Opinion
April 13, 1944.
April 18, 1944.
Banks and banking — Checks — Payee — Endorsement — Agency — Pleadings — Rule for judgment for want of sufficient affidavit of defense.
Where, from the pleadings, it appeared that the A company, in payment of an account due plaintiff, the B company, delivered its check payable to the order of "B company, C, Secretary" drawn on X bank; and that C, who was secretary of plaintiff and teller for the defendant, the Y bank, endorsed the check exactly as written, cashed it for himself at defendant bank and kept the proceeds; a rule for judgment for want of a sufficient affidavit of defense was properly discharged since, within the limitation of the pleadings, the evidence could establish that in whatever wrong he committed C was acting as agent of plaintiff and not of defendant.
Before KELLER, P.J., BALDRIGE, RHODES, HIRT, KENWORTHEY, RENO and JAMES, JJ.
Appeal, No. 28, April T., 1944, from order of C.P., Allegheny Co., Oct. T., 1942, No. 1199, in case of J.C. Oil Gas Company v. The Rankin Bank. Order affirmed.
Assumpsit.
The facts are stated in the opinion by O'TOOLE, J., of the court below, MARSHALL, KENNEDY and O'TOOLE, JJ., as follows:
Plaintiff's rule for judgment for want of a sufficient affidavit of defense.
Equitable Gas Company, in payment of an account due the plaintiff corporation, issued and delivered its check payable to the order of "J.C. Oil Gas Company, J.C. Raum, Jr., Secretary, 76 Semicir Street, N.S., Pittsburgh, Pa." The check was drawn on the Farmers Deposit National Bank.
Raum, who was secretary of the plaintiff corporation and teller for the defendant, The Rankin Bank, endorsed the check exactly as written, cashed it for himself at the defendant bank and kept the proceeds. Plaintiff had never done business with the defendant, nor did it or the Equitable Gas Company have accounts at that bank.
Since within the limits of the pleadings the evidence can establish that in whatever wrong he committed, Raum was acting as agent of the plaintiff and not as agent of the defendant, this rule for judgment will be discharged.
Plaintiff appealed.
W.M. Newman, of Walker Newman, for appellant.
Frank R. Murdock, with him Frank W. Stonecipher, and Carl D. Smith, for appellee.
Argued April 13, 1944.
Plaintiff has appealed from an order of the court below refusing to enter judgment in its favor for want of a sufficient affidavit of defense.
The order is affirmed on the opinion of Judge O'TOOLE.