author: Head J.,

text:
    First National Bank of New Bethlehem, for use of J. G. Maikranz v. Maikranz.

      Attachment execution — Insurance—Fire insurance — Actions.
    1. An attachment execution against a fire insurance company to attach a fund due to the defendant in the execution, for a loss by fire, is a suit or action on the policy.

      Insurance — Fire insurance — Proofs of loss — Evidence—Question for jury.

    2. Where an insured under a fire policy has made an honest and a substantial effort to comply with the requirements of his policy as to the particulars in his proofs of loss, it becomes incumbent on the company to point out the particulars in which that effort has failed; and if the company in discharging this obligation, points to but a single defect or two, it will be held to have waived any others that may exist.
    3. The question of waiver is for the jury where there is evidence that the conduct of the company was calculated to mislead the insured into the belief that if he could, by production of bills and otherwise, satisfy its representative that the loss was as great as he claimed, no further complaint would be made as to the form or character of the statements of his loss which he had previously furnished.
    Argued April 26, 1910.
    Appeal, No. 134, April T., 1910, by Philadelphia Underwriters, garnishees, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1905, No. 503, on verdict for plaintiff in case of First National Bank of New Bethlehem, for use of J. G. Maikranz v. John G. Maikranz, defendant, and Insurance Company of North America and Fire Association of Philadelphia, doing business as the Philadelphia Underwriters, garnishees.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Attachment execution. Before MacFarlane, J.
    The facts are stated in the opinion of the Superior Court.
    Defendant presented the following points:
    1. The policy issued by the garnishees to J. G. Maikranz is of the standard form and provides, inter alia, as follows, to wit:
    October 10, 1910:
    “No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity .... unless commenced within twelve months next after the fire.”
    The evidence being uncontradicted that no suit was brought by the insured against the garnishee upon said policy, although more than a year has elapsed since the fire, the execution attachment at No. 530, December Term, 1905, of this court, although issued and served before the expiration of the year from the date of the fire, is not a suit or action on the policy within the meaning of its terms, and the plaintiff cannot recover, and the verdict should, therefore, be for the garnishees. Answer: Refused. [1]
    2. Under all the evidence the verdict should be for the garnishees. Answer: Refused. [2]
    Verdict and judgment for plaintiff for $1,210. Garnishee appealed.

      Errors assigned were (1, 2) above instructions, quoting them.

      W. K. Jennings, with him D. C. Jennings, for appellant.

      Levi Bird Duff, for appellee.
   Opinion by

Head J.,

The insurance company, garnishee, had issued its policy insuring the household goods and personal property of the defendant. During the life of the policy a fire occurred resulting in the total loss of the property insured. The. plaintiff then, who was a judgment creditor of the defendant, issued an attachment execution in which the insurance company was made garnishee. The proceeding resulted in a trial and verdict in favor of the plaintiff upon which judgment was entered and the garnishee appeals.

The first contention of the appellant is that the attachment execution was not “a suit or action on this policy” within the meaning of that provision which requires that such suit or action be brought within a period of time limited. If this contention be well founded, the company has been relieved of liability because it is conceded no other suit or action on the policy has been begun within the time fixed by the policy.

Whether we view the question from the standpoint of reason or authority we must conclude that this position is untenable. An attachment execution, as the form and language of the writ clearly indicate, is of a dual nature. As against the defendant it is of course an execution process, and is necessarily preceded by a judgment which has liquidated the amount of the indebtedness. But it also contains a clause of summons for the garnishee, and as to the latter it is the beginning of a new proceeding. By it this garnishee was brought into a court having complete jurisdiction, to try and determine what, if anything, it owed to the defendant upon its policy of insurance. When thus brought into court it possessed every right of defense that it would have had to a common-law action brought by the assured directly on the policy. True, the proceeding was not instituted by the assured in person but by one who had become clothed, by force and effect of the statute, with every right of action which the assured himself could assert. The garnishee could defend on legal grounds, on matters of fact, or on both. The issues it presented were disposed of before a court and jury as if the action had been under the forms of the common law, and the judgment that would properly terminate such a proceeding would be a complete bar to any other suit or action directly on the policy.

Whilst it may be true that the precise question in the form it is now raised has not been passed upon by the appellate courts of this state, there is, we think, abundant authority for the principle, which when applied, must control it, In Barr v. King, 96 Pa, 485, it was held that a foreign corporation qualified to do business in this state may be made a garnishee in an execution attachment. In disposing of that case Mr. Justice Trunkey used the following language: “This writ is in the nature of an execution against the defendant in the judgment on which it issues; but it is essentially in the nature of a suit at law against the garnishee, who may appear, plead, have a trial by jury, and- writ of error, as in other action at laws: Fithian v. New York & Erie Railroad Co., 31 Pa. 114. In that' case it was decided that a foreign corporation that had accepted the privilege of extending its works through this state, upon the condition, 'that in all suits or actions which may be brought against said company, the service of process upon any manager, toll-gatherer, or other officer of the company shall be as good and available in law as if made on the president thereof,’ and that said company shall keep an officer, resident in the county of Susquehanna, could be made a garnishee in an attachment execution. ... It was said that the true intent of the ninth section of the Act of February 16, 1841, P. L. 28, was to bring the corporation within the jurisdiction of this state to answer in all suits or actions at law which might be brought against it; and that an attachment execution is within the meaning of the act.” The same doctrine is declared in Kennedy v. Agricultural Insurance Co., 165 Pa. 179. It seems clear, therefore, that this contention of the appellant cannot prevail.

Complaint is further made of the action of the learned trial court in submitting to the jury to determine as a matter of fact whether or not the insurance company had waived that provision of its policy requiring formal proofs of loss to be made within sixty days from the date of the fire. It is argued that such submission was erroneous because there was no sufficient evidence to warrant it. In determining the question thus • raised it is to be remembered that the appellant puts itself in the attitude of demurring to the whole of the evidence. Every matter of fact testified to by the plaintiff or his witnesses, and every favorable inference fairly deducible therefrom, are to be regarded by us as established facts in the ease. Viewing the record in this light, the plaintiff may say that these facts have been proven: That when the policy of insurance was issued the local agent visited the premises, inspected the goods and effects to be insured, satisfied himself of their value, and then urged that more insurance be taken. Notice of the fire was at once given to him and he promptly appeared upon the scene, examined the loss, and discovered that the salvage was practically nothing. He in turn gave' notice to the company, and its special agent visited the premises within three or four days. The assured first prepared a detailed and itemized inventory of the property destroyed, going over the house room by room and naming the various articles that had been contained in each prior to the fire. The value of each article was set down in order. This was prepared by the assured from memory and contained his certificate at the end that it truly represented his loss, but it does not appear to have been sworn to. He was then advised that a sworn statement must be made before the nearest magistrate, and he prepared a second statement to which he was sworn before such magistrate. This also was forwarded to the company or its special agent.

It appeared from the conversation of such special agent, ■ as well as from letters written by him, that the chief difficulty in the way of a prompt settlement was the inability of the company to accept the valuations placed by the assured on the property destroyed, and a sum representing what the agent believed to be full compensation was offered and declined. At the request of the company the assured procured, as far as he was able, bills and receipts tendihg to verify his statements of the value of the property destroyed. For instance, in his letter of July 10, exhibit No. 5, the special agent, writing to the assured, says among other things, “I have gone over carefully the alleged statement of your loss by fire, alleged to have occurred on June the 9th, and find so many apparent discrepancies in the number of articles claimed to have been destroyed and in their cost that I am obliged to ask you to furnish bills or duplicate bills of the furniture and goods in accordance with the terms and conditions of your policy, referring specially to lines 81 to 85, both inclusive. This will not be difficult to obtain, especially if the furniture was purchased as recently as you stated to me,” etc. In an earlier letter of June 23 the same special agent stated: “I am in receipt of your favor of the 21st inst., in regard to your fire loss, and beg to say that I have no desire to put you to any expense in the matter whatever. I asked you for an itemized statement or schedule of your furniture, without which we cannot arrive at a true estimate of your loss. This must be made up in detail, naming the cost of each article,” etc.

Of course, we are not unmindful that in many respects the testimony of the plaintiff and his witnesses as to these matters of fact was strenuously denied, but, as we have already said, for the purposes of determining the soundness of the appellant’s present contention we are obliged to regard all of them as having been established by the verdict of the jury. Under such a state of facts, in the light of the modern decisions of the Supreme Court, we are not able to say that the learned court fell into error in submitting to the jury the question whether or not the right to insist upon formal proofs of loss had been waived. It is true there have been many casés on this subject. Necessarily, to a very considerable extent each one of them must depend upon its own facts. But it is quite clear that, taking them all together, they have established the principle that where the assured has made an honest and a substantial effort to comply with the requirements of his policy it becomes incumbent on the company to point out the particulars in which that effort has failed. And where the company, in discharging this obligation, points to but a single defect or two, it will be held to have waived any others that may exist: Thierolf v. Insurance Co., 110 Pa. 37; Davis Shoe Co. v. Insurance Co., 138 Pa. 73; Gould v. Insurance Co., 134 Pa. 570; Frick v. United Firemen’s Ins. Co., 218 Pa. 409.

We are of opinion, therefore, that the learned trial judge could not have properly declared as matter of law that there was no evidence in the case from which the jury could fairly infer that the conduct of the company was calculated to mislead the assured into the belief that if he could, by the production of bills and otherwise, satisfy its representative that the loss was as great as he claimed, no further complaint would be made as to the form or character of the statements of his loss which he had previously furnished. The assignments of error are therefore dismissed.

Judgment affirmed.


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Starvcevic v. National Croatian Society, Appellant.

      Beneficial associations — Benefits—Loss of leg — Sick benefits.

