
    Hilsinger et al. v. Trickett.
    
      Requirement of statute as to statement of facts in petition of plaintiff — Effect where plaintiff offers evidence differing from petition — Suit against bank to recover money — Alleged to be lost by bank’s negligence — In collecting certificate of deposit— Question of evidence and pleadings — Choice of bank as collecting agent — Implies agency may be performed according to prevailing usage — Bank usage presumed to be reasonable — Law of bank deposits and collections.
    
    1. The requirement of the statute that the petition of the plaintiff must contain a statement of facts constituting a cause of action, is not satisfied where material facts essential to a recovery are omitted from the petition, and the plaintiff seeks to rely as a basis of recovery upon averments in the answer and a mere denial thereof by reply. And if at the trial the plaintiff offers evidence to support a ground of recovery substantially different from that set up in the petition, and the same is objected to as incompetent because of variance from the allegations of the petition, proper practice requires that such evidence shall be excluded until the plaintiff has amended his pleading and an issue is made up respecting the new matter incorporated in such amendment.
    Hence, in a suit against a bank to recover upon an allegation that at a date named the plaintiff deposited with the bank a sum of money named which sum was deposited under a verbal contract by which the bank was to safely keep said money and pay such checks as plaintiff should draw and repay any balance thereof to plaintiff, evidence showing that no money was in fact deposited but that a certificate of deposit for the amount named issued by a distant bank to the plaintiff was at that time indorsed by plaintiff to the defendant bank, and evidence seeking further to show that by the negligence of the bank in its effort to collect such certificate the debt was lost, and the bank was therefore liable because of such negligence, is incompetent under the pleadings and its admission over the objection of defendant prejudical error.
    2. One who chooses a bank as a collecting agent impliedly agrees that the agency may be performed in accordance with such reasonable methods prevailing at the place of collection as have ripened into usage, not in conflict with the general law, although he has no actual knowledge of their existence.
    3. Where a bank receives by mail from the payee, a certificate of deposit issued by a distant bank, the payee stating in the accompanying letter that it is for deposit to his credit, and asks for a deposit slip and two or three checks, the said payee never before having had any account or dealings with the bank, and the bank responds by mail acknowledging receipt of the certificate and advising that credit has been given his account, and a slip is enclosed showing that the certificate has been deposited ■ to the payee’s credit, and also enclosing two or three checks, and no other request is made or answer given, the transaction does not in law amount to a purchase of the certificate by the bank, but as a receipt of the same for collection only.
    4. Usage of banks prevalent in the vicinity, and generally followed, are presumed to be reasonable, and the burden of showing them unreasonable is upon the one who assails them, the question being not is the custom reasonable but has it been shown to be unreasonable.
    5. A deposit with a bank of a certificate of deposit issued by a distant bank, by the payee, with request to credit same, no other request or instruction being given, implies that the proceeds of the certificate, when collected, are to be deposited to the party’s credit, and then subject to his check, and not remitted otherwise to the depositor.
    6. It is not negligence per se for a bank which has received a certificate of deposit for collection to send it by mail to the bank issuing the same, with a request for payment, where such is the custom among banks, and there is no other bank in the town where the certificate was issued.
    7. It is not negligence per se for a collecting bank, in the absence of instructions to the contrary, to accept in conditional payment of a certificate of deposit a draft or check of the issuing bank where such is the custom of banks in the vicinity.
    8. One who seeks to recover of another on the ground of negligence on the-part of that other assumes the burden of maintaining not only the negligence complained of but that "such negligence has occasioned him loss.
    No. 12882
    Decided June 27, 1912.
    
