92 Pa. Super. 436 | Pa. Super. Ct. | 1927
Argued October 7, 1927. Plaintiff brought this action of assumpsit against the Latona Building and Loan Association to recover the sum of $1,430, which, it was alleged in the plaintiff's statement, the defendant "acting through its duly authorized agents, Thomas Pilla, secretary, and Michael A. Pessolano, conveyancer, acting in the course of their employment, borrowed from the plaintiff ...... with the understanding and agreement that the said sum would be repaid by the Latona Building Loan Association to the plaintiff upon demand."
There was no proof, nor attempt to prove, that the secretary and conveyancer of the defendant building and loan association had been specially authorized to borrow any money from the plaintiff or any one else, or that by virtue of such office or employment they had any general authority to borrow money on behalf of the defendant. These offices, if a "conveyancer" may be so termed, are not such as contain in themselves any inherent authority to borrow money and bind the association to its payment. The ground of recovery, without any amendment of the pleadings, was shifted to the position that though the action of its officers was unauthorized, the defendant was bound because it had received and retained the benefits accruing therefrom. The defendant called attention to the variance and asked for the entry of a non-suit and later for binding instructions on that ground, both of which were refused. In the case of Wilkinson Mfg. Co. v. Welde,
The principle relied upon by the plaintiff and applied by the learned court below, that when a corporation receives and retains the benefits of the unauthorized acts of its officers it cannot deny the obligation, is subject to the qualification that in so acting the corporation must have full knowledge of the material circumstances; in other words to be bound it must know or be put on reasonable notice that the money so received and retained by it was the property of the person claiming to have lent it to the company. The principle was well expressed in the opinion of the *440
court below, adopted by the Supreme Court, in Bangor Portland Ry. Co. v. American Bangor Slate Co.,
The verdict of the jury has settled, for the purposes of this case, that the check made payable to the order of the plaintiff for $1,430, was the money of the plaintiff, and not of Michael A. Pessolano; that it represented the plaintiff's share of the profits realized by him, Pessolano and another on the sale of certain real estate then being settled for: rather than the commissions, 10%, paid Pessolano by the purchaser for obtaining second mortgages from the building and loan *441 association of which he was the conveyancer. But that alone does not entitle the plaintiff to a verdict, as assumed by the learned trial judge. The check was not delivered to the treasurer of the defendant association, nor even deposited as such in its bank account. The plaintiff endorsed the check, and delivered it to Mosser, the assistant to the title officer of the Federal Trust Company, which did not represent the defendant for any purpose, but was attending to the settlement of the real estate transaction above referred to. Mosser exchanged it and several other checks which represented loans to the defendant association duly authorized by the board of directors for a treasurer's check of the Federal Trust Company for $9,787.10, and it was this check which was deposited to the credit of the defendant association in the Columbus Trust Company where it kept its bank account, and was received by it as representing the proceeds of loans to the association by Pessolano and his brother and Chiurco and Nocella, respectively, which had been duly authorized by the board of directors the preceding month; and notes were duly given them therefor. Michael Pessolano's note included the $1,430 claimed by the plaintiff, and was paid by the defendant association before it had any knowledge of the plaintiff's claim. It is clear that in these circumstances the money was not received by the defendant association with knowledge of the plaintiff's ownership or claim, but under the representation that it belonged to Pessolano. Having satisfied its debt to Pessolano before receiving any notice of the plaintiff's claim it cannot be held to have ratified the unauthorized act of its secretary and conveyancer, or to be estopped to deny its force and effect, since it had no knowledge of the circumstances attending the loan, did not know such a loan had been made by the plaintiff, and did not know at the time it received the money and before it *442 was repaid to Pessolano that the plaintiff had any claim to it. Had Pilla and Pessolano, with no more authority than they possessed from the association, borrowed the money from the plaintiff ostensibly on behalf of the defendant association and spent it for their own purposes, the plaintiff would have no possible claim on the defendant. That, instead, they lent it to the defendant as Pessolano's money, does not make it any the less a conversion by them or render the defendant liable for its payment to the plaintiff, when as here the responsible officers of the association had no knowledge of his claim to any ownership or interest in the money until after it had repaid the loan to Pessolano.
The case of Carlisle Finch Co. v. Iron City Sand Co.,
The first and second assignments of error are sustained. The judgment is reversed and is now entered for the defendant.
