So that in this respect the facts of the present case do not come within the principle of Herman v. City of Allegheny, 29 Pitts. Leg. J. 347, cited by counsel for appellants. We are of opinion that the learned judge of the court below committed no error in entering judgment for the defendant non obstante veredicto.

The assignments of error are dismissed, and the judgment is affirmed.

(217 Pa. 293)

WOOD v. PRAUL et al. (Supreme Court of Pennsylvania. April 1, 1907.)

1. EJECTMENT EVIDENCE.

Where, in ejectment, defendant claimed to hold the land as a gift from plaintiff's testator, and the evidence tended to show a parol gift unaccompanied by possession, and that the testator lived in the house and paid the taxes until his death, judgment was properly rendered for plaintiff.

2. EVIDENCE-CONCLUSIONS OF WITNESS.

In ejectment, where plaintiff claimed to hold the land under a parol gift from the owner, now deceased, opinions of neighbors as to whe seemed to be the head of the house were inadmissible.

Appeal from Court of Common Pleas, Philadelphia County.

Action by Mary Emma Wood against Catherine Praul and Maud R. Praul. Judgment for plaintiff, and defendants appeal. Affirmed.

At the trial it appeared that prior to March 20, 1904, George R. Landes was the record owner of the property in question. He died on that date, leaving a will by which he gave all the residue of his estate to his sister, the plaintiff. The defendant offered testimony which tended to show that she and her daughter, the other defendant, went to live with testator, who was her brother, in the year 1892, and that she lived with him until his death. She claimed that in 1892 he gave the property to her by parol gift, and that after the gift the testator lived with her.

The court charged in part as follows: "On March 14, 1888, George R. Landes became the owner of the property in question; it having been conveyed to him by deed. On March 20, 1904, George R. Landes died, leaving a will, dated January 25, 1901, which contains the following clause: 'All the rest, residue and remainder of my estate, real, personal and mixed, of what kind or nature soever, and wheresoever, the same shall be at the time of my death, I give, devise and bequeath unto my beloved sister Mary Emma Wood, her heirs and assigns forever.' There is no specific disposition by the will of the property in question, and consequently, under the will, Mary Emma Wood, the plaintiff in this case, acquired the title to the property. The defendants rely upon a verbal contract made be

tween Catherine R. Praul and Mr. Landes, the testator, in 1892, whereby he gave the property to Mrs. Praul. Maud R. Praul, the daughter of Catherine R. Praul, testified that Mr. Landes invited his sister, Mrs. Praul, to come to live in the house, permitting her to run the shop on her own account, and that she kept house for him. This witness was, at the time this happened, 14 or 15 years of age, and her testimony is not satisfactory as establishing the title of Catherine R. Praul. Catherine R. Praul came to the house with her daughter in 1892, and remained there until the testator's death, and until the present time. The testator, however, had lived in the house for some years before 1892, and continued to live there until the time of his death. In the opinion of the court, the defendants have not made out such a title as would justify or support a verdict in their favor. Consequently I instruct you to render a verdict for the plaintiff. The plaintiff is further entitled to recover mesne profits during the time that this defendant occupied the premises after the death of Mr. Landes. The defendant's real estate expert testified that the value of the property was $25 a month. and the plaintiff is willing to accept that as the correct amount. Consequently you will render a verdict for the plaintiff and assess mesne profits at the rate of $25 a month. Maud R. Praul is not to be considered as having been in possession of the premises, as she was simply there with her mother. You will render a verdict in favor of Maud R. Praul, the defendant, and against the other defendant, Catherine R. Praul."

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Isaac Hassler and Edward F. Doehne, for appellants. Charles Hunsicker, George T. Hunsicker, and Joseph W. Hunsicker, for appellee.

PER CURIAM. All that appellants' evidence tended to show was a parol gift of land, prima facie ineffective under the statute, and not within any of the exceptions, as there never was any possession in the donee. The holder of the legal title lived in the house, paid the taxes, and, so far as the evidence showed, was in actual, as well as legal, possession.

The opinions of the neighbors as to who appeared to be the head of the house were irrelevant gossip, properly excluded.

The disclaimer of title by Maud R. Praul, the other defendant, should have been admitted of record, and a verdict in favor of the plaintiff directed against her. But the error in that regard did no harm of which appellants can complain.

Judgment affirmed.

(79 Conn. 714)

STATE v. LEVINE.

(Supreme Court of Errors of Connecticut. May 14, 1907.)

