Powell v. Old Hickory Building & Loan Ass'n

Citations

• 252 Pa. 587
• 97 A. 1023
• 1916 Pa. LEXIS 665

Syllabus

<p>Principal and agent — Embezzlement by agent of two parties— Liability of principal — Evidence of agency — Capacity in which agent acted at time — Competency of agent as ivitness.</p> <p>1. Two suits in equity were brought to compel a building and loan association to pay off two ground rents and a mortgage on properties owned by the respective plaintiffs. It appeared that plaintiffs had applied to defendant for first mortgage loans to pay off encumbrances on the properties which they owned; that defendant’s conveyancer was plaintiffs’ agent for obtaining the loans; that defendant’s treasurer issued orders in plaintiffs’ name which were given to the conveyancer, that plaintiffs endorsed the orders and returned them to the conveyancer who obtained a check from the treasurer in his own name as attorney, for the amount of the loan, less fees, dues and premiums, that it was the custom of the association for the conveyancer to receive money advanced and after settling all liens and claims against the property to pay over the balance to the person obtaining the loan; that in accordance with this custom the conveyancer cashed the check and paid the part due the borrowers, but embezzled the part of the money applicable to the payment of the encumbrances, and reported to defendant that the mortgages were first liens on the real estate in question. The lower court held that at the time when the' conveyancer embezzled the money he was acting as agent for defendant and that the loss must fall on defendant and awarded the relief prayed. Held, no error.</p> <p>2. Where the powers and duties of an agent are not in writing he is a competent witness to prove the extent of his authority, while he may not give his conclusion as to the fact of agency, he may testify as to the facts and circumstances surrounding the transaction between him and his principal, leaving to the court and jury to determine under the facts disclosed, whether or not he was the agent, and the extent of his auth