
    MORRELL VS. THE ADAMS EXPRESS COMPANY.
    The books kept by an express agent while in office, whether made by himself or others, are evidence against his surety, to show a misappropriation of money by the agent.
    When a paper is excluded, the evidence at the time can only be examined, to determine whether its exclusion is correct; but if admitted, any defects in proof may be supplied by proof given subsequently.
    Error to the Court of Common Pleas No. 2, of Philadelphia, No. 15 January Term, 1877.
    This was an action of debt on a bond against James Morrell as surety on a bond, conditioned for the faithful performance by one William Trucks, an agent of the plaintiff at Wilkesbarre, of all the duties of his position as agent, and for the due rendering by him of a just account of all moneys that might come into his hands as agent of said-Express Company, and generally for the faithful performance of his duties as such agent.
    Morrell filed an affidavit of defence, the material part of which is as follows:
    * * “For some time prior to the date of the alleged bond, of which a copy has been filed, I had been frequently and urgently requested by William Trucks, the principal therein, to become his surety for the faithful performance of his duty as an agent of the plaintiffs,' if lie could obtain from them an appointment to that office; and I had always positively refused so to do. On s.uch occasions I expressed a willingness to sign a recommendation of him as a person, in my belief, qualified for the position of agent of the plaintiffs, and on or about the seventh day of November, 1872, he came into my office suddenly, as I was just leaving it, and begged me before I left to sign such recommendation. He said that the paper he then presented to me was merely a recommendation of himself as qualified to be an agent of Adams Express Company, and I, thereupon reiterating my refusal to become surety for him, and just as I was stepping out, stopped, and hastily signed the paper, which he had so folded over as to prevent the attraction of my attention to the upper portion of it. I cannot say that the alleged bond on which this suit is brought is the paper which I signed or not on the occasion just referred to; but if it is not, it is not signed by myself at all; and if it is, it was not, as I have said, executed and delivered by me as a bond, but was obtained from me by fraudulent misrepresentations. The said William Trucks became, as I have since learned, a defaulter, and it was only upon my being applied to by the plaintiffs to propose terms of settlement that I was made aware of their having the alleged bond in their possession. I immediately informed their superintendent that the alleged bond was not mine, was never executed and delivered by me, and that I denied all obligation on account thereof. Until thus applied to by the plaintiffs I had no knowledge whatever of their having employed the said Trucks on the faith of any representation of mine, much less of their having done so on the faith of any bond supposed to have been made by me; and when applied to, I denied that the said paper was my bond. I am unable to do more than conjecture that it is the paper I signed under the circumstances above narrated.”
    Trucks remained up to the 31st of December, 1874, collecting and having in his hands large sums of money belonging to the company, of which he did not render an account, and finally converting the sum of $3000 to his own use, so that Morrell as the surety of Trucks, became liable to the company on the bond.
    
      The testimony of Frederick Stoever, who' was the subscribing witness to the bond, in full was as follows:
    “I know Mr. Morrell, the defendant; was in his office in No* vember, 1872.” (Paper on which suit was brought shown witness.) “This looks like my signature; I did not see Mr< Morrell sign the paper; I signed a paper at Mr. Morrell’s office, 737 Walnut street; Mr. Morrell called me from the back office into his office to sign a letter of recommendation for a situation.” (Plaintiffs offer paper in evidence.) Cross-examination: “I did not see Mr. Morrell sign that paper ; I am not sure I signed that paper at all; Mr. Morrell asked me to come back and sign a' paper; I think he said it was a recommendation; I believe the signature to the paper was written by me as a witness.” Re-examined; “Mr. Trucks and Mr. Morrell were present when I signed it.”
    To prove the default of Trucks-, the plaintiffs offered in evidence the collection books of the Wilkesbarre office, to show the express charges at the office, and the amounts of money which the agent should have paid to other parties in payment of bills, th,e money for which had been collected by Trucks and retained. The defendant objected, but the Court admitted the evidence and sealed a bill.
    The charge of the Court, delivered April 11th, 1876; was as follows, per
    Hare, P. J.
