Callendar v. Kelly

Opinion by

Mr. Chief Justice Sterrett,

This issue was framed for the purpose of determining how much, if anything, was due to the plaintiff from the assigned estate, on her claim against the same for |10,000 “ based upon and evidenced by a certain certificate ” of which the following is a true and correct copy:

“ Olyphant, Oct. 1st. 1894.

“Received of Mrs. S. N. Callendar, bonds as follows, (Ten thousand dollars), Consumers Water Co. 1000; Olyphant Water Co. 2000; Beech Creek, 2000; Penna. Co. 2000 ; Brooklyn Elevated Co. 1000; Metropolitan Elevated Co. 1000; E. Tenn. Y. & Geo. 1000. This certificate bears interest at 6 per cent from date.

“ M. J. Stone,

“ Treasurer Olyphant Trust Co.”

In the issue, as framed, the plaintiff “ avers that the said sum of SI0,000, with interest thereon from January 1, 1895, is due, owing and payable to her out of the funds in the hands of the said John P. Kelly, assignee of the Olyphant Trust Company for the benefit of its creditors and that said sum has not been paid or any part thereof, and payment of the same with interest as aforesaid has been demanded of the said John P. Kelly, assignee as aforesaid, by the said Margaret J. Callendar and payment thereof has been refused.” She further “avers that she is the same person who is named and designated in the certificate .... as Mrs. S. N. Callendar.”

After a fair and impartial trial, presided over and ably conducted by the learned president of the 84th judicial district, the jury rendered a verdict in plaintiff’s favor for the full amount of her claim. This appeal is by the defendant from the judgment entered on that verdict.

A. careful consideration of the record, including the rulings and instructions of the court below, has satisfied us that there is nothing in either of the specifications of error that would justify a reversal or modification of the judgment; but it will not be amiss to briefly notice some of them in connection with a few of the salient facts of the case.

The bonds in question appear to have come to Mrs. Callendar as part of'her share in her father’s estate, and were kept by her in a box in a safe deposit company’s vault at Scranton. She and her husband were each provided with a key, and thus each of them has access to the box. In July, 1894, Mr. Callendar, without his wife’s knowledge or consent, took the bonds from the box and gave them to Mr. Stone, the treasurer of the Olyphant Trust Company, who knew they were the individual property of Mrs. Callendar. Notwithstanding his knowledge of that fact, Mr. Stone deposited the bonds with the trust company as collateral security for his own stock subscription note. Subsequently the state bank examiner visited the trust company officially, and finding the company’s safe was insecure, suggested that the bonds be delivered to Mr. Callendar, who was a director of the trust company, to be deposited by him in his box at Scranton. This was accordingly done. On August 14, 1894, the trust company, through its finance committee, took the bonds from Mr. Stone and surrendered to him his stock subscription note. Of this transaction the plaintiff had no knowledge. The evidence was conflicting as to whether this sale was made before or after the bonds had been returned to the box in Scranton. On October 1,1894, at Mr. Stone’s request, the plaintiff agreed to loan the bonds to the trust company, and accepted the certificate above quoted. After the bonds were thus loaned, in December following, they were handed over to a bank as collateral security for clearing house purposes. After the failure of the trust company, they came into the possession of its assignee. In January, 1895, prior to the trust company’s assignment, the plaintiff received credit on her pass book for f 150, which she testified was three months’ interest on the above quoted certificate.

There was no error in permitting the plaintiff to testify as to her conversation with Stone, the treasurer’ of the trust company, in reference to the certificate, nor in admitting the pass book in evidence for the purpose of corroborating her testimony that she liad been paid three months’ interest on the certificate. Both were competent, and relevant to the issue, as showing her dealing’s with the trust company in relation to the bonds in controversy.

The court rightly refused to permit Mr. Callendar to be called by the defendant as on cross-examination. Apart from the fact that the proposed witness was not a party interested, there was no evidence that he was his wife’s agent. In the absence of such evidence, he could not be called to testify against her.

The declarations or statements of Mr. Krumbauer, the bank examiner, were rightly excluded. So far as the plaintiff was concerned, they were merely hearsay.

The remaining specifications (fifth to ninth inclusive) relate to the learned trial judge’s instructions to the jury. It is not clear that the defendant was entitled to have the case submitted to the jury. The evidence is undisputed that the bonds belonged to the plaintiff; that they were taken from her box by her husband without her knowledge or consent; that they were handed over by him to a stranger who improperly used them as collateral security for an antecedent debt of his own to the trust company, of which he was treasurer, and that they were finally sold by him to his company in payment of that debt. There is no evidence that the plaintiff had any knowledge whatever of either of these transactions, nor that she ever authorized any one to act for her therein. In these circumstances the court cannot be convicted of error in saying that plaintiff was “ not chargeable with any of the transactions between her husband and Stone, except what was done with her knowledge and consent.” The learned judge was also right in charging that as the trust company had received the bonds and sold them and held the proceeds, it was estopped “ from setting up any want of authority of its treasurer, Stone, to bind the company by the certificate given to plaintiff.” It would have been manifest error to have directed a verdict for defendant, as requested in his second point.

There is no merit in the contention that the trust company was an innocent purchaser for value in taking the bonds from its treasurer, Stone. The well-settled rule in this state is that a creditor who takes such instruments as security for a pre-existing debt is not a purchaser for value: Ashton’s Appeal, 73 Pa. 153; Maynard v. Bank, 98 Pa. 250.

The charge as a whole, including the instructions complained of in the specifications of error, was quite as favorable to the defendant as he could reasonably ask.

Judgment affirmed.