    Where the by-laws of a beneficial association provide for sick benefits payable by a local section at the rate of five dollars a week for nine months, and thereafter a payment of the same amount per week by the general society, but with a provision that when the beneficiary received $800 he ceases to be a member, and another by-law provides for the payment of $400 for the loss of a leg, a member who has received $5.00 a week for nine months from the local section and $400 for the loss of a leg, without waiving any of his rights to sick benefits from the general society is entitled to receive from the latter the difference between $800 and the total amount which he received, $580, that is to say $220.
    Argued April 14, 1910.
    Appeal, No. 19, April T., 1910, by defendant, from order of C. P. No. 4, Allegheny Co., Fourth T., 1908, No. 860, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Paval Starvcevic v. The National Croatian Society.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.

      October 10, 1910:
    Assumpsit for sick benefits. Before Cohen, J.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in making absolute rule for judgment for $220 for want of a sufficient affidavit of defense.

      Robert T. Reineman, with him Charles. W. Jones, for appellant.

      J. S. McKelvey, Jr., with him Langfitt & McIntosh and Frank B. Wickersham, for appellee.
   Opinion by

Henderson, J.,

The plaintiff’s leg was injured on April 14, 1906, while he was a member in good standing of the sub-assembly of the defendant society located at Steelton, Pennsylvania. He thereby became entitled to the benefits of by-law No. 24 of the society, which provides that “All members if sick shall receive according to the Sub-Assembly by-laws, a weekly benefit of not less than five dollars per week during a period of not more than nine months. A member who has been regularly assisted by his Sub-Assembly during a period of nine months, if still sick, shall be consigned to the National Croatian Society, which shall assist him with an allowance of five ($5.00) dollars per week from the Endowment Fund for the invalid members of the National Croatian Society.” In accordance with the obligation of this by-law the sub-assembly assisted the plaintiff to the amount of $5.00 per week until January 14, 1907, at which time he was consigned to the national society. The latter organization thus became bound to contribute to his support at the rate of $5.00 per week during the continuance of his disability subject to the restriction of by-law No. 27, which provides that “In all cases where the beneficiary receives eight hundred ($800) dollars, the insured ceases to be a member of the National Croatian Society.” Bylaw No. 19 provides that “A member who loses a leg shall receive a benefit of four hundred ($400) dollars from the National Croatian Society.” The affidavit of defense states that the plaintiff made application under this bylaw for an allowance of $400 for the loss of his leg and that this amount was paid to him on May 27, 1908, “in accordance with said by-law No. 19.” It is not stated in the declaration nor alleged in the affidavit of defense that the plaintiff sustained an actual amputation of the leg, the fact appearing to be that some time shortly before May 27, 1908, the injury to the plaintiff was recognized as permanent and equivalent to the actual loss of a leg and on that state of facts payment of the $400 was made. The defense set up is that this payment amounted to a full discharge of the defendant and that the plaintiff is not entitled to receive the benefits provided for under by-law No. 24. We need not consider what the position of the defendant would be if the plaintiff had actually lost a leg and suit were brought for sick benefits after the injury, for the plaintiff did not suffer the loss of his leg. He was injured and was rendered sick by the hurt he received, but it cannot be contended that up to the time when his injury was regarded by him and the society as equivalent to the loss of his leg he was not entitled to the relief provided for by the by-law. There is nothing in the case to show that the plaintiff could have successfully maintained a claim for $400 under bylaw No. 19 for the loss of his leg at any time before it was agreed by him and the society that he should be considered as entitled to that amount and during all the preceding period while he was a charge of the national society he was entitled to the weekly payment of $5.00 as provided for in by-law No. 24. If he had recovered from his injury he would, of course, not have been entitled to the $400. It does not at all follow because he was paid that amount in May, 1908, that he is to be regarded as having lost his leg at the time of the injury. There was a chance for recovery and the plaintiff and the society evidently so looked at the case. We think it clear, therefore, that up to the time when the parties agreed to act on the assumption that the plaintiff had lost his leg the right to benefits survived. The affidavit does not state when this arrangement was made, but it does show that payment was made May 27, 1908, and it was presumably near this time that “The defendant recognized said claim as a. valid one” as stated in the affidavit of defense. The plaintiff would have been entitled to the weekly benefit allowed by by-law No. 24, up to that date if it were not for the limitation of by-law No. 27. He received $180 from the local lodge and $400 from the defendant. These sums are to be deducted from the total amount which he could receive. This would leave a balance of $220 to which the plaintiff would be entitled. As the plaintiff had been a charge on the national society for about sixty-six weeks up to the time when the $400 payment was made the balance of $800 covers but two-thirds of that period and this is the amount which with interest the court below adjudged to be due the plaintiff. The averment in the affidavit of defense that the plaintiff received and accepted the sum of $400 in full satisfaction of his claim for said injury must be read in connection with that part of the affidavit which states that payment of the sum of $400 was made to the plaintiff in accordance with by-law No. 19. It was evidently not intended by the defendant to allege that the plaintiff had expressly released his claim for sick benefits accrued under by-law No. 24, for the payment was made under by-law No. 19. If the plaintiff accepted the payment of $400 in satisfaction and discharge of all that was due him under either by-law that fact should have been clearly set forth.

The action of the court below is consistent with the facts as presented in the declaration and affidavit of defense and the judgment is affirmed.


text:
    Perrine v. Lake Shore & Michigan Southern Railway Company, Appellant.

      Railroads — Cattle guards — Negligence—Evidence—Acts of March 28, 1868, P. L. 514, and April 17, 1869, P. L. 1125.

    1. The fact that a railroad company maintains a cattle guard which in the opinions of its officers is a proper and sufficient device will not relieve the company from liability under the local Act of March 28, 1868, P. L. 514, extended to Venango county by the Act of April 17, 1869, P. L. 1125, for the loss of cattle where the evidence offered by the owner of the cattle tends to show that the plan adopted by the .company did not result in excluding orderly cattle from the track. In such a case the question whether the company has performed its duty is for the jury.
    2. Where a railroad company has neglected to establish and maintain a proper cattle guard as required by the Act of March 28, 1868, P. L. 514, it is not relieved from liability for the loss of cattle by the fact that the fences around the field of the owner of the cattle were insufficient to restrain orderly cattle.
    3. The Act of April 4, 1889, P. L. 27, which repeals the first section of the Act of 1700, 1 Sm. L. 13, does not repeal by implication the local laws in operation in numerous counties which require railroad companies operating railroads therein to fence their rights of way and maintain sufficient cattle guards.
    Argued April 13, 1910.
    Appeals, No. 53, April. T., 1910, by defendant, from judgment of C. P. Venango Co., Jan. T., 1908, No. 2, on verdict for plaintiff in case of L. F. Perrine v. The Lake Shore & Michigan Southern Railway Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover for the loss of a steer. Before Criswell, P. J.
    At the trial it appeared that on September 29, 1907, a steer belonging to the plaintiff escaped from his pasture and straying about, crossed over a cattle guard at a public road crossing, entered upon the defendant's right of way and was struck by an engine and killed. To recover the value of the animal under the local statute of March 28, 1868, P. L. 614, extended to Venango county by the Act of April 17, 1869, P. L. 1125, the plaintiff brought this suit.
    Defendant presented, inter alia, the following points:
    2. If the jury find that the plaintiff’s fences around his pasture were insufficient to restrain orderly cattle and in bad repair, the plaintiff has failed in the performance of his legal duty to confine his stock to his own land and is not entitled to recover in this action. Answer: Refused. [1]
    3. Under all the evidence the verdict should be for the defendant. Answer: Refused. [2]
    4. That the plaintiff’s action being under the special statute of March 28, 1868, the burden of proof is upon him to establish all the facts necessary to bring himself within the terms of the statute, and the plaintiff having failed to show that the animal was an orderly animal such as is specified in the statute, he is not entitled to recover in this action. Answer: Refused. [3]
    Verdict and judgment for plaintiff for $37.35. Defendant appealed.

      Errors assigned were (1-3) above instructions, quoting them.

      John L. Nesbit, for appellant.
    The defendant’s liability rests upon whether or not it was negligent in the performance of its duty under the special statute, and the test of negligence is the ordinary usage of business: Fick v. Jackson, 3 Pa. Superior Ct. 378; Kilbride v. Carbon Dioxide, etc., Co., 201 Pa. 552.
    The plaintiff’s duty was to keep his cattle from roving, and he was bound at all hazards to confine them to his own lands: Erdman v. Gottshall, 9 Pa. Superior Ct. 295; Barber v. Mensch, 157 Pa. 390; Dolph v. Ferris, 7 W. & S. 367; Shultz v. Wall, 134 Pa. 262; New York, etc., R. R. Co. v. Skinner, 19 Pa. 298; North Pennsylvania R. R. Co. v. Rehman, 49 Pa. 101; Horricks v. R. R. Co., 1 Phila. 28; Hance v. Cayuga, etc., R. R. Co., 26 N. Y. 428.
    October 10, 1910:

      B. F. Glenn, for appellee.
    This case is ruled by Penna. R. R. Co. v. Japes, 20 W. N. C. 570.
   Opinion by

Henderson, J.,

The first proposition for which the appellant contends is that the court was in error in submitting to the jury the question whether the defendant had constructed a sufficient cattle guard at the place where the plaintiff’s cattle passed from the highway onto the defendant’s right of way. The position taken is that a cattle guard is sufficient which railroad men of practical knowledge and experience would consider effective to prevent usually orderly cattle from straying on the track, and as the defendant’s evidence showed that the cattle guard in question was built according to a plan adopted by the defendant and another railroad company operating lines in western Pennsylvania and which was considered a standard device for the purpose there was no default by the company in this respect and liability under the special statute did not arise. The ordinary usage of railroad companies is said to fix the standard of duty and that as the defendant’s cattle guard was made after an approved pattern its duty was performed. It may be said with reference to this course of reasoning that the matter of the form of the structure is not within the exclusive control of the company when the question arises whether the law has been complied with. The statute does not prescribe the form of the guard, but it declares the effect necessary to be produced; that is, it shall be sufficient to prevent orderly cattle, etc., from straying upon the railroad track. Whether the device adopted accomplished this result must necessarily be a question of fact to be determined by a jury. It may be that employees of a railroad company are well qualified to determine this question, but they are no more so than others whose observation and experience enable them to form an intelligent opinion on the subject. Witnesses who have frequently seen orderly cattle walk over the cattle guards are certainly as well qualified to judge of the adequacy of the obstruction as are those whose theory or experience leads to a contrary conclusion. The plaintiff’s evidence showed that the plan adopted by the defendant did not result in excluding stock from the track, and while this was in a degree contradicted by witnesses called for the defendant the question was still one for the consideration of the jury. That this question was properly submitted is shown by Penna. R. R. Co. v. Japes, 20 W. N. C. 570. The next ground of complaint is that the court refused to charge the jury that if the fences around the plaintiff’s field were insufficient to restrain orderly cattle the plaintiff failed in performance of his duty to confine his stock to his own land and that he was therefore not entitled to recover. It will be observed, however, that the statute fixes the liability of the defendant if it fail to perform the duty imposed. The statute was designed not only for the protection of the property of persons residing in the vicinity of railroads but also for the protection of the limbs and lives of those traveling over or using the railroads: R. R. Co. v. Mead, 8 W. N. C. 206. Of this statute and one of like character it was said in Welles v. Northern Cent. Ry. Co., 150 Pa. 620, "They are both within a proper exercise of the police power of the state and designed for the protection of persons and property.” It was for the legislature to say, therefore, what should be the penalty for a failure to comply with the law on this subject. Liability to pay damages for stock killed or injured was presumably regarded as a spur to continued compliance with the requirement of the statute. Whether the animal killed was on the premises of the owner at the place where it crossed the cattle guard does not appear from the evidence nor do we consider it material. Conceding that since the repeal of the first section of the act of 1700, the owner of cattle is bound to restrain them if he would avoid liability in trespass for damage done by them while at large we do not regard this question as involved in the present controversy. The presence of the plaintiff’s steer on the public highway did not injure anyone. The defendant was bound to use means in the form of a cattle guard fairly adequate to keep the animal off the track within its right of way, and the liability arises from its failure so to do. We cannot regard the act of 1889 which repealed the first section of the act of 1700 as repealing by implication the local laws in operation in numerous counties which require railroad companies operating railroads therein to fence their rights of way and maintain sufficient cattle guards. The repealing statute related to an entirely different subject, was general in its terms and had no application to the local laws referred to. Notwithstanding the clear and forcible argument of the appellant’s counsel we are unable to sustain the assignments of error.

The judgment is affirmed.


text:
    Proctor Alley.
    October 10, 1910:
    Argued April 22, 1910.
    Appeal, No. 102, April T., 1910, by the city of Pittsburg, from order of C. P. No. 3, Allegheny Co., Nov. T.,, 1908, No. 226, dismissing exceptions to report of viewers In re Proctor Alley.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
   Opinion by

Henderson, J.,

This case was argued with the appeal of the City of Pittsburg v. Calvary Cemetery Association and involves the same question. An opinion has been this day filed in the latter case, post, p. 289, affirming the judgment of the court below.

The judgment is therefore affirmed in this case.


text:
    Tabor Street.
    October 10, 1910:
    Argued April 22, 1910.
    Appeal, No. 103, April T., 1910, by the city of Pittsburg, from order of C. P. No. 3, Allegheny Co., Nov. T., 1908, No. 228, dismissing exceptions to report of viewers In re Tabor Street.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
   Opinion by

Henderson, J.,

This case was argued with the appeal of the City of Pittsburg v. Calvary Cemetery Association and involves the same question. An opinion has been this day filed in the latter case, post, p. 289, affirming the judgment of the court below.

The judgment is therefore affirmed in this case.


author: Orlady, J.,

text:
    Arbour v. Pittsburg Produce Trade Association, Appellant.

      Corporations — Trade associations — Black listing — Equity—Jurisdiction — Act of June 19, 1871, P. L. 1880.

    1. A court of equity has jurisdiction under the Act of June 19, 1871, P. L. 1360, to enjoin a trade association organized as a corporation of the first class under the Act of April 29, 1874, P. L. 73, from enforcing by-laws by which the members of the association were held bound to refuse to sell “for spot cash” to any persons indebted to members of the association, and by which provision was made for an arbitration committee consisting only of members to pass upon the validity of the claims of members against persons to whom they had sold goods, and whom they had blacklisted as delinquent.
    2. The visitorial or superintending power of the state over corporations created by the legislature will always be exercised, in proper cases, through the medium of the courts of the state, to keep such corporations within the limits of their lawful powers, and to correct and punish abuses of their franchises.

      Argued April 22, 1910.
    Appeal, No. 112, April T., 1910, by defendants, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1907, No. 373, on bill in equity in case of W. H. Arbour et al. v. Pittsburg Produce Trade Association et al.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Miller, J., specially presiding, found the facts to be as follows:
    FINDINGS OF FACT.
    1. The plaintiff is a retail produce dealer in the city of Pittsburg, regularly supplying a well-established trade, with his place of business in the Liberty market. His business is buying and selling fruit, vegetables, and other kindred products. He obtains his daily supplies from wholesale produce and commission dealers in the city of Pittsburg, a large number of whom are members of the defendant association.
    '2. The defendant corporation, composed of the partners or firms mentioned in the pleadings, was chartered by this court under the general corporation act of April 29, 1874. Its purpose, as stated, is as follows:
    “To encourage and protect trade and commerce, by adjusting differences among the members; spreading reliable commercial intelligence among them; protecting them against unjust and unlawful exactions by carriers and others; furnishing information to members to enable them to regulate credits and collect debts, and advancing in every lawful way, the interest of the business in which the members are engaged.”
    3. Among the by-laws of the defendant association are the following:
    Part of sec. 4 of art. VI is as follows:
    “Upon receipt of reports from any member of the Association of persons indebted to such member who have not paid their accounts when due, he (the Secretary) shall, unless as provided in Sec. 5 of this Article, tabulate the names of such debtors and cause to be furnished a sufficient number of such lists of debtors to supply each member of the Association with a copy thereof, which list he shall cause to be delivered in a sealed envelope to all members of the Association on the day on which the report was received by him. He shall immediately upon receipt of notice from the different members of the Association who have reported any person, partnership or body corporate as debtor that such debtor has ‘paid,’ remove such name or names from the list of debtors in such manner as the collection Committee may direct and give notice thereof to all members.”
    Section 1 of art. VIII is as follows:
    “The President at the annual meeting shall elect from the Board of Managers and appoint the following committees, which committees shall hold office for one year. . . . Second: An Arbitration Committee of five members.”
    Section 3 of art. VIII is as follows:
    “The arbitration committee shall be chosen so as to represent, if possible, the various commercial interests of the membership. They shall have all the powers and be subject to all the requirements of arbitrators in the trial of causes submitted to them, and such decisions as they may render, or such awards as they may make, shall be final, and not subject to appeal.”
    Paragraph second of sec. 14, art. XIV, is as follows:
    “In the event of the creditor and debtor not being able to make adjustment, the debtor shall pay to the creditor before the expiration of the time fixed for payment in Section 1 of this Article, the amount of the bill rendered, less the amount actually in dispute, or be reported by the creditor as a delinquent debtor. Upon said payment being made, the particular matter in dispute and the amount thereof shall be submitted at once by the creditor and debtor to the Arbitration Committee for adjudication, which committee shall give judgment thereon before the expiration of Tuesday of the succeeding week. Should'the judgment be against the debtor, he shall pay the disputed amount to the creditor before the expiration of the succeeding Saturday at twelve o’clock, noon, or be reported as a delinquent debtor.”
    Section 12 of art. XIV is as follows:
    “The payment of an account due any member of the Association by a debtor, shall not entitle the member to sell goods on credit or otherwise to said debtor, until the member has reported the account 'paid’ and has received from the Secretary notice that said debtor has been removed from the debtor list.”
    Section 6 of art. XIV is as follows:
    “All members are held bound that they or their firm shall refuse to sell on credit, or for spot cash to any person or firm reported as a debtor until duly notified by the Secretary that such party’s name has been removed from the list. The penalty for each violation shall be the same as Sections 2 and 3 of this article.”
    Section 1 of art. XIV is as follows:
    “All bills for goods sold on credit shall be due and payable on Monday following the sale, and unless paid on or before twelve o’clock noon on the following Saturday, members shall report to the Secretary by two o’clock the same day, the name and address of each party, date and amount of each bill.”
    All of said by-laws are made part of these findings of fact. 4. Out of the total number of retail produce merchants and others dealing with the different members of this corporation, an average of 200 are delinquent weekly.
    From the number of special complaints set forth in the bill and the testimony, the fact is found that the plaintiff and others were wrongfully placed on the defendants’ delinquent list for debts alleged to be due, and that credit or the purchase of goods for cash tendered was refused them by other members until they' paid the alleged debt a second time, causing inconvenience and loss, for which these parties have brought suits for damages, now pending in the common pleas court.

