Eshleman v. Bolenius

Lancaster County Court of Common Pleas

Eshleman v. Bolenius

22 A. 758, 144 Pa. 269, 1891 Pa. LEXIS 608

CourtPennsylvania Court of Common Pleas, Lancaster County

DecidedOctober 5, 1891

DocketNo 26

StatusPublished

This text of 22 A. 758 (Eshleman v. Bolenius) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lancaster County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Eshleman v. Bolenius, 22 A. 758, 144 Pa. 269, 1891 Pa. LEXIS 608 (Pa. Super. Ct. 1891).

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Opinion

Opinion,

Mb. Justice Gbeen :

The affidavit of defence contains a positive averment that the money received by the plaintiff for Daniel M. Harman, administrator, etc., was deposited by the plaintiff in Henderson’s. bank, and that he took therefor a certificate of deposit payable twelve months after date, with interest at four per cent. This certificate we held in Baer’s App., 127 Pa. 360, to be a loan not authorized by law, for which the administrator was personally liable. It seems now that Mr. Eshleman, who was attorney for the administrator, was also one of the sureties on his bond, and paid the loss himself. He seeks to recover in the present action one half the loss from the defendant, who was his co-surety. The defendant alleges in his affidavit of defence that the loan made to the Henderson bank by the plaintiff was made without his knowledge or consent, and that he never ratified the action of the plaintiff in making the loan. The loss of the money was the result exclusively of the unauthorized loan made by the plaintiff to the Henderson bank, and it is difficult to understand upon what principle the defendant can be held responsible for any part of the loss as between him and the plaintiff. The facts set forth in the affidavit of defence must be accepted as verity for the purposes of the case as it is now presented, and upon these facts the plaintiff’s own action was the sole cause of the loss. Had the loan been made by the administrator, a different question would have arisen. But, as it is, conceding the entire good faith of the plaintiff, the case must be determined by the very familiar principle, that, where one of two innocent persons must suffer, he must bear the loss whose act or neglect has been the occasion of the suffering : Jeffers v. Gill, 91 Pa. 290. It was the plaintiff himself whose act occasioned the loss, according to the facts stated in the affidavit of defence, and therefore he cannot recover against [273]*273the defendant, who was entirely innocent of any participation in the act.

Judgment reversed, and procedendo awarded.

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Opinion,

Mb. Justice Gbeen :

The affidavit of defence contains a positive averment that the money received by the plaintiff for Daniel M. Harman, administrator, etc., was deposited by the plaintiff in Henderson’s. bank, and that he took therefor a certificate of deposit payable twelve months after date, with interest at four per cent. This certificate we held in Baer’s App., 127 Pa. 360, to be a loan not authorized by law, for which the administrator was personally liable. It seems now that Mr. Eshleman, who was attorney for the administrator, was also one of the sureties on his bond, and paid the loss himself. He seeks to recover in the present action one half the loss from the defendant, who was his co-surety. The defendant alleges in his affidavit of defence that the loan made to the Henderson bank by the plaintiff was made without his knowledge or consent, and that he never ratified the action of the plaintiff in making the loan. The loss of the money was the result exclusively of the unauthorized loan made by the plaintiff to the Henderson bank, and it is difficult to understand upon what principle the defendant can be held responsible for any part of the loss as between him and the plaintiff. The facts set forth in the affidavit of defence must be accepted as verity for the purposes of the case as it is now presented, and upon these facts the plaintiff’s own action was the sole cause of the loss. Had the loan been made by the administrator, a different question would have arisen. But, as it is, conceding the entire good faith of the plaintiff, the case must be determined by the very familiar principle, that, where one of two innocent persons must suffer, he must bear the loss whose act or neglect has been the occasion of the suffering : Jeffers v. Gill, 91 Pa. 290. It was the plaintiff himself whose act occasioned the loss, according to the facts stated in the affidavit of defence, and therefore he cannot recover against [273]*273the defendant, who was entirely innocent of any participation in the act.

Judgment reversed, and procedendo awarded.

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Bluebook (online)

22 A. 758, 144 Pa. 269, 1891 Pa. LEXIS 608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eshleman-v-bolenius-pactcompllancas-1891.

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