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SECOND. "On the 13th day of July, and that any balance remaining upon the 1916, Jerry Waltrick deposited his own death of either shall belong to the survivor. money's to the amount of Six Hundred

Jere Waltrick.... .has de ($600.00) Dollars, in the Western National posited in this Bank. .. Six Bank, a Corporation of the United States Hundred Dollars..... Dollars. of America, doing a general banking business in the City of York, in the County of Payable to the order of self or York aforesaid, and then and there received Harry Hockensmith on return of from the said Western National Bank a this certificate properly endorsed.. $600 00 certificate of deposit, a true copy whereof 10.50

CHAS. H. EMIG, and of all the endorsements thereon is at

for Cashier. tached to this statement and made part

Thirty day's notice must be given for the hereof.

withdrawal of this deposit.

Interest 3 per cent. per annum if left 6
THIRD. “After the death of Jerry months.
Waltrick and before the probate of his last

Interest 3 per cent. per annum if left 12
will, on, or about the 5th day of March, months.
1917, at the City of York, in the County of

Not subject to check. York and State of Pennsylvania, the de

(Endorsed) HARRY HOCKENSMITH. fendant, Harry A. Hockensmith, presented the within mentioned certificate of deposit

The affidavit of defence admits the matat the banking house of the said Western ters set forth in paragraphs one and two of National Bank and then and there wrong. the statement but denies the matters set fully and unlawfully received from the said forth in the third paragraph, as follows: bank the sum due upon the said certificate,

“THIRD: The Defendant denies the to wit, Six Hundred ($600.00) Dollars, matters set forth in Paragraph “Third" of deposited and Ten ($10.50) Dollars and the Plaintiff's statement, and for answer Fifty Cents, interest, thereon, said sum of thereto specifically avers: money being then and there the property of "(a) That Jerry Waltrick, the decedent the estate of Jerry Waltrick, deceased, and mentioned in the plaintiff's statement, on not the property of the said Harry A. Hock- the 13th day of July, 1916, requested the ensmith, and thereafter wrongfully and un- defendant to accompany him to the place of lawfully converted the said sum of money business of the Western National Bank in to the use of him, the said Harry A. Hocken- the City of York, Pa., the corporation mensmith, and though often requested to pay tioned in the Plaintiff's statement, for the the said sum to the plaintiff, he always, and purpose of providing suitable compensation still does, wrongfully and unlawfully refuse to him, the defendant, for the care and supso to do.

port which he, the defendant, had provided "Wherefore the plaintiff demands judg- ously throughout the previous period of

for him, the said Jerry Waltrick, continument against the defendant for the said sum three or more years, during which the said of Six Hundred and Ten Dollars and Fifty Jerry Waltrick had resided with the deCents ($610.50), with interest thereon from fendant. the 5th day of March, 1917, and costs of "(b) That the defendant as requested suit.”

accompanied the said Jerry Waltrick to the

Banking house aforesaid, whereupon the said [COPY]

Jerry Waltrick proposed to deposit the sum

of Six Hundred Dollars with said Bank on WESTERN NATIONAL BANK

condition that the said Defendant was to

have the absolute ownership of said fund, CERTIFICATE OF DEPOSIT.

subject to the provision that the Defendant York, Pa., July 13, 1916.

was to pay the funeral expenses of the said

Jerry Waltrick upon the happening of his No. 42191.

death. The amount deposited in this account be- "(c) That the said Jerry Waltrick did longs to the payees jointly it being under- deposit and the said Bank thereupon received stood that either may withdraw on his or from the said Jerry Waltrick the aforesaid her individual order during their joint lives, I deposit of Six Hundred Dollars and issued

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its certificate of deposit for said sum, pay. ceived no other compensation than the aforeable to the order of himself, the said Jerry said certificate of deposit or the proceeds Waltrick, or Harry Hockensmith, the de- thereof. fendant, upon the terms which appear by the "(h) The Defendant specifically denies as copy of said cercificate of deposit set forth in laverred by the Plaintiff shat he wrongfully Plaintiff's statement.

and unlawfully received from said Bank the "(d) That immediately after the said ! sum due on said certificate of deposit, to wit, Bank had received said deposit and issued Six Hundred Dollars deposi:ed and Ten said certificate of deposit, in furtherance of Dollars and Fifty Cents interest thereon.

