Chamberlain v. Lilley , 1896 Pa. Super. LEXIS 161 ( 1896 )

Opinion by

Wickham, J.,

Joseph M. Lilley, the defendant in the court below and appellant here, had been for many years, prior to April, 1892, agent for the Delaware, Lackawanna & Western Railroad Company, at its station in Berwick. He had for his assistant Duval Dipksou. Clyde Chamberlain, the plaintiff below, then a young man, not much over eighteen years old, had been learning telegraphy and, incidentally, railroading, at the station, for some nineteen months.

About the 1st of April, 1892, or perhaps a little earlier, the appellant undertook to employ another assistant. He- hired the appellee, telling him that the company would pay only $25.00 a month, which compensation the appellee consented to take. Notwithstanding this arrangement, the appellee’s name immediately went on the company’s pay roll, in the proper office, as an employee entitled to $40.00 a month, and, from the beginning, he was paid at that rate.. The reason for this clearly appears from an examination of the evidence. Nowhere is it shown that the appellant was authorized to fix the appellee’s salary, or that he had ever reported any attempt to do so. The circumstances disclosed by the evidence compel the conclusion that some official, nearer the center of corporate power than was an agent at a small way station, had, in accordance with the usual business custom of railroad corporations, determined the compensation that should attach to the new place. No doubt the appellant was authorized to inform any one he employed what the salary would be, but, instead of telling the truth regarding the matter, he deceived the.appellee, in order to cheat him later. It may be added, that the company, so far as the evidence shows, has made no effort, nor exhibited any intent to take advantage of what was done by its agent dishonestly, and in seeming excess of his authority.

The employees at Berwick received their wages monthly, from the pay car. A few days before'its first arrival after the hiring of the appellee, the latter was shown by. the appellant a forged telegram, purporting to be signed by J. W. Fowler, general manager of the company, and reading as follows : “ Clyde Chamberlain will draw $40.00 from the pay car and pay J. M. Lilley fifteen.” The character of this pretended telegram would perhaps have excited, at once, the suspicions of an old and experienced railroad man, but, as the'jury have found, it deceived the boy of eighteen, holding his first business position, and doubtless regarding the appellant as his friend and benefactor.

For the first five months of his service the appellee turned over, monthly, to the appellant, $15.00. At the end of that time he was informed by the appellant that he (the appellant) had secured him an increase of $5.00 a month. After that he paid the appellant only $10.00 monthly until April, 1893, when the latter told him that he had obtained another increase of $5.00 a month in his wages. In May, 1893, the appellant, after, having obtained in all $145, from the appellee, ceased to. be the company’s agent. About the same time, the appellee, whose suspicions had been previously aroused, made inquiries, with the' aid of Dickson, and learned that the company had all along been paying him the $40.00 a month for his own use, that the Fowler telegram was a forgery, and that the stories' told him by the appellant, to induce him to part with his money, were false.

The facts, as above stated, are in part necessarily established by the verdict, and in part by uncontradicted evidence.

At the trial, the appellant alleged that the appellee, had agreed to turn over to him the sums of money received, for the purpose of paying the same to Dickson, who performed more work and had more experience than the appellee, and. that the moneys so received were paid over to Dickson pursuant to this arrangement.

These allegations were denied by Dickson and the appellee, and disbelieved by the jury.

Another allegation was that, in law, the money taken from the appellee belonged to the railroad company, the same having been paid to him through a mistake of fact, and that therefore there could be no recovery.

The learned judge of the court below instructed the jury, that if the appellee’s money went with his consent to Dickson, or if he, the appellee, had in any manner participated in, or consented to, any fraud practiced on the railroad company by Lilley, he could not recover. This is all the appellant could fairly ask.

Conceding the appellant’s power to fix the appellee’s salary, which, in view of the pleadings, we feel bound to do, the appellant is not aided. It may be admitted, .without interfering with the appellee’s right to recover, that the company paid the money sued for through a mistake of fact induced by the dishonesty of its own agent. The jury have found on sufficient evidence that the money was received by the appellee without any fraud on his part; he, therefore, held it lawfully, subject only to the company’s right to reclaim it. It was his as against the whole world, save the company, and would become his absolutely, unless suit were brought for its recovery within the time prescribed by the statute of limitations. The company might or might not choose to insist on its right. No stranger, depriving the appellee of the money by fraud or violence, will be permitted to interpose the superior title as a defense. If, through mistake, I overpay my servant, any third person cheating him out of the amount overpaid is and should be answerable to him. The mistake concerns only my servant and myself, and cannot be used as a shield by the wrongdoer. The appellee here is entitled to recover the money in dispute, if it were paid him by mistake, first, because of his special property therein; and second, to enable him to meet the demand of the absolute owner, if such demand be ever made. A recovery in this suit will end the appellant’s liability to the company, unless he has been guilty of fraud on the latter, no notice having been given him by the company to hold the money. On this last proposition and the general subject of the rights of qualified owners, see 9 Bacon’s Abr. (Bouvier’s Am. ed. 1846) 459, 645, 647, 648; 26 Am. & Eng. Ency. of Law, 744, 751, 761.

The principles, established by the authorities just cited, are usually invoked only in actions of trespass and trover, but as they are elementary rules of law, founded on justice, common sense and public policy, they are applicable, whatever be tbe form of action, where personal property has been obtained unjustly, whether by force or fraud. Sometimes a party injured has his choice between assumpsit and trover. If, for instance, the railroad company in this case had paid the appellee with coal instead of money, and, through some mistake of fact, had given him too many tons, and the appellant had fraudulently obtained from the appellee a part or all of the coal so mistakenly delivered, and sold it, he, the appellant, could be sued either in trover or assumpsit: Bethlehem Borough v. Perseverance Fire Ins. Co., 81 Pa. 445.

It is hardly necessary to discuss the appellant’s contention that he received the money from the appellee as agent for the railroad company. He had no authority from the company to deprive the appellee of the money, and in so doing he acted solely for himself, and in furtherance of his own ends.

The assignments of error are all overruled.

Judgment affirmed.