    Gentlemen of the jury :
    The preliminary question in this case is an important one, because if the verdict is found in favor of the defendant, the jury of course save themselves from looking into these rather complicated accounts. The defendant takes two positions as regards his liability on this bond. One that the signature on the instrument is not his, but was put there by some other person; the other, that conceding that he did so put it there, be was tricked into writing his name, and consequently ought not to be bound by that signature. These positions, in view of the evidence, are not altogether consistent with each other, because they .carry with them more or less of the allegation that the’ defendant both did and did not write his ñamé, but they ■ have to ■ some -extent to be considered separately from that very inconsistency. Prima fade, the name is the name of the defendant, that the signature is the signature of the defendant, and that it was placed there for the purpose of charging him with this obligation is certainly a very strong one, because not only is the defendant’s name there in the form and shape in which he was accustomed to write it, but below his name, and to the left, where the subscribing witnesses usually put their names, and in fact below the words importing the paper is attested by witnesses, is written the signature of another person which is not alleged to be a forgery, and a person whose character is in nowise discredited, who was on friendly terms with the defendant, as the evidence in the case shows, and who put his name, if he did put it there, at the defendant’s request. So that it would be difficult to imagine a‘ much stronger case of proof against any man. First, that his own name should appear there, as his name is ordinarily written, and next that it is really attested by the signature of a man, upon whom no imposition is pretended to have been practiced, at least none proven fo have been practiced, attesting to the name of a party whose name is alleged to have been forged. The defendant’s account of what occurred is'this: That on that day he ,was asked to sign, and did sign a paper, and that fact he does not deny. Stoever came and put his name to the paper subsequent to the defendant’s writing his name, which was done, not with the intention that Stoever should authenticate the instrument as a subscribing witness, but that he should simply, in doing so, be joining in the supposed request, in the request which the paper was supposed to contain as a letter of recommendation, and that the discrepancy between the fact that Stcever’s name is there on this paper, and was put on that day to the paper at the defendant’s request that he should sign the very paper that he had just signed, the inconsistency o'f that, with the allegation that it is not the defendant’s signature which we see on the paper, is to be explained by the supposition — the only one the ease could admit of — that, the person who had brought the paper (Trucks) for signature, ingeniously, with the slight of hand of an accomplished juggler, after the defendant had signed the paper, slipped- it away and put another in its place, and that it was to that paper that Stoever affixed his name. Now, of course it is for the jury to say whether such an application meets with their credence; whether their minds are satisfied with, it as to its probable and reasonable truth ; but it is not very easy to see how, if Stcever was simply asked to come in and join in signing a letter of recommendation, that he should have consented to do what was so different from what such a request would import, because a man who means to sign a letter of recommendation don’t put his name to those figures and letters which indicate that he is signing as a subscribing witness, and moreover Stcever did not say, nor was he asked to say, nor was he recalled afterwards to contradict the plaintiff’s case', to say that the defendant’s signature was not on the paper when he put his name to the paper. Of course if the defendant’s name was on the paper when Stcever put his name to the paper, then the paper which is before the jury does bear the defendant’s signature. It is only on the supposition that the paper when-the defendant signed was separate from the one that Stcever signed, and that Stcever was very careless and did not notice it, and without a word of explanation, and proceded to write his name for the purpose of authenticating a letter of recommendation, and wrote his name as a subscribing witness, in full view of the printed words, which imported that that was what he was doing, because, fold the paper as you will, these "words would appear, or some of them, and it is not denied that they would be in sight at all events. Moreover, Stcever says the defendant was present, as well as himself, while this was done; that they were both present, so that not only must Stover’s eyes have been deceived, but the defendants. It is for you to say. But, whether in place of that, the defendant did sign the paper on that day, and afterwards got Stcever to authenticate it, and Stover’s name is on this paper at the request of the defendant, is for the jury. The jury may believe, or not, that it is not the defendant’s signature. The defendant, however, falls back upon ánother suggestion, which, although not altogether consistent with this, is not perhaps entirely inconsistent with it, which is that a fraud was practiced upon him by which he was induced to put his .name to this bond in the belief that he was simply giving a letter to the Express Company, on the faith of which, or on the credit of which, they might be induced to employ Trucks as their agent. Now, there is undoubtedly a principle of law which was originally invoked for the protection of illiterate persons unversed in the forms of business, and who might be misled into signing that which they did not understand. That when the signature of a party is requested to an instrument, and it is falsely read to them, or its object is falsely presented to them, and the party cannot by any effort of his own discover the fraud,-he shall not be held to the obligation so incurred, but as applied to such persons it is a principle which, however abused, yet is very requisite to prevent those things, and though it is obviously much less applicable to men who can both read and write, who can protect themselves by using their own eyes, yet if a jury is satisfied that a man thus educated, thus instructed, thus possessed or all the ordinary faculties, shall by an artfully contrived design be utterly misled as to the effect of what he is signing and induced so to put his hand to a paper, believing it to be one thing when it is in fact another thing, then he should be entitled to this same principle ; but when a person signs deeds, bonds, and like papers under such statements as these, they must be scrutinized carefully, and such statements should not obtain credence, either with a court or with a jury, unless they carry satisfactory conviction to the minds of those who hear them.'