1. LARCENY-PROPERTY LOST.

Where the finder of a bank check handed the same to defendant, inquiring whether he knew the owner, and defendant, to induce the finder to leave the check with him that he might convert it to his own use, falsely represented that he expected the owner to call at his store, and that he would give it to him, and, upon its being left, converted it to his own use, he was guilty of larceny.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Larceny, §§ 39, 42, 43.]

2. SAME-CUSTODY BY SERVANT Or Agent.

Where a person, though he accepted in good faith the custody of a lost bank check for delivery to its owner, subsequently appropriated it to his own use with felonious intent, he was guilty of larceny.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Larceny, §§ 39, 42, 43.]

Appeal from Superior Court, New London County; Milton A. Shumway, Judge.

Michael Levine was convicted of larceny, and he appeals. Affirmed.

William H. Shields and John H. Barnes, for appellant. Hadlai A. Hull, for the State.

BALDWIN, C. J. In was undisputed on the trial of this case that the check in question, which was drawn on a New York bank and bore the indorsement of the name of the payee, one Skawinski, was received by the defendant at a store which he kept in Colchester, from one Rosen. The state offered evidence tending to prove that the check had been lost in the course of its transmission by mail to Skawinski; that it had come into the possession of a Mrs. Train, who had put it in Rosen's hands, with a request that he find the owner; that Rosen handed it to the defendant, asking if he knew the owner, whereupon the defendant handed it to his daughter, who told him the name of the payee; that the defendant then made to Rosen, in the presence of two witnesses, Sush and a young woman, the false, fraudulent representation that he expected the payee to call at his store that day, and would then give it to him; that Rosen, in reliance on this statement, left the check with the defendant and his daughter, who placed it in the money drawer of the store; and that afterwards the defendant deposited it to his own credit in a bank in Norwich, and collected and converted it to his own use, well knowing that he had no right to it. The defendant offered evidence tending to prove that Rosen asked him to cash the check; that he consented, paying him part in cash and Rosen buying goods to the amount of the balance; and that Sush and the young woman were not present at the time.

The defendant requested the court to tell the jury that, to warrant a conviction, they must find that at the time he accepted the check he formed the intent to appropriate it to his own use. Instead of this, the court in66 A.-34

structed them that if the defendant knew when he took the check, or knew soon after he took it, that it belonged to Skawinski, and then converted it to his own use or took the proceeds of it, he was guilty of larceny. They were also charged that while ordinarily, to constitute larceny, a felonious intent to convert the thing taken to the taker's use, without the owner's consent, must exist at the time of the taking, for the purpose of the case on trial, should they find the facts to be as claimed by the state, the rule of law pertaining to lost property applied, namely, that although the act by which the finder assumes control of it may not be a trespass, and he may pick it up with no intent to steal it, yet that if such an intent be formed later, and after the property actually came into his possession, on his appropriating it to his own use by assuming actual dominion over it, knowing or having reasonable means of knowing the owner, and meaning to deprive him of his property, the crime of larceny is committed. The jury having returned, after a consultation of an hour or two with a request for further information as to what constituted larceny and theft, the court, after instructing them that these terms were synonymous, gave this additional charge: "It seems to me the only question is whether you believe the story which Rosen and Sush have told you, which was that they informed Levine that that was a lost check, that Levine said he knew to whom it belonged, and that the owner was to be there that day, and that he would give it to him. If you believe that story, why, it seems to me, you should convict the accused; but, if you believe the story that the accused tells, that he, Rosen, approached him and asked him to cash the check, and Levine said 'No, I haven't the money, take it into the store and my wife or daughter will cash it for you'-if, under those circumstances he did take the check and deposit it to his own account, taking it and not knowing that it was lost or that Rosen had not any title to it, and if he did not know anything about how Rosen came by the check (as in its form it was negotiable, transferable by delivery, it did not require any further indorsement, in law, to pass title), if he did not know it was a lost check, simply told Rosen to go in and get the money, he had a right to deposit the check in his own bank account, and, even if he did afterwards learn that it was stolen or was a lost check, perhaps he might have been liable to refund the money, but he would not be liable for theft. If Levine simply cashed that check for Rosen, I do not think he ought to be convicted for theft, but if he took the check knowing that it was lost, informing himself who the owner was, and he knew that he had no title to it, and afterwards appropriated it to his own use, he is guilty of theft."

* *

The evidence offered by the state tended to prove that Rosen handed the check to Levine, inquiring whether he knew the owner, that

Levine passed it over to his daughter, and that she told Levine the name of the payee, after which he made a fraudulent representation which caused Rosen to leave the check in her hands. If these were the facts, the possession remained in Rosen until after the fraudulent representation was made. He handed it to Levine to look at. Levine handed it to his daughter, that she might look at it. It was from her that Levine learned what was the name of the person in whose favor it was drawn. It was by a fraudulent representation which he then made to Rosen that the latter was induced to leave it in her hands.