! the said Jerry Waltrick's intention to pay of money was then and there the property

“(i) The Defendant denies that said sum the defendant for the care and support, which he, the defendant, had accorded the said of the estate of Jerry Waltrick, deceased, Jerry Waltrick, and for his funeral expenses,

and not the property of said Defendant, but which he, the defendant, should subsequently on the other hand avers that said certificate upon the death of the said Harry Waltrick, of deposit and the money due thereon was defray he, the said Jerry Waltrick, delivered by reason of the terms of the certificate itto the defendant, said certificate of deposit self and delivery thereof to the defendant, as and for the defendant's own property.

both by the bank and the said Jerry Wal"(e) That the defendant thereupon on

trick, the property of him, the defendant. said 13th day of July, 1916, received said

") The Defendant denies that he certificate of deposit from said Jerry Wal- wrongfully and unlawfully converted said trick, for the purposes above mentioned and soms of money to his own use, but affirmaheld the same until the time of the death of tively avers that he applied the necessary said Jerry Walrick, which occured on the part thereof, to wit, the sum of One Hunthird day of March, 1917, and thereafter on dred and Seventy Dillars and Twenty-eight or about March 5th, 1917, he presented said cents to the payment of the funeral expenses certificate of deposit to said Western Nati- of the said Jerry Waltrick as he bad preonal Bank for payment and received the viously agreed, and the remainder thereof amount due thereon, to wit: Six Hundred he applied on account of the services, boardDollars and Ten Dollars and Fifty Cents ing and lodging, which he had previously interest.

furnished to the said Jerry Waltrick, as "(f) That the defendant applied so much agreed upon between the said Jerry Walof said proceeds as was necessary to pay the trick and the defendant, as more particularly

above set forth." funeral expenses of the said Jerry Waltrick, to wit, the sum of One Hundred and Seventy this controversy is between two executors of

From the pleadings must be observed, that Dollars and Twenty-eight Cents and there the same estate, there is nothing before us mainder thereof he applied towards the pay- to indicate that any rights of creditors or of the care and support which he, the de- heirs of the deceased depend in any way fendant, had theretofore furnished to the said Jerry Waltrick, during a previous period upon the outcome of the present contention.

The direct charge in the plaintiff's stateof about four years, which was in accordance

ment, is a charge of fraud. There is nothing with the agreement between the said Jerry in the proceedings which would induce the Waltrick and the defendant, and agreeably Court to believe that the plaintiff as exto the delivery of said certificate of deposit ecutor of the decedent's estate has any better to the defendant.

rights to the custody of the money than the "(g) That said Jerry Waltrick was par- defendant has as such trustee. tially blind and required unusual care and The plaintiff says in his statement that attention and said services and his boarding the defendant "wrongfully and unlawfully and lodging for a period of about four years received from the bank the sum due upon during which the said Jerry Waltrick lived the said certificate,

said sum continously with the defendant, and during of money being then and there the property which the said services, boarding and lodg- of the estate of Jerry Waltrick, deceased, ing were furnished to the said Jerry Wal- and not the property of the said Harry A. trick, without interruption, were of great Hockensmith, and thereafter wrongfully and value, to wit, of the value of about One unlawfully converted the said sum of money Thousand Dollars, and for which services, to the use of him, the said Harry A. Hockboarding and lodging, the defendant re-ensmith."