      Error to the Circuit Court of Jefferson county.
    The plaintiffs in error, L. EL and J. C. Elilsinger, were, during the month of September, 1906, and later, engaged in the banking business as a partnership under the name of the Bank of Toronto, in the village of Toronto, Jefferson county, Ohio. The defendant in error, J. A. Trickett, was then a resident of the village of Middleport, Meigs county, Ohio.
    On February 20, 1908, Trickett began a suit in the common pleas of Jefferson county against the Elilsingers, to recover upon a claim expressed in the petition “that on the 22d of September, 1906, plaintiff deposited with said Bank of Toronto the sum of $1,400, which sum was deposited under a contract, not in writing, by which the said Bank of Toronto was to safely keep said money and out of the same pay such check or checks as the plaintiff would draw upon the same and repay said money, or any balance thereof, to the said plaintiff on demand.”
    The answer filed shortly thereafter admitted the formal parts of the petition, and, as a first defense, denied every other allegation, thus denying the making of the deposit alleged. As a second defense the answer alleged that on the day named the plaintiff, then living at Middleport, Ohio, forwarded to the Toronto bank a certificate of deposit for fourteen hundred dollars on the Middleport bank of Middleport, Ohio, for the purpose and with the intention of leaving the same for collection, and when so collected to be subject to the check of plaintiff; also, in substance alleging, with some detail as to the steps taken to collect the certificate, that the same was not collected because of the insolvency of the bank issuing the certificate, said bank having made an assignment for the benefit of creditors. There followed a third defense which it is not necessary to further notice here. The reply averred that plaintiff did not leave the certificate of deposit for collection, but that the same was left with said defendants for deposit.
    At the trial the plaintiff offered no evidence in support of the allegation of the petition that he had deposited money with the Toronto bank, but offered evidence respecting the certificate of deposit and for the purpose of showing that the bank was negligent in and about the effort to collect the certificate, and because of such negligence the certificate was not collected from the Middleport bank, and further to show that the defendants were liable to him for the amount of the loss.
    ■ This evidence was objected to by the defendants as an attempted departure from the allegations of the petition, and as not competent under the reply, there being no allegation whatever in that pleading of negligence against the defendants, but on the contrary a repetition of the claim of the petition which bases a right of recovery on an alleged deposit. Defendants’ objection was overruled and the evidence admitted. The trial resulted in a judgment for the plaintiff, which judgment was affirmed by the circuit court. The defendants, plaintiffs in error, seek a reversal of both judgments. Further material facts will be found stated in the opinion.
    
      
      Mr. P. P. Lewis and Mr. Dio Rogers, for plaintiffs in error.
    Checks, drafts, and other bills of exchange are the means of transferring the money in nearly all commercial transactions, and in authorizing an agent, whether a bank or individual, to make collections, it may be assumed in the absence of instruction to the contrary that the authority is to be executed in the manner usual and customary in the commercial world. While the agent may not accept anything but the actual cash in satisfaction of the claim, he may receive a check or draft, negotiable and payable on demand, which he has good reason to believe will be honored upon presentation, as a ready and more convenient means of obtaining the money in conditional satisfaction of the debt. Griffin v. Erskine, 131 la., 444, 109 N. W. Rep., 13; Weller Co. v. Gordon & Co., 7 C. C, N.S., 303, 70 Ohio St., 489; Ford v. Osborne, 45 Ohio St.. 3; Potter v. Potter, 27 Ohio St., 84.
    There is nothing whatever in this record to show that the draft sent to the First National Bank of Pittsburg was sent and received in satisfaction of the certificate of deposit, and yet the rule is that such satisfaction should be clearly proven.
    Now, what we are claiming is that according to the case of Weller Co. v. Gordon & Co., supra, the other side cannot simply assume that when the Pittsburg bank received the draft by letter, that it thereby took it at its own risk and in absolute payment of the claim for collection, nor can such fact be found Dy a mere preponderance of the evidence; but it comes squarely within the rule, well established by this court, that where clear proof is required, the supreme court will look into the evidence to see whether the' rule has been disregarded. Boughman v. Boughman, 69 Ohio St, 273.
    The plaintiff nowhere charged negligence. Indeed the reply simply and squarely supports and avers the same right of recovery as that stated in the petition. So that, unless they had the right to abandon their case entirely, and stand upon the averments of the answer as to the right of recovery on the ground of negligence, they clearly failed. We claim it was incumbent upon the plaintiff, at the trial, to prove his own case, and that until he averred negligence, he had no right to introduce evidence to prove negligence, and that failing to prove his own case on contract, he cannot stand on the answer, and on his proof of negligence outside of any averment of any pleading in the case.
    A plaintiff basing his right to recover upon a special contract cannot in support of his claim, rely upon the evidence introduced by the defendant, which shows a different contract, but must prove his own case. Cremer v. Miller, 56 Minn., 52.
    To aver a contract, and prove negligence In the performance of a different contract, as a basis for recovery, is certainly a failure of proof. Dean v. Yates, 22 Ohio St., 397.
    The burden of proof is on plaintiff to show that the paper was collectible, that the bank was negligent in not collecting, and that an actual loss has followed. The measure of damages is the actual loss resulting from the collector’s omission of duty. 5 Cyc., 511; Sahlien v. Bank, 90 Tenn., 222; Bruce v. Baxter, 7 Lea (75 Tenn.), 477.
    Can a bank in making a collection receive checks and drafts? Kirkham v. Bank, 165 N. Y., 132; Smith v. Miller, 43 N. Y., 171, 52 N. Y., 545; Noble v. Doghten, 72 Kans., 336, 83 Pac. Rep., 1048; Citizens Bank v. Houston, 98 Ky., 139; Farmers’ Bank & Trust Co. v. Newland, 97 Ky., 464; Kershaw v. Ladd, 34 Ore., 375; Jefferson Co. Sav. Bank v. Commercial Nat. Bank, 98 Tenn., 337; Union Nat. Bank v. Citizens’ Bank, 153 Ind., 44.
    Is it negligence for a collecting bank to send paper by mail to the drawee bank for payment? The authorities are divided on the question, but there being no other bank at Middleport, Ohio, the authorities seem to be substantially agreed that in such case it is proper. Bolles Modern Law of Banking, 548.
    Once it was the universal custom to send checks and other instruments directly by mail to the drawee bank for collection; and this practice still prevails in some states. On the other hand it has been condemned by many of them unless there is no other bank in the place; or instructions or other circumstances attending the deposit justified the bank in sending to the drawee for payment. Indig v. Nat. City Bank, 80 N. Y., 100; Briggs v. Central Nat. Bank, 89 N. Y., 182; People v. Merchants & Mech. Bank, 78 N. Y., 269; Corn Exch. Bank v. F. N. Bank, 118 N. Y., 443; National Revere 
      