      5. In some of the other cases disputes as to the amounts due caused retail customers to be placed on the delinquent list, during which time they were refused the sale of goods for cash or on credit from any member of the association, with inconvenience and loss to them.
    6. In some instances where disputes arose delinquent purchasers agreed to submit their differences to the arbitration committee, but were obliged to stipulate that they would be bound thereby, in which case their names were removed from the delinquent lists. When they refused to be bound by the pending arbitration their names remained on the delinquent list and they were refused the purchase of goods even though they tendered cash therefor.
    7. While there' are many large receivers of produce by sale or commission not members of the defendant association from whom retail dealers on the delinquent lists could- purchase, it happened and can happen that the only produce or article wanted by a delinquent retail dealer at any particular time is held only by members of that defendant association. Under these circumstances such delinquent, or alleged delinquent, debtor was unable to obtain the particular goods he desired, although tendering cash therefor, with a resultant inconvenience and loss-in his business.
    8. In one instance the purchaser paid for in cash and placed in his wagon certain goods or merchandise; later his goods were removed by the seller, his money returned, and he was refused his goods, because his name appeared on the delinquent list — this though he claimed he owed nothing to the alleged creditor. He finally paid the alleged delinquency a second time for the purpose of being restored to credit upon the defendant corporation’s delinquent list.
    The court entered the-following decree:
    And now, to wit, April 16, 1909, this cause came on to be heard and at this term upon bill, answer and testimony and was argued by counsel, and, upon consideration thereof, it is ordered adjudged, and decreed as follows, viz.:
    a. The words, “or for spot cash,” in sec. 6 of art. XIV of the by-laws of the defendant, The Pittsburg Produce Trade Association, as shown in the bill be stricken out.
    b. Section 12, art. XIV, of the said by-laws, reading as follows, to-wit: “The payment of an account due any member of the Association by a debtor, shall not entitle the member to sell goods on credit or otherwise to said debtor until the member has reported the account ‘paid’ and has received from the Secretary notice that said debtor has been removed from the debtor list” be and the same is declared null and void in so far as the same relates to a sale for spot cash.
    c. Sections 1 and 3, art. VIII, and paragraph 2, sec. 14 of art. XIV of said by-laws providing for the appointment of an arbitration committee with the powers and duties as therein set forth are hereby declared null and void.
    d. The said defendant, The Pittsburg Produce Trade Association, and, all and singular, its members, the defendants, their officers, managers, agents, servants and employees be and they are hereby enjoined and perpetually restrained from adopting, maintaining, and enforcing the aforesaid provisions of the by-laws as above decreed.
    f. The said defendants shall pay the costs so far accrued.

      Error assigned was decree of the court.

      John P. Hunter, of Lyon & Hunter, with him Seymour, Patterson & Siebeneck, for appellants.
    The plaintiff, or plaintiffs, had no standing to inquire into the validity of the by-law in question under the act of June 19, 1871: Windsor Glass Co. v. Carnegie Co., 204 Pa. 459; Larimer, etc., St. Ry. Co. v. Ry. Co., 137 Pa. 533; Sparhawk v. Ry. Co., 54 Pa. 401; Cox’s App., 11 W. N. C. 571; Wilson v. Strawbridge, 4 W. N. C. 35; Cox v. R. R. Co., 10 W. N. C. 552; Seitz v. Traction Co., 5 Pa. C. C. Rep. 469.
    The by-laws controlling cash payment and arbitration were not in excess of the powers granted in the charter: Watt’s App., 78 Pa. 370; Malone v. Lancaster Gas Light, etc., Co., 182 Pa. 309; Howley v. R. R. Co., 213 Pa. 36; Folk v. Loan Assn., 214 Pa. 529.
    An agreement between a minority of commission produce dealers that neither would sell goods to another person in business so long as such person failed to pay an account due and owing to one, is not an illegal combination which equity will restrain: Nester v. Brewing Co., 161 Pa. 473; Schulten v. Brewing Co., 16 Ky. L. R. 442; Brewster v. Miller, 101 Ky. 368; Delz v. Winfree, 25 S. W. Repr. 50; Mogul Steamship Co. v. McGregor, L. R. 23 Q. B. D. 598; Aikens v. Wisconsin, 195 U. S. 194; Macauley Bros. v. Tierney, 19 R. I. 255; Continental Ins. Co. v. Fire Underwriters, 67 Fed. Repr. 310; Worthington v. Waring, 157 Mass. 421; Anderson v. U. S., 171 U. S. 604; Park & Sons Co. v. National Wholesale Druggists’ Assn., 175 N. Y. 1; Whitwell v. Continental Tobacco Co., 125 Fed. Repr. 454; Hartman v. John D. Park & Sons Co., 145 Fed. Repr. 358; American Live Stock Commission Co. v. Live Stock Exchange, 143 Ill. 210; Beechley v. Mulville, 102 Iowa, 602; Cote v. Murphy, 159 Pa. 420; Bowen v. Matheson, 96 Mass. 499; Bohn Mfg. Co. v. Hollis, 54 Minn. 223.

      A. E. Anderson, with him H. B. Wassell, Allan B. Angney, Paul 8. Ache and W. 8. Maxey, for appellees.
    The defendant association was chartered by the court below, and, therefore, such court surely would have jurisdiction to correct any abuses attempted to be committed by its creature: Purvis v. United Brotherhood, 214 Pa. 348; Donovan v. Penna. Co., 199 U. S. 279.
    The combination was unlawful: Buck Stove Range Co. v. American Federation of Labor et al. (D. C.), Law Reporter of Dec. 20, 1907.

      October 10, 1910:
   Opinion by

Orlady, J.,

While there are a number of defendants named in this bill in equity as it was originally filed, the final decree, as made by the court below, affects only the Pittsburg Produce Trade Association, which is a corporation of the first class, incorporated by an order of the court of common pleas, No. 2, of Allegheny county, its purposes as set out in its application for incorporation being “to encourage and protect trade and commerce by adjusting differences among the members; spreading reliable commercial intelligence among them; protecting them against unjust exactions by carriers and others; furnishing information to members to enable them to regulate credits and collect debts, and advancing in every lawful way the interest of the business in which the members are engaged”; and its members who are defendants, their officers, managers, agents, servants and employees, who are perpetually restrained from enforcing certain designated by-laws, which govern the management of its affairs and are set out at length in the bill.

The by-laws governing the management of its affairs are set out at length and the ones which are specially for our consideration relate to art. XIV, sec. 6. “Withholding credit,” by which all members are held bound that they or their firm shall refuse to sell on credit or for spot cash to any person or firm reported as a debtor until duly notified by the secretary that such party’s name has been removed from the list; and secs. 1 and 3 of art. VIII,' by which, the president is directed to appoint an arbitration committee of five members, so as to represent the various commercial interests of the membership, and who shall have all the powers and be subject to all the requirements of arbitrators in the trial of causes submitted to them, and such decisions as they may render, or such awards as they may make, shall be final and conclusive and not subject to appeal.

The plaintiff was a retail produce dealer at the Liberty market in Pittsburg, and had a well-established and growing business, which assured to him reasonable gains and profits. This bill in equity resulted from a number of disputes and controversies between the plaintiff and other dealers similarly circumstanced with the defendant association, owing to the enforcement of its by-laws. As stated by the trial judge: “The bill in substance alleges that the defendant corporation, in the conduct of its business under its charter and by-laws, constitutes a combination and monopoly in restraint of trade; that its methods are an illegal violation of its charter; that they are unlawful, unreasonable, arbitrary and oppressive,” and the question presented by the bill, answer and testimony was narrowed to the one question whether the facts found by the court established the plaintiff’s contention that this by-law was unreasonable, in restraint of trade, and oppressive, and the method of arbitration provided for by the by-laws was unfair and illegal.

The court held that the by-law so far as it related to a sale “for spot cash,” and the provision relating to the power of, and the effect to be given to the decisions of, the arbitration committee were unreasonable, oppressive and not within the charter power, and entered a decree accordingly. The findings of fact and law of the learned trial judge are exhaustive, and the pertinent authorities are marshaled by him so as fully to warrant the conclusion he reached and the decree he entered.

These by-laws were so interpreted and administered by this association that it was not a matter of any importance whether a customer of the members of the association was a person of property or not; whether he was in excellent local credit or a bankrupt; whether he was a large or an insignificant dealer; whether the claim or demand of a member of the association against him was real or fanciful, just or unjust:

The sole test of the right to purchase from any member of the association turned on the one question, whether any member of the association asserted any claim against him, and the merit of the claim and validity of the defense to it was to be determined by a self-appointed tribunal selected from the members of the association; in which the customer had no right of selection or challenge, and whose summary decision arbitrarily bound him. This is at times tolerated in unincorporated associations among the members or parties to it because they all are voluntary parties to that contract, and they are held to be bound by the contract they make, but in this case the plaintiff was not a member, and his business standing and credit with other dealers, as well as his lawful claims, demands and defenses were disposed of without regard to the forms prescribed by our legal procedure.

One of the active parties in the association stated with commercial frankness, that in order to do business with members, the by-law forces them to pay all accounts to all the other members, and that the members could not accept even cash from a prospective purchaser who was on the black list, because the members were subject to the penalties imposed by the by-laws.

The right in the courts to review and supervise the operation and management of corporations is summarized in 1 Thomp. Gorp., sec. 1021, and 4 Thomp. Corp., secs. 5472-74, as follows: “The visitorial or superintending power of the state over corporations created by the legislature will always be exercised, in proper cases, through the medium of the courts of the state, to keep those corporations within the limits of their lawful powers, and to correct and punish abuses of their franchises. Every corporation of the state, whether public or private, civil or municipal, is subject to this superintending control, although in its exercise different rules may be applied to different classes of corporations. . . . The chartered rights of a corporation are no more sacred than the rights of a person and property possessed by individuals, and all must alike give way to the legitimate exercise of the police power. All rights whether of individuals or corporations are held subject to this paramount and inalienable sovereign power of the state. . . . Corporations have none of the elements of sovereignty; they cannot go beyond the powers granted to them; they must exercise those powers in a reasonable manner; and whether they have in a given instance, exercised them reasonably or unreasonably, is a question which it is competent for the judicial powers to decide. It is therefore a principle of the common law, running back so far that its origin cannot be found, that the by-laws of a corporation will be set aside by the judicial courts when deemed unreasonable. The principle applies equally to private and public corporations.”

