author: Rice, P. J.,

text:
    Augenstein, Appellant, v. Augenstein.

      Divorce—Cruel and barbarous treatment—Condonation.

    1. Where a husband has subjected his wife to a long continued course of illtreatment amounting to indignities to the person, rendering her condition intolerable and her life burdensome, she will not be deprived of her right to divorce, merely because she condoned his illtreatment of her by resuming marital relations with him for a time until he again began to illtreat her; nor will her right to divorce be defeated because she was not actually forced to withdraw from his house and family, inasmuch as he had deserted her.
    2. Where a wife is forced by the cruel and barbarous treatment of her husband to withdraw from the rooms they occupied, and to live in another part of the same house, she has been forced “to withdraw from his house and family,” within the true intent and'meaning of the act.
    Argued Oct. 21, 1910.
    Appeal, No. 136, Oct. T., 1910, by plaintiff, from decree of C. P. No. 3, Phila. Co., dismissing libel for divorce in case of Fanny Augenstein v. Joseph Augenstein.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.

      Libel for divorce.
    The case was referred to Frank M. Wirgman, Esq., as master, who reported in favor of granting the divorce. The court, however, overruled the master’s finding, and dismissed the libel, filing the following per curiam opinion:
    In this case the ground for the divorce alleged in the libel is that the respondent has offered such indignities to the person of the libelant as to render her condition intolerable and life burdensome, thereby compelling her to withdraw from his home and family. The evidence discloses conduct on the part of the husband which might justify a finding that he had' offered indignities to the person of the libelant, but there do not appear to have been such offenses against the libelant’s person as to render her condition intolerable because, notwithstanding his misconduct in New York and the fact that he deserted her there, she followed him to Montreal, where relations were resumed. The indignities, so called, continued in Montreal, and he deserted her again while living in that city. After a period of time she discovered that he was living in Philadelphia, to which place she followed him, and the indignities continued, until about August 28, 1909, when the respondent deserted the libelant and never returned.
    Whatever the conduct of this man, the libelant seems to have been willing to put up with it, and the only thing she did not willingly endure was a desertion on his part, because each time he left her, until the last time, she followed him. The testimony shows and the master reports that the respondent finally left the libelant and never returned to her. The ground alleged in the libel is not desertion, nor could it be, because the libel was filed about a month after the separation took place. Under the circumstances we cannot see how the libel can be sustained. The findings and conclusions and recommendations of the master are therefore not approved, and the libel is dismissed.

      Error assigned was decree dismissing the libel.

      David Phillips, with him John Monaghan, for appellant,
    cited: Sonricker v. Sonricker, 39 Pa. Superior Ct. 652; Mason v. Mason, 131 Pa. 161; Hill v. Hill, 32 Pa. C. C. Rep. 466; Burns v. Burns, 38 Pa. Superior Ct. 221; Hollister v. Hollister, 6 Pa. 449; Doan v. Doan, 3 Clark, 7; Breinig v. Breinig, 26 Pa. 161; Preston v. Preston, 11 Pa. Dist. Rep. 97.
    No printed brief for appellee.
    March 3, 1911:
   Opinion by

Rice, P. J.,

The ground for divorce, alleged in the libel, is that the respondent has offered such indignities to the person of the libellant as to render her condition intolerable and life a burden, thereby compelling her to withdraw from his home and family. The parties were domiciled in the city of New York at the time of their marriage (August, 1897), and continued to reside at different places in that city until he deserted her, leaving her and their two infant children without money or means of support. During their residence in New York he beat her severely, swore at her frequently, and called her by the most opprobrious names on many occasions. Speaking generally, without going into further detail, he subjected her to a course of treatment which, had it occurred in Pennsylvania, would have justified her in leaving him and applying for a divorce. For a time after he deserted her she received assistance from a brother, and tried unsuccessfully to have one of the children taken by the board of charities, she thinking that she could earn enough to support the other child. Learning that the respondent was in Montreal, Canada, she went there, taking their two children with her, and, upon his promise that he would do better, went to live with him in a single room, the furniture for which was given to her by some of her friends. They lived in Montreal about three years, she helping to support the family by taking in sewing, and he being idle much of the time, although he could have got work at his trade and was able to work. Notwithstanding his promise, he subjected her to the same kind of abusive treatment as he had in New York, and finally deserted her again, leaving her without money or food, and came to Philadelphia. What occurred after that can be best described by quoting her testimony. ‘ ‘ He did not say good-bye or tell me he was going; he just left and did not come back again, and I did not know where he was. We had lived in Montreal about three years. Several months after he left, a family named Effler, living here in Philadelphia, wrote me, saying that my husband was in Philadelphia, and I should come here if I wanted to find him. So on June 15, 1907,1 brought my two children and came to Philadelphia, and I found my husband boarding at 249 Queen street, but he was staying most of the time at 402 Bainbridge street, and he was working for Mr. Bookmeyer. I asked him why he went and left us there in Montreal, and he said, ‘What has been is all past and over, and now we will try it again, and I will get work and will be better.’ So I gave him another chance, and thought he might be better, and we took two rooms from Mr. Fleischer, 726 Passyunk avenue, Philadelphia, and I lived there with my husband for about two years. During that time I helped my husband along, and I made the living. I took skirts to finish and to sew on hooks and eyes. I made three and four dollars per week. My husband would not work. Sometimes he would work a day, and then not work again for five or six weeks. I kept the home and we managed to live some way. I would buy stale bread, and instead of drinking milk I would give the children weak tea, and in that way I managed to keep the home and feed us all. My husband did not support me, even while we were living together. I had to keep him, and if I would ask him for some money to buy the children shoes or clothing he would curse me and would hit me. One day I asked him to get the little girl a pair of shoes, and he flew into a rage and came at me and knocked me over backwards. He came so suddenly that I did not have a chance to get out of his way, and I fell on the floor on my back, and I was dazed and could not get up, and he then came and jumped on me and lacked me with his shoes in the sides and the stomach. He kicked me a number of times. I have pains ever since from those kicks. I tried to talk to him nicely, and would ask him to be better and to get work, but he would not do any better, he was just the same. About two weeks before he finally left me, one day he came in, and I asked him where he had been and why he did not get work instead of walking around the streets, and he said he did not have to walk around the streets; that he was in a café playing penuchle, and he said to me, ‘ Don’t you like it? ’ I asked him where we were to get food to eat, and he got more angry at that, and he came over to me and punched me in the ribs, and I tried to talk to him and asked him not to get so excited and mad, and asked him what he was doing, and he said to me, ‘You are a son of g. bitch. Didn’t you have a bastard? ’ And I looked at him to ask him what he meant, and he took his fist and struck me in the mouth and knocked one of my teeth out, and then after that he left me. I could not stand his treatment any longer and I was obliged to go into another part of the house, and he then finally left the house and went away. I was working for Mr. Fleisher, and have been working for him ever since.” The testimony of the libelant as to the respondent’s treatment of her in New York and in Philadelphia is corroborated, in important particulars, by that of Samuel Fleisher, with whom they lived in Philadelphia, and is uncontradicted. The master, who saw the witnesses and heard them testify, found that it was truthful, and the learned court did not find that it was not to be credited. We see no reason to doubt its truthfulness, or to doubt that the course of treatment described amounted to “such indignities to her person as to render her condition intolerable and life burdensome,” within the true intent and meaning of the statute. The learned court below concedes that the evidence discloses conduct on the part of the respondent which might justify a finding that he had offered indignities to the person of the libelant, but says that the offenses do not appear to have been such as to render her condition intolerable. As shown by other portions of the opinion, and the immediate context, this conclusion is not based on a finding that they were not truly described in the testimony, but on the fact that, notwithstanding his misconduct, she followed him and resumed marital relations with him.

