#### Kennedy *v.*Atkinson.

On a scire facias sur mortgage, the defendant offered evidence to prove that the amount due on the mortgage had been left with a building association, whose treasurer sent a check in payment to the mortgagee, which, by mistake of the mortgagee’s clerk, was at first placed to the individual account of the treasurer. The mortgagee, representing that the mortgage was not paid, assigned it to the plaintiff, who claimed that he was misled by the mortgagee, of which the defendant had knowledge, which operated as an estoppel; but plaintiff made no such request for instructions to the jury. The court submitted the question of payment to the jury. *Held,*not to be error.

The supreme court will not consider an assignment of error which alleges error in the admission of an offer to prove the correction of a mistake in the credit of a payment by proof of the contents of a lost letter, the offer being objected to on the ground that a sufficient search for the letter had not' been made, the assignment of error reciting the offer, with the substance of the alleged contents of the letter, and the testimony as to search, but not the testimony as to the contents of the letter.

Nov. 6, 1888.

Error, No. 226, Oct. T., 1888, to C. P. No. 1, Allegheny Co., to review a judgment on a verdict in favor of the defendant on a scire facias sur mortgage, by R. M. Kennedy to the use of John E. DuBois, executor of John DuBois, deceased, against James Atkinson, and Rose H. Atkinson, his wife, at March T., 1887, No. 277. Sterrett, J., absent.

The evidence was to the following effect, on the trial, before Collier, J.:

Plaintiff offered in evidence the mortgage in suit from defendants to R. M. Kennedy, an assignment by him to John DuBois, the will of John DuBois, showing John E. DuBois as executor, and rested.

Defendant produced witnesses who testified substantially to the following defence: In 1884, Mrs. Rose PI. Atkinson applied to the Homestead Building and Loan Association for a loan of $1200. The attorney for the Association made a search against her and found the mortgage in suit given by her to'R. M. Kennedy. On application to Kennedy, it was learned that there was a balance due on the mortgage which, with the interest, amounted altogether to $285.55. The loan was passed May 6, 1884.

To show the payment of the $285.55, defendant called T. H. Murray, one of Kennedy’s book keepers, who testified that, on May 12, 1884, there was a credit of $5 on account of the Atkinson mortgage, in Kennedy’s handwriting, and then, on the same date, a credit of $285.55, the balance due on the mortgage, in the handwriting of the witness.

On cross-examination, the witness testified that the original entry of the $285.55 on Kennedy’s books was to the individual account of one M. C. Andress, in the handwriting of T. C. Waite, another clerk. Witness changed the entry from the Andress account to Mrs. Atkinson’s account, on page 78 of the ledger. He did not remember whether Kennedy had given instructions to make the change.

*603Counsel for defendants then proposed to show that the way the mistake occurred, it is alleged that this credit was made to Mr. Andress by mistake in this way: that this man, for the purpose of paying off this mortgage, secured a loan from the Building and Loan Association of Homestead; that the treasurer of the association was Mr. Andress; that although Mr. Kennedy acknowledged the receipt by means of endorsement upon the warrant himself, that he at the same time got the check of Mr. Andress, and that the check of Mr. Andress in payment of this Atkinson money, and that the clerk, having nothing to guide him but the check of Mr. Andress, credited it to Mr. Andress, and, upon inquiry afterwards, it was shown by Mr. Andress, who is now dead, that this was a check paid by him as treasurer of the Building and Loan Association on the Atkinson mortgage, and that it exactly balanced the Atkinson mortgage and he then credited it.

Objected to as incompetent for the purpose for which it is offered, and irrelevant for the reason that the books of R. M. Kennedy and the testimony of the bookkeeper show that this was an individual payment by M. C. Andress by his own individual check on his own individual account, with R. M. Kennedy, and so credited it. Objections overruled. Exception. [1]

Defendant also proposed to show that when it was alleged that there was a mistake, that the witness wrote to Mr. Andress, inquired about it, and Mr. Andress replied to him stating that this was not his money at all; that it was paid for him, to cancel the Rose H. Atkinson mortgage.

Counsel for plaintiffs objected to the witness as incompetent to prove this state of facts, and demand that the letter be produced, which is the only and best evidence.