It is plain that Levine committed no trespass when he first took the check from Rosen. When he passed it over to his daughter, it was presumably for the legitimate purpose of ascertaining who the owner was. If the jury found that subsequently, upon receiving information as to this, he made a false and fraudulent representation to induce Rosen to leave the check at the store, and that, having been thereupon so left, it was converted by Levine to his own use, he was guilty of larceny. He had at first the bare, temporary, and lawful custody of the check for a certain purpose. This purpose fulfilled, his fraudulent representation resulted in its coming into his possession as the subagent of Mrs. Train to deliver it to Skawinski. If he ac cepted this agency and the accompanying possession of the check with the felonious intent to appropriate it or its proceeds to his own use, the act of acceptance constituted a taking, and the first taking, of the check from the constructive possession of the owner. It remained in Skawinski's constructive possession while in the custody of Mrs. Train. Ransom v. State, 22 Conn. 153, 158. No change of this possession could be wrought by her handing it to Rosen, nor by his handing it to the defendant, nor by the defendant's handing it to his daughter; each of these acts being in strict subordination to the title of the owner. The wrong to Skawinski would date from the fraudulent acquisition by Le vine of the custody of the check for delivery to the rightful owner, with the secret intent to appropriate it to his own use. But larceny would have been committed, also, had he accepted the custody of the check for delivery to Skawinski, in good faith, and subsequently appropriated it to his own use with felonious intent. His custody of the check as an agent for its delivery to Skawinski would have left it in law still in the latter's possession, and that possession would have been first invaded by the wrongful appropriation to his personal benefit. Whenever that was made, the check would have first been taken and carried away. Williams v. State, 165 Ind. 472, 75 N. E. 875, 2 L. R. A. (N. S.) 248; State v. Anderson, 25 Minn. 66, 33 Am. Rep. 455; People v. Call, 1 Denio (N. Y.) 120, 43 Am. Dec. 655. So, in the case of a felonious conversion of goods by a servant to whom

they have been intrusted, larceny may be committed, although the intention to convert them was not conceived until after they had come into his keeping. State v. Fairclough, 29 Conn. 47, 49, 76 Am. Dec. 590. His custody remains that of his master until he assumes an antagonistic and criminal position by the act of wrongful appropriation, and thus for the first time takes the goods away from what in law has been their owner's possession. The charge of the trial court, taken as a whole, correctly stated the rules of law on the points above considered, so far as was necessary for the proper disposition of the cause. It would have served no useful purpose to bring to the attention of the jury the technical distinctions that might be raised between a bare custody of goods, and their possession, or between actual possession and constructive possession. The vital question was whether the transaction between Rosen and Levine was as Rosen stated it or as Levine stated it; and this was plainly put before the jury in terms which they could not fall to comprehend.

The defendant contends that the positions on which our judgment is founded are inconsistent with those taken in the cases above cited of Ransom v. State, 22 Conn. 153, and State v. Fairclough, 29 Conn. 47, 76 Am. Dec. 590. In the former we held that the charge of the trial court was erroneous because it withdrew from the jury (page 161 of 22 Conn.) the question on which the guilt of the accused depended, namely, whether the lost pocketbook, which he found on the highway, was originally taken by him with a felonious intention, and allowed them to find him guilty, although he first took it honestly, intending to return it to the owner, but subsequently changed his mind, and resolved not to restore it, but to convert it to his own use. In the cause now before us the taking by the defendant which the state relied on as felonious was not his original taking of the lost check into his hands. That, it was conceded, was a lawful and innocent act. The felonious intent, if any, came later, when, having been informed of the name of the payee, and thus, having notice of a fact which might naturally lead to the discovery of the owner, he changed his attitude in such a way as to amount to a new taking, resolved to withhold it from him, and appropriated it to his own use. In State v. Fairclough a conviction for larceny was upheld where the jury were told that if the defendants received a package of goods upon an agreement to transport it to a neighboring town and there deliver it to the owner, and on the way broke the package with felonious intent and converted the contents in whole or part, they might be found guilty. We observed that, if regarded as servants of the owner, they would be plainly chargeable with larceny, under such circumstances; and that, if regarded as bailees, the wrongful breaking of the package and abstraction of the contents would terminate