      Bank v. Nat. Bank, 172 N. Y., 102; Hutchinson v. Manhattan Co., 150 N. Y., 250; Farwell v. Curtis, 7 Biss., 160; Ripley Nat. Bank v. Latimer, 64 Mo. App., 322.
    
      Mr. Hollis C. Johnston and Mr. J. O. Naylor, for defendant in error.
    Taking up the question as to whether there is a variance between the allegations of the petition and the evidence, we believe that this question is entirely controlled by Sections 11556, 11557 and 11364, General Code.
    A defect in | the petition may be cured by the allegations in- the answer and reply: 1 Bates Pleading and Practice, 543; Union Ins. Co. v. McGookey, 33 Ohio St., 555; Dayton Ins. Co. v. Kelly, 24 Ohio St., 345.
    Averring a money consideration and proof of a note is not even a variance, for the note was treated as money. 1 Bates Pleading and Practice, 515; Hadley v. Boro, 62 Vt., 285.
    There is no variance unless the other party is misled. Section 5294, Revised Statutes; 1 Bates Pleading and Practice, 517, 527; C. H. V. & T. Ry. Co. v. Gaffney, 65 Ohio St, 104; Ralston v. Kohl’s Admr., 30 Ohio St., 92; Barnett v. Ward, 36 Ohio St., 107; Banta v. Martin, 38 Ohio St., 534.
    We contend that the Pittsburg bank was the agent of the Bank of Toronto, and not the sub-agent of Trickett, and think that our contention is entirely borne out by all authorities: Reeves, Stephens & Co. v. State Bank, 8 Ohio St., 466; 
      First Nat. Bank v. Mansfield Sav. Bank, 10 C. C., 233; Young & Pomeroy v. Executors, etc., 2 Dis., 485.
    As to the negligence of the Toronto bank, we cite: 5 Cyc., 504; Exchange Nat. Bank v. Third Nat. Bank, 112 U. S., 288; Allen v. Merchants’ Bank, 22 Wend., 215, 34 Am. Dec., 289; Gallipolis First Nat. Bank v. Butler, 41 Ohio St, 519, 52 Am. Rep., 94; Merchants’ Nat. Bank v. Goodman, 109 Pa. St., 422, 58 Am. Rep., 728; German Nat. Bank v. Burns, 12 Col., 539, 13 Am. St. Rep., 247; Fabens v. Mercantile Bank, 23 Pick., 330, 35 Am. Dec., 59; Isham v. Post, 141 N. Y., 100, 38 Am. St. Rep., 766; Thompson v. State Bank, 3 Hill (S. Car.), 77, 30 Am. Dec., 354; 3 Am. & Eng. Ency. Law (2 ed.), 805; 2 Randolph on Commercial Paper, sec. 1106.
    We claim that the Pittsburg bank was negligent in accepting from the Middleport bank a Cincinnati draft in payment of the certificate of deposit. An agent for collection cannot accept part payment without special authority, and can receive money only. 5 Cyc., 505; 1 Am. & Eng. Ency. Law (2 ed.), 1027; Graydon v. Patterson, 13 la., 256, 81 Am. Dec., 432; Bank of Antigo v. Union Trust Co., 149 Ill., 343, 36 N. E. Rep., 1029; Nat. Bank of Commerce v. Amer. Exchange Bank, 151 Mo., 320, 74 Am. St., 527; Midland Nat. Bank v. Brightwell, 148 Mo., 358, 71 Am. St., 608; Pepperday v. Citizens Nat. Bank, 183 Pa. St., 519, 63 Am. St., 769.
    We claim the Pittsburg bank was negligent in presenting the certificate for payment direct to the drawer instead of sending it to a nearby bank, for instance one of the three Pomeroy banks, any one of which was not more than two miles from the Middleport bank, and within as close reach of it, as if it had been in the same town. Minneapolis Sash & Door Co. v. Metropolitan Bank, 76 Minn., 136, 77 Am. St., 609; Drovers Nat. Bank v. Anglo-American Packing Co., 18 Ill. App., 191.
   Spear, J.