Counsel for defendants: “ We propose to show the loss of the letter. Q. Did you get a letter from Mr. Andress with respect to this matter? A. I did, yes, sir. Q. Have you that letter? A. No, sir; I have not. Q. Have you searched for it? A. Well, I may have searched for it after some time, but it is mislaid; I could not find it, of course, and I am not sure now; I just remodeled the office considerably since he left, and of course I wouldn’t know where to find anything now.”

Counsel for defendants then proposed to show the contents of the letter.

Objected to, that there has not been sufficient search made. Objection overruled. Exception. [2]

The witness then testified that he wrote to Andress inquiring about the credit, who replied that it was for a credit of the Atkinson mortgage, and that he then made the correction.

In June, 1884, John DuBois negotiated to purchase the Atkinson mortgage, with others. The balance due on the mortgage was stated by Murray, and the assignment was made June 19.

Murray, on cross-examination, further testified: “ Q. About *604what time was it that you wrote this letter to Mr. Andress that you speak of; was it after the 19th day of June, to the best of your recollection? A. Yes, sir; it must have been. Q. Then you could not have made the correction, you could not have entered that item up to the Atkinson mortgage-account until after you received his reply; you didn’t make that entry until after you received Andress’s letter ? A. No, sir; I did not. Q. Then you wrote to him after the 19th of June, and after that reply you made the entry on the mortgage account you have spoken of? A. Yes, sir.”

Louis Rott, secretary of the building association, was called by the defendant, identified exhibits Nos. 1, 2 and 3, below, and testified that the warrant, marked exhibit No. 1, was issued for the balance of the Atkinson mortgage.

Defendant then offered the exhibits, Nos. 1,2 and 3, in evidence:

Exhibit No. i:

“$285.55. Homestead, Pa., May 6, 1884.

“ Mr. M. C. Andress, Esq., Treasurer of the “ Homestead Building and Loan Association,

“ Pay to R. M. Kennedy, or order,Two Hundred Eighty-five 55-100 Dollars for and on account of Loan No. 21, Mrs. R. H. Atkinson.

“ D. R. McClure, President,

“No. 125. “Louis Rott, Secretary.”

Endorsement — “ R. M. Kennedy.”

Exhibit No. 2:

“No. 96. Pittsburgh, Pa., May 12, 1884.

“ First National Bank of Birmingham,

“ Pay to R. M. Kennedy, or order, Two Hundred Eighty-five and 55-100 Dollars.

“$285.55. “ M. C. Andress.”

Endorsement — “ R. M. Kennedy.”

Exhibit No. 3:

“ Homestead Building and Loan Association.

“Loan No....... — Date, April 1st; name, Mrs. R. H. Atkinson ; number of shares, 6; kind of security, real estate; location and description of property, lots 23 and 24, Fifteenth avenue, 25x96 and 25x96, angular, two frame houses four rooms each; estimated value of property, $1,800.”

“ committee’s report.

“ We, the committee appointed on the above loan, would report that we have examined the security and recommend a loan on six shares of stock.

“J. B. Jones, Jr.,

“ Chas. Schmitt,

“ B. R. Culbertson,

“ Committee.”

*605“SPECIAL conditions.

“solicitor’s report.

“ Title O. K., except mortgage to R. M. Kennedy.

“ Jno. F. Cox, Solicitor.”

Plaintiff objected to exhibits Nos. 1 and 3, as not being in any way connected with this transaction or with R. M. Kennedy, personally. Objection overruled and exception. [3]

Counsel for defendant then withdrew the offer of exhibit No. 2, and offered in evidence the account of Rose H. Atkinson, on account of property mortgage on page 78 of the ledger, proven by Mr. Murray.

Plaintiffs objected to the ledger account of the Atkinson mortgage, for the reason that the evidence shows that the entry therein was made without any authority from R. M. Kennedy, and was taken from an entry which was under the personal direction of R. M. Kennedy, credited to the account of M. C. Andress on the 12th, say, of May, 1884. Objection overruled.. Exception. [4]

James Atkinson, one of the defendants, was called in his own behalf, and testified, in part, as follows: “ Q. State whether or not at the time the loan was obtained, May 6th, 1884, there was a balance due on the R. M. Kennedy mortgage ? A. Yes, sir; there was. Q. Do you know how much that balance was? A. Well, there was a balance of $273 and some cents, and some interest due on it. Q. Amounting all together to how much? A. $285.55. *Q-*State whether or not that amount of money was retained out of the loan by the Building and Loan Association? A. Yes, sir; the amount was retained from me by the Building and Loan Association when I got the balance. Q. State whether prior to June 19th, 1884, you had any intimation that there had been a mistake of any credit in Kennedy’s books? A. Yes, sir; on the 15th day of June we got a certificate of no defence sent to us, and I went and I handed it that very day to the secretary, Mr. Louis Rott, I came in on the 16th of June to Mr. Murray, and told him, and he showed me his books, a credit to M. C. Andress of $285.55; I told him that was a mistake, that we had settled with the Building and Loan Association. Q. You called his attention to it, that was on the 16th of June, 1884?”

