
    J. C. Oil & Gas Company, Appellant, v. Rankin Bank.
    Argued April 13, 1944.
    Before Kellee, P. J., Baldeige, Rhodes, Hiet, Kenworthey, Reho and James, JJ.
    The facts are stated in the opinion by O'Toole, J., of the court below, Maeshall, Kennedy and O’Toole, JJ., as follows:
    Plaintiff’s rule for judgment for want of a sufficient affidavit of defense.
    Equitable Gas Company, in payment of an account due the plaintiff corporation, issued and delivered its check payable to the order of “J. C. Oil & Gas Company, J. C. Eaum, Jr., Secretary, 76 Semicir Street, N. S., Pittsburgh, Pa.” The check was drawn on the Farmers Deposit National Bank.
    Eaum, who was secretary of the plaintiff corporation and teller for the defendant, The Eankin Bank, endorsed the check exactly as written, cashed it for himself at the defendant bank and kept the proceeds. Plaintiff had never done business with the defendant, nor did it or the Equitable Gas Company have accounts at that bank.
    Since within the limits of the pleadings the evidence can establish that in whatever wrong he committed, Eaum was acting as agent of the plaintiff and not as agent of the defendant, this rule for judgment will be discharged.
    Plaintiff appealed.
    
      TV. M. Newman, of Walker & Newman, for appellant.
    
      Frank R. Murdock, with him Frank W. Stonecipher, and Carl D. Smith, for appellee.
    April 18, 1944:
   Pee Cueiam,

Plaintiff has appealed from an order of the court below refusing to enter judgment in its favor for want of a sufficient affidavit of defense.

The order is affirmed on the opinion of Judge O’Toole.  