    Now, it is certainly conceivable that a plan might have been formed by this man Trucks, to induce the defendant to sign the bond, under the pretence that he was to sign a recommendation. It might be done in the hurry of business;' but it is not easy to see how one versed in business, a man who had spent much of his time •in offices of one kind and another, where business is more or less publicly transacted, could have misunderstood, if he did not take time to read the paper, to see what the paper was. How he could have misunderstood the effect of that seal, which was lying right opposite to his name. Men do riot certainly sign and seal letters, which they write to recommend other men for situations, and inasmuch a3 that seal was directly opposite defendant’s name, when the defendant put his name there, he had that before his eyes, which must have, given him notice of the character of the instrument which he was signing, and if he looked a little to the left and further down, he would have seen the words that are commonly used when a person is called to witness the signing, sealing, and delivery of a sealed instrument. Nor is it usual for one who does give such a letter, to call some one else to sign it, or to stand by while he signs it, not as a joint writer of a letter, but as a subscribing witness to a bond. The question, gentlemen, on both points, however, is one wholly for you. — If you believe that that is a forged signature, why then of course it was no bond. If you believe that this was a fraud practiced upon the defendant, by which he was utterly misled as to the contents of the instrument, and did not intend or propose to assume any obligation of a nature that is imported by the paper before you, then your verdict may be for him, and if you are of that opinion, as I have already said, then there is no necessity for looking over these accounts; but if you should be of the opposite opinion, the question, as I then gather from the arguments of counsel, is one principally of amounts. Did Mr. Trucks obtain the situation upon the faith of this bond? He was put in charge of the office at< Wilkesbarre, where he appears as the principal, and the person who was in control, and who was entrusted with the charge of the moneys, both the moneys belonging to the company and the moneys which were sent to the office for the purpose of being paid. Though the system of accounting appears to have been reasonably satisfactory, it was not as formal perhaps as it might have been desired. At the office of the company from which freight was sent to the office at Wilkesbarre, there were entries made by which it was known what was the amount of these various way-bills Of the company’s freight, what the charges were for freight, and of 'course what sums Trucks ought to receive on account of these bills. At the end of every week he was required to send in his account charg-' ing himself with .these amounts, and to remit the money in hand. These accounts so remitted by him were compared at the company’s office, nor was there any default at any time, down to a very brief period of timé, until the time Of Trucks’ defalcation and flight occurred. The account to the 21st of August was satisfactory, and appears to have embraced all the freight collected by Trucks up to that time, but when the end of August came, and another account ought to have been sent, and it was not forthcoming, Trucks appears to have made some excuse for not giving it, and obtained on that account leave of absence for a short time to go to Philadelphia, and within a few days afterwards an investigation being set on foot it was discovered that as regards the freight received for the last twelve or thirteen days, he had not paid any of it over to the company, but had used it all for his own purposes.. This ■ was one item in the account against him. Another item is that all these goods on which it was the duty of Trucks to collect freight at Wilkesbarre, or a very considerable portion, were goods not paid for when sold on credit, but they were to be delivered by Trucks to the consignees to whom they were directed, and that they were to be delivered to those consignees cash on delivery; but as regarded that cash, it was no part of the duty of Trucks to remit it to the company. He did not account to the company, but it was his duty to account directly to the consignors, no doubt for the necessary dispatch of business. Hence it happened, as regarded these various sums of money to which I have just referred, he did not eveutually render any account to the company, nor was there any call for him to do so. There was a certain guarantee that he would pay over in process of time any' money that came into his possession. When he received this money from the consignees, it was his duty to forward it at once to the consignors, and the consignors not receiving the money, would complain at that office, and at.the central office, and thus the fraud would be discovered, as no doubt, in fact, it was discovered. Trucks seems to have performed his duty in this respect, as well as in the other, from the fact that he was under the pressure of a very urgent necessity' to do, without being discovered, until a comparatively short period of time before his flight, and for the first time did not do so as to the item of the 21st of July, which was only some forty days before he went off, when it was discovered that this'package had not been returned to the consignors; they made the complaint'to which I have referred, and an agent of the company was sent to settle matters up, and hand the business over to Mr. Barnum; who had been a subordinate with Mr. Trucks, and against whom there "was no complaint of any sort alleged, and according to Mr. Runyon’s account, when he got there, and found, as he did, that the envelopes in which' this cash on delivery invoices had been