We cannot give assent to this view. It is not a single act that the law speaks of in the clause under which this case falls; but of such a course of conduct as renders the wife’s condition intolerable and her life burdensome: Richards v. Richards, 37 Pa. 225. This idea that a course of conduct or continued treatment may constitute indignities to the person, which render the wife’s condition intolerable and her life burdensome, within the meaning of the clause, even though the ill treatment may not be such as to endanger her life or health, is elaborated and emphasized in May v. May, 62 Pa. 206, where the court said: “It is true, that such a course of treatment as would render the wife’s condition intolerable and her life burdensome might, in the end, impair her health and shorten her life; but there are indignities to the person which would not seriously endanger her life, though they would render it too humiliating and burdensome for her to bear.” The fact that the wife, who has been subjected to such a course of ill usage as is described in the case at bar, is impelled by her forbearing disposition, or her necessities, or the hope of her husband’s reformation, to submit to it for a longer time than some other women might, or than any woman ought to be compelled to do, does not militate against the conclusion that her condition was intolerable. Nor would the fact that there was a reconciliation and a resumption of marital relations that had been broken off conclusively show that his previous treatment of her had not been such as to render her condition intolerable. The same creditable motives that impelled the wife to submit for a long time to it might also impel her, as. the libelant in the present case expresses the thought, “to give him another chance.” In Hollister v. Hollister, 6 Pa. 449, one of the questions presented for decision was, as stated in the opinion of the court, “whether a reconciliation, after the abuse and ill treatment alleged in the libel, and subsequent cohabitation, is a remission of the offense, and a bar to a divorce, without proof of new outrages after the reconciliation.” As we understand the case, it decided the question in the negative, at least so far as a divorce a mensa et thoro was concerned. The remarks of Mr. Justice Coulter to the effect that it is the duty of a wife to forbear long and to endeavor earnestly to reclaim her husband, and that, if she fail, the virtue of her patience and fidelity ought not to deprive her of the remedy which the law holds out to broken peace and ruined hope, might very pertinently be quoted and applied here. Even in those jurisdictions where it is held that the principles of condonation apply to cruelty and indignities to the person, they are held to apply with this proper qualification, that any conduct which, after a reconciliation of the parties, creates reasonable apprehension of personal violence, will revive the condoned cruelty. “The condonation having presumptively proceeded on evidence of a change of temper, acts which themselves fall short of cruelty may plainly show that no change did take place; and, though not of themselves sufficient evidence of danger to the injured party, may make the danger apparent, when connected with what went before:” 2 Bish. Marriage and Divorce, (6th ed.), sec. 58. The idea is very clearly expressed in a Louisiana case in this way: “If a woman forgives ill usage and returns to her husband on promises of good usage, she shall not afterwards obtain the protection and assistance of this court, if those promises have been faithfully kept, and she again leaves her husband from caprice; but if there are clear indications of a breach of those promises, and some actual ill usage, she is not bound to wait for extremities, as in the first instance, but may depart as soon as she finds the promises violated, and her husband returning to his old bad habits. She has a right to judge of the future by the past; and the court will connect the whole of his conduct, in order to form a correct judgment: ” Threewits v. Threewits, 4 Desaussure, (S. C.) 560. We need not further discuss this precise question, for the evidence of the respondent’s course of conduct, after the parties resumed marital relations in Philadelphia, was sufficient to sustain the libel, even though the unwarrantable concession be made that by returning to him the libelant unconditionally condoned the ill usage to which he had subjected her in New York and Montreal. And surely, whatever effect be given to the fact that the libelant sought out the respondent and became reconciled with him, as a condonation of what had gone before, it can be given no effect by way of estoppel or mitigation in the consideration of his subsequent extreme ill usage.

But it is suggested that she was not forced to withdraw from his house and family, but he deserted her, and, therefore, one essential to a divorce, under the clause of the statute relating to indignities, is lacking. This suggestion is based on too literal an interpretation of the statute. By the same literal interpretation, she could not obtain a divorce for this cause if he had no house and family. “A case is supposable where the wife living apart from her husband might be subjected to such a course of conduct as has been described in the decided cases, and thereby be forced to refuse to dwell with him. In such a case her refusal to live with him would be justifiable, and in effect and in the contemplation of the statute would be a withdrawal from him:” Roth v. Roth, 15 Pa. Superior Ct. 192. So, if a long continued course of ill treatment, amounting to indignities to the person, rendering the wife’s condition intolerable and her life burdensome, should culminate in a violent assault upon her, and then the husband should abandon their common dwelling before she were able to withdraw therefrom, she could not obtain divorce for this cause if the interpretation under consideration be adopted. We are not prepared to adopt an interpretation of the words which would make his added desertion, under such circumstances, a conclusive bar to a divorce for indignities to the person. Moreover, it is not necessary to go that far in this case. The home of the parties consisted of two rooms in the dwelling house of another family. According to the testimony she could not stand his treatment any longer and was compelled to withdraw from these rooms and abide in another part of the house, “and,” to quote her testimony, “he then finally left the house and went away.” This proof was sufficient to bring the case within the words, “and thereby force her to withdraw from his house and family,” construed according to their true intent and meaning.

The decree dismissing the libel is reversed, and the record is remitted to the court below with direction to enter a decree of divorce a vinculo matrimonii in favor of the appellant, with costs.


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Stiteler v. Ditzenberger, Appellant.

      Principal and agent—Authority of agent—Acting in excess of authority —Personal liability.

    1. If- a person undertake to perform an act as the agent of another and he does not possess authority from his principal therefor, or if he exceed the authority accorded to him he will be personally liable to the person with whom he is dealing. And this is so whether the agent 'falsely misrepresents his authority with intent to deceive or not, or with knowledge of his want of authority without intending any fraud he assumes to act as though he were fully authorized; or where he acts with a bona fide belief that he has authority but in fact has not.
    2. Where a tenant is given authority by his landlord to contract for work on the leased premises to an amount stated, but without any authority therefor enters into a contract for a much larger amount, he will be personally liable for the difference; and the fact that the landlord pays to the contractor the amount which he had authorized the tenant to expend, is not a ratification, but rather a repudiation of the contract made in excess of the amount specified.

      Argued Oct. 25, 1910.
    Appeal, No. 228, Oct. T., 1910, by defendant, from judgment of C. P. Clearfield Co., Dec. Term, 1908, No. 325, on verdict for plaintiff in case of Lee Stiteler v. George Ditzenberger. ’
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for labor and material.
    Holt, P. J., specially presiding, charged in part as follows:
    Lee Stiteler has brought this action against George Ditzenberger for the purpose of recovering a balance of a claim, which the plaintiff avers is due to him from the defendant, amounting to $594.05, with interest thereon from August 18, 1908. As.the basis of his right of action in this case he has offered testimony for your consideration to the effect that in the latter part of the year 1907, along about December 23, the defendant holding himself out as the representative or agent of the owners of a certain property in which the defendant was keeping a hotel, by the name Scheutz, Renziehousen & Company, employed him to do the work of papering, painting and otherwise modifying the interior of the hotel in which the defendant was living at that time and which he held as a tenant from the owners of the building. You have heard the testimony of the plaintiff as to the nature and character of that work, gentlemen, and he has testified that the total amount of his bill, including $10.00 worth of varnish which the defendant purchased from him, amounted to $1,216.18, and that he had been paid on account thereof the sum of $622.13, leaving this balance of $594.05.
    It seems, gentlemen of the jury, that the owners of the hotel property, prior to the time of this engagement of the plaintiff by the defendant as agent for the property owners, had received a bid for the doing of this work from a person by the name of Romulus Stiteler and the bid amounted to $622.13. It is in evidence that upon the receipt of this bid of Romulus Stiteler the owners of the hotel property wrote a letter to the defendant in this case, inclosing with the letter this bid of Romulus Stiteler, authorizing the defendant in this case as their representative to close up the contract for this work in the hotel for the price of $622.30, authorizing him of course to make the contract with Romulus Stiteler. But it seems that the defendant by a mistake—and I think you will find that there is no contradictory evidence on that point—entered into a contract with the plaintiff, Lee Stiteler, not exhibiting to him the specifications and bid that had been received by him from his principals, the owners of the hotel; making a contract in general terms with the plaintiff for the doing of this work, not specifying any amount, as I remember the testimony.
    But later or before the transaction was closed up between Lee Stiteler and the defendant, or during the negotiations, the evidence is undisputed in this case that he asked Lee Stiteler, the plaintiff, if he had a bid in for this work and that he informed him that he had. Now just what that bid was I believe we do not know, gentlemen.
    There is testimony here on the part of Lee Stiteler that he had given a bid or an estimate to the person by the name of Chambers, an estimate or a bid for which this work would be done, but the plaintiff denies that he gave the owners of the property any bid for the doing of this work. So that, gentlemen of the jury, when Lee Stiteler, the plaintiff, and the defendant met at the hotel for the purpose of closing up the transaction, I do not recall that there is any testimony in the case that they there discussed any specific terms what the contract price would be or when the work was to be done, or that plaintiff was to receive so much as the same might be worth. But it seems that the defendant notified the plaintiff that he had received word from the owners of the hotel property to let him, Lee Stiteler, have the contract, and the defendant says that Lee Stiteler said that he had a bid in for the work. So, gentlemen, it is apparent that there was a mistake made in this case. It is admitted that the defendant did receive this bid for $622.13 and the letter accompanying the same, authorizing him to employ a person by the name of Stiteler to do that work. Now the bid discloses the name of Romulus Stiteler and the letter written by Scheutz, Renziehousen & Company also contains the name of the person who had submitted the bid.
    [Now we say, gentlemen of the jury, that if the defendant in this case, with the written authority from his principals and the bid in his possession, made an error and authorized work to be done that his principals did not authorize him to do, and the plaintiff did not have knowledge of the want of authority, then the plaintiff would have a right to recover from the defendant in this case the price and value of the work which he did that was not authorized by the owners of the building. Now it is for you, gentlemen, to determine what amount of work did the plaintiff perform on the strength of this employment of him by the defendant. You will find in this case that the defendant represented to the plaintiff that he was acting for the owners of the building, Scheutz, Renziehousen & Company. But, gentlemen of the jury, it is the law that even if one does make the statement or representation to one with whom he deals that he is acting in the transaction as an agent of another, that he is only excused from personal liability when he carries out in his contract that which he is authorized to do. If he exceeds the authority that authorizes something else or something in addition to be done, he thereupon becomes personally liable and the person doing the work may elect to treat him as principal so far as the work or that part of it that was not authorized was concerned.] [1]
    Now, gentlemen of the jury, you will under this evidence in the case determine work in addition to that which was authorized, how much in addition to this bid of $622.13 did this plaintiff perform at the instance and request of this defendant. You have the testimony of the witnesses as to the amount of work done wherein it exceeded that which was specified in this bid, in relation to which the owners of the property authorized the defendant to contract. Now if you find that the plaintiff performed work at the instance and request of this defendant over and above that amount, then determine the fair and reasonable value thereof. You have the testimony of the plaintiff as to the full amount of the work, he has testified that it all aggregated $1,216.18. Now do you find under the evidence, gentlemen of the jury, that he is correct in that, and if you do, then there would be the balance of $594.05 of the bill unpaid.
    Verdict and judgment for plaintiff for $500. Defendant appealed.