It is shown by the record that the certificate of deposit issued by the Middleport bank to Trickett, and mailed by him to the Toronto bank on September 20, 1906, was received by the Toronto bank on September 22, 1906. The letter accompanying the certificate stated that it was “for deposit in your bank to my credit,” and requested that the bank send deposit slip and two or three checks. The deposit slip which the bank sent Trickett on September 22 contained this: “Deposited by J. A. Trickett checks as follows $1,400.00,” and the accompanying letter acknowledged receipt of the certificate (mistakenly called a check), “for which we have given your account credit.” The amount ($1,400.00) was then placed to the credit of Trickett on the bank’s book. On September 22, 1906, the bank mailed the certificate to the First National Bank of Pittsburg, Pennsylvania, that bank being a regular correspondent of the Toronto bank and being a bank in a city where, under the banking laws, the Toronto bank was required to keep its reserve, and the nearest reserve city. The Toronto bank had no correspondent bank at Middleport, and the sending of the certificate to the Pittsburg bank for collection was the usual and customary way of making such collections by banks in the locality of the Toronto bank. The certificate was received by the Pittsburg bank, by regular course of mail, on Monday, September 24, and on the same day that bank mailed the certificate to the Bank of Middleport for payment, along with other claims for collection. September 26 the Bank of Middleport mailed to the Pittsburg bank a draft on a Cincinnati bank covering the certificate and other claims, which draft, on presentation for payment, was dishonored. September 27, 1906, the Middleport bank made an assignment for the benefit of creditors, and in October following bankruptcy proceedings were commenced against it and its affairs subsequently settled in the bankruptcy court. Dividends amounting to $419.61 were paid on a claim based on the certificate. Other than this amount the certificate remains unpaid. Two checks drawn by Trickett on the Toronto bank were paid by that bank, one dated September 29 by New York draft on October 1, 1906, for $250, and one, later, for $5. The amount of the certificate was.charged back to Trickett soon after learning of the failure of the Middleport bank, which crediting in the first instance and charging back was the customary and ordinary method of keeping such accounts by banks in that vicinity. Trickett’s checks ($250 and $5) were paid by the bank, apparently supposing the certificate to be good and supposing Trickett to be good, and that he would make it right. The bank had never before done business with Trickett, although the firm was somewhat acquainted with him personally. Being advised by the bank of the dishonor of the certificate Trickett, under date of October' 5, 1906, wrote the bank this: “I have used up all the draft you sent me and will try and think some way to pay you back,” undoubtedly referring to the draft received for his $250 check of 29th September.