In Pennsylvania the rule has been inflexibly enforced that the right to make by-laws is restricted to such as are authorized by the charter or act of incorporation, and they must in every instance be consistent with and not repugnant to the constitution and laws of the state and the United States: Northern Liberties v. Gas Company, 12 Pa. 318; Com. v. Cain, 5 S. & R. 510; Com. v. St. Patrick’s Bene. Soc., 2 Binn. 441; s. c., 4 Am. Dec. 453; O’Maley v. Freeport, 96 Pa. 24; and where the facts are undisputed the question whether a by-law is reasonable or whether it ought to be set aside as unreasonable is a question of law for the court and is not to be submitted to a jury: Pittsburg, etc., Ry. Co. v. Lyon, 123 Pa. 140.

By our general equity Act of June 16, 1836, P. L. 784, paragraph 5 of sec. 13 gives to the Supreme Court and the several courts of common pleas, jurisdiction and powers of a court of chancery, so far as relates to “The supervision and control of all corporations other than those of a municipal character, and unincorporated societies or associations and partnerships.”

Specific relief is furnished by our Act of June 19, 1871, P. L. 1360, relating to legal proceedings by or against corporations, which provides “that in all proceedings in courts of law or equity in which it is alleged that the private rights of individuals .... are injured or invaded by any corporation claiming to have a right or franchise to do the act from which such injury results, it shall be the duty of the court in which such proceedings are had to examine, inquire, and ascertain whether such corporation does in fact possess the right or franchise to do the act from which such alleged injury to private rights results, and grant appropriate relief, etc.”

The Pittsburg Produce Association was incorporated under the general Act of April 29, 1874, P. L. 73, and by sec. 10 of its application for incorporation it averred and prayed that, “The corporation shall have power to adopt by-laws for the regulation of its affairs, not inconsistent either with the constitution and laws of the United States or with the constitution and laws of this commonwealth, and not inconsistent with this charter.” This defendant association was chartered by the very court in which this bill is filed, and which had ample jurisdiction to correct or prohibit abuses committed by the subject of its creation.

The act of 1871 was enacted to meet just such a case as is presented by this record, as said in Windsor Glass Co. v. Carnegie Company, 204 Pa. 459, and Packard v. Thiel College, 209 Pa. 349, “The act was intended to enlarge and make clear the rights of individuals to inquire into the charter franchises of corporations when asserted to their individual injury.” Whether the alleged wrong is done under an assertion of a charter right or under the enforcement of a by-law enacted under the charter authority is not material. The injury, if one exists, to be remedied is one flowing in direct course from the charter as from a fountain head. When a citizen finds his property or his rights in danger of being injured or invaded by the acts of a corporation, the act of 1871 gives him the right, without waiting for the assistance of the commonwealth, to challenge the authority of the corporation to the possession of the right or franchise to do the act from which such alleged injury to private rights results: Edwards v. Pittsburg June. R. R. Co., 215 Pa. 597.

The private rights of individuals referred to in this act (1871) are the rights of property of some character: Andel v. Duquesne St. Ry. Co., 219 Pa. 635; and as said in Purvis v. United Brotherhood, 214 Pa. 348: “The business of the plaintiffs is property within the meaning of the law. The defendants sought by concerted action to injure them in their business, in other words, their property, in order to coerce them into submission to the demands of the union (association).”

This record discloses that there is an average of 200 names weekly made delinquent, by this association, resulting in various suits at law for damages, which necessarily causes a multiplicity of actions at law and forms an added argument for an equitable interpretation of the charter or by-law right to do the thing of which complaint, is here made: Donovan v. Pennsylvania Co., 199 U. S. 279; Bitterman v. Louisville, etc., R. R. Co., 207 U. S. 205; Buck Stove Co. v. Am. Fed. of Labor, Wash., D. C., Law Repr. of December 20, 1907; Grenada Lumber Co. v. Mississippi, U. S. Supreme Court, decided May 2, 1910.

The methods adopted by this association were substantially those mentioned in McIntyre v. Weinert, 195 Pa. 52, and the effect here was substantially the same as the one held to be actionable in that case, “The retail dealers whose names appear on the list are regarded by the trade generally as dishonest in their business practices and unworthy of credit, and the members of the association are prohibited from selling, and refuse to sell to any person whose name appears on the debtors’ list,” and this was said in a case which fits in all its material facts the one under consideration. “The plaintiff was a retail produce dealer and was almost wholly dependent for his supplies of produce upon the defendant and other members of the association. He was able and willing to pay for his supplies and offered to purchase them for cash from the members of the association.”

The decree is affirmed.


author: Porter, J.,

text:
    Commonwealth v. Levi, Appellant.

      Constitutional law — Equal protection of the laws — Fourteenth amendment — Constitution of the United States.

    1. The fourteenth amendment of the constitution of the United States does not prohibit legislation which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike, under like circumstances and conditions, both in privileges conferred and in the liabilities imposed. Class legislation, discriminating against some and favoring others is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the prohibition of the amendment.

      Constitutional law — Fourteenth amendment — Criminal law — Embezzlement — Statute of limitations — Trustees—Executors.
    2. The Act of May 23, 1889, P. L. 48, which increased to five years the statutory period within which an indictment against trustees and executors for embezzlement may be found, is not in contravention of that portion of the fourteenth amendment of the constitution of the United States which provides that no state shall deny to any person the equal protection of the law; and this is the case although the word “assignees” does not appear in the act of 1889, as it appeared in secs. 113 and 124 of the Act of March 31, 1860, P. L. 382, relating to embezzlement by trustees.

      Criminal law — Embezzlement—Executors and administrators — Evidence.

    . 3. On the trial of an indictment of an executor for embezzlement, the inventory and appraisement of the decedent’s estate filed by the defendant in the office of the register of wills, is admissible in evidence; as is also proceedings in the orphans' court and Supreme Court as proof of what property of the estate the defendant had in his hands and which he should legally be required to pay to the distributees.
    4. Such evidence does not prevent the defendant from showing if he can, that he had lost the money in any manner which did not involve malfeasance on his part, or that he had through an honest mistake paid the money to parties who were not legally entitled to receive it.

      Evidence — Stenographer—Testimony taken in prior proceedings.

    5. Where an executor and other parties interested in a decedent’s estate agree that the proceedings in the orphans’ court shall be taken by a stenographer, the notes of testimony thus taken may be used in a subsequent trial of the executor for embezzlement, when the stenographer testifies that the notes were taken by him, promptly reduced to writing, and that the testimony offered in evidence was full and accurate, although he had no personal recollection of the testimony at the time of the criminal trial.

      Criminal law — Embezzlement—Executors and administrators — Evidence.

    6. On the trial of an executor for embezzlement where the commonwealth produced in evidence the record of certain proceedings in the orphans’ court, the defendant has a right to have read to the jury such portions of the proceedings as may be favorable to him, and if the court refuses to permit him this privilege, he has ground for complaint; but if the court after refusing subsequently permits the proceedings to be read, the refusal at first is no ground for an assignment of error.
    7. On such a trial where a witness testifies fully as to the defendant’s actions in carrying on a business belonging to the decedent, and how he had disposed of the goods of the estate, it is proper for the court to refuse to permit the witness to be asked by the defendant as to the general business conditions of the city in which the business was conducted at the time the goods were being sold.
    8. In such a case it is proper to exclude an offer by the defendant to show what the defendant’s father, the testator, had said to him during his lifetime, as to his intention with regard to the business and what he intended to direct by his will, it appearing that the deceased had made a written will, differing in its terms from that which the defendant offered to prove.

      Criminal law — Embezzlement—Executors and administrators — Conversion — Payment.
    9. Conversion by the trustee, of a trust to any other use than that of the cestui que trust is prima facie fraudulent, and the failure of the trustee to pay on settlement of his account is evidence of conversion.
    Argued April 18, 1910.
    Appeal, No. 16, Feb. T., 1910, by defendant, from judgment of Q. S. Dec. Sessions, 1909, No. 44, on verdict of guilty in case of Commonwealth v. David L. Levi.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Indictment for embezzlement. Before Hart, P. J. From the record it appeared that the defendant, David L. Levi, was the son and executor of Michael Levi who died on April 9, 1906, a resident of Williamsport. The testator owned a clothing business in "Williamsport, which the defendant continued as executor. It was in connection with the winding up of this business that the transactions occurred for which he was indicted. During the progress of the trial there were various rulings on evidence and instructions the substance of which are stated in the opinion of the Superior Court.
    Verdict of guilty, on which the defendant was sentenced to pay a fine of $500, and undergo imprisonment in the county jail for one year.

      Errors assigned were (1-27) various rulings and instructions.

      Max L. Mitchell, for appellant.
    The provisions of the fourteenth amendment in regard to equal protection of the laws secures "Exemption from any greater burdens and charges than such as are equally imposed upon all others under like circumstances:” Barbier v. Connolly, 113 U. S. 27 (5 Sup. Ct. Repr. 357); Marchant v. Penna. Railroad Co., 153 U. S. 380 (14 Sup. Ct. Repr. 894).
    The proceedings in the orphans’ court were not evidence: Moses v. Bradley, 3 Whart. 272; Hutchinson v. Bank, 41 Pa. 42; Morch v. Raubitschek, 159 Pa. 559; State v. Bradneck, 37 Atl. Repr. 492.

      Herbert T. Ames, with him Ira F. Smith, A. R. Jackson, Candor & Munson, Thos. A. Hammond, of Ames & Hammond and M. C. Rhone, for appellee.
    Due process of law and equal protection of the laws are secured, if the laws operate on all alike and do not subject the individual to an arbitrary exercise of the powers of government: Duncan v. State of Missouri, 152 U. S. 377 (14 Sup. Ct. Repr. 570); Lowe v. State of Kansas, 163 U. S. 81 (16 Sup. Ct. Repr. 1031); Tinsley v. Anderson, 171 U. S. 101 (18 Sup. Ct. Repr. 805).