      Errors assigned were (1) portions of charge as above, quoting it, and (2) in not directing a verdict for defendant.

      A. L. Cole, with him L. E. Boyer, for appellant,
    cited: Clark v. Lindsay, 7 Pa. Superior Ct. 43; Schalcher v. Bergdoll, 41 Pa. Superior Ct. 547.

      W. C. Penlz, with him W. L. Calkins, for appellee,
    cited: McConn v. Lady, 10 W. N. C. 493; Wolff v. Wilson, 28 Pa. Superior Ct. 511; Simpson v. Kerkeslager, 41 Pa. Superior Ct. 347.
    March 3, 1911:
   Opinion by

Henderson, J.,

It is a well-established rule that if a person undertake to perform an act as the agent of another and he does not possess authority from his principal therefor or if he exceed the authority accorded to him he will be personally liable to the person with whom he is dealing: Wharton on Agency, sec. 524; 1 Pars. on Cont. 67; 2 Smith’s Lead. Cases, (10th ed.) 380, note; Story on Agency, (10th ed.) sec. 264; Jefts v. York, 64 Mass. 392; Baltzen v. Nicolay, 53 N. Y. 467; McConn v. Lady, 10 W. N. C. 493; Kroeger v. Pitcairn, 101 Pa. 311; Wolff v. Wilson, 28 Pa. Superior Ct. 511. And this is so whether the agent falsely misrepresent his authority with intent to deceive or not; or where with knowledge of his want of authority without intending any fraud he assumes to act as though he were fully authorized; or where he acts with a bona fide belief that he has authority but in fact has not. Where a party has been misled to his prejudice by the unauthorized act of an agent he is not limitied to an action against such agent for the injury done but he may treat him as a principal and recover as if the contract were with him individually. The reason for this is that the party dealing with the agent has no recourse against the principal; the contract is not his in fact, and justice requires that the person who occasioned the loss to the other party to the contract should be made responsible because of his unauthorized conduct. Even in a case where the agent honestly believes he has authority to make a contract, but in fact has not, a plain principle of justice requires that if an injury be done to another by the assumption of an unauthorized authority the person occasioning the loss should be responsible rather than the party who was misled to his hurt by the exercise of such assumed power. The application of this principle to the present case leaves no room for hesitation in approving of the action of the court below. It was admitted that the plaintiff performed the work for which his bill was rendered. It was clearly proved that the defendant had no authority to contract for the amount and character of work performed. It was also shown that he knew or might have known that the expense to be incurred was limited to $622.13, for the bid of Romulus Stiteler which was in writing and was forwarded by the owners of the building to the defendant amounted to that sum and this bid appears to have been in the possession of the defendant at the time the contract was made with the plaintiff and during the period covered, by the plaintiff’s work. The landlords having repudiated the act of their tenant the plaintiff was at liberty to treat the defendant as the principal in the case. He was the only person with whom the plaintiff dealt and he assumed authority to order work of an amount and character greatly in excess of that which the landlords permitted. The plaintiff was justified in assuming that the defendant had authority to do this for he was there in the possession and use of the hotel and claimed to be acting for the owners in ordering the work. If he is required to pay that which he supposed was covered by the bid of Romulus Stiteler he has himself alone to blame, for a reference to the letter written to him by his landlords dated December 23,1907, and the Romulus Stiteler bid which accompanied it, would have pointed out to him the limit of his authority.

The payment by the landlords to the plaintiff of an amount equal to the Romulus Stiteler bid was in no sense a ratification of the defendant’s act. It was a repudiation, rather. They declined to recognize the plaintiff’s contract or to pay his bill, but inasmuch as work had been done in excess of the Romulus Stiteler bid the landlords were willing to pay as much as they had permitted the tenant to contract for on their account. This was a fair and businesslike transaction on their part but did not commit them in any way to the payment of more than that amount.

Objection is made that it is not averred in the declaration that the plaintiff’s contract was with the landlords, Scheutze, Renziehausen & Co'., and that the plaintiff in assuming to act for them exceeded his authority and entered into the contract which is the basis of this action; and Schalcher v. Bergdoll, 41 Pa. Superior Ct. 547, is referred to as an authority. That case does not sustain the appellant’s position, however. It came up on an appeal from an order of the court making absolute a rule for judgment for want of a sufficient affidavit of defense and the defendant undertook to set up by way of defense an alleged agreement entered into by an agent, which was said to have been done without authority, but the affidavit having recited the facts failed to set forth that the principal had not authorized the agent to make the representations and agreement which the affidavit declared the agent made for the principal and this was held to be a defective averment. There were other grounds, however, on which the opinion of this court was based and which were sufficient to support the conclusion there reached. The case was adequately presented to the jury in the charge of the learned trial judge and the verdict of the jury was in harmony with the weight of the evidence.

The judgment is affirmed.


text:
    DeWitt Wire Cloth Company, Appellant, v. Griffith.

      Corporations—Foi-eign corporations—Actions—Verification of statement of claim—Practice, C. P.

    1. Where the plaintiff in an action of assumpsit is a foreign corporation duly registered and authorized to do business in Pennsylvania, and having a store and sales room in this state, such corporation may verify its statement of claim by the affidavit of the manager of its store in Pennsylvania who is familiar with the transaction out of which the litigation grew.

      Contract—Sale—Designation of carriers—Waiver-—-Bill of lading.

    2. Where a purchaser of goods directs them to be shipped to his agent in another city, and the seller ships them by a railroad other than that designated, and the purchaser through his agent secures the bill of lading so as to transfer to a customer the control and ownership of the goods, the purchaser will be deemed to have waived the irregularity arising out of transportation by another railroad than that designated in the order.
    Argued. Oct. 13, 1910.
    Appeal, No. 81, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 1, Phila. Co., March T., 1909, No. 3,196, for defendants on demurrer to statement of claim in case of DeWitt Wire Cloth Company v. John R. Griffith and Samuel F. Wilson, now or late trading as Shields & Brother.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.

