175 Pa. 318 | Pa. | 1896
Opinion by
We do not consider that there is any basis of liability on the part of the defendant to pay the claim of the plaintiff in this case. The defendant is the mere trustee of the mortgage given by the Elk Coal & Coke Company for the protection of the bonds issued by that company. None of the money derived from the sales of the bonds was received by the defendant, and
Not one word is contained in the bond declaring, even by way of recital, that the mortgage is a first lien on the property, and as the bond only is referred to in the certificate, there is nothing upon which to found an allegation that the defendant undertook in any manner whatever to contract, or guarantee or represent, that the mortgage was, or was to be, a first lien. But the plaintiff’s case is worse than this. Not even the mortgage itself contains any covenant or guaranty that it is, or was intended to be, a first lien, and hence it would not be possible to imply an undertaking or assertion of that character from the reference to it made in the bond. The only matter contained in the mortgage on this subject is a recital of a resolution, passed at a meeting of stockholders of the Elk Coal & Coke Company, that the mortgage was to be a first lien, but as in point of fact it was not a first lien it simply follows that the board of direct
Judgment affirmed.