by Morewood Avenue, 159 Pa. 20, and Park Avenue Sewer, 169 Pa. 433; also, Witman v. Reading, 169 Pa. 375.

      May 3, 1897:
   Opinion by

Willard, J.,

Prior to the 24th of June, 1895, Front street, in the borough of Verona, terminated at a point 247 feet and 2 inches from and south of the southerly curb line of South avenue. On that date the borough passed an ordinance providing for the extension and opening of said street 160 feet from its terminus in a southerly direction, through the lands of Samuel B. Ross and J. C. Kleber to James street. Viewers were appointed under the jWt of May 16,_18.9J-,,.P.,_Ij._.7jj,„t_o_ascertain damages and assess benefits according to the terms of the act. Prior to the opening of this avenue to James street, Front street, from South avenue to the Ross and Kleber properties, was a cul de sac. On the westerly side of this cul de sac F. W. Bealefeld and J. G. Spindler, two of the appellees, owned properties fronting on the street, and Felix R. Brunot owned property on the easterly side, also fronting on Front street. None of these properties abutted on the improvement or extension of Front street to James street, through the Ross and Kleber properties.

The viewers by their report filed, ascertained and assessed the damages to the properties of Ross and Kleber to be $3,040. They also found that the opening of the said street would be a benefit to property holders on Front street from South avenue to James street and assessed the properties of the appellees with benefits as follows: F. W. Bealefeld, $382.11; John Spindler, $254.74; Felix R. Brunot, $359.62. Exceptions were filed by the appellees to the viewers’ report. The fifth exception is here inserted, as upon this exception the case was decided in the court below, it is as follows: “5. That the assessment made in this case is illegal, because it provides for .the payment of a large part of the improvement by an owner, your exceptant, whose property_does not abut on said improvement.”

Exceptions similar to this were filed by the other appellees. The exceptions were sustained by the court, and the benefits assessed against the appellees, stricken from the report of the viewers and ordered to be paid by the borough of Verona. Exceptions were filed to the decree of the court and the borough appealed to this court. The cases were here argued together and will be treated as one appeal.

When Front street was first opened seven jrears ago, presumably the appellees, together with owners of other property abutting on tliat street, by dedication bore their full and just share of the burthens incident to the opening of a public street through land to be benefited and improved by such opening. Having done this, why should they be again called on seven years afterwards to bear the additional burthen of opening and extending this street one hundred and fifty feet through other land to James street ?

It is true that before they were connected with James street their properties abutted on a cul de sac, and their access to the general system of streets of the borough through the extension to James street would be a benefit to their properties, but the benefit would be the same enjoyed by others owning property on the same street or adjoining streets, differing only in degree.

The contention of the appellant is, that the properties of the appellees, though not abutting the improvement, were peculiarly benefited by it, and the owners ought to contribute toward the payment of damages sustained by the owners of land through which Front street is opened and extended. Here the question presents itself what properties not abutting the improvement are peculiarly benefited ? To say the property of Mr. Bealefeld abutting on Front street and South avenue is peculiarly benefited and his neighbor’s property just north of his across South avenue abutting also on that avenue and Front street, is not, would be an arbitrary distinction. The question of where peculiar benefits begin and end has been settled by our Supreme Court, and in Morewood Avenue, 159 Pa. 20, it is decided that assessments for benefits begin and end with the properties abutting on the improvement. In that case, which was a construction of the act of May 16, 1891, Mr. Justice Gkeen, in delivering the opinion of the court says : “ Only such properties-so far as locality is concerned, can be assessed for benefits are entitled to have damages assessed.”

It is not claimed in this case that the properties of the appellees were damaged by the extension; indeed, such claim would be idle. Applying the above quoted rule to the case in hand, the location of appellees’ properties precludes their assessments for benefits. Again it was said in the same case, “ we refuse to permit any assessment upon properties. not abutting upon the improvement, and that, in justifying any assessment for benefits, it must be confined to the particular properties which do in fact abut directly upon the line of the improvement:”

It requires but a reference to the facts in this case to convince us that it is ruled by the opinion from which we have quoted. The same rule is reiterated in 54th Street, 165 Pa. 8, and in Park Avenue Sewers, 169 Pa. 433.

These cases involve the question of grading, paving, and the construction of sewers under the act of 1891. The rule adopted is equally applicable to the opening and extension of streets through new territory. The act applies to opening, widening, grading and paving streets, and the construction of bridges and sewers. In each case the power of the municipality is the same, and there is no distinction in the mode of procedure. The learned judge was clearly right in holding that the cases above cited cannot be distinguished in principle from the present case.

The opening and extension of Front street was a public improvement, and every improvement contemplated in the act of 1891 is governed by the same rule of law as to assessments for benefits, and in Morewood Avenue, supra, it is said, “no assessment for benefits can be at all justified in a legal sense except upon those properties which do, in point of fact, adjoin directly upon the improvement, whatever it may be.”

Applying the above rules to the facts of this case renders further discussion unnecessary.

The assignments of error are overruled, the decree of the court below is affirmed, the appeal is dismissed at the costs of the appellant.


text:
    W. G. Crawford, for use of John D. Watson, v. Robert Rath, Appellant.

      Judgment — Discretion as to opening — -Appeals—Review. '

    Where an answer to a petition to open judgment is fully responsive, and the allegations of the defendant are fully met and explained by the oath of the plaintiff, the discretion of the court in refusing to open judgment is fully vindicated and will not be reviewed by the appellate court.
    Argued April 26, 1897.
    Appeal, No. 109, April T., 1897, by defendant, from order of C. P. No. 3, Allegheny Co., Nov. T., 1896, No. 212, refusing to open judgment and let defendant in to a defense.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Petition and answer sur rule to open judgment.
    By the petition it appears that Robert Rath, the defendant, alleges a full, legal and equitable defense to the whole of plaintiff’s claim; that he was never indebted to plaintiff except for professional services and for all such services payment in full was had; that he had no recollection of giving the note on which judgment was entered, but if he did give it it was for services partly to be performed in the future and which were never performed by said Crawford; that if said note was in Crawford’s hands on October 4,1880, he should have delivered the same to petitioner along with a certain other note for $123, which he then delivered to petitioner with the following receipt indorsed thereon. “Received of Robert Rath all monies on the within note, and all monies due to me for professional services rendered as an attorney at law to this date. October 4th, 1880. W. G. Crawford.”
    That the money receipted for on October 4, 1880, was paid to and taken by said Crawford in full satisfaction of all claims whatsoever against the petitioner, the relation of client and attorney then and there dissolved, and no service rendered thereafter by said Crawford. The bill closed with a prayer to show cause why judgment should not be opened and defendant let in to a defense, followed by an affidavit of Robert Rath, dated October 15, 1896, that the facts stated are true as affiant believed and expected to prove on trial.
    The plaintiff’s answer was as follows:
    1. That the $500 note was given for professional services at No. 234, January term, 1880, common pleas No. 2, of Allegheny county, with writ of error to Supreme Court at No. 27, October term, 1880. Also services at No. 235, January term, 1880, common pleas No. 2, of Allegheny county, with writ df error to Supreme Court at No. 28, October term, 1880; and other services in counsel and advice not specified.
    2. That the credit on said $500 note for $128 was a mistake, as it was given for entering judgment on two judgment notes and for money advanced.

      May 10, 1897:
    3. That tbe receipt on the back of the $123 note was given to close business between said Crawford and Robert Rath, because Joseph Forsythe was going to act as attorney for Rath thereafter, and said Crawford signed the said receipt, the $500 note not then being due.
    4. That Crawford believed Rath procured the receipt for $123 on the back of the $500 note with intent of defending against it.
    5. That Crawford had not received any part of the balance of $400 .with interest thereon from Rath, and that he had sold said note to John D. Watson for value. This answer, duly sworn to by W. G. Crawford, was filed November 2, 1896.

      Error assigned among others was (2) in discharging the rule in view of the facts that the evidence did not disclose the proper exercise of the discretion of the court.

      Joseph Forsythe, with W. B. Rodgers, for appellant.
    — The law giving the right of appeal from a refusal to open a judgment imposes on the court the duty of weighing the evidence, and making order or decree accordingly; inclining to submission of the question to a jury in case of doubt: Klopfer v. Ekis, 155 Pa. 41, citing Jenkintown National Bank’s Appeal, 124 Pa. 337. See also La Roche Electric Works v. Emery, 173 Pa. 331. And failing so to do, the court did not properly exercise the discretion vested in it, which was a sound discretion and not an absolute or arbitrary one: Wernet’s App., 91 Pa. 319; First National Bank v. Muncy, 106 Pa. 68; Kelber v. Plow Co., 146 Pa. 485.