      Assumpsit for goods sold and delivered.
    The statement of claim averred that the plaintiff was a corporation of the state of New York registered in the state of Pennsylvania, with a store and sales room in the city of Philadelphia. It further averred that on February 11, 1908, the defendants gave the plaintiff written orders for certain hardware to be shipped to their agent "John O’Donnell, Atlantic City, N. J.,via. ReadingR. R.” The statement further averred as follows:
    And the plaintiff avers that, excepting one roll of thirty-eight inch wire cloth for which the order was subsequently canceled, all of the said goods were shipped by the plaintiff from its factory at Bellville, N. J., via the Pennsylvania Railroad, to the said John O’Donnell at Atlantic City, aforesaid, where the said goods arrived on March 28,1908, of which fact the defendants, through their said agent John O’Donnell, the consignee, then and there had notice. And shortly thereafter, to wit, on or about March 30, 1908, the said John O’Donnell called at the plaintiff’s place of business in Philadelphia, stated that he had notice of arrival of said goods, and requested the plaintiff to procure for the defendants a bill of lading signed by the agent of said railroad company, so that, by indorsing and delivering it to the defendants’ customer for whom the said goods had been ordered, their said customer might be able to get the said goods at the railroad depot. In accordance with said request the plaintiff thereupon procured said bill of lading, and on April 2, 1908, delivered the same to the defendants at their store in Philadelphia; and shortly thereafter they, the defendants, turned over the said, bill of lading to their said customer, viz.: The Chelsea Hardware Company of Atlantic City, and directed them to get the said goods at the said railroad depot, and thereupon they, the said defendants, sent their said customer their bill for the price of said goods.
    And the plaintiff avers that the defendants, by virtue-of the facts aforesaid, accepted the goods so delivered by the plaintiff.

      Immediately following the shipment of the said goods to the defendants, to wit, on March 25, 1908, the plaintiff sent them an invoice or bill for the larger part of said goods, and a few days later, to wit, on April 6, 1908, the invoice for the balance thereof; and the defendants then and there admitted to the plaintiff the receipt of said goods, delivered as aforesaid, and made no objection to the plaintiff’s bill therefor. A true copy of the plaintiff’s book of original entries of the goods, so sold and delivered to the ■ defendants, is hereto attached and marked Exhibit “B.”
    The defendants demurred to the statement. The court entered judgment for defendants on the demurrer.

      Error assigned was in entering judgment for defendants on the demurrer.

      James S. Williams, for appellant.
    Where a purchaser exercises any acts of ownership of the goods purchased, his acts which are hostile to the rights of the vendor as owner, will indicate an acceptance of them: Parker v. Palmer, 4 B. & Ald. 387; Currie v. Anderson, 2 E. & E. 592; Warden v. Marshall, 99 Mass. 305; Brown v. Nelson, 66 Vt. 660 (30 Atl. Repr. 94); Delamater v. Chappell, 48 Md. 244; Wolf v. Dietzsch, 75 Ill. 205.
    The statement was improperly verified: Erie Boot & Shoe Co. v. Eichenlaub, 127 Pa. 164; Johnson v. Smith, 158 Pa. 568; Matter of St. Lawrence & A. R. R. Co., 133 N. Y. 270 (31 N. E. Repr. 218).

      Myles Higgins, for appellees.
    Where a vendor agrees to deliver at a certain distant place, the merchandise is at vendor’s risk until actual delivery: Sneathen v. Grubbs, 88 Pa. 147; McNeal v. Braun, 53 N. J. Law, 617 (23 Atl. Repr. 687); Taylor v. Cole, 111 Mass. 363.
    The delivery of a bill of lading to a vendee, even though the goods have arrived at destination, cannot operate as a delivery where a constructive delivery has not been made: Griffith v. Ingledew, 6 S. & R. 429; Jordan v. Wilson, 25 Pa. 390; Hieskell v. Nat. Bank, 89 Pa. 155.
    There is no allegation that the defendants did more than accept the bill of lading, which in this case is of no effect whatever: Dannemiller v. Kirkpatrick, 201 Pa. 218.
    March 3, 1911:
   Opinion by

Rice, P. J.,

This is an appeal from judgment for defendants on demurrer. The action was assumpsit for the price of goods which, by the defendants’ written orders, accepted by the plaintiff, were to be shipped to one John O’Donnell, who was the defendants’ salesman and agent at Atlantic City, New Jersey, via the Reading Railroad. The specific reasons assigned in support of the demurrer were, (1) that the statement did not allege a sufficient delivery of the goods, (2) that it was not properly verified.

The second reason is not noticed in the appellees’ brief and is not good. The plaintiff being a foreign corporation duly registered and authorized to do business in Pennsylvania, and having its Pennsylvania store and salesroom in Philadelphia, verification of the statement by the affidavit of the manager of its Philadelphia store, through which the sale was made, who was entirely familiar with the transaction, was sufficient: Erie Boot & Shoe Co. v. Eichenlaub, 127 Pa. 164.

The facts relative to delivery, as averred in the statement of claim, are substantially as follows: The goods were shipped via the Pennsylvania Railroad to O’Donnell at Atlantic City, where they arrived on March 28, 1908, of which fact the defendants, through their agent O’Donnell, the consignee, then and there had notice, On or about March 30, O’Donnell called at the plaintiff’s place of business in Philadelphia, stated that he had notice of the arrival of the goods, and requested the plaintiff to procure for the defendants a bill of lading signed by the agent of the railroad company, so that by indorsing and delivering it to the defendants’ customer for whom the goods had been ordered the customer would be able to get the goods at the railroad depot. In accordance with this request the plaintiff procured the bill of lading and, on April 2, 1908, delivered it to the defendants, who shortly thereafter turned it over to their customer, the Chelsea Hardware Company, of Atlantic City, directed them to get the goods at the railroad depot, and thereupon sent them the defendants’ bill for the price of the goods. The statement further averred that on March 25, 1908, an invoice or bill for the larger part of the goods, and on April 6, 1908, an invoice for the balance, were sent by the plaintiff to the defendants, and that the latter “then and there admitted the receipt of the goods delivered as aforesaid and made no objection to the plaintiff’s bill therefor.” The effect of the latter averment is not discussed in the paper-books, but even if it be disregarded we think the other facts alleged were sufficient to establish an acceptance of the goods, notwithstanding they were not shipped by the railroad designated in the defendants’ orders. It is not pretended that the delivery to a carrier other than that named in the orders was a performance by the plaintiff of its part of the contract, or that the defendants were under obligation to accept the goods when they arrived at the depot of the carrier in Atlantic City. The risk of transportation was upon the plaintiff, and the defendants, if they had chosen to stand on their legal rights, might have awaited actual physical delivery of the goods, either at the depot of the railroad designated in the orders, or, perhaps, ■ at their place of business, before accepting them. However, they did not choose to stand upon the letter of the contract, but by unequivocal acts and declarations showed their intention to waive the irregularity arising out of transportation by another railroad than that designated in their orders and to accept symbolical delivery. Not only so, but their use, with the plaintiff’s assent, of the bill of lading to complete a sale they had made to a third person and to transfer to that person the control and ownership of the goods, was entirely inconsistent with the supposition that either party to the suit thereafter regarded the ownership of the goods as being in the plaintiff. The actual receipt of the bill of lading or other document of title to goods may be equivalent to that of the goods themselves: Burdick on Sales, 75, citing Currie v. Anderson, 2 E. & E. 592; and if the circumstances under which it was delivered, accepted and used show that such was the intention of the parties, it is the equivalent. The principle is thus stated in 1 Benjamin on Sales (6th Am. ed.), sec. 148: “A dealing with goods so as to justify a jury in finding a constructive acceptance may take place as effectively with the bill of lading which represents the goods as with the goods themselves.” .This statement of the principle is supported by reason and authority. Applying it here it sustains the averment of the statement of claim “that the defendants, by virtue of the facts aforesaid, accepted the goods so delivered by the plaintiff.”

The judgment is reversed and judgment is entered in favor of the plaintiff for $430.20, with interest on said sum from May 6, 1908, and costs.


text:
    Peters v. Holmes, Appellant.

      Principal and agent—Beal estate broker—Commissions.

    1. When a broker is duly authorized to sell property by private sale and has commenced negotiations with a purchaser the owner cannot .while such negotiation is pending take it into his own hands and complete it either at or below the price first limited and then refuse to pay the commission. If the evidence is conflicting as to whether the broker brought the parties together, or if having done so had abandoned the sale to the person introduced, the case is for the jury.
    2. Where a broker effects a sale of property for a sum named, he is entitled to his commissions on such sum, irrespective of the fact that there was a mortgage upon the property.
    Argued Oct. 13, 1910.
    Appeal, No. 84, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1907, No. 2,172, ,on verdict for plaintiff in case of C. P. Peters, trading as C. P. Peters & Son, v. Margaretta Holmes, executrix of the estate of Sophie M. Holmes, deceased.
    Before Rice, P. J., Henderson, Morrison, Or-lad y, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for commissions.
    Kinsey, J., charged as follows:
    If a broker brings the seller and buyer together in a real estate transaction such as this, he is entitled to his commission—I mean, bringing them together whereby a sale is consummated. The question for you to determine is, Did the efforts of the plaintiff here bring about that result with Mrs. Holmes? If they did, he is entitled to his commission; if not, he is not so entitled. [What are the facts? Plaintiff puts up a sign, Mr. Price says he saw the sign, which was the first notice he had that the property was for sale. Then he made inquiry of Mr. Peters, had negotiation and conversation with them as to the price, and so forth, the usual incidents that take place when there is a negotiation of that kind going on. This lasts for awhile until finally Mr. Price visits Mrs. Holmes, the owner of the property, they negotiate, a deed is made to Mr. Price and the broker Peters is discarded.] [2]
    In bringing about those relationships the law does not contemplate that this shall go on forever, but it does say that if whatever has been done by a broker is an efficient and near by cause, that results in the purchase, he is entitled to a commission. t.