By the Court:. “ Q. The first notice you got, do I understand you, of there being any mistake about it, was the certificate of no defence they wanted you to sign? A. Yes, sir. Q. Then you immediately went and looked at it; you thought that was all paid ? A. I thought it was all correct; yes, sir.”

On cross-examination, the witness testified, in part, as follows: “ Q. Then after this, when you found this mistake was made out and everything of the kind, you didn’t insist upon having the mistake corrected and the proper entry made on the record of the mortgage in the recorder’s office? A. That was their business, not mine. Q. You told them about it, and you left it for them to take the proper' steps to protect the thing ? A. Yes, sir. Q. They have been pro*606tecting it ever since, haven’t they? A. I think so. Q. Mr. McClung appears here for the Building and Loan Association? A. Yes, sir. Q. With that knowledge in your possession on the 19th of June you didn’t take any steps whatever, nor did the Building and Loan Association take any steps to have the required notice put on there to warn John DuBois, or his attorney? A. Nothing more than I got it from John F. Cox; I saw him that same day I was in, and he was telling me, and I told him I was there ahead of him.”

By Mr. McClung: “ Q. He told you he had been in there ? A. Yes, sir. Q. Did he tell you it was all right? A. He said he went and seen and had it corrected, or something to that effect. Q. When did you hear again from this? A. I didn’t hear anything again until I got an attachment from the sheriff. Q. DuBois sued on it, — this writ was issued? A. Yes.”

The court below charged the jury as follows, by Collier, J.:

“ This is an action upon a mortgage! The mortgage, I believe, was originally for the sum of $400.00, and the papers in the case make out what is called a prima facie case.

[“ The defendants say the mortgage is correct, that it was made by Mrs. Atkinson and her husband. She alleges that she has paid it in full, and that it was paid before the mortgage was assigned to DuBois. That is the question in the case.] [5] To sustain the issue, upon her part, she offers proof that her account with Mr. Kennedy, who was the original holder of the mortgage, is closed, that his own books show that.

[“ But it appears that, as to $285.55, there is a dispute; it being alleged that that was not paid on her account, and that there is still $285.55 due. That is the main question in the case.] [6]

“ Now, the defendant, Mrs. Atkinson, through her witnesses, says that that was paid in this way: That this mortgage was against her property and she wanted to get $1,200.00 ; that she went to the Building and Loan Association and applied for a loan of $1,200.00, and the loan was passed — she could have that amount.

“ In looking for liens, the attorney for the Building and Loan Association found this mortgage of $400.00 against Mrs. Atkinson’s property. He went to Mr. Kennedy’s office to ascertain how much was due upon the mortgage, and they gave him a statement that there was $285.55 due upon it. Of course, the Building and Loan Association would not loan money on their mortgage until that lien was released on the record, or the money paid. So they took that amount, it is alleged by the defendants, and gave a warrant for the amount to Kennedy himself to pay that off, and they say that this warrant in evidence is the warrant passed and given by the association. It is dated May 6th and is directed to the treasurer to pay to Mr. Kennedy $285.55. -That is the amount still due and owing by Mrs. Atkinson on her mortgage. [That warrant is drawn in favor of Kennedy, the man who owned the mortgage, at a time prior to its assignment to Mr. DuBois, and before Mr. DuBois had anything to do *607with it. That warrant was eventually handed to Mr. Kennedy and he endorsed it. It is alleged, then, that, about six days afterwards, between May 6th and May 12th, the treasurer, Mr. Andress, of the Building and Loan Association, gave his check for the identical amount, $285.55, and that that check was given to Mr. Kennedy and that he got the money on it — his name is endorsed on it and there is no doubt about that.] [7]