Coming now to some legal aspects of the case, the first question relates to the admission over objection of evidence offered by plaintiff at the trial for the purpose of showing that the bank, or its alleged agent the Pittsburg bank, had been guilty of negligence which prevented collection of the certificate, and that plaintiff had been prejudiced thereby. We are of opinion that the evidence was incompetent and that its admission was prejudicial' error. No such claim was made in the ■ petition, nor, indeed, is such allegation contained in the reply, that pleading seeming to still adhere to the averment of • the petition with respect to a deposit, the language being that plaintiff did not leave the certificate for collection, but for deposit. Many changes have been made as to pleadings by legislation enacted since the code of 1853 was adopted and marked liberality is shown by legislative enactments in the matter of amendments. But all the ancient landmarks have not been swept away. It still remains the duty of the plaintiff to state his case in his petition, and it still remains the right of the defendant to be apprised by the petition of the facts which are believed to constitute the plaintiff’s cause of action. If the statement of the petition of plaintiff be true, the charge of negligence was wholly irrelevant; if plaintiff had a cause of action .based upon negligence he should have stated in his petition the facts justifying such claim in order that defendants might have opportunity to traverse such allegations; and the admission in the reply that it was a certificate and not money that he forwarded to the bank did not change the issue, nor even intimate a charge of negligence. It must be borne in mind at the outset of the inquiry respecting liability that the question is not whether or not the Pittsburg bank, in case it was negligent, would be liable to the Toronto bank, but whether or not the Toronto bank is liable to Trickett. Had there been in fact a deposit of money, as alleged, the relation of debtor and creditor would have been at once established. But the delivery of the certificate in the manner shown by the admitted facts was a delivery for collection; of course to result in liability on the part of the bank in case of collection, and imposing the duty of reasonable diligence in efforts to collect. In short the plaintiff, by the act of sending the certificate, made the bank his agent for the collection of the certificate. In doing so he must be held to have assented to the usual procedure of banks in making such collections, provided such procedure is reasonable, and the burden of proving the usual methods unreasonable is upon the party complaining. It is the rule of reason, sustained by sufficient authority, that the party is charged with knowledge of the general custom of banks in the matter of collection of commercial paper, and must be assumed, in the absence of other instructions, to have intended that the bank will perform the duty imposed upon it in the usual and customary way. Farmers’ Bank v. Newland, 97 Ky., 464; 5 Cyc., 504. Indeed this principle is so well recognized that courts will take judicial notice that nearly all the banks of the country transact money affairs by exchange with other banks by the use of checks, drafts, and certificates, and without the actual handling of banknotes or coin, and this is so well known that no business, man should be allowed to profit by pleading ignorance of it. But aside from the rule of judicial notice of the general customs and usages of banks, the record in this case shows that it was the general custom for banks in the vicinity of Toronto to send commercial paper for collection to their correspondents at Pittsburg. Therefore there could not reasonably be any charge of negligence against the Toronto bank because of the transmission of the certificate to the Pittsburg bank. A leading case on this proposition is Savings Bank v. National Bank, 98 Tenn., 337, where it is held that: “One who chooses a bank as a collecting agent impliedly agrees that the agency may be performed in accbrdance wi^h such reasonable methods prevailing at the place of collection as have ripened into usage, not in conflict with the general law, although he has no knowledge of their existence.” The plaintiff, having constituted the Toronto bank his agent for the collection of the certificate, imposed no other obligation on that bank than to select a proper agency to effect such collection. It certainly cannot be assumed that the plaintiff expected, or had a right to expect, that the Toronto bank would send a messenger to Middleport, a place two hundred miles away, to demand payment of the certificate over the counter of the Middle-port bank. This proposition is distinctly held in Wilson v. Bank, 187 Ill., 222, and in a number of other cases, and if it be correct then there is nothing in the record to show that the sending of the certificate to the Pittsburg bank was not a reasonable and prudent act done in proper time and in conformity with bank usages.

It is assumed by counsel for defendant in error that, by transmission of the certificate to the Pitts-burg bank, that bank was constituted the agent only of the Toronto bank and not of the payee of the certificate, the plaintiff. This proposition is supported by the case of Reeves v. State Bank of Ohio, 8 Ohio St., 465, but the view we take of other features of the case, to be treated later, renders it unnecessary to further consider either the proposition or the case cited. On the strength of this authority the defendant in error contends that the Pittsburg bank was the agent of the Toronto bank only. But that question is not of importance, as we have already found that the Toronto bank was not guilty of negligence in forwarding the certificate to the Pittsburg bank, and only in case the latter bank itself is found to have been guilty of negligence, is the question of any consequence.