    [Did Mr. Peters start the train of incidents that orig-^ inally led] up to the taking of the title by Mr. Price? If the sale was the consummation of the events beginning with the sign “For sale” on the property, and the eventual purchase by Mr. Price, I say, if Mr. Peters was the acting cause in producing that series of events, that chain of incidents that led from the very inception up to its conclusion in the purchase, he is entitled to his commission. If he did not so do, your verdict will be the other way.] [3]
    I am asked to charge on some points by the defendant.
    2. A broker’s employment may be terminated at any time.
    That is true, it does not endure forever, but nevertheless it endures for the time the negotiation is going on, unless there is some incident so sharply defined as to separate entirely and disconnect the relationship. The owner of the property cannot go to the broker and say, “You are discharged unless you get Mr. Price now to come and agree to this matter, or you have got to get a customer now;” you cannot keep the broker out of commission by saying, “We will relieve you by selling it ourselves.” That is not what is meant by this. It can be terminated, but it has to be terminated in the natural order of things, and not if there is a purposeful intention back of it. [4]
    The last point I will refuse and will not read.
    The last point refused and not read by the court is, under all the evidence, your verdict must be for the defendant.
    [Mr. Kaufman: I will ask the court to charge the jury as to the weight to be given to the plaintiff’s own witness, Mr. Price, when he testifies that Mr. Peters had nothing to do with consummating the contract.
    The Court: Yes, they will take Mr. Price’s statement with what preceded it. Mr. Price cannot dispose of Mr. Peters’ right to commission by mere mood of mind or by temptation to get the property at a lower price. That cannot affect the rights of this man in the least if such he has.] [6]
    Mr. Kaufman: I will ask for an exception to the refusal of the last point and to the qualification of the first point: also the remarks as to the weight of the testimony of Mr. Price.
    Exceptions allowed.
    [Counsel for plaintiff being about to hand to the jury a calculation in which is calculated one per cent on $13,800, being the total consideration money and interest, Mr. Robinson objects to that calculation going to the jury on the ground that the plaintiff is only entitled to a commission on $11,800, and not $13,800, as there is an existing mortgage of $2,000. The court states that the plaintiff, if entitled to a verdict, is entitled to commissions on the whole amount.]
    Exception for defendant. [7]
    Verdict and judgment for plaintiff for $409.94. Defendant appealed.

      Errors assigned were (2, 3, 4, 6, 7) above instructions, quoting them.

      John G. Kaufman, with him V. Gilpin Robinson, for appellant.
    Peters has not proved that his acts were the procuring cause of the sale: Burchfield v. Griffith, 10 Pa. Superior Ct. 618; Kifer v. Yoder, 198 Pa. 308; Shepler v. Scott, 85 Pa. 329; Earp v. Cummins, 54 Pa. 394; Barber v. Miller, 41 Pa. Superior Ct. 442.

      Owen J. Roberts, with him Robert T. McCracken, for appellee.
    The case was for the jury: Keys v. Johnson, 68 Pa. 42; Hartley v. Anderson, 150 Pa. 391; Gibson’s Est., 161 Pa. 177; Showaker v. Kelly, 21 Pa. Superior Ct. 390; Plant v. Thompson, 42 Kans. 664 (22 Pac. Repr. 726).
    March 3, 1911:
   Opinion by

Henderson, J.,

The evidence shows very clearly that Mrs. Holmes placed her property in charge of the plaintiff for sale and that the latter put a sale sign on the property and conducted negotiations looking to a sale. This was in March, 1898. In April following, the plaintiff wrote to Mr. Price about the property. Price had seen Peters’ sign on the premises and subsequently called at the latter’s office where he examined plans and photographs of the property and sought information as to whether it could be divided. Price called, again at the plaintiff’s office and discussed the subject of a sale of a part, at which time he informed the plaintiff that he had talked with Mrs. Holmes in regard to the purchase of a part of the land, but that she declined to divide it. The plaintiff had subsequent interviews with Mrs. Holmes and presented the subject of a sale of a part to her and in December wrote to inquire about the prospects of a sale to persons whom he had referred to her. On February 1,. 1902, Mrs. Holmes wrote to Mr. Peters that she had sold about six and one-half acres to Mr. Walker and that for the remaining twelve acres her price was $14,000. In this letter she expressed the hope that the plaintiff would be able to sell the place “this spring” and on the sale to Walker she paid the plaintiff his commission. On March 1, the plaintiff received a letter from Mr. Robinson, attorney for Mrs. Holmes in which he was informed that unless he notified the writer of the letter at once that he had a prospective purchaser Mrs. Holmes would withdraw the property from his hands. Two weeks later the plaintiff wrote to Mr. Robinson that he had no definite offer to submit but had named the offer “ to many, amongst them Mr. Price ” and informing him that if the property should be bought by any one to whom he had referred it he would claim his commission. To this letter there was no reply. At this time Mr. Price was considering a purchase of the property and early in April he agreed to buy and a deed was subsequently delivered to him. Numerous assignments of error are presented but the controversy is within narrow limits. The plaintiff claims compensation as a real estate broker on the sale of the twelve acre lot and bases his claim on the fact that he brought the property to the notice of the purchaser and his agency thereby became the procuring cause of the sale. It is not material that the sale was made directly with the owner, if the broker brought the parties together and a sale resulted from the broker’s intervention. When a broker is duly authorized to sell property by private sale and has commenced negotiations with a purchaser the owner cannot while such-negotiation is pending take it into his own hands and complete it either at or below the price first limited and then refuse to pay the commission: Keys v. Johnson, 68 Pa. 42; Reed’s Executors v. Reed. 82 Pa. 420; Hartley v. Anderson, 150 Pa. 391; Gibson’s Estate, 161 Pa. 177. Considering the evidence in the light of these adjudications the question here is obviously one of fact to be determined by the jury. That question is, did the acts of the plaintiff result in a sale of the property to Mr. Price. Was the plaintiff the procuring cause of the sale? The plaintiff’s evidence evidently led the jury to conclude that the negotiation which was pending between him and Mr. Price for a sale of part of the property before the purchase of a portion by Walker was taken up by Mrs. Holmes and continued to a conclusion the consequence of which result would be the liability of the vendor for the plaintiff’s commission. We cannot regard it as the duty of the court to state to the jury that Peters had abandoned the matter of a sale to Price. The engagement of the plaintiff was recognized by Mrs. Holmes until a short time prior to the sale to Price and she was negotiating with the latter when the letter of Mr. Robinson to the plaintiff was written. It is true Mr. Price testified that all the negotiations leading up to his purchase of the property were conducted with Mr. Robinson and that Mr. Peters had nothing to do with the purchase. By this the witness probably meant that when he determined to buy the property for himself he carried out the purpose with Mr. Robinson, the attorney of Mrs. Holmes. . But this does not take into consideration the examination of the property which he had made as he says on account of the Rose Valley Association in connection with which the witness first examined and considered- the property. If the witness acting in one capacity considered the purchase of the property as an agent and afterward while the property was in the hands of the broker concluded to buy on his own account and dealt with the owner directly or with the owner’s attorney the broker would not necessarily be precluded from recovering his commission on that state of facts. Much of the evidence was oral and the jury was the tribunal to determine its weight and effect. The portion of the charge set forth in the sixth assignment of error has reference to this testimony of Mr. Price and although it is stated by the learned counsel for the appellant to be “our most vital complaint in the charge of the court” it can hardly be regarded as reversible error when read in connection with all the testimony offered by the plaintiff. If Mr. Price’s attention was brought to the lot by the plaintiff and the negotiation with reference thereto had not terminated and he concluded to deal directly with the principal rather than the broker he could not by such conduct defeat the broker’s claim for commission and this is what the learned trial judge had reference to in saying that “Mr. Price cannot dispose of Mr. Peters’ right to commission by mere mood of mind.” The reference to temptation to get the property at a lower price was suggested to the court by the fact that although the owner had fixed the price at 114,000 she finally sold to Price for $13,800. Whether he thus intended to avoid the cost of the commission or whether he preferred to deal directly with the owner of her attorney rather than with the broker would not necessarily affect the plaintiff’s position. He might still recover if he was the moving cause in bringing about the sale.