      Daniel Harrison, for appellee.
    — A judgment will not be opened when the answer of the plaintiff is responsive to the petition, and denies under oath every allegation therein, unless such answer is overcome by testimony of two witnesses, or of one witness corroborated by circumstances equivalent to another: Hoffman v. Jacobs, 12 Lanc. Rev. 25; Mangan v. McHale, 6 Kulp, 459.
   Opinion by

Willard, J.,

This is an appeal from the order and decree of the court below discharging a rule to show cause why judgment No. 212 to November term, 1896, in said court should not be opened and the defendant let into a defense.

On a careful consideration of the petition and answer, we are satisfied that the answer was respónsive to the petition, and the allegations of the defendant were fully met and explained by the oath of the legal plaintiff.

Tbe receipt of October 4, 1880, purporting to be in full of all professional services to that date, was executed and delivered three months before the note on which this judgment is founded became due and payable, and the language of the receipt in no way necessarily impeaches the validity of the note given for past services dated on the third of January, 1880, payable in one year, nor does it show that said note was paid.

The proceeding in this case was an equitable one, and was argued before and decided by a full bench of the court in banc in common pleas No. 3 of Allegheny county.

The only question for us to determine is whether the court rightly exercised its. discretion in refusing to open the judgment: Jenkintown National Bank’s Appeal, 124 Pa. 337; Applebee’s Appeal, 126 Pa. 385; Klopfer v. Ekis, 155 Pa. 41; Walter v. Fees, 155 Pa. 55.

We are of the opinion that the discretion of the court was rightly exercised, and its decree is affirmed at the costs of the appellant.


author: Beaver, J.,

text:
    Estate of James Cooper, deceased. Appeal of David B. Nace, Executor of Daniel Logan, deceased.

      Decedent's estate — Qosu/rety—Subrogation.
    Where one of three joint sureties has paid the entire debt of their principal he is entitled to a dividend upon the full amount of the debt out of the estate of one of his cosureties up to the extent of one third of what he paid; it not appearing that the third surety is insolvent.

      Improvident payment by administratrices of insolvent estate.

    One of the administratrices of an insolvent estate advanced money to pay interest due by the estate. Held, in distribution of the estate that she is not entitled to a preference. If the money is paid by her as an individual there is no claim to a preference; if it is paid as administratrix the payment is made at her peril, and her position is that of an ordinary creditor.

      Argued March 12, 1897.
    April 19, 1897:
    Appeal, No. 43, March T., 1897, by David B. Nace, executor, from decree of O. C. Fulton Co., confirming, report of the auditor in distributing balance in the hands of administratrices of the estate of Janies Cooper, deceased.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Exceptions to auditor’s report. Before Swope, P. J.
    The facts sufficiently appear in the opinion of the court.

      Errors assigned were (1) in confirming report of the auditor. (2) In holding that Sarah J. Cooper was entitled to a preference in the distribution to the amount of $355. (3) In not directing that the balance in the hands of the accountants, after paying the costs of the audit, should be distributed pro rata to the claim of Daniel Logan’s executor and Sarah J. Cooper.

      W. Rush Grillan, with him W. U. Brewer and J. Nelson Sipes, for appellant.

      Geo. A. Smith, with him M. R. Shaffner, for appellees.
   Opinion by

Beaver, J.,

On the 18th of February, 1888, the administrators of James Cooper filed their account in the orphans’ court, showing personal assets amounting to $3,807.15 and credits for sundry payments to creditors amounting to $3,388.17, leaving a balance in the hands of the accountants of $423.99. This account was confirmed March 19, 1888. The appellants do not seek to go back of the confirmation of this account. They seem to admit that the confirmation of the said account by the orphans’ court protects the administrators as to the payments made prior to that time. They seek a distribution of the balance in the hands of the accountants according to law. The distribution of this balance was referred to an auditor who finds, in addition to the facts already stated, that at the time of the confirmation of the account there were unpaid debts of the estate considerably in excess of the amount of the balance; that as to a judgment of Pitman, administrator of Andrew Fisher, deceased, for purchase money of a farm purchased from the said administrator and a dower of $1,000, the interest of which was payable to Catharine Fisher, widow of Andrew Fisher, deceased, during her life and the principal to his heirs at her death, were provided for by an agreement made with two of the sons of James Cooper who took the said farm and agreed to pay the incumbrances aforementioned. The auditor also finds that “ James Cooper, Daniel Logan and George J. Pitman became joint sureties for R. A. McDonald, Administrator of the Estate of John Kittell for the sale of the real estate of the said Kittell, in the sum of $18,000,” and that on the 8th of October, 1895, a judgment was obtained by Mrs. Loretta J. McDonald, one of the heirs of John Kittell, against the said McDonald and Logan as his surety, for the sum of $3,961.80, her share in the real estate of John Kittell; that Logan paid this'judgment November 18,1895, then amounting to $3,986, and that Cooper and Pitman, Logan’s co-obligors in the bond, were both dead at the time Mrs. McDonald instituted her suit. It further appears from the facts found by the auditor that one of the administrators of the estate had between the date of filing the first account and the date of the audit paid $395 as interest on the Fisher judgment out of her own money, but with the intention on her part to reimburse herself or receive from the estate the payments so made.

Under the facts, as found by the auditor, which are practically undisputed, the two claimants for the fund are Mrs. Sarah Cooper $395, and the executor of Daniel Logan, one third of $3,986, which equals $1,328.66, and distributes the net balance of $571.47, after deducting the costs of audit, to these two claims pro rata.

Upon a review of the findings and conclusions of the auditor upon exception in the orphans’ court, the auditor was directed by the court to deduct the sum of $355 interest paid on the Fisher judgment, now belonging to Mrs. Allen, by Mrs. Cooper, before the fund should be called upon for contribution to the claim made by Logan as cosurety of Cooper, and that, after such deduction, distribution should be made to Logan, on the basis of $3,986, the full amount paid by him on the McDonald judgment, and of $40, the balance paid by Mrs. Cooper in interest on the Fisher judgment assigned to Mrs. Allen. As to the first of these directions we think the court was in error. Mrs. Cooper, so far as the payment of interest by her was concerned, stood in relation to such, payment as an ordinary creditor. If the money was advanced by her as an individual, as the auditor finds as a fact, she cannot claim a preference. If it was paid out as an administrator, she did so at her peril and is not protected by any decree of distribution. She is, therefore, so far as the $895 paid by her, in the position of an ordinary creditor, entitled to a pro rata of the balance in the hands of herself and her co-administrator, and no more.

To what extent is Logan a creditor of the estate of James Cooper, his co-obligor on the -McDonald bond? There were three sureties. Judgment was obtained against one for the entire amount which was paid by him. He has a right to call upon each of his cosureties for contribution to the extent of one third of the amount paid. Pitman, the third of the cosureties, is dead. There is no evidence of any kind that his estate is insolvent or in any way unable to pay the full amount of the contribution which it is liable to make to Logan’s estate. Cooper’s estate is, therefore, liable to Logan’s estate for the one third of the amount which was paid by Logan to Mrs. McDonald. So far as the personal estate of Cooper is concerned, it is unable to make contribution to that extent. How then is the contribution which it can make to be 'secured and enforced ? There can be no doubt that, if Mrs. McDonald were pursuing Cooper’s estate, she could prove her claim for and be entitled to a dividend upon the whole amount due her, but Logan, the cosurety, paid her the full amount of the claim. He is, therefore, entitled to subrogation to the ownership of the security held by Mrs. McDonald, namely, the bond given by the administrator and three sureties, and the judgment, which was recovered thereon for Mrs. McDonald’s use against Logan. As to the general doctrine of subrogation, see Croft v. Moore, 9 Watts, 451, and Mosier’s Appeal, 56 Pa. 76. In the latter it is said: “ So, where one of several joint sureties has paid'the whole debt, he will be entitled to the judgment to enforce contribution by his cosureties.” In Pless’ Estate, 69 Pa. 272, it was expressly ruled that one of two joint sureties who had paid the entire debt was entitled to a dividend upon the full amount of the debt out of the estate of his cosurety which was insolvent, up to the extent of the one half of what he had paid; Mr. Justice Read, in a learned opinion upon the subject, saying, “In America and certainly in Pennsylvania, a surety paying the debt of his principal is entitled to be subrogated to all the rights and remedies of the creditors as against his cosureties in precisely the same manner as against the principal debtor, and is substituted in the place of the creditor and entitled to enforce all his liens, priorities and means of payment.” It seems to be settled, therefore, that Logan, or his executor since his death, was entitled to claim out of the balance in the hands of Cooper’s administrators a dividend upon the entire amount of the judgment which had been obtained against him, namely, $3,986, the dividend amounting to much less than the one third of the amount of the judgment. The direction of the court below in this behalf is therefore affirmed, and it is directed that the net balance of $571.47 in the hands of the administrators of Cooper, as found by the auditor, be divided pro rata between the claims of Nace, executor of Logan, for $3,986, and Sarah J. Cooper, $395.

