Fisher v. O'Donnell
153 Pa. 619
Pa.
1893
Check Treatment

Opinion by

Mu. Justice Mitchell,

The money was loaned by Cowden, and his authority to deal with it appears to have been very extensive. He took the mortgage in his own name, did not put the assignment of it on record, and continued to act with regard to it, towards defendant, as if he was the owner, except that in several of his receipts he indicated plaintiff’s interest in it by adding her name to his without explanation, or by signing his name “ for Catharine Fisher.” Unless therefore these receipts were conclusive evidence of plaintiff’s ownership of the mortgage, it was a question for a jury whether the payments on account of principal were not properly made. They were certainly evidence to put defendant on inquiry as to what Catharine Fisher’s title was, and the extent of Cowden’s authority to act for her, but we are not able to see that they entirely put the defendant out of court as to the relief claimed. Her case as made in her petition is that Cowden agreed at the time of the loan to accept repayment in installments, that he continued so far as she knew to be the owner of the mortgage, and that in fact, as she “ avers and expects to be able to prove, he received all these payments as the authorized agent of Catharine Fisher.” She was entitled to prove this if she could, and we cannot say that she has not given some evidence in support of her contention. In her deposition she says the plaintiff told her “ Mr. Cowden was late her guardian and she had left it in his hands, all to do with it,” and her husband says “ Mrs. Lightkep said Mr. Cowden had full charge of their financial affairs.” On the other hand while plaintiff and her sister deny having said these things, they make some admissions as to Cow-den’s actual or assumed authority in regard to investing their money, that have a bearing on the point of the case. Without going into a review of the evidence which would be undesirable at this stage of the case, we are of opinion that there is enough to entitle the defendant to have a jury pass on the questions whether Cowden had authority in fact to receive the payments on account of principal, or, if not, whether plaintiff knowingly or negligently permitted him to act so as to mislead defendant to suppose he had such authority.

*622The question of defendant’s laches is not free from difficulty. She was certainly very obstinate and unwise in refusing to follow the advice of her counsel, and her determination to do nothing towards a settlement of the case. But the suit was pending more than three years before plaintiff became urgent for judgment, and we cannot say that the additional delay from March till May, when the petition to open was filed, ought to bar the defendant absolutely. The whole case is somewhat mixed and doubtful, where one of two ignorant women must lose by the fraud of a man in whom both reposed confidence, and the question which shall bear the loss can be best resolved by a jury with all the facts and the witnesses before it. We are therefore of opinion that the judgment should be opened and the issue sent to a trial.

Order reversed and rule to open judgment made absolute.