      October 10, 1910:
    The proceedings of the orphans’ court were admissible: Com. v. Kaufman, 9 Pa. Superior Ct. 310; Com. v. Beale, 19 Pa. Superior Ct. 434; Com. v. King, 35 Pa. Superior Ct. 454; Aitkin v. Young, 12 Pa. 15; Coursin v. Ins. Co., 46 Pa. 323; Woodward v. Garey, 42 Legal Int. 490.
   Opinion by

Porter, J.,

The defendant was indicted for and convicted of the crime of fraudulent embezzlement, as executor of the will of Michael Levi, deceased. The defendant moved to quash the indictment upon the ground that it had not been found within two years after the commission of the alleged offense and, in support of this motion, contended that the Act of May 23, 1889, P. L. 48, which increased to five years the statutory period within which an indictment for the offense here charged may be found, is in contravention of that portion of the fourteenth amendment of the constitution of the United States which provides that no state shall deny to any person the equal protection of the law. The court below overruled this motion to quash, which action is the subject of the first specification of error. Counsel for the appellant argues that the period of limitation within which the crime of embezzlement by all trustees must be prosecuted was, prior to the act of 1889, two years; that the act of 1889 extended to five years the period of limitation within which executors and certain other classes of trustees might be prosecuted for fraudulent embezzlement, while it left the limitation as to certain other trustees remain, as formerly, two years, and that this distinction comes within the prohibition of the fourteenth amendment, and denies to all executors the equal protection of the law. The indictment is founded upon sec. 113 of the Act of March 31,1860, P. L. 382, defining and providing for the punishment of fraudulent embezzlement by trustees. The word “trustee,” as used in sec. 113 of the act of 1860, is given a well-defined meaning by sec. 124 of the same statute, viz.: “The word ‘trustee’ herein shall mean a trustee on some express trust created by deed, will or instrument in writing, and shall also include the heir, devisee and personal representative of any such trustee, and all executors, administrators and assignees.” The meaning of the word “trustee,” as used and defined in the sections above referred to was, by the Act of April 22, 1863, P. L. 531, extended to “include any guardian or guardians of a minor child or children appointed by the orphans’ court of the respective counties in the same manner as executors, administrators and assignees.”' The limitation within which the crime of fraudulent embezzlement by executors and all the other classes of trustees embraced by the legislation above referred to was, by sec. 77 of the Act of March 31, 1860, P. L. 427, fixed at two years. The Act of April 23, 1889, P.- L. 48, provided, “That all indictments for embezzlement by administrators, executors, guardians and trustees may be brought or exhibited at any time within five years, from the final decree of the court adjudicating the final accounts of the said trustee.” The argument of counsel for appellant is that because the word “assignees” had been used, in sec. 124 of the act of 1860, in defining the classes which come within the meaning of the word “trustee,” as used in sec. 113 of the same statute, and the word “assignees” is not again used in the act of 1889 fixing at five years the limitation for prosecutions for embezzlement; that, therefore, the limitation within which prosecutions for embezzlement by assignees must be brought remains two years and that this distinction involves, as to executors and the other classes of trustees within the operation of the act of 1889, a denial of the equal protection of the laws.

We do not deem it necessary, in this case, to consider whether the word “trustees,” as used in the act of April 23, 1889, is to be held to have the meaning which had been expressly given to it by sec. 124 of the act of March 31, 1860, and so construed as to embrace assignees for the benefit of creditors within the classes of trustees liable to prosecution for embezzlement within five years after the adjudication of their final accounts. If it be assumed that executors are within the provisions of the act of 1889 while assignees for the benefit of creditors are not then, all that the legislation involves is a division of trustees into two classes, one, those who under the law are charged with the administration of the estates of the dead and the guardianship of the property of infants; and the other, those who have charge of property of the living, holding it in trust for creditors, who may be supposed to be competent to look after their own interests and demand a prompt accounting. The fourteenth amendment of the constitution of the United States does not prohibit legislation which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike, under like circumstances and conditions, both in privileges conferred and in the liabilities imposed. Class legislation, discriminating against some and favoring others is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the prohibition of the amendment. “Due process of law and the equal protection of the laws are secured if the laws operate on all alike, under like conditions and like circumstances and do not subject the individual to an arbitrary exercise of the powers of government.” “ The right to equal protection of the laws is not denied by a state court when it is apparent that the same law or course of procedure would be applied to any other person in the state under similar circumstances and conditions:” Duncan v. Missouri, 152 U. S. 377; Marchant v. Pennsylvania Railroad Co., 153 U. S. 380; Barbier v. Connolly, 113 U. S. 217; Tinsley v. Anderson, 171 U. S. 101, and cases cited in Commonwealth v. Emmers, 33 Pa. Superior Ct. 151. The first assignment of error is dismissed.

The Act of February 24, 1834, sec. 2, P. L. 73, imposes upon executors the duty of causing an inventory and appraisement of the decedent’s estate to be made and “to return the same into the office of the proper registrar.” When the conduct of an executor is the subject of judicial investigation it is certainly proper to use the very evidence which the law has expressly required him to furnish and file in a public office showing what property of the estate of the decedent has come into his hands. The inventory and appraisement in this case showed upon its face that it had been made at the request of the defendant and was filed by him, in the office to which he was by law required to return it; it was his act and it was properly admitted as evidence. The second specification of error is without merit.

The act of March 31, 1860, sec. 113, provides that: “If any person, being a trustee of any property for the benefit, either wholly or partially, of some other person, or for any public or charitable purpose, shall, with intent to defraud, convert or appropriate the same, or any part thereof, to or for his own use or purpose, or the use or benefit of any other person, or shall, with intent aforesaid otherwise dispose of or destroy such property, or part thereof, he shall be guilty of a misdemeanor.” Section 124 of the statute enacts that, “the word 'property’ shall include every description of real and personal property, moneys, debts and legacies, .... and shall also include not only such property as may have been the original subject of a trust, but any property in which the same may have been converted, and the proceeds thereof.” Under the provisions of these sections it is material to prove that there was property in the hands of the trustee, for which he was liable to account in the manner provided by law, and it is equally material to produce evidence as to the person or persons, or the public or charitable use, having a beneficial interest in the property. When an executor named in a will assumes the duties of the trust he submits himself, under the law of Pennsylvania, to the jurisdiction of the orphans’ court. The property of the estate is to be disposed of according to the provisions of the will, but the orphans’ court, as to personal property, has exclusive jurisdiction to determine the meaning of the will, subject to review by the proper appellate court. The orphans’ court has the exclusive jurisdiction to pass upon the account of the executor and determine the amount of the funds of the estate in his hands and distribute those funds to the parties thereunto legally entitled. The law has not conferred upon the orphans’ court jurisdiction to determine whether an executor has been guilty of the misdemeanor of fraudulent embezzlement, as defined by the statute under which this appellant was indicted, but it has conferred upon that court jurisdiction to ascertain what property of the estate is in the hands of the executor and which he is legally liable to pay and to determine the parties legally entitled to receive the property. When an executor has filed his account and a question arises as to the amount of the funds in his hands for distribution, the executor, both as executor and an individual, and every creditor who presents a claim are parties to the proceeding and have a right to be heard. The final decree of the court in such a proceeding is certainly evidence as to what property of the estate is, or legally ought to be, in the hands of the executor and that the parties to whom the court awards the fund are those legally entitled to receive it. This appellant filed his account as executor to which exceptions were filed, the orphans’ court of Lycoming county then proceeded in a regular manner to pass upon the account and the exceptions, which proceeding resulted in a decree finding that there was in the hands of the executor, the property of the estate, the sum of $23,851.34 and made distribution of that amount to the several creditors of the estate. The defendant appealed from this decree to the Supreme Court of Pennsylvania which tribunal affirmed the decree as to this defendant, but upon an appeal by one of the creditors directed that the decree be modified as to the distribution. The orphans’ court, upon the return of the record entered a final decree in accordance with the decision' of the Supreme Court. This decree did not determine that the defendant had been, guilty of fraudulent embezzlement, but it did finally settle the rights of property in the fund. We are of opinion that the record of the proceedings in the orphans’ court and the Supreme Court were properly admitted by the court below as evidence of what property of the estate the defendant had in his hands and which he should legally be required to pay to the distributees. A judgment of a court having jurisdiction of the parties and the subject-matter is always evidence of the fact that such a judgment has been given and of the legal consequences which result from that fact: Dorrell v. State, 83 Ind. 357; Aitkin’s Heirs v. Young, 12 Pa. 15; Coursin v. Pennsylvania Insurance Company, 46 Pa. 323; Commonwealth v. Lundberg, 18 Phila. 482. This did not prevent the appellant from showing, if he could, that he had lost the money in any manner which did not involve malfeasance upon his part, or that he had through an honest mistake paid the money to parties who were not legally entitled to receive it. The court, in charging the jury, confined the effect of this evidence within proper limits, in language which the jury could not have misunderstood. The assignments of error from three to nine inclusive, eleven, twelve, twenty, twenty-one and twenty-two are dismissed.