Inasmuch, however, as Mrs. Cooper was not entitled to a preference as to any portion of the amount of interest paid by her, the assignments of error are sustained, the decree of the court below is reversed, and the record is remitted with directions to make distribution of the balance in the hands of the administrators, as hereinbefore specified; costs to be paid by the appellees.


text:
    Estate of James Cooper, deceased. Appeal of Sarah J. Cooper and Jennie E. Cooper, administratrices of James Cooper, deceased.
    Argued March 12, 1897.
    Appeal, No. 53, March T., 1897, by Sarah J. Cooper and Jennie E. Cooper, from decree of O. C., Fulton Co., confirming report of auditor in distributing balance in the hands of Sarah J. Cooper and Jennie E. Cooper, administratrices of the estate of James Cooper, deceased.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, J J.
    Appeal dismissed.
    Exceptions to auditor’s report. Before Swope, P. J.
    In addition to the facts which appear in the opinion of the preceding case, appeal by David B. Nace, Executor, the following facts may be stated from the report of the auditor. It appears that at the time of the decease of J ames Cooper he was indebted to Andrew Fisher, and judgment was entered on single bill for purchase money of land. On this judgment-the administratrices of Cooper, on April 8, 1887, paid the administrator of Fisher the sum of $329.84, which left the amount due on the Fisher estate on that judgment, $1,000. In addition to the amount paid April 3, 1887, to wit, $329.84, Mrs. Sarah Cooper, as administratrix, paid on same judgment between March 29, 1888, and November 7, 1895, the sum of $395. She also paid to Mrs. Fisher, on dower lien between February 2, 1888, and March 2, 1895, the sum of $420. It thus appears that the administratrices actually paid out on the debts of the estate the sum of $1,144.84, for which they have had no credit anywhere in their account filed. The auditor allowed Mrs. Cooper a pro rata on the $395.
    April 19, 1897:

      Errors assigned were (1) In confirming report of the auditor ; (2) in holding that the administratrices were not entitled to credit for the the sum of $395.84 paid on the judgment April 3, 1887, as against the balance appearing due on the account which they filed, and in dismissing their second exception to the report of the auditor; (3) in dismissing the third exception of the appellants and in refusing to- allow credit for all sums paid out by them in the estate; (4) in not holding that the entire balance due on their account as administratrices in March, 1888, had been paid out by them, or for them, before Daniel Logan made application for the appointment of the auditor, and that at the time there was no money in their hands for distribution.

      Q-eo. A. Smith, with him M. R. Shaffner, for appellants.

      W. Rush G-illan, with him J. Nelson Sipes and W. U. Brewer, for appellees.
   Opinion by

Beaver, J.,

The facts of this case have been somewhat fully set forth in the disposition which we have made of the appeal of Nace, executor of Logan, No. 43, of March Term, 1897, which was an appeal from the same decree of the orphans’ court as this. A claim was made before the auditor for an allowance of $329.84 paid by the administrators oh account of the Fisher judgment. The auditor found, however, as a fact, that such payment was made on the 3d of April, 1887, ten months before the account was filed, and that the administrator “ could not tell whether she took credit in the account for all she had paid up to the time of filing or not.” If the payment were included in the credits claimed in the account, she was, of course, entitled to nothing. If it were not included, the payment not having been sanctioned .by the court by virtue of the confirmation of the account, she could in no event have claimed more than a pro rata dividend thereon. In view of the uncertainty as to whether or not the amount was included in the account, we think the auditor was justified in rejecting the claim.

As to the first, third and fourth assignments of error, they are sufficiently disposed of in the opinion which we have this day filed in Nace, Exr. of Logan’s Appeal. We cannot affirm the decree of the court below; but, inasmuch as none of the assignments of error as made by this appellant is.: sustained, we refer to Nace’s Appeal, supra, for the proper distribution to be made of the fund in the hands of the administrators, and dismiss this appeal at the costs of the appellant.


text:
    Charles Gropp v. Carnegie Steel Company, Limited, Appellant.

      Master and servant — Defective machinery — Knowledge of the defect by p lainiiff— Binding instructions.

    In an action for injury resulting to an employee arising from the defective condition of the machine or apparatus about which the plaintiff was working, where the uncontradicted evidence shows that the plaintiff knew or ought to have known that it was defective and dangerous, and failed to report the condition of said apparatus to the defendant’s superintendent, the defendant is entitled to binding instructions.
    Argued April 13, 1897.
    Appeal, No. 87, April T., 1897, by defendant, from judgment of C. P. No. 1, Allegheny Co., September Term, 1895, No. 211, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.

      Trespass for personal injuries. Before Stowe, P. J.
    The plaintiff, a skilled workman, was injured at the rod and wire mill of defendant.
    In the process of manufacture of wire the rods pass through a series of rollers, and at one stage of the process a “ pan ” is used. It is a plate of steel with angle iron bolted to its sides to keep it in shape, and is placed like an inclined plane so that the wire may run up to the rolls. The plaintiff’s duty as a “ bender ” was to guide the wire across this pan to the next set of rollers. He had worked for two years at the next set of rolls and a number of times at this set, and had been working there for four days prior to the accident. He could see the pan from both positions occupied by him, and the evidence was that he knew and saw or could have known and seen that this “ pan ” had been warped and turned up at the corners, by virtue of which a “last end” of the wire caught on the corner of the pan and flying round burned plaintiff’s arm. The court below left the question of negligence to the jury.
    Verdict and judgment for plaintiff for $400. Defendant appealed.

      Errors assigned were, (1) In its answer to the defendant’s fourth point, which point and answer are as follows : “ 4. That if the jury find that the pan was so turned up at the edges and also find the plaintiff knew, or ought to have known, that it was, then there can be no recovery by the plaintiff. Answer: This is affirmed unless the evidence leads you to believe that the danger was not so obvious or apparent as to indicate to plaintiff that accident was likely to arise from the fact that the edges were turned up.” (2) In its oral charge to the jury, as follows: “Here was this machine originally in proper condition. We will assume, for the present, that it was allowed to get out of order. The plaintiff saw or was bound to see that it was out of order by the turning up of the corner. If he saw, or had reason to believe as an ordinarily cautious man, that that would increase the danger or risk of employment, and knowing that, worked at it, and this accident occurred by reason of that fact, he could not recover, because he has been guilty of contributory negligence. But if the danger was increased by this condition of the pan, and yet was not so obvious to the plaintiff as to be manifest to him that it might increase the danger of his working there, but was at the same time such a danger, or such an increased danger arising out of the defect, that the superintendent, with his knowledge of the machinery, and the duty devolving upon him to see that the machines were kept reasonably and properly as safe as they could under the circumstances, having seen it should have known that that would increase the danger to the plaintiff of working at this machine, then although the plaintiff himself saw the defect, the defendant might be liable, because the superintendent had this superior knowledge or assumed superior knowledge. In other words, the defendant might have known that this increased the danger, while it was not manifest in itself to the plaintiff. If this defect was such that the defendant saw, or was bound to see, that it would increase the danger to the plaintiff working there, and the plaintiff not being himself conscious of the increased danger still worked there, the defendant would be guilty of negligence, while the plaintiff would be guilty of no negligence because he did not, in the exercise of common judgment, anticipate danger that was known or should have been known to the defendant. This is drawing a very fine line, but the whole thing turns right there, and when you come to that point you have got to consider that question. Here is the plaintiff, a skilled workman; he sees the condition of things, or is bound to see just as the defendant’s superintendent is bound to see it, and it is for you to determine whether the evidence satisfies you, each of these men seeing that the danger was not manifest to the plaintiff and yet was manifest and apparent to the defendant. If it was not manifest to either, neither of them has been guilty of negligence, and the plaintiff cannot recover. If it was manifest to both, both have been guilty of negligence and the plaintiff cannot recover. But if it was apparent to the defendant, and if, under the circumstances, it was not such as would be apparent to the plaintiff, and, not comprehending or not being bound to anticipate this danger, he worked on when the defendant should have known that the danger was increased, then the plaintiff may recover, because in that case the defendant would be guilty of negligence and the plaintiff would not.” (3) In its answer to the defendant’s eighth point, which point and answer are as follows: “ 8. That under all the testimony the verdict must be for the defendant. Refused.”

      Edwin W. Smith, with him Cr. D. Packer and Knox ‡ Reed, for appellant.
    — As to the rule of a master’s liability for patent defects cited Master’s Liability for Injuries to Servant, Bailey, 172; also Wood’s Master and Servant, 773; Melchert v. Brewing Co., 140 Pa. 448.
    The same principle is involved under the head of the master’s duty of instruction, and the court has held that if a machine be not dangerous no special instruction as to the manner of using it is required: Zurn v. Tetlow, 134 Pa. 213; Melchert v. Brewing Co., 140 Pa. 448.
    There is no duty on the part of a railroad company to instruct a skilled and experienced engineer in the dangers of a locomotive which he is set to operate where such locomotive is of the same general character as the one to which he has been accustomed: Bellows v. Railroad Co., 157 Pa. 51.
    It is contended here that there was no presumption of greater knowledge of danger in this case on the part of the defendant than on the plaintiff, as he was a thoroughly skilled and competent man.