[“ It is contended that that was for Andress’s private account, and not in pursuance, as the testimony indicates, of this transaction in the Building and Loan Association. That is for you; but it does seem to me that it is very strong evidence that it was received and paid on that mortgage, in pursuance of this warrant was issued, and that the entry was made in Mr. Kennedy’s books by mistake of Mr. Waite; and the treasurer, when written to about it, said: “ Yes, that belongs to the Atkinson mortgage and not to mine at all.” It does seem to me — you find differently, if you see proper, from the evidence — that that is at least strong evidence that this transaction of the Building and Loan Association paid this mortgage.] [8]

[“ But it is contended by the plaintiff that that, nevertheless, was nothing but a private transaction of Mr. Andress; that it was his own money; that it had no connection with this mortgage, although it appears to be the identical amount, $285.55; and, if that is the case, it was not a payment on this mortgage, and your verdict should be for the amount, $285.55, f°r the plaintiff; but if you think the weight of the evidence satisfies you it was paid in that way, your verdict should be for the defendants.”] [9]

Verdict and judgment for defendants.

*The assignments of error*specified, 1, the admission of evidence, quoting the bill of exception, as above, but not the evidence; 2, the admission of evidence, quoting the bill of exception, as above, and the evidence as to the loss of the letter, but not the further testimony of the witness; 3, the admission of evidence, quoting the bill of exception, as above, but not the exhibits; 4, the admission of evidence, quoting the bill of exception, as above, but not the evidence; 5-9, the portions of the charge included within brackets, quoting them.

*T. H. Baird Patterson,*for plaintiff in error.

The court disregarded all questions of estoppel, good faith, fraud, mistake, or who was responsible therefor. These phases of the case were sufficiently indicated by objections to evidence. All legal questions actually arising from the record notes (now by Act of May 24, 1887, P. L. 199, official), are subject of error if improperly ruled by court: Wheeler *v.*Winn, 53 Pa. 122.

The building association, who are either the real defendants themselves or represent and act for the Atkinsons, and they all having fully known on June 16 of the mistake, and having stood by until June 26 without correcting the same, and allowed DuBois *608to take an assignment of the mortgage, they are now estopped from alleging the mistake: Brooke *v.*R. R., 108 Pa. 544; Xander *v.*Com., 102 Pa. 434; Burton’s Ap., 93 Pa. 214; Mundorff *v.*Wicker-sham, 63 Pa. *87;*Robertson *v.*Hay, 91 Pa. 242; Hutchison *v.*Gill, 91 Pa. 253; McAlavney *v.*Conygham, 8 Cent. Rep. 429; Taggart’s Ap., 99 Pa. 627; McKnight *v.*Pittsburgh, 91 Pa. 273; Chapman *v.*Chapman, 59 Pa. 214; Railroad *v.*DuBois, 12 Wallace, 47; Hope *v.*Lawrence, 50 Barb. 258; Parker *v.*Crittenden, 37 Conn. 148.

Jan. 7, 1889.

If one of two innocent parties must suffer from the fraud or wrong-doing of a third party, the party who furnished the means or afforded the opportunity for such fraud or wrong-doing must bear the loss: Brooke *v.*R. R., above.

The 1st, 2d, 3d and 4th assignments of error may all be considered together, for, while in minor details erroneous, the chief error through all was the allowing of erasures and corrections of books of absent party without any proper evidence of his authorizing same to be done; said corrections had been all made after the assignment for value to DuBois, and were therefore inequitably to affect his rights in this suit; and assertions of what was supposed to have been the language of Andres’s letter, without proper efforts to procure the letter itself, after his death, and the same being asserted to have been written at a time when it was utterly incompetent to qualify rights of plaintiff DuBois, after he was dead, and unable to again testify in his own behalf, and also without sufficient effort to procure testimony of R. M. Kennedy, or sufficient evidence connecting him with exhibits admitted, and identifying dates of endorsement, &c.

X *A. McChmg,*for defendant in error,

presented an oral argument, but no paper-book.

Per Curiam,

The question whether the mortgage of the defendants was paid by the transaction with the building association was one purely of fact, and was fairly submitted to the jury. Their verdict was for the defendants and there was abundance of evidence to justify it. We find no substantial error in the rulings of the court. It is true, the evidence was not very satisfactory as to the loss of the letter referred to in the second assignment, but the answer of the witness was not set out in the assignment, as required by the rules of the court, and we cannot pass upon it. Non constat that the answer did the plaintiff any harm.

Judgment affirmed.