The price of the property was $13,800. A mortgage of $2,000 existed against the premises and it is contended that the court erred in permitting a computation of the commission on the value of the property without maldng allowance for the $2,000 incumbrance. But it is perfectly clear that the vendor sold property of the value of $13,800. What she did with the purchase money was a matter of no concern to the plaintiff. It happened in this case that it was necessary for her to apply $2,000 of it to a debt charged against her property but it was of no consequence whether the indebtedness was a lien or not so far as the plaintiff was concerned. If she had taken the whole of the price and applied it to debts which she owed, while that would have exhausted the proceeds of the land she would still be liable to the plaintiff if he procured the sale to be made.

There is no evidence that Clarence C. Peters, the witness for the plaintiff, was a partner with the plaintiff in his brokerage business and the court would not have been justified therefore in striking out the testimony of that witness. After a consideration of the whole case we do not find any error in the trial which would require a reversal of the judgment.

The judgment is affirmed.


author: Morrison, J.,

text:
    Girard Trust Company v. Boyd, Appellant.

      Banks and banking—Checks—Forgery—Raised check—Collection—■ Negligence.

    1. Where a customer of a bank takes to the bank a foreign check with a good signature, but fraudulently raised in amount, to ascertain whether the check would be paid, and the customer at the request of the teller indorses the check, and the teller makes out a deposit slip, and credits the amount of the check to the customer’s account, and thereafter the bank uses due diligence in ascertaining that the check had been paid, and notifying the customer thereof, the bank after the fraud had been detected, and after it had been compelled to pay back the money to the drawee, may recover the amount thus paid from the customer who presented the check.
    2. In such a case if there is no evidence of negligence on the part of the bank, and there is no conflict of testimony as to any of the material facts, it is not error to refuse to submit the case to the jury.

      Appeals—Assignments of error—Judgment n. o. v.

    3. An assignment of error in the following form is insufficient: “The learned trial judge erred in entering judgment for the plaintiff non obstante veredicto.”’ The motion for judgment, the order of the court thereon and the exception should be printed in connection with the assignment, and reference should be made to the page of the paper-book where the same might be found.

      Argued Oct. 14, 1910.
    Appeal, No. 108, Oct. T., 1910, by defendants, from judgment of C. P. No. 5, Phila. Co., June T., 1908, No. 6,302, for plaintiff non obstante veredicto in case of Girard Trust Company v. I. Newton Boyd and Carl Zeller, copartners trading as Boyd & Zeller.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit to recover the amount of a check. Before Martin, P. J.
    At the trial the jury returned a verdict for defendants.
    On a rule for judgment n. o. v. Martin, P. J., filed an opinion in which the facts were stated to be as follows:
    The defendant firm kept a deposit account with the Girard Trust Company, the plaintiff.
    On January 15, 1908, Zeller, one of the members of the firm, having in his possession a check drawn on the Fourth National Bank of Boston to the order of J. H. Armstrong for $310, indorsed by J. H. Armstrong and J. H. Holden, called at the place of business of the trust company, and in the course of conversation with the receiving teller said:
    “Here is a check I have and I do not know the man who gave it to me, and I don’t know anything about the maker of the check; he is a suspicious looking man and I have a suspicion against him, I don’t like the looks of him; this firm is willing to go to any expense to find out if the check is good or not.”
    The teller replied: “All right, you indorse the check, I will send them a letter about it and tell them to wire me whether the check is good.” Zeller then said: “Whatever is done charge the expense to us, we don’t want any comebacks.”
    Zeller indorsed the check in the «firm’s name and left it with the teller but said nothing about depositing it, and did not have the firm’s deposit book with him. He testified that the check was not left by him for deposit but for the trust company to find out so as to protect the firm, and to see if the check was good.
    The teller made out a deposit slip and the check was credited to defendants as a regular deposit.
    The same day the trust company stamped it “Endorsements guaranteed,” indorsed it, attached a slip requesting advice by wire whether or not the check was paid, and deposited it in the Franklin National Bank. That bank stamped it “Prior endorsements guaranteed,” indorsed it and sent it to the National Shawmut Bank of Boston. On the following day a telegram was received by the Girard Trust Company from the National Shawmut Bank—“Check, Fourth National, three hundred and ten, yours, fifteenth, paid.” This telegram was handed to defendants. In due course thfe check was presented and paid by the Fourth National Bank of Boston to the National Shawmut Bank, credit was given to the Franklin Bank, the proceeds credited by the Franklin Bank to the Girard Trust Company and the defendants were permitted to draw the money from their account.
    On February 26 deposit book of the maker of the check was settled and it was then discovered that the check had been altered by changing the name of the payee to John H. Armstrong and raising the amount from $32.68 to $310. When this was ascertained the Fourth National Bank credited the maker of the check with the amount paid and made demand on the National Shawmut Bank, which demand was transmitted to other indorsers. The Girard Trust Company refunded the money and requested reimbursement from defendants. On their refusal to make restitution this suit was instituted.
    The alterations in the check and the return of the money by the paying bank to their depositor, the maker of the check, was proved by the testimony taken under a commission. This evidence was not attacked or contradicted, but defendants claimed that the check had not been deposited by them for collection but left with the trust company to ascertain its validity, and that the company was negligent in failing to inform the bank on which the check was drawn of the circumstances related by Zeller to the receiving teller at the time the check was left with the Girard Trust Company, which information, it was urged, would have indicated to that bank the necessity for an examination or investigation, and resulted in the immediate discovery of the alterations, and defendants would not have suffered from cashing the check for the stranger from whom they received it.
    The trial judge charged the jury that there was no evidence of negligence; that defendants, by indorsing the check became responsible to plaintiffs, and if the jury believed the uncontradicted evidence that the check had been altered and plaintiffs paid back the money to the Fourth National Bank the verdict should be for plaintiffs. The jury rendered a verdict for defendants.
    It was proved by uncontradicted evidence that the check went through the usual, ordinary and customary procedure, but it is contended on behalf of defendants that the teller to whom the check was handed undertook for the trust company to send a letter, and find out whether it was good or not, and that his failure to do so was negligence which prevents plaintiffs from recovering in this case.
    To charge plaintiffs with an arrangement of this character, it is necessary to prove that the teller was vested with authority in the premises to undertake such a transaction on behalf of his employer, and the burden of establishing the agency is on defendants: Amer. Car & Foundry Co. v. Water Co., 221 Pa. 529.
    There was no proof that plaintiffs assumed to do more than collect the check in the ordinary method, and no evidence of failure to perform every duty incident to such collection.
    The testimony taken by commission proved that the check had been raised, the payee’s name changed, and that it was paid under a mistake of fact. When this became known, plaintiffs returned the money obtained on the check to the paying bank and demanded to be reimbursed by defendants who were indorsers of the check and had received the proceeds.
    There was no conflicting evidence or denial of the facts.
    The jury displayed a capricious disregard of apparently truthful testimony, which was neither attacked nor contradicted, and which presented the facts on which the case depended clearly and distinctly, from which but one inference could be drawn.
    The testimony governing the case was submitted in answers to interrogatories. The witnesses were not called before the jurors, who were therefore not required to determine the question of their credibility: Lonzer v. R. R. Co., 196 Pa. 610.
    It would be idle to grant a new trial in this case and submit to another jury proof of facts not in dispute: Shannon v. McHenry, 219 Pa. 267.
    The rule for a new trial is discharged, and the motion for judgment non obstante veredicto granted.

      Error assigned was as follows: “The learned trial judge erred in entering judgment for plaintiffs non obstante veredicto.”

      Arthur B. Eaton, for appellants.
    In collecting, the bank must use care and diligence, and if special instructions have been given, they must be followed: 5 Cyc. 504; Merchants’ Nat. Bank v. Goodman, 109 Pa. 422; First Nat. Bank of Wampum v. Telegraph Co., 34 Pa. Superior Ct. 488; Clews v. Bank, 89 N. Y. 418.
    It is the duty of the receiving teller to report any unusual information he may receive concerning a check received for deposit: Hill v. Trust Co., 108 Pa. 1.
    The defendants were entirely justified in relying on the integrity and good faith of the receiving teller, and had a right to assume that, under the circumstances, his indorsement was restricted, and would be used only for the purpose for which it was obtained: Ziegler v. Bank, 93 Pa. 393; Bos v. Bank, 41 Pa. Superior Ct. 388.