      A. Israel of Cohen Israel, for appellee.
    — In Brownfield v. Hughes, 128 Pa. 194, Justice Sterrett, delivering the opinion of the Supreme Court, says: “ That exception to the general rule is recognized in several cases, among which is Patterson v. The Pittsburgh & Connellsville Railroad, 76 Pa. 389, in which it is said that ‘ When the servant, in obedience to the requirement of the master, incurs the risk of machinery, which, though dangerous, is not so much so as to threaten immediate injury, or where it is reasonably probable it may be safely used by extraordinary caution, the rule is different. In such case the master is liable for resulting accident.’ ”
    To the same effect is Kehler v. Schwenck, 151 Pa. 505, 518; see also Bennett v. Glass Co., 158 Pa. 120.
    The defendant knew or ought to have known of the unsafe condition of the place. Although the plaintiff knew it, his continuing to work with the machine does not necessarily constitute contributory negligence which bars his recovery, if the evidence shows that it might be used with safety by the exercise of great care; the evidence shows it could be so used and, whether or not it could have been safely used with great care, and, therefore, whether or not the plaintiff is gnilty of contributory negligence is a question for the jury, as the Supreme Court has said in Patterson v. Railroad Co., 76 Pa. 389; Brownfield v. Hughes, 128 Pa. 194; Kehler v. Schwenck, 151 Pa. 505, 518; Bennett v. Glass Co., 158 Pa. 120.
    May 10, 1897:
   Opinion by

Beaver, J.,

The error of which the appellant complains lies within a very narrow compass. The general instructions of the trial judge in the court below and his answers to the numerous points presented by the defendant were in the main correct. The general principles of law governing the relation of master and servant in the use of machinery were carefully laid down and the relative duties of each fully explained. As to the point complained of the trial judge says: “ This is drawing a very fine line, but the whole thing turns right there and, when you come to that point, you have got to consider that question. Here is the plaintiff — a skilled workman. He sees the condition of things or is bound to see, just as the defendant’s superintendent is bound to see it, and it is for you to determine whether the evidence satisfies you, each of these men seeing, that the danger was not manifest to the plaintiff and yet was manifest and apparent to the defendant. If it was not manifest to either, neither of them has been guilty of negligence and the plaintiff cannot recover. If it was manifest to both, both have been guilty of negligence and the plaintiff cannot recover; but, if it was apparent to the defendant and if under the circumstances, it was not such as would be apparent to the plaintiff, and not comprehending or not being bound to anticipate this danger, he worked on when the defendant should have known that the danger was increasing, then the plaintiff may recover, because in that case the defendant would be guilty of negligence and the plaintiff would not.” The testimony in regard to the condition of the pan, as it was called, or rather the trough through which the wire ran to and from the rolls is very weak and doubtful. It is enough to go to the jury, because they are the judges of the credibility of a witness, and there is little else in it.

The only testimony upon the subject was that of Edward Gibbons, a helper of the plaintiff, whose regular position was much more distant from the rolls than that of the plaintiff who was tbe skilled workman. He testified that the pan was warped on the end of it — turned up. The plaintiff, who had worked at these rolls, called the first diamond, for four days immediately preceding the accident, and one of his witnesses, Wilson, also a skilled workman who worked at the same place, had neither of them seen it, as they testify. If it existed, it was such a defect as they ought to have seen, and seeing, to have reported to the superintendent of the mill. The plaintiff’s testimony in regard to the danger attending such a condition of the pan as is described by the witness Gibbons,’is clear. Gibbons says in his testimony that he told Mr. Wilson somebody would get hurt there, Wilson being a coemployee. He also says that “ it would work all right but it would some day catch it.” Wilson in his testimony says: “If the rod catches, it is bound to fly; if anything will hold the end it is bound to fly.” Here, then, is a defect which, if it existed, must have been patent to the plaintiff and to anyone working at the rolls. The danger, if the defect existed, must have been also apparent. He had large experience as a roller; had worked at these same rolls previously at sundry times, and continuously according to his turn for four days immediately prior to the accident. He admits in his own testimony that “ he could see as well as Mr. Rigley (the superintendent) or anybody else, and that his eyesight was as sharp as anybody’s else.” Leaving out of view all the testimony of the defendant, and considering this question solely from the testimony offered by the plaintiff, what evidence is there for submission to the jury from which they could find or infer that the defect complained of was apparent to the defendant, yet under the circumstances was not such as would be apparent to the plaintiff; and how was it possible, in the absence of any evidence upon that subject, for the jury to find that the plaintiff could continue his work “not comprehending or not being bound to anticipate this danger, when the defendant should have known that the danger was increasing ? ” There are no facts anywhere in the evidence upon which to base such a finding. There is no opinion of any witness, least of all of any expert, from which such a conclusion could be drawn.

Upon a careful examination of the whole case, we are of the opinion that the defendant’s fourth point should have been affirmed without qualification, and that his eighth point “ that under all the testimony the verdict must be for the defendant,” should also have been affirmed, and this upon the plaintiff's case as presented in the testimony adduced by him. The testimony of the defendant strengthens the moral aspect of its case, but not in any way its legal status. The judgment is reversed.


text:
    John P. Dahl, Administrator of John Bower, deceased, now for use of John F. Edmundson v. Pauline Auberle, Appellant.

      Judgment — Set-off—Legal and equitable set-off.

      A judgment was obtained against a constable for an illegal distraint and the landlord permitted to intervene as defendant. This judgment was subsequently assigned by the plaintiff’s estate, subject to an allotment of it as exemption claimed by plaintiff’s widow. The landlord petitioned for leave to set off against the judgment a subsequent judgment obtained by him against the plaintiff’s estate. Held, That neither law nor equity will justify the court in ordering the set-off of judgment prayed for.
    Argued April 26, 1897.
    Appeal, No. 108, April T., 1897, by defendant, from order of C. P. No. 2, Allegheny Co., Jan. T., 1897, No. 19, refusing leave to set off a judgment.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Petition for leave to set off a judgment.
    John Bowers, a tenant of Pauline Auberle, obtained judgment against W. J. Lauderback, a constable, acting under authority of a landlord’s warrant issued on behalf of said Pauline Auberle for an illegal levy and sale on June 29, 1895.
    On September 7,1895, the said Pauline Auberle was permitted to intervene pro interesse suo as defendant in the case.
    On June 15, 1896, judgment was entered on the award of arbitrators, and same day was assigned to John F. Edmundson. In the meantime, however, John Bowers having died, appraisement of the widow’s exemption was had, and one of the items elected to be retained by the widow was the sum of #281.25 out of this award of the arbitrators against W. J. Lauderback, upon petition presented in the open court on August 17, 1895, and confirmed October 8, 1895.

      Pauline Auberle obtained judgment against the estate of John Bowers on May 4, 1896, for $678. On October 10,1896, an execution was issued on the Lauderback judgment in which Pauline Auberle had intervened as defendant. On October 17, 1896, she presented her petition asking that the writ be stayed, and that she be allowed to set off her judgment against the estate of John Bowers against the Lauderback judgment for which she was responsible, it appearing that the estate of John Bowers was insolvent; the court below dismissed her petition and refused to allow the set-off prayed for. From this order defendant appealed.

      Error assigned was refusal of the prayer of the petitioner to be allowed to set off her judgment.

      J. M. Stoner, with him E. H. G-uffey, for appellant.
    — With the recovery of the judgment by the defendant against the suit of plaintiff her equities attached, because she already had a judgment for a larger sum against the administrator, and her equities were superior to those of Edmundson or any one claiming under the administrator:, Filbert v. Hawk, 8 Watts, 443; Jacoby v. Guier, 6 S. & R. 448; Cutts v. Guild, 67 N. Y. 229; Ames v. Bates, 119 Mass. 397.
    It may be added that Mrs. Auberle had no notice of the Edmundson interest in the claim against Lauderback; as matters stood upon the record she was entitled to defalcation, as clearly appears by Hazlehurst v. Bayard, 3 Yeates, 152.

      John F. Edmundson, with him EranJc Calhoun, for appellee.
    —The character of the claims was fixed at the time of the death of John Bowers, one claim being founded in tort, the other in contract. At this point no set-off could be allowed. The debt takes rank at the time of the death of a decedent: Leiper v. Levis, 15 S. & R. 108.
    An equitable right to set off judgments is permitted only where it will infringe on no other right of equal grade. Consequently it is not permitted to effect an equitable assignee for value: Ramsey’s Appeal, 2 Watts, 228.
    At the death of the testator or intestate the rights of creditors to the assets become fixed and determined: Bosler’s Administrators v. Bank, 4 Pa. 32.