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That allegation is not made clear by any- Leith v. Diamond Nat. Bank, 234 Pa. 557, thing else in the statement and could only L. R. A. 1916 E, (note III, page 291). be regarded as an assumption or conclusion It is plain, that the affidavit of defence of the plaintiff if it were not for the light will require proof by the plaintiff of the which the affidavit of defense throws upon matters alleged in his statement. it. The defendant's supplemental affidavit The motion for judgment for want of a of defense says, that, "The said Jerry Wal-sufficient affidavit of defence is, therefore, trick proposed to deposit the sum of six hun. overruled. dred dollars with the said bank on condition that the said defendant was to have the

C. P. of

Schuylkill Co. absolute ownership of the said fund, subject to the provision that the defendant was to

Com. ex rel. v. Sitler. pay the funeral expenses of the said Jerry Waltrick upon the happening of his death.' Tax Collector---Vacancy - Appointment of "That the said Jerry Waltrick did deposit

Successor— Release of Surety. and the said bank thereupon received from

When the court appoints one to fill an alleged the said Jerry Waltrick the aforesaid de- vacancy in the office of tax collector and lacks posit

and issued its certificate such power the appointment so made will not oust of deposit for said sum, payable to the order the elected collector nor release the sureties on

his bɔnd. of himself,

or Harry A. Hockensmith, upon the terms which

Rule to set aside fi. fa. appear by the copy of said certificate of de- J. O. Ulrich for rule. posit set forth in plaintiff's statement. "That immediately after the said bank

A. L. Shay, contra. had received said deposit and issued said December 10, 1917. Koch, J.-Judgcertificate of deposit,

he, the ment was entered at No. 328, Vay Term, said Jerry Waltrick, delivered to the defend. 1916, on a bond given by Clinton E. Sitler, ant the said certificate of deposit as and for collector of taxes of the Borough of Tamathe defendant's own property.”

qua, and a writ of fi. fa. to No. 10, SeptemThe plaintiff's contention seems to be ber Term, 1917, was issued on said judg. based upon the assumption that because the ment to collect from Sitler and his bondsmoney represented by the certificate of de- men $1379.17 due to the Borough of posit was not drawn out of the bank in the Tamaqua upon the tax duplicate issued to lifetime of the decedent, it thereupon became said C. E. Sitler in the year 1913, and ana part of the decedent's estate; and constru- other writ of fi. fa. was issued to No. II, ing the language of the qualifying clause September Term, 1917, to collect $3779.19 which appears on the certificate of deposit to due to the County of Schuylkill for taxes suit his own theory, concludes that the effect due to it on the same duplicate. W. A. of the clause resulted in a gift contingent on Sitler, one of the sureties on the bond, now the death of the donor.

asks us to set aside these executions. C. E. On the other hand the defendant clearly Sitler, by virtue of his office and the placing states a contract between decedent and him- of said duplicate in his hands, was authorized self in the lifetime of the decedent,

to collect the taxes levied and assessed for A delivery of the money in his lifetime as borough and county purposes in the year a consideration.

1913. In the nighborhood of two years These conflicting theories and facts as and upwards after Sitler got said duplicate, stated by the pleadings, render it impossible he left for parts unknown and was later for a Judge to decide from the pleadings charged with embezzlement, located in alone. Technically, under the plaintiff's Oregon, arrested, brought back, indicted, theory, the conditions as they are now pre- tried, convicted and sentenced to jail. In sented, might be made, by subsequent in his absence, and, before his apprehension, vestigation and legal testimony, to establish his bondsmen petitioned our court to appoint a gift conditioned on the death of the donor, one of their number to fill the office of colwith no delivery in the lifetime; but that, lector of taxes in said borough, and one under the affidavit of defense, is in dispute. George M. Krell was appointed in Septem

“A gift in the lifetime of the donor may ber, 1915. Sitler was also authorized to be found by the triers of fact, and may be collect the taxes levied and assessed for the proved by the declarations of the donor;l years 1914 and 1915. When he left for

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Work Legal Record deegligence caused a loss to the defendant, plain

Vol. XXXI

No 48

negligence
tiff wouid be liable to him for such loss." Heid,

not to be error.
THURSDAY, APRIL 11, 1918.