      Under all the evidence the case was for the jury, and the plaintiff was not entitled to judgment non obstante veredicto: Clegg v. Seaboard Steel Co., 34 Pa. Superior Ct. 63; Bond v. R. R. Co., 218 Pa. 34; Corcoran v. Life Ins. Co., 183 Pa. 443; Dalmas v. Kemble, 215 Pa. 410.

      Sharswood Brinton, for appellees.
    As a matter of substantive banking law the appellees were entitled to recover: United Security Life Ins. & Trust Co. v. Nat. Bank, 185 Pa. 586; Rapp v. Nat. Security Bank, 136 Pa. 426; Land Title & Trust Co. v. Bank, 196 Pa. 230; Chambers v. Union Nat. Bank, 78 Pa. 205; Iron City Nat. Bank v. Fort Pitt Nat. Bank, 159 Pa. 46; Second Nat. Bank of Pittsburg v. Trust & Safe Dep. Co., 206 Pa. 616.
    The record discloses no dispute as to any material fact in the case: American Car & Foundry Co. v. Water Co., 221 Pa. 529; Interstate Securities Co. v. Bank, 35 Superior Ct. 277; Shannon v. McHenry, 219 Pa. 267; Cunningham v. Smith, 70 Pa. 450.
    The appellees were entitled at the trial to binding instructions in their favor, and therefore were entitled to an allowance of their motion for judgment non obstante veredicto: Cromley v. Penna. R. R. Co., 211 Pa. 429; Keiser v. L. V. R. R. Co., 212 Pa. 409; Heh v. Consolidated Gas Co., 201 Pa. 443; Devlin v. Beacon Light Co., 198 Pa. 583; Howard Express Co. v. Wile, 64 Pa. 201; Colonial Trust Co. v. Getz, 28 Pa. Superior Ct. 619; Holland v. Kindregan, 155 Pa. 156; Lonzer v. Lehigh Valley R. R. Co., 196 Pa. 610; Cobb v. Ins. Co. 19 Pa. Superior Ct. 228; Wells v. Ins. Co., 191 Pa. 207; Reel v. Elder, 62 Pa. 308; Lautner v. Kann, 184 Pa. 334; Cougle v. McKee, 151 Pa. 602.
    March 3, 1911:
   Opinion by

Morrison, J.,

This action was assumpsit to recover the amount of a check dated January 9, 1908, purporting to have been drawn for the sum of $310. The case was submitted to a jury and they returned a verdict in favor of the appellants. At the trial the appellee’s counsel presented a point asking the trial judge to give a binding instruction in favor of the plaintiff, which point was refused. After verdict, same counsel moved the court for a new trial and for judgment non obstante veredicto in favor of the plaintiff. Upon this motion rules were granted and upon argument and consideration the court discharged the rule for a new trial and made the rule for judgment non obstante veredicto absolute and granted judgment in favor of the appellee for its claim. To this ruling and judgment the appellants excepted, and the court sealed a bill at their request.

At the risk of seeming tedious we deem it advisable to here state the facts, to wit: The check was dated January 9, 1908, and as originally drawn was as follows:

“No. 31516 Boston, January 9, 1908.

“Fourth National Bank.

“Pay to the order of Ocean Steamship Company $32.68. Thirty-two and 68/100 dollars.

“F. M. Leonard & Co.,

“F. M. Leonard, Treas.”

At the trial it was proved and is a conceded fact that this check was so altered and raised that it read “pay to the order of J. H. Armstrong $310. Three hundred and ten dollars.” On January 15, 1908, the appellants indorsed the said raised check and deposited it with Girard Trust Company and it was credited to appellant’s account and on the same day a slip was attached to the check asking advice promptly whether check was paid or not. On the same day said check was indorsed by Girard (Trust Company and delivered and charged to Franldin National Bank and by the latter bank credited to Girard Trust Company for collection. The check was then forwarded by Franklin National Bank to National Shawmut Bank of Boston and received by the latter bank on January 16, 1908, indorsed by that bank and presented on the same day to the Fourth National Bank of Boston, drawee of the check, and on that day the said drawee bank paid the check to National Shawmut Bank and the latter bank wired Girard Trust Company same day as follows: “Boston, Mass., 16, Check Fourth National, $310, your 15th, paid. National Shawmut Bank, Boston.” On the same day, to wit, January 16, 1908, said telegram was delivered to appellants by appellee. On February 26, 1908, the makers of the check discovered the fraudulent alteration and raising of the check from $32.68 to $310, and at once gave notice thereof to the Fourth National, the drawee bank. This notice was given on February 26, 1908. On that date the drawee bank gave the makers of the check credit for the amount thereof. The drawee bank, on February 27, 1908, gave notice of the fraudulent alteration of the check to the National Shawmut Bank and claimed the amount thereof from that bank as indorser of the check. On the same day the National Shawmut Bank gave notice of said fraudulent alteration of the check to the Franklin National Bank and claimed from the latter bank as indorser the amount of said check. The Franklin National Bank then notified Girard Trust Company and claimed from it as indorser of the check the amount thereof. On the same day that the Girard Trust Company received said notice, to wit, March 2, 1908, it gave notice to appellants and demanded from them as indorsers of the check payment of the amount thereof, but appellants refused to comply with said demand.

On June 5, 1908, Girard Trust Company, recognizing its liability as indorser of the check, paid the full amount thereof directly to the Fourth National Bank, drawee, which payment relieved National Shawmut Bank and Franklin National Bank from their liability as indorsers of the check. After considerable negotiations between appellants and Girard Trust Company, and positive refusal of the former to pay on their indorsement the amount of the check, this suit was brought.

Based upon the above statement of undisputed facts we call attention to the diligence exhibited by Girard Trust Company in regard to said check. That company received the check from appellants in Philadelphia on January 15, 1908; on the next day the check was presented to the Fourth National -Bank of Boston, drawee, and the amount thereof, to wit, $310, was actually paid, and on the same day National Shawmut Bank wired that fact to Girard Trust Company and the latter, on the same day, delivered the telegram advising payment of the check to appellants, and it was not until after receiving said telegram that appellants actually paid the amount of the check to a man, unknown to them, who introduced himself as J. H. Holden, the then holder of the check. This was on January 16, 1908. It thus clearly appears, and is conceded, that appellants did not suffer any loss on account of the check until they paid Holden the apparent face value thereof after they had the same notice of its payment that the Girard Trust Company received from National Shawmut Bank. It is a proved and conceded fact in the case that the check actually was paid by the drawee bank on January 16, 1908, and, therefore, the notice by telegram to Girard Trust Company and from the latter to appellants was strictly true. Now the appellants seek to defend against their liability as indorsers of the check to Girard Trust Company on the ground of the negligence of the latter company. We have scanned this record carefully and have given due consideration to the able argument of appellants’ counsel and find ourselves unable to discover any negligence on the part of the appellee which woulcj warrant a jury in finding in favor of the appellants on the question involved. It is not pretended by appellants’ counsel that the various indorsers of this check from National Shawmut Bank to Girard Trust Company were not liable on their indorsements to repay the money which was paid on said check by the Fourth National Bank, on the faith of the indorsements on the check at the time. It will be noted that the signature to the check was genuine and it is a familiar rule of law that one who indorses a check and delivers it to a third person guarantees the genuineness and regularity of previous indorsements and is, therefore, liable to the person to whom the check is transferred: Chambers et al. v. Union National Bank, 78 Pa. 205. We do not understand appellants’ counsel to contend that any mistake was made in the adjustment of this matter back to Girard Trust Company. In other words, it seems to be conceded that the latter company was lawfully bound by its indorsement of the check to pay the amount thereof to the bank which suffered the loss by reason of the alteration of the check. ' But counsel contends on account of what took place between Mr. Zeller, one of appellants, and appellee’s receiving teller, Francis L. Bacon, when the check was delivered to him for Girard Trust Company on January 15, 1908, that a question of negligence is raised by the evidence which was rightfully submitted to the jury in the first instance and that the court erred in granting judgment in favor of the plaintiff non obstante veredicto.

The only assignment of error is, “The learned trial judge erred in entering judgment for the plaintiff non obstante veredicto.” We here remark that this assignment of error is not very satisfactory. The motion for judgment and the order of the court thereon and the exception granted to the appellants are not printed in connection with the assignment, nor are we referred to the place where the same may be found. We have concluded, however, to consider the assignment as if it were in proper form.