The tenth specification of error is based on an exception to the admission of the notes of testimony of this defendant upon the hearing of the exceptions to his account in the orphans’ court. The objection was not that the evidence formerly given by this defendant could not be used against him here, but as to the manner in which his former testimony was to be proved in the present trial. The notes of testimony had been taken by a stenographer. The preliminary evidence established that the stenographer had taken the 'notes of testimony at the proceeding in the orphans’ court under an agreement of the parties that he should so take it made at the time. The stenographer testified that he had taken the testimony as it was delivered, and that the notes of the testimony were full and accurate; that they were made by him at the time the testimony was delivered and that he had now no personal recollection of the testimony. When the stenographer undertook to take the testimony in pursuance of an agreement of the parties, including this defendant, he assumed a duty arising out of that business relation which required him to take the notes stenographically and promptly reduce the testimony to writing, making a full and accurate statement of all the witness said. The stenographer testified that in pursuance of this duty he promptly made, at the time of the transaction, the full and accurate notes of the testimony which were offered in evidence. Was this written statement properly admitted as evidence of what the defendant had testified to in the former proceeding? The modern doctrine upon this question, as gathered from a large number of authorities, may be thus stated: When the written statement is made at the time of the transaction, in the discharge of some public duty, or of some duty arising out of the business relation of the witness with others, and with the knowledge and concurrence of the party to be charged, and if the recollection of the facts has passed from the mind of the person who made the statement and he is produced as a witness and testifies that the statement written by him at the time of the occurrence was true and correct, the written statement may be received as the best evidence: Vicksburg & Meridan Railroad Company v. O’Brien, 119 U. S. 99; State v. Harmon, 70 Kansas, 476; Petty v. State, 76 Arkansas, 515; State v. Woolridge, 45 Oreg. 389; 1 Wigmore on Evidence, secs. 734-738; 2 Wigmore on Evidence, sec. 1330; 3 Wigmore on Evidence, sec. 1669; and in harmony with these authorities are Miles v. O’Hara, 4 Binney, 108; Lightner v. Wike, 4 S. & R. 203; Cornell v. Green, 10 S. & R. 14; Chess v. Chess, 17 S. & R. 409; Farmers’ & Mechanics’ Bank v. Boraef, 1 Rawle, 152. The evidence with regard to these notes of testimony warranted their admission in evidence, and the tenth specification of error is overruled.

The thirteenth, fourteenth and fifteenth specifications of error offend against rule XVI of this court, in that the testimony admitted under the exceptions, respectively, is not quoted in the specifications, which must for this reason be disregarded.

The sixteenth and seventeenth specifications of error complain of the action of the court in refusing to permit defendant’s counsel to read to the jury certain parts of the record of the proceedings in the orphans’ court. The record was in evidence, having been offered by the commonwealth, and if it contained anything favorable to the defendant he had the right to call attention to it. Had these rulings of the court been persisted in a serious question would be presented, but the court subsequently, in good time, withdrew from its position and said to counsel for the defendant, "The auditor’s report is in evidence and has been put in evidence by the commonwealth. It can be made use of by counsel for the defendant for any purpose for which it is relevant.” And again, "The counsel for defendant may read the whole report to the jury if he so desires. The report has been offered in evidence and it can be sent out with the jury, if counsel for the defendant desires it.” The specifications are, therefore, without merit.

The witness Clara R. Auerbach, who had been employed as cashier and bookkeeper by the defendant in conducting the business, testified fully as to how the defendant, as executor, had carried on the business at the clothing store in disposing of the property of the estate of Michael Levi, deceased. She had testified fully as to what goods were in the store, what had been bought and placed in the store by the defendant, what had been sold and the various amounts received from said sales, as to all the receipts and all the expenditures and every detail as to how the business had been carried on and the results of its operation. Having thus testified the defendant attempted to go clear outside of the inquiry as to how he had disposed of the goods of the estate and introduce testimony as to general business conditions in the city of Williamsport, and the witness was asked this question: “Q. What was the business situation, generally, was business generally good in Williamsport?” The commonwealth objected to this question and the court sustained the objection. The objection was properly sustained; evi- • d'ence as to general business conditions in the city of Williamsport would have been immaterial and irrelevant, and to have admitted the testimony would have opened wide the door for the introduction of conflicting opinions as to a business situation which had nothing to do with the matter to be investigated in this case.

The offer to prove by the defendant what his father, the testator, had said to him during his lifetime, as to his intention with regard to the business and what he intended to direct by his will, was properly rejected. Michael Levi, deceased, had, in fact, made a written will and that written instrument constituted the terms of the trust which this defendant had voluntarily undertaken to execute. The admission of the testimony offered would have amounted to an attempt to prove by parole a will different from that which the testator had executed, and make a new will. The nineteenth specification of error is dismissed.

Conversion, by the trustee, of a trust fund to any other use than that of the cestui que trust is prima facie fraudulent, and the failure of the trustee to pay on settlement of his account is evidence of conversion: Commonwealth v. Kaufman, 9 Pa. Superior Ct. 310; Commonwealth v. Beale, 19 Pa. Superior Ct. 434; Commonwealth v. King, 35 Pa. Superior Ct. 454. That part of the charge upon which the twenty-third, twenty-fourth and twenty-fifth specifications of error are founded was in entire harmony with the rule of evidence above stated and those specifications of error are overruled.

This defendant had failed to pay the trust funds to the parties entitled thereto upon the final settlement of his account, and there was evidence in the case amply sufficient to warrant the finding that he had fraudulently converted and appropriated the funds of the estate to the use and benefit of certain of his own relatives who had no claims upon the fund whatever. The case was for the jury, the request of the defendant for binding instructions was properly refused and the twenty-sixth specification of error is dismissed. The third request of the defendant for instructions was properly qualified by the court below. Had the point been affirmed without qualification, it would have amounted to an instruction that if the defendant believed he was dealing lawfully with the property of the estate, he must be acquitted. Ignorance of the law excuses no one. The answer of the court to this point instructed the jury that if they believed from the evidence that the acts of the defendant “were consistent with an honest purpose or were not inconsistent with an honest purpose, no matter how injurious to the estate, they subsequently turned out to be, their verdict must be for the defendant.” The point might properly have been refused, the answer was as favorable to the defendant as he had any right to require, and the twenty-seventh specification of error is dismissed.

The. judgment is affirmed and it is ordered that the defendant appear in the court below at such time as he may be there called and that he be by said court committed until he comply with that part of the sentence which had not been performed at the time this appeal was made a supersedeas.


author: Head, J.,

text:
    Hannon v. Allegheny Bellevue Land Company, Appellant.

      Banks and banking — Checks—Failure to deposit check within reasonable time — Mistake—Teller’s check.

    1. Where a check is given in settlement of a transaction at 1:30 o’clock in the afternoon, but is not presented for payment until the third day afterwards, and one day after the bank on which it was drawn failed, and it appears that all the parties interested in the check, as well as the bank on which it was drawn, were located in the same city, the delay in presenting the check is unreasonable, and such delay is not excused by the fact that the person who received the check mistakenly thought that the check was insufficient in amount, and had delayed presenting it in order to find the maker, so as to have the amount corrected. In such a case it is immaterial that the check in question was a teller’s check. ; )•' ■ • '
    2. For all practical purposes in modern mercantile transactions, a teller’s check is but a substitute for a.certified cheek and much more closely resembles it than it does a bill of exchange, strictly speaking, and it is none the less a check because drawn by an executive officer of the bank upon the institution he serves.
    3. Although in the negotiable instruments act, a check is designated as a bill of exchange, nevertheless the obligation of an indorser on a check is still as it was before the act, conditional and not absolute, and it is one of the conditions on which such obligation rests that the indorsed instrument shall be promptly presented for payment at the time and place fixed therefor, and that due notice of its dishonor be at once given.
    Argued April 20, 1910.
    Appeal, No. 61, April T., 1910, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1906, No. 341, on verdict for plaintiff in case of Mary Y. Hannon v. The Allegheny Bellevue Land Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit against the indorser on a check. Before Evans, J.
    The facts are stated in the opinion of the Superior Court.
    Defendant presented, inter alia, the following points:

      3. In view of the circumstances of the transaction, proven without contradiction, the delay of defendant in depositing the check for $607 was reasonable, and the liability of plaintiff as indorser thereof is not discharged by that delay. Answer: Refused. [1]
    4. Under all the pleadings and evidence in this case, the defendant is entitled to recover on its claim of set-off in the amount of $607, with interest from October 18, 1905, less receiver’s dividends of $152.23, with interest on $121.78 thereof from September 15, 1906, and on $30.45 thereof from April 9, 1908. Answer: Refused. [2]
    The court charged in part as follows:
    [The question as to whether the check was presented within a reasonable time by the defendant after its receipt by the defendant or its agent is a question of law, where there is no dispute in the facts, and as we have construed the law in this case, we eliminate any dispute which there may be in the facts of the presentation of this check by the plaintiff to the defendant’s agents, and the time of its presentation to the bank by defendant or its agent, and we instruct you that if you find under the instructions which I have already given you that Mrs. Hannon paid to the Freehold Real Estate Company the total amount of her balance due, namely, $740, then the check received that day by the Freehold Real Estate Company, as agent for this defendant, was not presented to the bank for payment with due diligence and they would not be entitled to recover on the indorsement of Mrs. Hannon.
    On the other hand, if you find that Mrs. Hannon did not pay to the Freehold Real Estate Company $740 on that day, but only $640, then under these circumstances the presentation of the check to the Enterprise National Bank by the defendant or its agent was made with due diligence and the defendant would be entitled to recover a certificate in its favor for the amount of the check less the credits that had been made upon it.] [3]

      Verdict and judgment for plaintiff for $925.33. Defendant appealed.

      Errors assigned were (1-3) above instructions, quoting them.

