4 Pa. Super. 233 | Pa. Super. Ct. | 1897
Opinion by
This was an attachment execution in which the Union National Mt. Joy Bank was summoned as garnishee of Samuel Kurtz, who was secretary of the. Tanners’ Mutual Fire Ins. Co., and agent for two other companies. These companies were permitted to become parties to the record and to plead and make defence to the extent of their several interests in the money attached. The plea was nulla bona, and on the trial of the issue evidence was given tending to prove the following facts:
Kurtz received a salary from the Tanners’ Insurance Company and commissions on collections made for the two other companies. He collected premiums and assessments for these com
The plaintiff requested instructions to the effect that as the bank credited the defendant with the Kingsley check, never charged it back, and brought suit on it in its own name against the drawers it was estopped from denying or refusing the credit it gave therefor; in other words, it is to be treated as having the money, although as matter of fact the money never came into its hands. If the defendant had been the absolute owner of the check there might be some plausibility in this contention.
The general doctrine regarding the right to follow trust funds, is thus stated in Story’s Eq. Jur., secs. 1258, 1259 (13th ed.): “ The general proposition which is maintained both at law and in equity upon this subject is, that if any property in its original state and form is covered with a trust in favor of the principal, no change of that state and form can divest it of such trust or give the agent or trustee converting it or those who represent him in right (not being purchasers for value without notice) any more valid claim in respect to it than they respectively had before such change. ... It matters not in the slightest degree into whatever other form different from the original the change may have been made, whether it be that of promissory notes, or of goods or of stock; for the product of the substitute for the original thing still follows the nature of the thing itself, so long as it can be ascertained to be such. The right ceases only when the means of ascertainment fails.” See also Bisph. Eq., sec. 86 (2d ed.).
Upon this familiar principle it is held that the true ownership of a fund deposited in bank may be proved to be in another than the person in whose name the deposit is made. Whether the bank is chargeable to the true owner must depend upon the circumstances of the case: Stair v. York Nat’l Bank, 55 Pa. 364; Erisman’s Appeal, 1 Pa. Superior Ct. 144. But as a general
As to the residue of the fund, a different question is presented. Conceding that, at the time of the service of the attachment, although deposited in Kurtz’s name, it really belonged to the insurance companies, yet, if since the attachment he has paid their claims represented by that particular fund, then, to that extent, the fund was freed from the trust, and belonged to him. It is to be treated the same as money coming into the hands of the garnishee after the service of the attachment, and hence was bound by it: Sheetz v. Hobensack, 20 Pa. 412; Mahon v. Kunkle, 50 Pa. 216; Hays v. Lycoming Ins. Co., 99 Pa. 621. Kurtz testified, and as to this there was no dispute, that he had settled with and paid two of the companies after the attachment, and that nothing was coming to them out of the fund, and according to the testimony of the officers of the other company nothing is coming to them. Kurtz, it is true, seemed to think differently, but his assertion goes for naught as against the company’s disclaimer. Where a deposit standing in the name of the defendant is attached, neither he nor the bank can defeat the attachment by setting up title in a third person who disclaims ownership. The fact being practically undisputed that any claim which the insurance companies may have had to the fund, after deducting the Kingsley check, had been extinguished by Kurtz, the plaintiff was entitled to positive instructions that it was bound by the attachment. The third and seventh assignments of error are sustained.
The admission in evidence of the defendant’s exemption claim for the purpose merely of showing that he kept up his claim did the plaintiff no harm, and is not ground for reversal. But as the case must go back for retrial it will be well for the court
The judgment is reversed, and a venire facias denovo awarded.