
    KUSER VS. ANNVILLE NATIONAL BANK.
    Where a collecting agent of an insurance company deposits premi- - urns collected, in a saving bank in bis own name, but with a designation showing it belongs to the company, and the bank fails, and the agent gives his promissory note to the company for the amount he had in bank, he cannot afterwards allege want of consideration for the note.
    Error to Common Pleas of Berks County, No. 10 Tanuary Term, 1883.
    This was an action of assumpsit upon promissory notes. .William C. Kuser, the maker of the notes, filed three affidavits of defense, the material parts of which are as follows:
    The notes whereon the said suit is founded, were given by the said William C. Kuser to John B. Rauch, Treasurer of the United Brethren Mutual Aid Society of Pennsylvania, a Corporation for the insurance of lives, under the laws of Pennsylvania. Neither the said John B. Rauch, nor the said United Brethren Mutual Aid Society of Pennsylvania ever paid any consideration to the defendant for said notes.
    The said defendant never received any consideration for the said notes.
    
      The said notes were given under the following circumstances : The said defendant was from the year 1871 to the year 1880 the District Securing and Receiving Agent for the said corporation. As receiving agent it was his duty to receive from parties residing in the county of Berks holding certificates of membership in the said corporation, the amounts of their assessments and annual dues, and as the sums accumulated in his hands to remit the same from time to time to the said United Brethren Mutual Aid Society.
    It was necessary for him to- deposit the said moneys in a bank, and it was his duty to remit the same monthly ©r oftener.
    With the knowledge and consent of the said United Brethren Mutual Aid Society he selected as a depository for the said moneys the Dime Savings Bank of Reading. The said moneys-were deposited in the name of William C. Kuser, U. B., which letters U. B. meant and signified the said United Brethren Mutual Aid Society. The said moneys were kept separate and no other moneys were mixed with them, and the said United Brethren Mutual Aid Society knew and consented to the said deposits being made in that way.
    The said defendant remitted the said moneys to the said society regularly.
    On the 17th day of November, A. D. 1877, the bank suspended payments and was and is insolvent. The said defendant before the said 17th day of November believed the said bank to be safe and solvent and had no reason to believe otherwise.
    At the time of the said suspension the balance of moneys of the said society, then in the said bank under the said account, was five hundred and nine dollars and seventy-four cents-($509.74.)
    Of this sum the defendant paid the said society one hundred and nine dollars and seventy-four cents in cash, and for the balance gave four notes of one hundred dollars each, one of which he subsequently paid, and the remaining three being the notes upon which this suit is founded.
    