the bailment, divest them of the special property in the goods incident to the relation of bailee, and thus leave them in no better situation than if they had been originally servants. The only substantial distinction in law between servants and agents is that the main function of the agent is to alter his principal's relations to third persons, while that if the servant is to execute his master's orders. "An agent represents his principal in an act intended or calculated to result in the creation of a voluntary primary obligation or undertaking. A servant represents his master in the performance of an operative or mechanical act of service, not resulting in the creation of a voluntary primary obligation, but which may result, intentionally or inadvertently, in the breach of an existing one." Huffcutt on Agency, § 4. An agent, in other words, is to perform acts primarily intended or adapted to cause a change in the legal relations of third persons to his principal. A servant is to perform acts not primarily intended or adapted to cause a change in the legal relations of third persons to his master. The agent creates new relations; the servant acts upon existing relations. Id. § 6. In the case at bar A. (that is, Mrs. Train, or her agent, Rosen), having in his hands goods of B., intrusts them to C. (the defendant) to deliver to B. C. is not thus empowered to alter A.'s relation to B. or to anybody else. He is simply to perform a particular service, which A. owes to B. He is therefore the servant of A. But whether the defendant in the present case be called servant or agent, with respect to the relations assumed by him to Rosen or through Rosen to the owner of the check, can have no important bearing on the consequence of his repudiation of the duties which those relations involved. In neither case would he have any special property in the check. In each his possession of it, so long, and so long only as it was held as agent or servant, would be the possession of its owner.

There is no error. The other Judges concurred.

(79 Conn. 709)

RUSSELL ELECTRIC CO. v. BASSETT et al. (Supreme Court of Errors of Connecticut. May 14, 1907.)

1. BILLS AND NOTES-AMOUNT OF RECOVERYDEDUCTIONS.

A person was hired as manager for one year by a corporation. Afterwards the board of directors rescinded the contract, and one of the members of the corporation gave him a note and mortgage for his year's salary; he agreeing to hold himself ready to work for the corporation at any time called for during the year. He was not called upon to resume his services, but earned $700 in other employment during the year. In an action to foreclose the mortgage, held, that the mortgagor had no right to deduct the $700 from the amount of the note. 2. SAME CONSIDERATION.

A promise of a person not to secure his elaim by suit and attachment as he had intend

ed, nor to press for interest on the note until the end of the year, and, if requested, to assist the payor to pay interest on a mortgage, and to hold himself ready to perform services for the payor during a stated period, is a sufficient consideration for a note for the amount of his salary during such period, though he was not called upon to perform any services.

[Ed. Note. For cases in point, see Cent. Dig. vol. 7, Bills and Notes, § 166.]

3. APPEAL-REVIEW-QUESTIONS OF FACT.

The conclusions of the trial court as to the credit of witnesses and the weight of conflicting evidence cannot be reviewed on appeal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3955-3969.]

Appeal from Superior Court, New Haven County; John M. Thayer, Judge.

Action by the Russell Electric Company against Mary S. Bassett and others. From a judgment for plaintiff, defendants appeal. Affirmed.

The complaint alleges that the defendant Mary S. Bassett was on November 19, 1904, indebted to one Charles B. Russell in the sum of $2,000, as evidenced by her promissory note of that date, payable to said Russell, or order, one year from date, with interest at 6 per cent. payable semiannually, and on the same day, to secure said note, mortgaged to said Russell a piece of land in the town of Derby; that subsequent to November 19, 1905, said note and mortgage was duly assigned and quitclaimed to the plaintiff, and that said note is due and unpaid and is still owned by the plaintiff, who is the bona fide owner and holder thereof; that the defendant Lillian M. Bassett claims to have an interest in said property. The answer admits the execution and delivery of the note and mortgage, and alleges that they were executed and delivered to said Russell on account of his agreement to withhold the issue of a writ of attachment in a threatened suit against the Bassett Bolt Company, a corporation, which threatened suit was based upon a pretended claim of said Russell against said corporation; that said pretended claim was invalid and illegal, and that said corporation was not indebted to said Russell, as he well knew, and that said Russell fraudulently concealed from Mary S. Bassett the facts concerning said pretended claim; that there was never any consideration for said note and mortgage or the payment thereof by Mary S. Bassett, except as aforesaid. The reply denies these allegations of the answer. The court found the issues thus raised for the plaintiff, and found all the allegations in the complaint to be true, and that $2,187.11 is due from Mary S. Bassett to the plaintiff on the mortgage debt, and rendered judgment for foreclosure.