      David A. Reed, of Reed, Smith, Shaw & Beal, for appellant.
    In the following cases the delay in presenting demand promissory notes or notes overdue when indorsed, was held insufficient to discharge the prior indorsers: Four days: Rosson v. Carroll, 90 Tenn. 90, 12 L. R. A. 727. Six days: Freeman v. Boynton, 7 Mass.. 483. Seven days: Seaver v. Lincoln, 38 Mass. 267. Twenty-three days: Goodwin v. Davenport, 47 Me. 112. One month: Ranger v. Cary, 42 Mass. 369; Van Hoesen v. Van Alstyne, 3 Wend. (N. Y.) 75. Two months: Lockwood v. Crawford, 18 Conn. 361.
    On the other hand, in the following cases the delay was held to be too long and the indorsers to be discharged: Thirty days: Freeman v. Boynton, 7 Mass. 483. Three months: Merritt v. Jackson, 181 Mass. 69 (62 N. E. Repr. 987); Light v. Kingsbury, 50 Mo. 331. Four months: Bassenhorst v. Wilby, 45 Ohio, 333. Nine months: State v. Foley, 61 N. J. L. 428 (39 Atl. Repr. 650). Fourteen months: Wylie v. Cotter, 170 Mass. 356 (49 N. E. Repr. 746). Fifteen months: Dixon v. Clayville, 44 Md. 573. Two years and six months: Bank v. Hosie, 119 Mich. 116.
    This instrument was the promise of a bank — an order upon itself — issued evidently as a substitute for money. Such instruments are not regarded in the same light as private checks or notes: Nutting v. Berked, 48 Mich. 241; Marbourg v. Brinkman, 23 Mo. App. 511.
    Regarding the instrument now merely as a check or bill of exchange, and ignoring the provisions of sec. 130 of the negotiable instruments act, it seems to us that we necessarily must arrive at the same conclusion, and that there was no unreasonable delay: Bank v. Weil, 141 Pa. 457; Loux v. Fox, 171 Pa. 68; Willis v. Finley, 173 Pa. 28; National Newark Banking Co. v. Bank, 63 Pa. 404; School Dist. v. Com., 84 Pa. 464.
    October 10, 1910:

      F. C. McGirr, of Marrón & McGirr, for appellee.
    The negotiable instrument act does not change the law with regard to the presentment of a check. In general a check should be presented on the next day after it is received, and such rule applies where a check is payable in the same town where it is drawn: Bank v. Weil, 141 Pa. 457; Loux & Son v. Fox, 171 Pa. 68; Harvey v. Bank, 119 Pa. 212.
    It is claimed that the instrument in this case is not a real check because it was issued by a bank. We think this makes no difference: Garthwaite v. Bank of Tulare, 134 Cal. 237; Bull v. Bank of Kasson, 123 U. S. 105.
   Opinion by

Head, J.,

By the operation of our defalcation act the single record before us really embraces two separate and distinct causes of action. ,It is conceded that the plaintiff had entered into a written agreement with the defendant for the purchase of a lot of ground and had paid a part of the purchase price prior to the transaction out of which this litigation arises. By the terms of her contract, upon the payment of the balance of the purchase price she was entitled to receive a deed for her lot. On October 16, 1905, she went to the defendant’s office to pay this balance, which the parties agree amounted to $740. The verdict of the jury establishes the fact that she actually paid this sum in a manner acceptable to the defendant and received from its representative a receipt in full which entitled her to a deed. The defendant having refused to execute and deliver the deed, the plaintiff elected to rescind the contract and brought this action to recover the money she had paid. In the absence of a legal defense her right to so recover would be clear. To this claim the defendant interposed a single defense of fact, viz., that although the plaintiff admittedly owed $740, she had paid but $640, and that by a mistake of its representative who received the money, it had been incorrectly counted as $740 and the receipt thus given.

The conflicting testimony of the parties on this disputed question of fact was fairly submitted to the trial jury in a charge, to which, in this respect, there is no complaint, and the appellant now agrees that the verdict of the jury has established that fact against it and therefore that its direct defense to the plaintiff’s claim has failed.

It further appears that in making the payment of $740, which the verdict has established she paid, plaintiff gave to the defendant and the latter received a teller’s check on the Enterprise National Bank of Pittsburg for $607. This check had been drawn by the teller of that bank a day or two previously to the order of one Margaret Welsh, who had indorsed it and delivered it to the plaintiff. She in turn indorsed it before delivering it to the defendant. The transaction occurred about half past one o’clock p. M. on October 16. In other words, during banking hours of that day. The Enterprise Bank, on which the check was drawn, was at that time open for business and paying all demands properly made upon it. It thus remained open during the entire day of October 17, and until some time after noon of the eighteenth when it was closed by the bank examiner, and never afterwards opened its doors for business. The check in question was never presented for payment until October 19, when of course payment was refused. The check was protested and returned to the defendant. It then demanded from the plaintiff the return of the money called for by the check, but the plaintiff refused to honor this demand because the loss, as she contends, occurred by reason of the failure of the defendant to present the check for payment within a reasonable time after its receipt. In the trial of the case in the court below the defendant undertook to set off the amount of this check against the claim of the plaintiff, and having, as we have seen, first alleged that it was not guilty of any breach of contract for the sale of the lot, demanded a certificate of balance in its favor for the amount of the check.

Under ordinary conditions it would seem to be well settled that in a case like the present where all of the parties interested in the check, as well as the bank on which it was drawn, are located in the same city, the delay in presenting this check was unreasonable, and the consequent loss ought not to be visited upon the plaintiff: Bank v. Weil, 141 Pa. 457. Whilst the doctrine of that case has been slightly modified in the later cases of Loux & Son v. Fox, 171 Pa. 68, and Willis & Co. v. Finley, 173 Pa. 28, the modification applies only to cases where the transaction occurred after banking hours of the day on which the check was received. In such cases the courts have held that in testing the diligence of the holder of the check in presenting it for payment the day of its receipt after banking hours became practically dies non, and the transaction was to be viewed as if it had occurred at the opening of the following business day.

If the transaction had been in nowise unusual we do not understand the able counsel for the appellant to contend that the doctrine of the cases cited would not apply. He alleges, however, that the defendant’s representative who conducted the business mistakenly read the check as calling for the payment of $707 instead of $607. She so testified, and further that the plaintiff had paid in cash but the sum of $43.00 instead of $143, according to the plaintiff’s testimony. When at the conclusion of the day’s business she undertook to balance her cash she found that the check called for but $607; that she had therefore 'received $640, and that having by mistake credited the plaintiff with $740, her cash was $100 short. Having discovered this mistake, the check was held and an effort made to find the plaintiff. She could not be located until the morning of the eighteenth, when she insisted that no mistake had been made; that she had paid in $143 in cash, which added to the correct amount of the check amounted to $10.00 more than the final payment on her lot. The $10.00 surplus was refunded to her and the receipt given to her. The defendant then started the check . in the usual course of business, but, as we have already-seen, it was not actually presented for payment until the nineteenth, the day after the bank closed. The defendant argues that even though its representative had made a mistake it was an honest mistake of fact and that it was not bound to present the check for payment until the plaintiff could be found and her version of the transaction obtained.

The verdict of the jury, however, has determined that the plaintiff actually paid the necessary amount of cash to bring up the true amount of the check, $607, to the amount of the balance she owed, to wit, $740. If this be regarded as a fixed fact, then the defendant’s cash could not have been short, as contended. But in any event, acceding to the defendant’s claim that the mistake was an honest one, it nevertheless was a mistake of the defendant. The plaintiff was in nowise at fault. And if the delay in presenting the check can be excused only by the careless mistake of the defendant or its clerk, it is hard to see why the consequent loss should be saddled upon the ' shoulders of the plaintiff, who was entirely free from fault, to relieve,the careless error of another.

Moreover, even if it were honestly believed that the plaintiff had paid in but $43.00 in cash, and as a consequence that she still owed $100 of her purchase money, this would seem to be no reason for holding up the check which she had tendered and which the defendant had accepted. as so much cash. Its amount was fixed and could have been at any time abundantly established by incontrovertible records after its presentation and payment as well as before. We are of opinion, therefore, that in this aspect of the case the defendant has shown nothing which ought to relieve it from the consequences of an unreasonable delay in presenting the check for payment.

But it is ingeniously argued that the' principles of law we have stated do not apply in this case because the check was not that of a private depositor drawn on the bank, but was what is known as a teller’s check. It is urged that under sec. 185 of the negotiable instruments act, Act of May 16, 1901, P. L. 194, “A check is a bill of exchange drawn on a bank payable on demand;” that sec. 130 of the same act declares, “Where in a bill the drawer and the drawee are the same person, .... the holder may treat the instrument at his option either as a bill of exchange or a promissory note.” It is argued, therefore, that since the passage of this act the defendant, the holder, had a right to regard that check as a promissory note, and that in such case the delay in presentation was not unreasonable, or at least could not be so declared as matter of law by the court. We are unable to assent to the soundness of this reasoning, or the correctness of the conclusion drawn therefrom. Section 130 of the act referred to is a part of chap. II which treats distinctively of bills of exchange, whereas sec..185 is a part of chap. Ill which deals with promissory notes and checks. Although the legislature has seen fit to define a check broadly as a bill of exchange, it would be idle to assert that the difference between checks and bills of exchange is not thoroughly known and understood in the commercial world. For all practical purposes in, modern mercantile transactions a teller’s check is but a substitute for a certified check and much more closely resembles it than it does a bill of exchange, strictly speaking, and we think it is none the less a check because drawn by an executive officer of the bank upon the institution he serves. In the very next section following the one quoted, viz., in sec. 186, the act declares, “A check must be presented for payment within a reasonable time after its issue.” This declaration was doubtless made by the legislature in the light of the decisions of the court which had previously defined what was a reasonable time for the presentation of a check, and we see no reason to conclude that it was the legislative intention to make any change in the law, in this respect, as it had been previously declared.

The claim of the defendant to recoup from the plaintiff rests upon an alleged breach of her contract of indorsement. That contract remains in essence and substance what it was before the passage of the act referred to. The obligation of an indorser is still as it was, conditional not absolute, and it is one of the conditions on which that obligation rests that the indorsed instrument shall be promptly presented for payment at the time and place fixed therefor and that due notice of its dishonor be at once given.

We are all of the opinion that the record in this case exhibits no reversible error and the assignments are therefore dismissed.

Judgment affirmed.