194 Pa. 416 | Pa. | 1900
Opinion by
Noblit was the purchaser of the property in question, and at the time and place appointed for the delivery of the deed and the payment of the purchase money, he was present with the whole amount, and ready to pay it over and to receive the deed. From the plaintiff’s own testimony it appears that he consented to, and did, execute and deliver the deed to Noblit, and Noblit did in fact pay the whole of the purchase money in a way to which the plaintiff testifies he consented. There was an unsatisfied mortgage upon the premises which it was the duty of the plaintiff to have satisfied before he could require the whole of the money. It was proposed by some one that Noblit should pay the remainder of the purchase money, after deducting $1,010, the amount due on the mortgage, to the plaintiff, and to leave the $1,010 with Schaefer until the mortgage was satisfied, when Schaefer was to pay it to the plaintiff. This was accordingly done, and Schaefer then prepared a statement in figures showing the transaction. Two copies of this statement were prepared and one of them was signed by both Lipman and Noblit. Each of them took one of the statements. Lipman testified, “ So then it was agreed that we should do it in that way, that the balance of the purchase money, $1,278, should be paid over to me, and the $1,010 should remain in Mr. Schaefer’s hands.” It is therefore clear that the plaintiff agreed that Schaefer should be the custodian of the money until the mortgage was satisfied. Noblit had done all that was required of him to complete his title. Lip-
.“ Received of Mr. Lewis H. Lipman the sum of one thousand and ten dollars to be paid to him upon the entry of satisfaction of the paid mortgage of Hymen L. Lipman to Edwin W. Lehman for $1,007 49-100 dollars dated June.30, 1887, and recorded in mortgage book No. 298, page 346, etc., and secured upon premises, No. 639, No. 46th St.
“ Gustav R. Schaefer.”
Thus again, and in a most emphatic manner, did Lipman treat Schaefer as his agent for the custody of the money. He says that when he subsequently observed that the receipt was drawn in this way, he attempted to see Schaefer about it, but he never did. We are most clearly of the opinion that in these cireumstances, and upon Lipman’s personal testimony, he must be regarded as having voluntarily consented to Schaefer’s acting as his agent for the custody of the money, and he must therefore bear the loss resulting from Schaefer’s embezzlement of the money. The rejected offers of testimony could not have changed this conclusion and the court was right in refusing them.
Judgment affirmed.