forwarded to Wilkesbarre, and which Trucks had been in the habit, and it was the custom, though not the abiding custom of returning the money to the consignors who had forwarded the invoices, were still in Trucks’ drawer, in large numbers, in the drawers which he kept locked. Mr. Runyon became satisfied of what I suppose he strongly suspected, that Trucks bad been unfaithful, and he then proceeded to get in the accounts of the various persons whom Trucks had not paid, and to pay them. In doing so, he paid them from two sources; one of them was from the moneys which had not actually been given in to Trucks, which had been paid by the consignees, but which remained in the hands of either of the drivers of the express wagons, that were distributing these goods at Wilkesbarre, or that was still in Mr. Barnum’s hands, not having been handed over to Trucks, and with this amount to the extent of $650, for which Trucks had not become chargeable, he satisfied the consignors so far as that amount would go, and there still remained the sum of $950, which he obtained from the company’s funds, and which he employed in making up' that portion of the defalcation which was charged to Trucks’ default, and his breach of duty to his principal. There was only one other item of charge, and that was tor moneys that were sent to Wilkesbarre to be there paid, as it appears from Trucks’ receipt in the books of the messenger of the Express Company, when he got these packages there, and it is in proof that these packages were not paid over; they amounted only to the sum of $210. Now something has been said in this case about there being no accurate accounts at this office where the defalcation occurred ; and it seems to have been imagined or supposed that that might be a reason for discharging Trucks from liability ; but I do not so regard it. One does not expect to find in the office of a defaulting agent accurate accounts. It is one of the parts and proofs of his error, that he entangles the transactions that he ought to keep straight. It is a breach of duty on his part not to keep sufficiently accurate accounts, but I cannot, and would not say, nor it it necessary for me to express an opinion on that case; but if I were to express an opinion, I should not say, except in various instances, where Trucks had not really paid, that there was any such systematic confusion of accounts by Trucks, nor that there was any great want of care in the office, because it was like a great deal of business which is done in this community; done with sufficient accuracy for practical purposes, but not done with any great attention to particulars. When these bills of lading arrived, they were checked off; where there were no goods, they were marked short, the whole amount was then made out from these bills. There was another entry book kept in the office, in which there was also an entry made, by which the drivers’ accounts were checked. Then finally all the money was put in a drawer* and if it was accurately done, and iaithfully done, why, of course, everybody would get his own; and if it was not, there would be complaint made as soon as there came to be a default; so that in a short space of time the whole thing would be found out, and I do not know, except for the purpose of making this long investigation, that things would have gone much better for anybody, if Mr. Trucks had kept a most elaborate system of accounts. Of course, it was not by the books of the company that Mr. Trucks’ liability could be made out. The books that were kept would not be evidence against him. Any books the company may have kept would not have been evidence against Trucks. What would be evidence against him, would be his own account, and if he kept the books in the way I have stated and made entries, he would probably have made false entries, so we should not be very much wiser, perhaps, than we are now. We might have saved some time in trying this case; the time has been taken by the effort on the part of the company, of making out the account from the various data which they, I suppose, thought was made in good faith, and that, as such, perhaps, they might be received, and save the jury the necessity of going over all the vouchers, which have been laid before the jury; but I think it might have been expected that counsel for the defendant would very properly refuse and object to such a method, and would require that the very skeleton of the case should be laid before the jury, as it has been, and that skeleton, though it might nt>t be a very pleasant one, would probably have bad to belaid before the jury in whatever way the case could have been tried ; we could have come to what might be called the bones of the case, in the first instance, and should have not spent so much time, but might have hurried over the case, and would not have tried it with that certainty which the law requires, or with that certainty which the law which would seem to require. I leave the case with you, gentlemen. I say when a man signs his' name- or admits that he signed his name to a paper, and then asks somebody to authenticate it as a subscribing witness, and that person does authenticate it, and that paper is brought into Court, if it be the paper, why I then certainly say, that if he-wants to satisfy the jury that the paper which is brought into Court, which has the name of the subscribing witness, undoubtedly put there at" his request, is not the paper, he should make it very clear how it came to be substituted, if a substitution was effected, particularly if it all took place before his very eyes and the eyes of the other person. If, however, you are not satisfied, then you will charge him, as I have said, with whatever amount of money was received by Mr. Trucks, and which the company was obliged to pay in consequence of his default in not keeping a faithful account.