      May 10, 1897:

      J. M. Stoner, with him F. II. Gruffey, in. reply.
    — As to the cases cited, by counsel for appellee in their argument, we submit that the case of Christ v. Brindle, 2 Rawle, 121, is directly opposed to their contention. Ramsey’s Appeal, 2 Watts, 228, is explained by Filbert v. Hawk, 8 Watts, 443; Bosler’s Administrators v. Exchange Bank, 4 Pa. 32, is distinguished by Light v. Leininger, 8 Pa. 403; Beaver v. Beaver, 23 Pa. 167, and Skiles v. Houston, 110 Pa. 254. The two other cases have no bearing on the present matter.
   Opinion by

Beaver, J.,

When the appellant intervened as defendant in the suit brought by John Bower in his lifetime against the constable who had disregarded his claim for the statutory exemption of $300 from distress under a landlord’s warrant issued by her, she made herself responsible for the trespass which the jury subsequently found had been committed against the rights of Bower. Prior to the time of her intervention, an award of arbitrators had been filed in the suit against Lauderback, the constable, the greater part of which was included in the inventory of goods and chattels claimed by and set apart for the use of the widow under the provisions of the act of the 14th of April, 1851 (P. L. 612), which inventory and appraisement were confirmed absolutely by the court October 8, 1895. On the 19th of May, 1896, a verdict was rendered in said suit in favor of the plaintiff and against the defendants for $325.17, upon which on the 15th of June, 1896, judgment was entered, and which on the same day was assigned by the administrator of Bower to John F. Edmundson. When, therefore, the appellant on the 17th of October, 1896, presented her petition, praying to be allowed to set off her judgment against the estate of John Bower, obtained upon the 24th of April, 1896, against the judgment which had been obtained against her in trespass, no part of it belonged to Bower’s estate; $281.25 thereof was the absolute property of the widow set apart to her under the decree of the court of the 8th of October, 1895, of which the appellant had at least constructive notice, and the balance belonged to Edmundson by assignment; it being admitted by him that he took said assignment subject to the widow’s rights. It is not claimed, as we understand it, that there was any legal right of set-off on the part of the appellant. It is plainly apparent that no such claim could have been successfully made in the trial of the action of trespass. The appellant’s legal rights were no greater after she had obtained her judgment in assumpsit against Bower’s estate than before. The entire claim, therefore, is one of equitable set-off and is addressed to the equity side of the court. Independently of the fact that there was nothing at the time. the application was made which could be made the subject of the set-off prayed for, was the appellant in a situation to claim the intervention of equity in her behalf ? The verdict of the jury in the action of trespass established the fact that she had wrongfully sold the personal property of Bower in his lifetime. She had thereby taken away what could have been claimed by. the widow under her statutory right to $800 under the act of 14th of April, 1851, supra. All that remained for the widow was the verdict which the jury had rendered as a poor equivalent for the property so taken. It is apparent from this consideration as well as from the other facts in the case, that the appellant had no standing in equity upon which to base her application for set-off. The assignment to the attorney was based upon a good consideration and, ■being held subject to the rights of the widow, is not unreasonable. The court below was therefore entirely justified in saying that “ neither law nor equity will justify the court in ordering the set-off of judgment prayed for.”

The assignments of error, both of which relate to the decree of the court refusing the prayer of the petitioner to be allowed to set off her judgment, are overruled, the decree is affirmed and the' appeal dismissed at the costs of the appellant.


text:
    Stephen Cominskey, Appellant, v. The Connellsville, New Haven and Leisenring Street Railway Company.

      Negligence — Street railway — Infant—Speed of car.

    In an action against a street railway to recover damages for death of a child of six years and four months old, run over and killed by a car while playing in the street, it appeared that the child was running the same way with the car with some other children, and that he attempted to run around in front of it. The plaintiff’s case rested upon the allegation that the car was run at undue speed. One of the witnesses testified that “ the car was •going awful fast,” another that “ it seemed to me she was running quite lively,”'another, “I noticed the motorman stopping the car as quick as he could ; ” and the same witness, who was uneontradicted, testified, “ that the car was stopped in half its length.” There was no evidence of want of care on the part of the motorman, either before or after the child had been seen by him. The trial judge left the case to the jury on the question of negligence “ in the fast running of the car and possibly in the unskillfulness of the person having the ear in chai’ge.” The jury found a verdict for the plaintiff of six and one quarter cents. Held, That the defendant was entitled to a compulsory nonsuit, and that the plaintiff had no standing to complain of the charge of the court as inducing an inadequate verdict.
    Argued April 21, 1897.
    Appeal No. 143, April T., 1897, by plaintiff, from judgment of C. P. Fayette Co., Dec. T., 1895, No. 59, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, .Orlady and Smith, JJ.
    Affirmed.
    Trespass for injuries resulting in death of plaintiff’s son. Before Barker, P. J., of the 47th judicial district, specially presiding.
    Plaintiff’s son, a boy of six years and four months old, was run over and killed by a car of defendant’s railway. It appeared from the evidence that the car was running at a speed of from ■seven to eight miles an hour, that the motorman noticed, before he reached them, some six or seven children near the street car track ahead of him and turned off his current, stopping the car in half its length. Alighting from the car he then found it had struck a little girl in the head, and that plaintiff’s son had been run over and received injuries from which he died the next morning.

      Other facts appear in the opinion of the court.
    The trial judge left the question to the jury as to defendant’s negligence arising from the speed of the car and its conduct by the motorman.
    Yerdict and judgment for plaintiff for cts. Plaintiff appealed.

      Errors assigned were (1) in charging the jury as follows : “ It is not necessary for the purposes of this case, to go into any lengthy explanation of negligence, because it seems that the negligence alleged in this case is the fast running of a car, and possibly the unskillfulness of the person having the car in-charge.” (2) In charging the jury as follows: “ Now it was with some hesitation that we entered into the defendant’s side of this case, because the only evidence we had of the rate of speed on the part of the plaintiff was. that one witness said that the car was running pretty fast, and the other one, who was approaching it — who was going in the opposite direction and could see it approaching him — made a somewhat similar expression — that it was running pretty fast, or something of that kind.” (3) In charging the jury as follows: “ Well, as we have suggested, it is necessary that these cars should run pretty fast, otherwise they would be useless, but we concluded that we would hear the defendant’s testimony as to how fast it was running and then let you determine whether or not it was an unreasonable rate of speed considering the locality and other circumstances of the case.” (4) In charging the jury as follows : “You must say whether that was an unreasonable rate of speed, such as would be dangerous, considering the likelihood of people to get on the track there, and all the other circumstances, and if you conclude that it was not an unreasonable rate of speed, that would end the case and you should find a verdict for the defendant.” (5) In charging the jury as follows: “ It is entirely clear to us that if this boy had been a grown person, he couldn’t recover here. There is no question at all in our mind, under the law —and indeed it couldn’t be contemplated — that if a grown person would start to run across the track, or get upon the car in the manner that Mrs. McCaffrey testified that this boy did, he couldn’t recover a cent of damages if he was injured, or anybody else, if he was caught, and why? Because it would be his own fault, and the law is, that where a person contributes to the cause of injury he cannot recover.” (6) In charging the jury as follows: “ The law bas not laid down the precise period in the age of a child when this occurs, although some judges have undertaken to place it at about the age of this child— about six years — -when its reasoning powers are - developed so that it can be held to a strict responsibility for its acts.
    But the law is, in regard to children, that unless they are so small and of such tender years that it is apparent to the jury that they can have no responsibility, they must be held to such responsibility in the exercise of discretion as their age would warrant. The jury is permitted to say whether children are of that age and mental capacity, that they are able to judge of the consequences of their acts, and if they are, they are held to a degree of responsibility proportionate to their age and mental capacity.” (7) In charging the jury as follows : “ If you believe from the testimony of these two witnesses that these children made a break for the car and got under it, or, as the young man who says he was on the front of the car, testifies, they were playing there — chasing each other — and in the excitement of their play they rushed in front of this car so suddenly that the car couldn’t have been stopped, regardless of the rate of speed it was running at, of course, the rate of speed wouldn’t have anything to do with the case. If they rushed under, either in play or in an attempt to cross, or in an effort to get on the car as one of the witnesses thinks, then it wouldn’t make any difference about the speed of the car, if they did this so suddenly that the car couldn’t be stopped and the child’s life saved. Now I don’t know of any other instruction we can give-you except as to the measure of damages in cases of this kind.” (8) In charging the jury as follows: “ There is no evidence here of any medical attendance being paid for, or any expense for burial, and therefore they would not be elements of expense.” (9) The charge as a whole was misleading and inadequate to the case.

      Edward Campbell, with him R. P. Kennedy, for appellant.—
    No case of the death of a relative by negligence, can possibly constitute a case where the jury would be justified in giving nominal damages: Iron Co. v. Rupp, 100 Pa. 95; Railroad Co. v. Keller, 67 Pa. 300.

