Horlacher v. Bear

Opinion by

Henderson, J.,

If the facts were, as alleged by the plaintiff, that the defendant in executing the orders of Taylor knew that the latter was acting as the agent of the plaintiff and that the business was done on the plaintiff’s behalf, the defense set up could not prevail. If authorities are necessary on so clear a proposition, Evans v. Waln’s Executors, 71 Pa. 69, and Ryman v. Gerlach, 153 Pa. 197, show that a broker who received securities from an intermediate broker, with knowledge of their actual ownership, cannot apply their proceeds on a claim ag’ainst such intermediate broker. The defendant alleges, however, that all his.transactions were with Taylor as principal; that he had frequent transactions with him, and that settlements were made from day to day as the business progressed, but that he did not execute any orders from or for the plaintiff and never knew him in the business. It is said, however, that the documents, exhibits A, B and C, as set forth in the plaintiff ’s statement of claim are unequivocal admissions that the defendant knew the purchases of wheat were made for the plaintiff. That they are evidence to that effect is undoubtedly true, but they are not conclusive. They were issued after the orders to which they refer had been executed and are in form notices to the plaintiff advising him of what had been theretofore done on his account by the defendant. The defendant alleges in the affidavit of defense, however, that they were sent to Taylor at his request, for his convenience and accommodation and were not intended for the plaintiff, nor was Taylor warranted in delivering them to him. If the exhibits referred to are considered memorandums showing that the defendant had purchased for account of the plaintiff the wheat therein specified, it is nevertheless competent, in view of the averment that the defendant did not transact the business with the plaintiff but with and for Taylor, and that the memorandums were delivered by him to Taylor at his request and for his accommodation, to show that they came into existence and into Taylor’s possession under such circumstances.

The affidavit meets the plaintiff’s case, as set forth in the statement of claim, and is sufficient to prevent judgment. The judgment is, therefore, affirmed.