    Gentlemen, the defendant’s counsel asks me to correct a few matters which he supposes to be erroneous, or rather which he supposes might, in the main, have conveyed some erroneous idea to the jury, although I am not myself under that impression. l am very willing to accede to his request, so far as it is in my power. Mr. Wiltbank, defendant’s counsel, seems to think that I meant to convey to your minds, that Mr. Morrell, from the evidence, has more than an ordinary or the average intelligence or knowledge of the affairs of a man of business, accustomed to the transaction of business,and is personally possessed, as all know from what he said on the stand, with an intelligence which such men may be presumed to have, and to use when the occasion requires it. I did not mean to convey that idea, so far as..the evidence is concerned.
    Then as regards this other man, my thought and that which I endeavored to express was this, that when one gentleman comes before a jury and says this is my signature to the paper, or says I put my name to a paper as signing it, and then says I requested some one else to put his name also to that paper, and with the other person in the presence of the first, does subscribe his name as a subscribing witness, and then the allegation is to escape from what would otherwise be the irresistable force of the testimony, that the names of the persons who signed the paper was written there by himself, that the paper was spirited away before the eyes of both these persons, and that they both being present, another substituted. That he in order to get out the prima facies arising from his own name having been put to the paper at the time, and another person signing it as a subscribing witness at his request, should satisfy the jury upon that point by evidence, which would be conclusive of what seems on the face of it to be improbable and an unlikely story as actually true.
    
      The jury rendered a verdict for the plaintiff for $1,665.11.
    Morrell then took a writ of error, assigning the following specifications of error: The learned Judge erred in admitting in evidence, the paper purporting to be a bond, signed by James Morrell, Jr., dated November 7th, 1872. The learned judge erred in admitting in evidence all the entries made in the collection book prior to Trucks’ departure.
    
      William W. Wiltbank, Esq., for plaintiff in error argued:
    That the evidence as to the execution and delivery of the bond was not sufficient; Commonwealth vs. Kendig, 2 Barr 448; Brenner vs. Herr, 8 Barr, 106; Beitenman’s Appeal, 5 P. F. S. 183.
    The collection book did not charge any one, nor' did it show that these moneys had been actually received.
    
      David Webster and Joseph Leedom, Esqrs., contra, argued:
    That a subscribing witness was not required to know the contents of a paper, which he witnessed: Hamsher vs. Kline, 7 P. F. S. 397.
    Morrell was not an illiterate person, and it is presumed that he read the paper before he signed it: Dickinson vs. Dickinson, 11 P. F. S. 401; Hoshauer vs. Hoshauer, 2 Casey, 406.
    To execute an instrument without reading it is supine negligence: Penna. R. R. Co. vs. Shay, 1 N. 198.
    The possession of the bond by obligee is prima facie evidence of its delivery: Grim vs. School District, 1 P. F. S. 219; Keyser vs. Keen, 5 H. 327.
    A direction to an executor to hand over a bond was held a valid delivery: Smith vs. Smith, 5 Barr, 254.
   The Supreme Court affirmed the ruling of the Court below on February 12th, 1877, in the following opinion:

Per Curiam.

There are but two assignments of error. As to the first, the admission of the bond in evidence, whatever, doubt might arise upon the testimony of Stoever, the. subscribing witness, it was entirely dissipated by the testimony of the plaintiff himself, and of Runyon, a witness called by him, by which it appeared that he signed the bond, and called on Stoever to sign it, “to give it effect.” Although when a judge excludes a document we can only look at the evidence beforé him at the time to convict him of error, yet if he admits it, any defects in the proof may be supplied by evidence subsequently given. No representation is sworn to at the time of execution. The plaintiff says he signed it supposing it to be a letter of recommendation, because he had agreed previously to sign a recommendation, but refused to give a bond. He admits he signed it without reading it. Such a defence is entitled to no favor, and the bond was therefore properly in evidence. As to the second assignment of error, the books kept by the agent, Trucks, while in the office, whether made by him or others, were clearly admissable. What the effect of the entries might be, whether in charge or discharge, was a question for the jury.

Judgment affirmed.  