      May 10, 1897:
    This is a case for exemplary damages, as the Supreme Court of this state has often decided: Railway Co. v. Rosenzweig, 113 Pa. 519; Traction Co. v. Orbann, 119 Pa. 37.
    A child six or seven years of age was killed by the defendant’s train. No proof of pecuniary damage was necessary: Oldfield v. Railroad Co., 14 N. Y. 310.
    Request to charge that nominal damages for the death of a child were recoverable was properly refused: Prendegast v. Railroad Co., 58 N. Y. 652.
    The appellant contends that the general effect of the charge of the court below was to mislead the jury both as to law and facts. Such a general effect of the charge was erroneous: Canal Co. v. Harris, 101 Pa. 80, 93; Railroad Co. v. Brandtmaier, 113 Pa. 610.

      R. E. Umbel, of Boyd Umbel, for appellee.
    — The motorman of the defendant company had no reason to anticipate that the child would be on the track. There is no evidence that he saw the child start towards the track; he was not in a position to do so from his place in the front part of the car. There could, there fore, be no neglig'ence on his part that would contribute to the child’s injuries : Fleishman v. Railroad Co., 174 Pa. 510.
    There being no public crossings at the place where this child received his injuries resulting in his death, the railroad company had the exclusive right to its track, and it owed no duty to the father of the child trespassing thereon, nor to the child itself: Cauley v. Railroad Co., 95 Pa. 398.
   Opinion by

Beaver, J.,

The court below would have been entirely justified in granting a nonsuit at the close of the plaintiff’s testimony. The case of the plaintiff was based upon the negligence of the defend-1 ant which consisted in the alleged unusual and unnecessary speed at which the car, which struck the plaintiff’s child and caused its death, was running at the time of the accident. One witness said “the car was moving awful fast,” another “it seemed to me she was running right lively.” Another who was immediately beside the car at the time of the accident says: “ I cannot tell what the speed of the car was, but I noticed the motorman stopping the car as quick as he could.” The testimony of the same witness not contradicted establishes the fact that the car was stopped in a distance of about one half of its length; she also says “ the children were more at the side than in advance of the car, the car was pretty near as far ahead as they were at the time they were trying to cross the track; it seemed to me they were trying to cross the. track ahead of the ear,” and on her cross-examination, “ I only saw two children, they were running in the same direction as the car and as though they were trying to run around in front of the car.” The facts of this case as shown by the plaintiff are strikingly similar to Moss v. Phila. Traction Co., 180 Pa. 389, in which a compulsory nonsuit was entered in the court below and affirmed in the Supreme Court. The trial judge in the court below however concluded to hear the testimony of the defendant and in consequence of what was therein developed left the facts of the case to the determination of the jury. With the manner in which the facts were so submitted the plaintiff has little cause for complaint. It is evident that the plaintiff suffered nothing from the instructions of the court either as to the negligence of the defendant or the possibility of contributory negligence by the child who was killed, for the former must have been found to exist and the latter to have had no existence, or the verdict could not have been found for the plaintiff. The submission to tho jury of the question of the age at which children become responsible for the consequences of their acts might have been justly complained of, if the verdict had been the other way, but it did the appellant no harm for it was found in his favor and he is therefore in as favorable a position as if the court below had ruled as matter of law that the child was not responsible. The real complaint of the appellant is as to the inadequacy of the verdict, and of this he would have a right to complain in a case which was entitled to be submitted to the jury. The instructions of the trial judge as to the measure of damages were entirely correct and are evidently so regarded by the appellant, for they a.re not assigned for error.

There was no error in saying to the jury “ There is no evidence here of any medical attendance paid for, or any expense for burial, and therefore they would not be elements of expense.” If the appellant had paid or was liable to pay for medical attendance or undertaker’s services he should have shown it: The doctor who attended the child was examined as a witness. If there had been any charge for his services a single question would have developed the fact. He testifies however that he took the child to the hospital where it was cared for.

In our view of this case-however it should not have been submitted to the jury. The appellant should not have been permitted to recover either upon his case as he presented it, or as it was developed by the entire testimony.

There is therefore no error of which he can justly complain, and the judgment is affirmed.


text:
    John S. Snyder, Appellant, v. A. J. Kelly & Co.

      Execution — Postponement by interference with writ.

    A notice or letter to a sheriff directing him *■ to indorse on a testatum writ of fi. fa. the date of receipt of same and I will furnish you with a description of property upon which levy is to be made at an early date,” does not involve such interference by word or act with the execution of the writ as will postpone it to a subsequent writ of execution, the levy being made within the life of the writ.
    Argued April 19, 1897.
    Appeal, No. 66, April T., 1897, by plaintiff, from decree of C. P. Washington Co., May T., 1895, No. 88, overruling exceptions filed and confirming report of auditor, distributing the- proceeds of a sheriff’s sale, sur writ of fieri facias issued.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orladt and Smith, JJ.
    Affirmed.
    Exception to auditor’s report. Before McIlvaine, P. J.
    It appears from the report of A. M. Todd, the auditor to whom was referred for distribution a fund arising under a sheriff’s sale, that the writ of Ireland & Hughes, a testatum fi. fa., was placed in the hands of the sheriff of Washington county on April 17, 1895, returnable May 6, 1895. The plaintiff obtained judgment against the same defendant, and his writ was received by the sheriff May 6, 1895. A levy was made upon personal property of defendant on both writs, May 6, 1895. Other facts appear in the opinion of the court.
    The fund being insufficient to pay both writs, thé auditor awarded the balance of the fund in court, to wit: $899.66, to the writ of Ireland & Hughes. Defendant filed exceptions to this finding of the auditor, which were dismissed by the court and report of the auditor confirmed. Plaintiff appealed.

      Errors assigned among others were (1) in awarding the balance of the fund in court, in the above proceeding, to wit: $399.66 to Ireland & Hughes; (3) in finding as a matter of fact that the letter sent by Lee & Chapman, the attorneys for Ireland & Hughes, to the sheriff of Washington county, along with the testatum writ, issued out of the court of common pleas of Allegheny county, did not delay, interfere with or hinder the sheriff of Washington county, in the execution of the mandate of the said writ; (5) in finding that the sending of the said letter with the testatum writ was not a fraud, and was not done for the purpose of hindering, delaying and defrauding other creditors of A. J. Kelly & Co., John S. Snyder included; (10) in overruling exceptions to the auditor’s report and confirming same absolutely.

      Jno. C. .Bane, for appellant.
    — The findings and conclusions of the auditor were clearly erroneous: Weir v. Hale, 3 W. & S. 285.
    The object of the execution is the satisfaction of the debt, not security for it. The law will not endure the levying of an execution on goods, only as a security: Cowden v. Brady, 8 S. & R. 504; Com. v. Stremback, 3 Rawle, 340.
    A question similar in every sense and feature to this came before the court in Eberle v. Mayer, 1 Rawle, 366.
    Where the plaintiff directs the sheriff to delay the execution or sale the act is fraudulent: Berry v. Smith, 3 Wash. C. C. Rep. 60. See also Stern’s Appeal, 64 Pa. 447.

      Lee & Chapman, with them Braden & Campbell, for Ireland & Hughes. — That a valid levy may be made on a return day of an execution is a question that cannot be controverted: Sturge’s Appeal, 86 Pa. 413. And that property levied upon by the sheriff may be sold after the return day of the writ is equally well settled: Dorrance, Admr., v. Com., 13 Pa. 160.
    As the execution of Ireland & Hughes was issued on the 17th of April, 1895, and that of John S. Snyder on the 6th of May, 1895, it will be noticed that the lien of the former, first attached and thereupon became a lien upon all the defendant’s personal property in the county from the time the writ came into' the sheriff’s hands: Duncan v. McCumber, 10 W. 212.
    May 10, 1897:
    As this property was levied upon during the life of the first writ and sold at public sale after the usual notice, the first execution is prima facie entitled to be first paid out of the proceeds of sale, and in order to postpone it to a subsequent execution, it is incumbent upon the subsequent execution creditor to show that it was issued or used for a purpose condemned by law: Sweet v. Williams, 162 Pa. 94.
    There is no evidence of fraud on the part of Ireland & Hughes, ■ and fraud is never to be presumed: Mead v. Conroe, 113 Pa. 220; Morton v. Weaver, 99 Pa. 47.
   Opinion by