      The saicl notes whereon this suit is brought are now and were at the time of the bringing of this suit, the property of the United Brethren Mutual Aid Society of Pennsylvania, and were not and are not now the property of the Annville National Bank, of Annville, Pennsylvania. The said plaintiff never paid any consideration for the said notes.
    They were given to the said plaintiff to be sued for in its name for the purpose of evading a defence by the said defendant on the ground hereinbefore set forth. The said plaintiff at the time it received the said notes, had notice and full knowledge of the fact that the defendant never received any ■consideration for the same and of all facts hereinbefore detailed. Moreover, as District Agent of the United Brethren Mutual Aid Society of Pennsylvania, the defendant was entitled to receive the sum of one dollar for every one thousand dollars of insurance accepted by the said society from persons residing in the counties of Berks, Montgomery, Lehigh, Bucks and North-, ampton in the said State.
    As securing agent, during a portion of the said time, defendant was also entitled to one dollar a year for four years ttpon every accepted application for insurance taken by him.
    ' Neither of these accounts have been settled and there is a balance still due defendant thereon. The amount of this balance can only be ascertained from the books of the said Mutual Aid Society, which the defendant has as yet had no opportunity •of examining.
    That since making the affidavit of defence in the above case lie has examined the books of the said The United Brethren Mutual Aid Society, of Pennsylvania, and that the balance due the said defendant from the said Aid Society, on the unsettled accounts of his district and securing agencies in the said affi■davit mentioned, is seventy-five dollars and ninety-nine cents, and further saith not.
    That at the time of his appointment as District Securing and Receiving Agent, as alleged in the affidavit of defence filed in the said cause, it was agreed by and between the said United Brethren Mutual Aid Society; of Pennsylvania, that the moneys which should be received by him as such agent should be deposited in a bank and remitted to the said Mutual Aid Society monthly or oftener.
    That the Dime Savings .Bank, of Reading, named in the said affidavit of defence, was owned and carried on by Ammon L. Boyer and Cyrenius Sellers, then residing in Reading, Pennsylvania, and at the time of the selection of the said bank as the depository, as stated in the affidavit of defence, the said bank and the said Ammon L. Boyer and Cyrenius Sellers were in good credit. That all the checks drawn upon the said bank by the said defendant were signed or marked William C. Kuser, U.B.
    That the said United Brethren Mutual Aid Society not only knew of and assented to the said deposits being made in the Dime Savings Bank, and being made in the manner specifically set forth in the affidavit of defence, but first made inquiry as to the credit of the said bank and its proprietors, and its assent to the said deposits being made in the said bank was based on the result of the said inquiry. All of which is true to the best of deponent’s knowledge, information and belief, and all of which he expects to be. able to prove upon a trial of this cause.
    The Court gave judgment for want of a sufficient affidavit of’ defence, in the following opinion, per:
    Sassaman, J.
    Upon an examination of the papers on file in this case I am of the opinion that in the settlement between the parties when defendant g'ave his notes to the plaintiff he stood in the character of a debtor to the plaintiff and not in the relation of trustee or agent having deposited in the bank of the plaintiff’s own selection. The relation of indebtedness at the maturity of the several notes w'as continuing and the defendant was liable for their payment, and the notes in contemplation of law were such that judgment could be entered thereon for want of an affidavit of defence. The affidavit and supplemental filed in this case raise no good and legal defence, except protanto for the amount of a legal set-off of $75-99, which must be deducted from the amount of the several notes at the bringing of this suit to which, as I understand it, the counter claim dates.
    The rule for judgment is made absolute and the Prothonotary is directed to enter judgment in accordance with this opinion.
    Kuser then took this writ of error complaining of the entry of judgment against him.
    
      Cyrus G. Derr, Esq., for plaintiff
    in error, argued that there was no valid claim upon Kuser at all, and therefore the notes were without consideration; Palfrey vs. Railroad Company, 4 Allen 55.
    
      I. Hiester and H. A. Muhlenberg, Esq., contra,
    
    cited: McAllister vs. Commonwealth, 28 Pa. 480, and 30 Pa. 536; Cooke vs. Seely, 2 Exch. 746; Bank vs. Jones, 42 Pa. 536; Stanley’s Appeal, 8 Pa. 432; Brown vs. Sloan, 6 Watts 421; Rice vs. Bixler, 1 W. & S. 445; Muirhead vs. Kirkpatrick, 21 Pa. 237; Petrie vs. Clark, 11 S. & R. 383; Willing vs. Peters, 12 S. & R. 177; Baeder vs. Barton, 11 W. N. C. 165.
   The Supreme Court affirmed the judgment of the Common Pleas on March 12th, 1883, in the following opinion:

Per Curiam.

This affidavit avers no sufficient defence to a recovery on the notes. The reasonable deduction from all the. facts alleged is, that they were given on a settlement of the rights of the parties to the money 011 deposit in the Dime Savings Bank. The plaintiff in error does not aver that any fraud or imposition was practiced on him, nor that he gave the notes in ignorance of any fact. The notes were given on a sufficient consideration. He acquired an exclusive right to the money in that bank, and all remedies for its collection. As the affidavit does not aver facts sufficient to defeat an action in the name of the payee, the allegation that they are still the property of the payee is of no force.

Judgment affirmed.  