An instruction that the bank could not be held liable under any and all circumstances for failure

to foreclose these mortgages, but would be held the west, his brother remained as his deputy only to the exercise of such care of the collateral in charge of the office and this court had no as a man of ordinary prudence would give to imauthority whatever to appoint Krell under the portant affairs of his own, was as favorable 10 circumstances. The petitioner, who is the

the plaintiff as the rules of law would permit. father of C. E. Sitler, now seeks to avoid his No. 4, October Term, 1917. own liability on the bond, ciaiming that

Motions for new trial and for judgment Krell's appointment released him and all the other sureties on the bond. Since neither the non obstante veredicto. court nor any member of it had any author- D. H. Yost and Niles & Neff for motion. ity whatever to appoint Krell and thereby virtually oust Sitler, such appointment would

S. B. Meisenhelder and Jas. G. Glessner, not release the sureries on Sitler's bond. contra. Krell, being unlawfully in office, cannot

April 8th, 1918. WANNER, P. J.-It seap the benefits of it and his work may I was admitted at the trial of this case that prove fruitless to him, if Sitler avails him- the amount of principal and interest due on self of his legal rights in the premises. the notes in suit was $9805.27. Against The taxes stated in his duplicate for 1913 this defendant claimed a set-off of $3041.36, should have been fully accounted for by said sum being the proceeds of sale by the Sitler long before he absconded. Reports plaintiff, of thirty-three shares of City Bank of auditors are conclusive, unless appealed stock which he alleged that the plaintiff had from; Commonwealth v. Keenan, 31 Sup-held as collateral to secure payment of one erior Court 586. The executions were of the notes in suit, but which the Bank issued upon proper certification of the

contended was a general collateral for all amounts due and no writs of scire facias the notes which it held against the defendwere needed to ascertain the amounts.

ant. The rule is discharged.

The defense made to the remainder of the plaintiff's claim was, that the defendant

on April 6th, June 28th, and August 6th, City Bank v. Rejker.

1916, had notified the plaintiff's cashier to

foreclose two mortgages for $7000.00 and Collateral Security - Liability of Holder-- $10,000,00 respectively, which were then Depreciation.

held by it as collateral security for the notes

in suit, and that by reason of the plaintiff's Plaintiff was the holder of two notes against neglect to do so, a total loss of their value held two mortgages against a third party, of had been suffered by the defendant, because which defendant was the legal owner, and which of the subsequent depreciation in the value mortgages, by reason of the depreciation of the of the real estate upon which said mortgages land which ihey covered, were worthless. De

were liens. It was admitted that at the fendant offered evidence to show a notice to time of the trial the uncollected mortgages plaintiff by him, to foreclose the mortgages, and claimed a loss, by reason of failure to make were still in the possession of the plaintiff. such foreclosures, in excess of the amount due on The disputed questions of fact (1) the notes. The jury found for the defendant. whether such notice to foreclose had actually On a motion for judgment for plaintiff n. 6. 7'., Held, that the judgment must be refused.

been given, (2) whether or not the plaintiff The disputed questions of fact (1) whether had afterwards been guilty of culpable negnotice to foreclose had actually been given:. (2) ligence in not foreclosing the mortgages, whether or not the plaintiff had afterwards been (3) whether the plaintifi's negligence was guilty of culpable negligenee in not foreclosing; (3) whether plaintiff's negligence was the direct

the direct cause of any loss to the defendant, cause of any loss to the defendant-were all were all necessarily left to the jury to decide necessarily left to the jury to decide upon the upon the conflicting evidence in the case, on conflicting evidence on those subjects.

those subjects. The Court instructed the jury "If the jury find that plaintiff ( after notice to foreclose) was guilty

The verdict of the jury was for the deof supine negligence in not doing so, and this fendant. The plaintiff now moves for a