The facts found by the trial court, and upon which it based the conclusion that the note and mortgage were given upon a valid consideration and were not obtained by fraud, are in substance these: Prior to the year 1904 the Bassett Bolt Works were owned and operated by one D. M. Bassett, the hus

band of the defendant Mary S. Bassett and the father of the defendant Lillian M. Bassett. D. M. Bassett died in the spring of 1904, and just prior to, his death he organized the Bassett Bolt Company, a corporation. He turned over to the corporation the assets of the bolt works theretofore operated by him, and transferred to his said wife and daughter 498 of the 500 shares into which the capital stock was divided. After his death, one J. Gibb Smith held the remaining two shares. In the summer of 1904 Mrs. Bassett persuaded Charles B. Russell, a mechanical engineer then employed in Ohio, to give up his business there and come to Derby and manage said bolt works corporation and its business. The board of directors of said corporation, at a regular meeting, voted to employ said Russell as general manager for one year beginning September 1, 1904, at a salary of $2,000, he to have power to sign checks for and to transact the necessary business of the corporation. At this time Mrs. Bassett, her daughter Lillian, and J. Gibb Smith constituted the board of directors. Shortly after Russell's employment the administrator of D. M. Bassett's estate, claiming to hold the corporation's assets for the payment of the debts of said Bassett, stopped the operation of the corporation by attachment in favor of the estate. Thereafter, in October, 1904, the corporation rescinded its vote employing Russell as manager. On the 15th of the following November he gave notice to the corporation that he should claim his salary. At the suggestion of the counsel for the corporation, who was also counsel for Mrs. Bassett and her daughter, Russell, with his counsel, met Mrs. Bassett and her daughter in the office of their counsel on November 19th. At this conference the situation was fully explained by counsel for the defendants and for Russell. It was thereupon agreed by Mrs. Bassett to give the note in question, secured by said mortgage, said Russell agreeing not to secure his claim upon the corporation by suit and attachment, as he had proposed, not to press for payment of interest on the note until the end of the year, and, if requested, to assist Mrs. Bassett to pay interest on a prior mortgage on the same property (which he did), and to hold himself ready to work for the corporation at any time called for within the year. He was not called upon to resume his services for the corporation, although it resumed operation and the defendants retained control of it. He earned during the year $700 in other employment.

Wayne M. Musgrave and William T. Minor, for appellant Mary S. Bassett. William H. Cable, for appellee.

HAMERSLEY, J. (after stating the facts). Upon the trial the defendants claimed that, notwithstanding there was a valuable consideration for the note and mortgage given by

Mrs. Bassett to Russell, yet the plaintiff could not recover of Mrs. Bassett the full amount of the note, but only such portion thereof as would remain after deducting the $700 which it appeared that Russell had earned in other employment. The trial court did not err in overruling this claim. Upon the facts as found by the court the note in suit evidenced a direct indebtedness from Mrs. Bassett to Russell. This indebtedness was created on November 19, 1904, by a direct contract between Mrs. Bassett and Russell, based upon a valuable consideration and entered into by the parties under advice of counsel and with full knowledge of the facts. All the agreements of Russell, which constituted the consideration on his part, have been fully performed. There was no promise on his part to earn money in other employment, or to credit Mrs. Bassett, upon her note to him, the amount of any money he might so earn. It is well settled that in contracts of this kind, where the consideration for a promise is in part an act done by the promisee at request of the promisor by which the former sustains any loss, trouble, or inconvenience and of a benefit to him who makes the promise, courts of law or of equity will not in the absence of fraud interfere with the valuation which the parties themselves placed upon the considerations that induced the contract. Sage v. Wilcox, 6 Conn. 81, 83; Clark v. Sigourney, 17 Conn. 511, 517; Clark's Appeal, 57 Conn. 565, 572, 19 Atl. 332; Mascolo v. Montesanto, 61 Conn. 50, 54, 23 Atl. 714, 29 Am. St. Rep. 170. The plaintiff, having proved the execution and delivery of the note and mortgage by Mrs. Bassett to Russell and the assignment of the note and mortgage to the plaintiff, the value of the property mortgaged, the amount due upon the note, and that the same had not been paid, rested his case. The defendants then moved that the complaint be dismissed on the ground that no consideration for the note had been proved. The court properly overruled this motion. The other question of law presented by the appeal, namely, that the court erred in deciding upon the facts appearing in the finding that there was a sufficient consideration for the note and mortgage in question to support the action, is disposed of by the cases above cited.

It is patent from the record and the irrelevant reasons for appeal assigned by counsel that the real grievance of the defendant is that the trial court in passing upon the credit of witnesses and the weight of conflicting evidence reached conclusions of fact different from those the counsel for the defendaut think the court ought to have reached. This court cannot retry upon the testimony facts thus settled by the trial court. Hourigan v. Norwich, 77 Conn. 358, 369, 59 Atl. 487.

There is no error in the judgment of the superior court. The other Judges concurred.