Beaver, J.,

The parties to this controversy are the claimants of a fund in the hands of an auditor for distribution, arising out of the sale by the sheriff of the personal property of a common debtor, after the deduction of certain preferred claims for labor which are not in dispute here. The claim of Ireland & Hughes, the appellees, is founded upon a writ of test. fi. fa., issued out of the court of common pleas of Allegheny county, on the 17th of April, 1895, upon a judgment recovered by them the same day against the firm of A. J. Kelly & Co., which writ was received and indorsed by the sheriff of Washington county, to whom it was addressed: “ Received at 4:50 o’clock p. m. 17th April, 1895.” It was returnable May 6, 1895. The claim of the appellant is based upon a writ of fi. fa. issued upon a judgment obtained by him against the said A. J. Kelly & Co., which said writ was received by the sheriff May 6,1895, at 8:28 A. M. A levy was made upon the personal property of the defendants on both writs May 6, 1895, the levy upon the appellant’s writ being prior in point of time to that made upon the writ of the appellees. The personal property of the defendants levied upon by virtue of both writs was sold by the sheriff on the 13th of May, 1895. The fund raised by this sale, after .the payment of certain preferred claims for labor and expenses of sale and audit, is in controversy, and is not sufficient to pay either judgment. Upon the face of these writs, without more, the money belongs to the appellees. It is alleged by the appellant, however, that the appellees, subsequently to the issuing of their writ, so interfered with its execution by the sheriff as to postpone it to the one which was its junior, in accordance with the principle of Weir v. Hale, 3 W. & S. 285, and many subsequent cases. The evidence upon which this allegation is based is found in a letter of- Lee & Chapman, attorneys for the appellees, transmitting the writ of test. fi. fa. to the sheriff, the only sentence relating thereto being the following: “ Please indorse thereon the date of your receipt of same (the writ inclosed) and I will furnish you with a description of property upon which levy is to be made at an early date.” There is no evidence, and, so far as we can find, no allegation of subsequent interference by word or act, with the execution of the writ of, test. fi. fa. by the sheriff on the part of the appellees ‘ or their attorneys. The sole question covered by the numerous assignments of error, therefore, is, did the direction contained in the letter of Lee & Chapman above quoted constitute such an interference, or did it show such an intention to interfere with the execution of the writ in the hands of the sheriff as would postpone it to a writ which was its junior in point of time ? In other words, did it express any other than a bona fide intention of selling and making the money out of the property upon which the writ was a lien from the time of its receipt by the sheriff, so as to make it fraudulent as to subsequent judgment creditors ? This question was carefully and fully considered by the auditor whose report upon the subject is exhaustive and conclusive. The report was upon exceptions, and after argument confirmed by the court below, and we can see no error therein. There is nothing in the language employed by the attorneys of the appellees which in any way indicates a desire to do other than secure the money for their clients by the legitimate use of the writ transmitted to the sheriff. A promise to furnish the officer charged with the execution of the writ with a description of the property upon which the levy is to be made is not in any way an interference with the discharge of his duty. It evinces rather a disposition to assist him in its discharge. The information promised, at least so far as the location of the property was concerned, was furnished the sheriff on the last day of the life of the writ, but it was in. time, and enabled him to obey the mandate of his writ, before he was compelled to make return thereto. The disregard by the auditor of the testimony of J. B. Chapman certainly did the appellant no harm. The case of the appellees was made much stronger by his testimony than it was without it.

There is nothing else in the ease requiring consideration. The assignments of error are all overruled, the decree of the court below is affirmed, and the appeal dismissed at the costs of the-appellant.


author: Reeder, J.,

text:
    William Rennyson, Appellant, v. The People’s National Bank of Norristown.

      Banks and banking — Error in crediting deposits — Bank's responsibility.

    A bank, where a depositor has several open accounts, cannot divert the funds directed to be deposited to one account to another to the injury and damage of the depositor; but if the depositor suffers no injury by such diversion there can be no recovery.
    Where deposits intended for R.’s individual account are credited by the bank to an account kept by R. as chairman, but belonging individually to him and paid out to him as such chairman, he suffers no damage and can make no recovery.
    Argued Dec. 8, 1896.
    Appeal, No. 92, Nov. T., 1896, by
    plaintiff, from judgment of C. P. Montgomery Co., March T., 1893, No. 79, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Assumpsit to recover moneys deposited in defendant’s bank. Before Swartz, P. J.
    It appears from the evidence that this was an action to recover such part of fifteen checks given by various persons and corporations to the order of the plaintiff and by him indorsed, “For deposit only to the credit of Win. Rennyson” and actually deposited with the defendant, The People’s National Bank of' Norristown from June 14, 1890, to April 18, 1891, which the defendant collected and failed to credit to the account of the appellant. The checks were for sums aggregating $1,159.06 all of which were collected, by the defendant and of which only $183.40 were credited to the account of the appellant.
    Demands were made for each of the sums mentioned in the checks, and payment being refused suit was instituted for the same and interest was claimed from the date of the demand and notary’s costs therefor.
    It appears that the plaintiff, at the time of these transactions, was a member of the Montgomery county bar, engaged in manufacturing, owner of the Times building in Norristown, and a leading stockholder and the chairman of the Daily Times, Limited, a Norristown newspaper joint stock company. The plaintiff was a regular depositor with the defendant, and personally made up the deposits for his account and with a rubber stamp marked the checks to his order for the same, with the inscription in blue ink, “ For deposit only to the credit of Wm. Rennyson,” and signed his name thereto. He kept a “stub” account of the deposits and of the state of the bank account. He had a separate account with the defendant kept for the Daily Times, Limited. He made deposits to its credit with a rubber stamp with inscription in red ink, “For deposit only to the credit of the Daily Times, Limited,” and signed “William Rennyson, Chairman.” The deposits by this company were made up by an employee, usually one R. S. Poinsett, its bookkeeper, who generally carried its deposits and those of the appellant to the defendant bank.
    Early in May, 1891, R. S. Poinsett absconded and shortly afterwards the plaintiff discovered that the balance of the credit in his personal account with the appellee was short $975.66, and investigation showed the failure of the defendant to give credit for the proceeds of the fifteen cheeks to that amount, and that the deposit slips which he had made out were missing, and that the deposits had been accompanied by other slips. The plain directions indorsed upon the checks were unaltered.
    The refusal of the appellee to pay the $976.66 was based upon 'the allegation that a check for $50.00 dated November 24, 1890, and that day deposited with it indorsed “For deposit only to the credit of Wm. Rennyson,” signed “ William Rennyson,” was cashed, the money being handed to whomsoever was the messenger; that of a check for $138.40 deposited February 25, 1891, indorsed, “For deposit only to the credit of Wm. Rennyson,” signed. “ William Rennyson,” $50.00 was paid in cash to the messenger, and later in the day $25.00 was returned and credited to the account of the plaintiff; and that the proceeds of the remainder of the fifteen checks were deposited to the credit of the Daily Times, Limited.
    There was evidence tending to show that the account of the Daily Times, Limited, was really the account of the appellant, and that William Rennyson, the plaintiff, was the owner thereof, although this was denied by the plaintiff, who produced evidence that two shares of #50.00 each were held by trustees for two minor sons of his respectively.
    The testimony, however, showed that William Rennyson not only acted as chairman, but attended to the money affairs, and there was no evidence showing that a complete organization was kept up by a duly constituted treasurer and secretary.
    Evidence was offered with intention to show that plaintiff had suffered loss by reason of Poinsett’s declaration based upon the error in crediting the deposits.
    The money erroneously deposited to the account of the Daily Times, Limited, was drawn out from time to time, and checks signed by the plaintiff as chairman.
    Verdict and judgment for plaintiff for $112.02. Plaintiff appealed.

