DocketNumber: Appeal, No. 79
Citation Numbers: 42 Pa. Super. 624
Judges: Beaver, Head, Henderson, Morrison, Orlady, Porter, Rice
Filed Date: 5/12/1910
Status: Precedential
Modified Date: 2/18/2022
The referee’s finding that the $650, obtained on the first Yelte check, which was deposited in Henry Ulrich’s personal account on November 27, 1906, does not constitute a part of the deposit attached, whether regarded as a finding of fact or as a conclusion of law, was right, for it rests on the fact, clearly pointed out in his comments on the exception to this finding, that the $650 had all been checked out long before attachment issued. This is certainly true as to all but the balance of $8.49 remaining to Ulrich’s credit on January 9, 1907, and even as to that balance, we are not convinced that the referee erred in concluding from a comparison of the deposits with the checks that it was not part of the $650. The contention that a trust as to this sum attached to subsequent deposits is not sustained by the Pennsylvania decisions.
As to the $508.71 obtained on the second Velte check, which was deposited in Ulrich’s personal account on January 18, 1907, the obstacle in the appellant’s way is not the inability to trace this into the deposit attached (see.9th and 11th findings of fact) but the insufficiency of the evidence to repel the warrantable inference that Ulrich appropriated it to himself personally to reimburse himself for money he had advanced for the receivership. On cross-examination of Mr. Ulrich it appeared that he had been advancing his own money for the use of the receiver and had been repaying himself from time to time without making any entries in the receiver’s books of account. Upon this subject the learned referee says:
“It can be conceived that receivership funds might have been deposited in Henry Ulrich’s private account and yet*632 the title to the money have remained in the receiver, the arrangement being a bailment. But it appears that there were running accounts between Henry Ulrich and the receivership and that money was being transferred from one to the other at more or less frequent intervals not as bailor and bailee, but as debtor and creditor. The natural inference is that the Velte money was handled in the same way. As the receiver and Henry Ulrich are one and the same person the only satisfactory and convincing evidence to overcome this inference would be to show how the balance stood in the accounts between Henry Ulrich and the receivership at the dates when the deposits were made. If on these dates there was money due Ulrich from the receivership the presumption would be almost conclusive that the depositing of receiver’s money in Ulrich’s account was in payment of such indebtedness. Under the peculiar circumstances of this case we think proof of ownership is effectually precluded by failure to show the status of the accounts between Henry Ulrich and the receivership at the respective dates of deposit of the two Velte checks and at the date of the attachment.”
The able and ingenious argument of appellant’s counsel has not convinced us that this view of the referee is erroneous; and if it is not, the principle relating to the following of trust funds is not applicable to defeat the attachment. For full discussion of the case we refer to the report of the learned referee and the opinion of the court overruling the exceptions thereto.
The judgment is affirmed.