Counsel for appellant argues that the check was not left for deposit.and collection. He contends that the undisputed testimony shows that Mr. Zeller took the check to the appellee bank for one purpose only, to ascertain if the bank could find out whether or not the check was good. It may be conceded that the evidence does show that the check was taken to the bank to ascertain whether or not it would be paid. Counsel argues the case on the theory that the bank, through its receiving teller, undertook to ascertain whether or not the check was good. But the testimony does not sustain this contention. Taking the testimony of Mr. Zeller and of Mr. Bacon, in the light of what subsequently transpired, makes it very clear that what the teller undertook to do was to ascertain whether or not the check would be paid. There is no testimony in the record that the teller’s attention was called to any defect or irregularity on the face of the check. The testimony of Zeller is not that he was suspicious of the check but of the man who gave it to him. That he was a suspicious looking man. Now there is a marked distinction between a bank undertaking to ascertain that a check was in all respects good, that is, genuine, and undertaking to ascertain if it would be paid. If the evidence would warrant an inference that the receiving teller undertook to bind the bank to ascertain if the check was genuine, we would have perhaps two questions which do not arise on the present facts, (a) Had the receiving teller authority to bind the bank to guarantee that the check was good? (b) Would not the burden rest on appellants to affirmatively prove such authority and to prove clearly that the undertaking was to ascertain the genuineness of the check? But we do not decide these questions because the evidence will not warrant an inference that the receiving teller undertook to do more than ascertain if the check would be paid. But counsel argues that appellants were in some manner injured because the receiving teller accepted the check with appellants’ indorsement thereon, made a deposit slip and credited the amount of the check to their account, and of course charged it to Franklin National Bank on January 15, 1908. Mr. Zeller testifies that he did not hand the check to Mr. Bacon for the purpose of having it credited to appellants’ account, but to have the bank ascertain if the check was good. We have already said that there is no testimony in the record to sustain an inference that the receiving teller accepted the check in any other way except on the indorsement of appellants, old customers of the bank, to be credited to their account and forwarded to ascertain if it would be paid.

Now bearing in mind that there was nothing on the face of the check to attract the attention of the officials of the banks through which it passed, and that it would not be discoverable that the check had been raised, except by the use of a strong magnifying glass, and that appellants did not call Mr. Bacon’s attention to anything wrong with the check and that it deceived the officers of the paying bank, we are utterly at a loss to understand how it can be said that the Girard Trust Company was guilty of negligence. It is true that if appellants had not indorsed the check they would not have become liable to the trust company, but it may be assumed, at least as an inference, that if they had not indorsed the check, the receiving teller would not have received and forwarded it. The undisputed evidence is that when Mr. Bacon suggested to Mr. Zeller to indorse the check that he promptly and voluntarily indorsed his firm’s name thereon and left the check with Mr. Bacon. We see no force in the argument that placing the check to the credit of appellants did them any harm or in any way tends to convict the appellee of negligence. When the appellants received the notice that the check had been paid on January 16, 1908, they immediately presented their pass book to Girard Trust Company and received credit for the amount of the check. That this credit had actually been entered to their account on the bank’s books on January 15 is a wholly immaterial fact and it is impossible to infer any injury to appellants resulting therefrom.

Upon the facts in this case counsel for appellee has formulated three propositions which we adopt for convenience and because we consider them sound.

1. As a matter of substantive banking law the appellee was entitled to recover.

2. The record discloses no dispute as to any material fact.

3. The appellee was entitled to binding instructions at the trial and therefore was entitled to an allowance of its motion for judgment non obstante veredicto.

As to the first proposition we are of the opinion that on the undisputed facts in the case, it is sustained by the following authorities: United Security Life Ins. & Trust Co. of Penna. v. Central National Bank of Phila., 185 Pa. 586; Rapp et al. v. National Security Bank, 136 Pa. 426; Land Title & Trust Co. v. Northwestern National Bank, 196 Pa. 230; Chambers v. Union National Bank, 78 Pa. 205; Iron City National Bank v. Fort Pitt National Bank, 159 Pa. 46; Second National Bank, of Pittsburg v. Guarantee Trust & Safe Deposit Co., 206 Pa. 616; see also sec. 10, Act of April 5, 1849, P. L. 424.

As to the second proposition: The record discloses no dispute as to any material fact in the case. If there is a dispute appearing in the record it is between Bacon and Zeller. But what took place between them which looks like a dispute is, we think, immaterial. But if their evidence is in dispute it is not made to appear that Bacon as receiving teller had authority to bind the Girard Trust Company to ascertain whether the check was in all respects genuine and valid. Surely it cannot be argued successfully that a receiving teller of a bank has any such implied power. If the evidence would warrant a jury in finding that Bacon agreed to ascertain that the check was valid and genuine, the appellants in order to charge his principal must prove that he had authority to make such an agreement. The record contains no evidence that Bacon was clothed with any special authority to bind his principal, the trust company, by any such agreement. But we do not think the testimony shows that Bacon undertook to bind the bank to ascertain that the check was genuine. See American Car & Foundry Co. v. Alexandria Water Co., 221 Pa. 529; Interstate Securities Co. v. Third National Bank, 35 Pa. Superior Ct. 277.

But it is apparent from the record that the appellants relied for their defense on the negligence of the appellee, and not on an agreement that the appellee would ascertain that the check was in all respects good. This appears from the whole record and plainly in the affidavit of defense. The negligence alleged was that the appellee undertook to ascertain whether the check was good, obviously meaning that it was genuine. The information furnished to the appellants was that the check was paid. This information was not responsive to the question Zeller testified that he asked of Bacon. The appellants acted not upon what Zeller said Bacon undertook to ascertain, but on the report received that the check had been paid; this was true. Therefore, it is clear that when appellants purchased the check on the strength of the notice that it had been paid, they were not and could not have been injured in the appellee’s manner of making the inquiry. Conceding arguendo that there was negligence on the part of the appellee in the manner of making the inquiry, such negligence was not the proximate cause of, nor did it contribute to, the injury the appellants suffered. The appellants being anxious to make the profits on the sale of a 145.00 overcoat, purchased the check, not on information that it was good, but that it had been paid, and they were bound to know that there was a possibility that a bad check might have been paid and in such case they might be liable on their indorsement. The trial went on the conceded theory that there had been a fraudulent alteration of the check and that the appellee repaid the amount of it, and the defense set up and relied upon was the negligence of the appellee. In addition to this, witnesses who swore to the fraudulent alteration, and payment by Girard Trust Company, were positive in their testimony, were uncontradicted and unassailed, and there is nothing inherently improbable in the story told. The Supreme Court has said upon this point: “The case having been tried on this assumption it should be considered on review as if the proof had been made. It would be idle to send it back in order that proof should be made of facts not really in dispute:” Shannon v. McHenry, 219 Pa. 267. “Admitted facts need not be proven:” Cunningham v. Smith, 70 Pa. 450.

As to the third proposition: The appellee was entitled to binding instructions at the trial, and therefore was entitled to an allowance of his motion for judgment non obstante veredicto. Having reached the conclusion that there is substantially no dispute in the record as to material facts, it hardly seems necessary to cite authorities in support of the above proposition. But we cite the following: Devlin v. Beacon Light Co., 198 Pa. 583; Heh v. Cons. Gas Co., 201 Pa. 443. In Holland v. Kindregan, 155 Pa. 156, the Supreme Court said: “Where the evidence is so weak that it would be the duty of the court to set aside the verdict of the jury, there is no propriety in submitting it.” Another very strong case on this subject is Lonzer v. Lehigh Valley R. R. Co., 196 Pa. 610. In that case Mr. Justice Mitchell, speaking for the court, said: “The verdict should have been set aside as in direct disregard of the evidence, and where that is the case, the court may refuse to submit it at all, and direct a verdict accordingly.” In Graff v. Pittsburg, etc., R. R. Co., 31 Pa. 489, it was said: “Under the circumstances, it was no error in the court to pronounce on the effect of the evidence. Had it gone to the jury, and a verdict been rendered against such preponderating proofs, the court would have been bound to set it aside. And when it is the duty of the judge so to control the verdict, he is not to be reversed for exercising his authority in advance of the verdict, and saving thereby the delay and expense of a new trial.”

The six judges who heard the arguments agree that the record shows a clear liability on the part of the appellants as indorsers of the check, and that the record contains insufficient evidence to warrant a jury in finding a verdict in favor of the appellants. Therefore, it follows, that the appellee was entitled to a binding instruction at the trial, and the trial judge having declined to give it there was no error in granting judgment for appellee on the whole record non obstante veredicto: American Car & Foundry Co. v. Alexandria Water Co., 221 Pa. 529.

The assignment of error is dismissed and the judgment is affirmed.