      Errors assigned among others were (5) In charging the jury as follows: “ The important question is, when Mr. Rennyson as William Rennyson, chairman, drew out that money did he draw it out as his money ? Did it pass into his hands as his individual money, and did he so receive it? If he did, then it the bank, is called upon to pay it a second time by your verdict; William Rennyson as an individual has twice received the proceeds of the checks that were collected by the bank. If, on the other hand, this is a different concern, then, although that different concern may have drawn out the money, that is not chargeable against William Rennyson. If, as an illustration, I send my checks to bank and the bank by some mistake deposits them to the credit of your foreman, and afterwards the foreman draws out the money, the bank cannot say to me ‘ go to the foreman and get your money from him. It was your money. You go to the foreman and get it.’ I would answer, ‘No, I directed you to deposit that money in my account. If you deposited it in the account of anybody else you as a bank go and collect it from that person and hand it over to me. The bank could not say to me I should go and get it. I would say to the bank, ‘you are the party to collect the money for me. You are the party to pay the money over upon my order, because that is the arrangement I made with you when I became a depositor at your bank.’ ” (6) In charging the jury as follows: “A man may call his business any business he pleases. I may engage in business and take any name I see fit, 'and yet I may be the only person that is interested in it. All profits go into my pocket, I sustain all the losses, and I am the only person responsible in-that business, although the name itself may not indicate that I have anything whatever to do with it. So here, if the Daily Times, Limited, although it did not contain the name of William Rennyson, was really William Rennyson, then for all purposes in this case a payment to the Daily Times, Limited, was a payment to William Rennyson.” (7) In charging the jury as follows: “Now, it is not so much the form that may be shown as the actual substance of the thing. It may be true, and the testimony, if you believe it, seems to indicate that Mr. Rennyson gave a small interest in this partnership association to two of his sons; that originally their shares belonged to other parties, but by a sheriff’s sale and by other parties going out they finally reached his two children. If this was simply a form for keeping up appearances, and this partnership association had really no substance about it, if William Rennyson really was the whole concern, and all that he did so far as observing the act of 1874 in relation to partnership associations is concerned, was a mere formal matter without any meaning to it, then although he may show to you that he did give to his boys a very small interest in this concern, yet if in fact you find that was only a formal matter, that was only for appearance, and that in fact and in truth William Rennyson was the whole thing, that he held himself out as responsible for the debts of the concern that may have been contracted, that he was the man that would pay the losses and receive the profits, that he controlled it in every respect just as he would if it was his individual business, and it had in actual practice no other form or substance than that he was the man and the only man connected with it, then it seems to me, no matter what the form may have been, if he really was the Daily Times, Limited, 'and received the money from the bank by drawing it out when it had been deposited in the Daily Times, Limited, account, then he received this money that was diverted or placed in an improper account through the carelessness of one of the officers of the bank.” (8) In charging the jury as follows: “What else is there? Mr. Eennyson says this was a bona fide partnership association, that he was the chairman, that the managers were selected and he was chosen to that position. When he was asked who was treasurer, after some hesitation he said he-managed the moneys. I do not know that he was asked who was secretary. This act of assembly requires that there shall be managers chosen, and one'of the managers shall be the chairman and one other of the managers shall be the treasurer and secretary, or the same manager may hold both positions of treasurer and secretary. I only call your attention to this because you may find under this testimony that while certain forms were observed in respect to the partnership association, that in fact and in truth William Eennyson was none other than the Daity Times, Limited. That is a matter for you, and you are to determine the facts in this case.” (11) In overruling the objection by the plaintiff to the question : “Q. Who constituted it (the Daily Times, Limited) at this period? ” (12) In overruling the objection by the plaintiff “ to the witness testifying to any disposition of the money other than the disposition in accordance with the indorsement upon the back of the checks.” (13) In overruling the objection by the plaintiff to the question to the witness Evans, as follows: “ Q. If the court pleases, to cover that question, after all these moneys that were deposited in the account of the Daily Times, Limited — what became of the moneys after they were deposited there ? Ans: The moneys thus deposited to the credit of the Daily Times, Limited, were drawn out at different times. They were drawn out over the signature of William Eennyson, chairman, William Eennyson’signed by himself and chairman printed.” (14) In allowing the defendant’s offer “ to prove that William Eennyson at the time named came to the bank and told the officers of the bank that he was the owner of the Daily Times, Limited, that no one else had any interest in it but himself.” (15) In allowing the offer by the defendant of the agreement of sale of the Daily Times, Limited, to Irvin P. Wanger. (16) In striking out the testimony of the plaintiff, as follows:
    The Court: I will allow you to show any loss or embezzlement by an employee that you can trace to the diversion by the bank, but it must be connected with that diversion.
    Witness resumed: “ The Times, Limited, Company was kept distinctly separate in its business transactions from every other business that I had connection with, and it was running very close. The entire proceeds of the Daily Times, Limited, as it came in was abstracted by Poinsett, and the moneys from the bank belonging to my individual account were put into the Daily Times, Limited, account in order to make up that loss.”
    Mr. Larzelere: I move that be stricken out.
    The Court: Yes, unless you can show some amount of money that came into the hands of your employees, or was in your safe or in your drawer, and that that money was taken, it is useless to go on any further.
    The witness : “ Then, I would take the sums of money that came into the Times Limited Company’s drawer. They were taken almost to a cent, and the deposit was made up by diverting funds.”
    Objected to.
    Mr. Larzelere: I ask that on my motion to strike out his previous testimony we have a ruling.
    The Court: If there is no amount mentioned it cannot amount to anything to say that everything was tfaken. We do not know whether it was one cent, or $500, or $1,000. There is nothing to strike out, because there is no testimony here that amounts to anything. It is not responsive to the question that was put to him, and therefore if you insist on it, although I do not see how it hurt you, the answer not being responsive to the question, and not coming up to the requirement of the ruling of the court as made, it is stricken out.
    Plaintiff excepts. Bill sealed.
    (17) In allowing the motion of the defendant “that all the evidence relating to any embezzlement made from the Daily Times, Limited, by any of its employees be stricken out of this case.”

      Irvin P. Wanger, of Wanger Knipe, for appellant.
    — A bank which receives a deposit under an agreement to apply it to the payment of a debt due a designated person, cannot divest it of the purpose of the trust by paying a different one: Parker v. Hartley, 91 Pa. 465; Wilson v. Dawson, 52 Ind. 513; Judy v. Bank, 81 Mo. 404; Morse on Banks, sec. 326.
    May 10, 1897:
    A party may also, by agreement, debar himself from pleading a set-off: Hennis v. Page, 3 Whart. 275; United States Bank v. Macalester, 9 Pa. 475; Carman v. Garrison, 13 Pa. 158.
    The agreement need not be express, but may be implied: Ardesco Oil Co. v. N. A. Mining and Oil Co., 66 Pa. 375; Shearman v. Morrison, 149 Pa. 397.
    The part of the charge included in the eighth assignment presents but one view of the alleged conversation between the appellant and the bank officers, and is in conflict with the decision in Penna. Canal Co. v. Harris, 101 Pa. 80, that “ it is error to confine the attention of the jury to one view of the case where there is more than one which they should consider:” Citing Garret v. Gonter, 42 Pa. 143: Relf v. Rapp, 3 W. & S. 21.
    The general effect of the charge was accordingly partial and tended to mislead, and hence came directly within the decision of the Supreme Court in Canal Co. v. Harris, 101 Pa. 80.
    This is quoted approvingly by Justice McCollum: in the case of Peirson v. Duncan, 162 Pa. 187, with reference also to the opinion of Justice Green in Penn. Iron Co. v. Diller, 17 W. N. C. 6.

      M. M. Larzelere, with him E. L. Mailman, for appellee.
    — The question was whether the Daily Times’ account belonged to the plaintiff. The facts were fairly stated in the charge, and the inference left to the jury. The plaintiff presented no requests to charge in any particular way. No rule laid down in Penna. Canal Co. v. Harris, 101 Pa. 80, was violated.
   Opinion by

Reeder, J.,

The instruction of the learned court below to the jury upon the question of the bank’s liability for money erroneously paid or mistakenly diverted from one account to another whereby the depositor suffers loss, was a full, complete and exact statement of the law. A bank where a depositor has several open accounts cannot divert the funds directed to be deposited to one account to another to the injury and damage of the depositor. But if the depositor suffers no injury by such diversion, there can be no recovery. The only question therefore for the jury was the one subnritted by the court below, namely; did the plaintiff actually get the money diverted by the bank from the account to which it was directed by him to be accredited. As to that portion of the amount paid in cash to the messenger for which the jury rendered a verdict there can be no question now. That portion which was diverted from Rennyson’s private account and accredited to the account of “ The Daily Times, Limited ” which was owned by Rennyson, that in fact Rennyson was “ The Daily Times, Limited,” and as therefore the money diverted from one account and that his individual account, was accredited to another account which was also his own individual account, although under another name and of which he got the benefit there was no injury to the plaintiff and therefore there can be no recovery. The case of Bank v. Mason, 95 Pa. 117, relied upon by plaintiff is not in point. There the bank refused to pay “ A ” money deposited by him claiming that the money belonged to “D.” The Supreme Court held that only “ D ” or an attaching creditor could set up a claim for the money against “A,” that the bank having received the money from “ A ” could not avail itself of any such defense. A very different defense from the one in this case. Here the bank says in reply to Rennyson’s action for the money diverted by them, “We have already paid you this money upon your own checks, signed ‘Wm. Rennyson, chairman’ upon the account of ‘ The Daily Times, Limited ’ which was Wm. Rennyson.” This question was fairly submitted to the jury, and the jury found that Wm. Rennyson was in point of fact “The Daily Times, Limited.” If, however, even that being true it could be proven that Wm. Rennyson was misled to his injury by such mistaken entry of his deposit by the bank, Rennyson would nevertheless be entitled to recover from the bank the amount which he lost by the bank’s mistake, if he lost anything. It cannot be said in this case upon the facts as found by the jury that there was any loss at all unless the 16th and 17th assignments of error must be sustained, and we should regard the evidence stricken out by the court as competent and material to the issue. The plaintiff testified that an employee had abstracted from the money received by “ The Daily Times, Limited ” from time to time considerable amounts without saying how much, or specifying the time more definitely than from June, 1890, to May, 1891. Unless the defendant could go further and 'show that the mistaken entry on the books of the bank led to his deception in regard to the embezzlement, in no aspect of the case could it be considered. Even if he had done so the facts testified to were not properly in evidence, for the reason that no sufficient proof of embezzlement was given by the defendant. A vague statement that moneys were taken was clearly insufficient even though that fact had been so connected with the mistaken entries in the books of the bank. In the absence of any sufficient proof of embezzlement, and also the failure to show how this embezzlement taken in connection with the mistaken entries of deposits led to his damage, the court committed no error in striking out the testimony of the plaintiff complained of in the 16th and 17th assignments of error. This disposes of all the assignments of error.

Judgment affirmed.