It is insisted by counsel for defendant in error that the mailing of the certificate by the Pittsburg bank direct to the Middleport bank for payment was itself negligence, and there are authorities which condemn the practice. But it is proven to be customary among banks, and a number of authorities sustain the custom. Among many we cite Indig v. Bank, 80 N. Y., 100; Wilson v. Bank, supra; Kershaw v. Ladd, 34 Ore., 375; 5 Cyc., 506, 507; Bolles Moderó Law of Banking, 548-9. • And so in this case the usages and customs availed of by the ‘plaintiff justified the sending of the certificate direct to the bank which issued it, there being no other bank at that point. The plaintiff having knowledge there was but one bank in Middleport, and that- the certificate was to be collected without .expense to him through the medium of business usages and customs in force between banks, ought not to be permitted to accept the facilities thus afforded by the bank for his accommodation, and then insist that compliance with such customs by the bank should constitute negligence. We think the claim that the custom was unreasonable, as applied to the -situation where there is but one bank in the place of payment, is not sustained by the record.

It appeared that there were banks at Pomeroy, a few miles distant, to which the certificate-might have been sent. It doesn’t appear that any such bank, had it received the certificate, would have done other than the Pittsburg bank did; and, irrespective of that, if such rule is to be applied, what would be the limit as to distance? Manifestly the point lacks force. And, speaking of the Pomeroy banks, one cannot but wonder why the plaintiff did not avail himself of facilities afforded by one of those banks in making deposit of his money and obtaining a certificate, if that was the form of indebtedness he desired, instead of sending the certificate to a bank with which he had never done business, located two hundred miles away from his home, and thus impose upon such bank the responsibility of collecting the certificate, rather than to impose that responsibility upon one of the nearby banks. The transaction was unusual at least.

It is insisted that it was negligence for the Pittsburg bank to receive in satisfaction of the check a draft on another bank in lieu of the money. There appear to be two answers to this. One that the record does not show that the Cincinnati draft was received in satisfaction of the certificate. On the contrary, the draft was received, as shown by the entire evidence, in accordance with the usual custom of banks, as conditional payment only; although the term “payment” is used by the witness; that is, in satisfaction provided the draft should be paid. Such is the custom and such is the law. Checks do not operate as payment only by express agreement. In the absence of such agreement a worthless check or draft does not pay a debt Fleig v. Sleet, 43 Ohio St., 53.

It was incumbent upon the plaintiff below to establish by evidence not only that the Toronto bank, or some agent of that bank responsible to plaintiff, had been guilty of negligence in its effort to collect the certificate, but also that such negligence worked loss to him. In this we think the record shows that he failed. In the examination of the affairs of the Middleport bank in the bankruptcy proceeding it was disclosed that the bank was, not only when the assignment was made (September 27), but for some time before, in fact insolvent. There is, therefore, nothing to show that the certificate would have been paid in money had it been presented in person by a messenger, for, in the ordinary course of business the messenger would have been tendered, and would have accepted, a draft such as was sent to the Pittsburg bank. The fact that the bank doors were still open on the 26th September does not warrant the conclusion that it then had funds sufficient to pay the certificate in money. It must be remembered that the burden of proving his .loss by negligence is upon the plaintiff. We think he did not sustain it.

Applying the severest test, it is this: was it understood between the parties that a sub-agent was to be employed by the Toronto bank in effecting a collection? It certainly was so understood by the bank or it would not have sent the certificate to the Pittsburg bank, and it was equally so understood by Trickett, or he would not, as he did, immediately on learning that the certificate had not been paid, have promised the bank to make good to the amount of the two hundred and fifty dollar check which the bank had advanced to him in the form of a New York draft. This establishes that if the Toronto bank pursued, as we find it did, the usual course, no negligence on its part is shown, and, as we have found, the Pittsburg bank was not negligent in its efforts to collect the certificate.

For error in admitting incompetent evidence and in applying the wrong rule of law to the facts, the judgments below will be reversed and the cause remanded to the court of common pleas for further proceedings according to law.

Reversed.

Davis, C. J., Shauck, Johnson, Donahue and O’Hara, JJ., concur.  