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1 Supreme Court of Pennsylv'a: Nisi Prius: Bank v., Smith, et al. 1865

handle is hein.trials/acnx0001 and id is 1 raw text is: Supreme Court of Pennsylv'a. Nis Pnius. BANK v. SMITH et ak 1. An undisolosed principal can sue In his own name on any contract of his agent, and it does not affect his suit, whether or not, in the dealings with the agent, the existence of a principal wab concealed by the agent. 5. An agent in whose hands pawns are deposited as collaterale.for a loan made for the principal, is a ballee for hire so far as the borrowers are concerned, and is bound to use the ordinary diligence which a prudent man would use in keeping the pawns. S. Such bailee is only bound to use ordinary care, and his principal can only be held liable for his neglect to use such care. 4. The question, of what constitutes ordinary care, is one of fact and is entirely for the jury. 8. The fact that the bailee used the same care in keep- ing the pawns as he did with his own goods of like character, may be a circumstance for the jury, but is not even lrftma facie evidence of ordinary care, when there is evidence of how the pawns were lost. 6. While what constitutes ordinary care is a question for the Jury, ,yet the court will instruct them to weigh, in deciding what amounts to such care, the nature of the pawns, the danger of loss by reason of the temptation, and facility for theft, and the di&- culty in recovering them if lost. The general question of the duty of balless dis- cussed. This case was tried before Judge Shars- wood, sitting at Nisi Prius. It was com- menced on January 8d, and was not con- cluded until January 18th. The facts of the case are stated in the charge of the court. Charge by SHARSWOOD, J. GENrTL FN oF TH3& JunY :-This is an action brought by the Second National Bank of Erie, to recover of the defendants, Smith, Randolph & Co., a loan of money amounting to $50,000, with interest at the New York rate of interest, seven per cent. It appears by the evidence that the plain- tiff effected this loan through the Ocean National Bank of New York; about that there is no question; the loan was actually made by the Ocean National Bank. There is evidence also to show-and I don't know that it has been disputed-that the money thus loaned by the Ocean National Bank to the defendants was the money of the Second National Bank of Erie, and that the Ocean National Bank, in making loan of the money, acted as the agent of the Second National Bank of Erie. The loan was in two sums, one of $80,000, on the 10th of June, 1869, the other, of $20,000, on the 14th of the same month. They were what-are termed 1call loans; that is, they were to be repaid at any time on demand; the borrower was to have the right to repay them at any time at his pleasure, and the lender was to have the corresponding right to call them in, at his pleasure. As collateral security, or pledge, there were deposited at the same time, with the Ocean Bank, an equal amount of Govern- ment bonds; it makes no matter what the character of the original deposit was- whether of registered bonds or 10-40s. ; nor does it matter how they were changed afterwards. They were, however, in point of fact, changed for coupon bonds, and we must look at the case precisely in thc same way as if these 5-20 coupon bonds had been the original bonds placed there. At the time, then, of the making of the loans which form the basis of this controversy, there were deposited with the Ocean National Bank, as the agents of the Sec- ond National Bank of Erie, as a collateral pledge to secure the payment of that loan of $50,000, U. S. coupon bonds, $25,000 in 5-20s. of 1864, and $25,000 in 5-20s. of 1865. Between Saturday, June 26th, and Mon- day, June 28th, 1869, the Ocean Bank was entered by thieves,-whether they were burglars, or not, it is not of much conse- quence here,-whether the entry was made by night or by day., A large amount of securities, including these collaterals referred to, was abstracted and carried away, and nothing has ever been heard of them since. As a defence to the repayment of the loan of $50,000, or rather of the two loans, amounting together to $50,000, the defend- ants claim to set off the damages sustained by them by the loss of these United States bonds. I think, that perhaps, that is the best mode of stating the point. The de- fendants claim, therefore, not only that the jury should find a verdict for them, but that they should find a verdict in their favor to the extent of the amount of differ- ence between the amount of the loan, with interest, on the 29th of June, when, as they say, they called for the return of the bonds and offered to repay the loan, and the mar- ket value of the bonds on that day, which difference, according to their calculation,

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