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new trial and for judgment non obstante that negligence was a loss to the defendant, veredicto against the defendant,

the plaintiff would be responsible for such

loss." The only errors assigned in support of these motions which were insisted upon at The instructions given to the jury by the the argument, were the Court's answers to Court in its general charge, prior to its anthe piaintiff's poinis, and its instructions to swers to these points, were to the same the jury to the effect, that if the jury found effect, and seem to be well sustained by from the evidence that the plaintiff was numerous authorities. guilty of supine negligence in not foreclos

In Hanna v. Holton, 78 Pa. 334, it was ing the collateral mortgages as directed to specially held that where a collateral is lost co by the defendant, that it would be res- by the insolvency of the debtor, through the ponsible for any loss directly resulting there- supine negligence of the creditor, that the from to him.

latter must account for the loss to his own The plaintiff's third and fourth points debtor. Agnew, J., said: "By the assignwhich were general requests for binding in- ment a privity in contract is established, structions in favor of the plaintiff, were which invests the assignee with the ownerrefused because of the conflicting testimony ship of the collateral, for all purposes of on the material questions of fact already dominion over the debt assigned. He alone referred to.

is empowered to receive the money to be The plaintiff's first and second points paid upon it, and to control it in order to covering the question of negligence in this protect his right under the assignment.

This is the ground of the creditor's liability case, with the Court's answers thereto, weie

for the collateral, as stated by Tilghman, as follows:

C. J., in Lyon v. Huntingdon Bank, 12 S. "1. A creditor who holds collateral for & R. 68; and also by the court in Beale v. a debt is not bound upon request of the The Bank, 5 Watts 530. It is, therefore, debtor to sell or realize on the collateral. settled in this state that where the collateral His refusal to do so is not per se negligence. is lost by the insolvency of the debtor in the The debtor's remedy is to pay the note, and collateral instrument, through the supine then he can enforce return of the collateral."' negligence of the creditor, he must account

"Answer. This point is refused as writ- for the loss to his own debtor, who invested ten. Though plaintiff's refusal to realize him with its entire control; Miller v. on the collateral at once is not negligence Gettysburg Bank, 8 Watts 192; Bank per se, if the jury find from the evidence U. S. v. Peabody, 8 Harris 454; Dyott's that it was afterw.ird guilty of supine neg. Estate, 2 W. & S. 490; Chambersburg Inc. ligence in not doing so, and this negligence Co. v. Smith, 1 Jones 120; Sellers et al. v. caused a loss to the defendant, plaintiff Jones, 10 Harris 427; Lishy v. O'Brien, would be liable to him for such loss. + Watts 141; Muirhead v. Kirkpatrick, 9 "II. Giving to the testimony of the de

Harris 237; Ins. Co. v. Marr, 10 Wright

504." fendant all possible weight, his only claim regarding the mortgages assigned by him as

The latest decisions of the appellate courts collateral August 20th, 1915, is that on on this subject affirming and following the three occasions, to wit; April 6th, June above cited cases are Bank of Commerce v. 28th, and August 6th, 19.6, he stated to Nat. Bank of Beaver Falls v. Nelson, 255

Fisher, 65 Pa. Super. 369 and Farmers the plaintiff's cashier that he desired the plaintiff to have them foreclosed, this Pa. 455. In the latter the Court, after re

viewing previous auhorities concludes "Hence make it responsible for any loss which might it is clear, we think, that the creditor must arise by reason of alleged decrease in market

take all necessary legal steps to preserve the value of the mortgaged land after such collateral, and if it is lost by his negligence request.”

he is responsible to his debtor." "The

holder of collateral security," says the Court “Answer. This point is refused as writ-I in Vuirhead v. Kirkpatrick, 21 Pa. 237, ten. If the plaintiff, after receiving said "is bound to preserve it, or collect it and alleged notices, was guilty of supine neg apply it for the benefit of its assignor. His ligence in not foreclosing the mortgage, or duties in respect to it are active. He is to selling the same, and the direct result of employ reasonable diligence in collecting the

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