
    Commonwealth, ex rel., v. Guardian Fire Insurance Company of Pennsylvania
    (No. 2).
    
      Principal and agent — Insurance companies — Local agent — Gom pensation — Set-off.
    Where local agents of an insurance company have in their hands sums of money due to the company by reason of premiums paid to them which had not been turned over to the company in their monthly reports, prior to the time the company was placed in the hands of a receiver, they cannot set off as against the claim of the receiver for such moneys, a dividend on claims which they had taken by assignment from policyholders for return premiums due to policyholders.
    July 18, 1916:
    Argued, March 14, 1916.
    Appeal, No. 7, March T., 1916, by A. Y. Landis, Assignee, from order of C. P. Dauphin Co., Commonwealth Docket, 1909, No. 23, overruling exceptions to report of auditors in case of Commonwealth, ex rel., M. Hampton Todd, Attorney General, v. Guardian Fire Insurance Company of Pennsylvania.
    Before Orlady, P. J., Henderson, Kephart, Trexler and Williams, JJ.
    Affirmed.
    Exceptions to report of Frank B. Wickersham, Esq., and Harry M. Davidson, Esq., auditor.
    The facts are stated in the opinion of the Superior Court.
    
      Error assigned were in dismissing exceptions to auditor’s report.
    
      J ohn R. Geyer and J ohn E. Fox, with them J ohn E. Malone, for appellant.
    
      J. E. B. Cunningham, with him Blakely & Calvert, for appellee.
   Opinion by

Kephart, J.,

In the appeal of Charles F. Widmyer we disposed of the questions as to commissions on unearned or returned premiums. The facts in this case are similar to those in that appeal, with the exception of the amount. There is this distinction in the Landis Appeal which, however, does not alter the conclusion reached: When the receiver was appointed, Landis had in his hands certain sums of money due to the company by reason of premiums having been paid to Mm, wMcb bad not been turned over to tbe company in bis monthly reports. For tbe reason suggested in tbe preceding appeal, when tbe receiver was appointed, tbe money was due to tbe company from Landis. Tbe agency balance, while not tbe same as commissions on return premiums, bad nevertheless tbe same equities in that it was tbe property of tbe company and was to be paid to it by tbe appellant, and any dividend allowed on unearned or returned premiums was to be subject to the counterclaim of tbe agency balance due tbe company, as well as tbe commissions on tbe unearned or returned premiums. This agency balance was certainly not tbe money of tbe local agent. That is tbe view taken by tbe court below.

Tbe adjudication of tbe claim of Dickson and Twee-dale by Judge McCarrell, on exceptions to tbe first report of these same auditors, is not at variance with tbe conclusions here reached. What was there said was for tbe purpose of emphasizing tbe. fraudulent character of that claim and it did not commit tbe determination of tbe questions which now arise between tbe insurance company and tbe local agent.

Tbe assignments of error are overruled and tbe decree of tbe court below is affirmed.  