Marcus v. People's National Bank

• Decision Date: 15 July 1914
• Docket Number: 37-1914
• Citation: 57 Pa.Super. 345
• Parties: Marcus, Appellant, v. People's National Bank
• Court: Pennsylvania Superior Court

57 Pa.Super. 345

Marcus, Appellant, v. People's National Bank

No. 37-1914

Superior Court of Pennsylvania

July 15, 1914

Argued March 2, 1914 [Syllabus Matter] [Syllabus Matter]

Appeal by plaintiff, from order of C.P. Lackawanna Co.-1911, No 518, refusing to take off compulsory nonsuit in case of Adolph Marcus v. People's National Bank.

Assumpsit to recover the amount of charges against plaintiff's account by reason of the alleged wrongful payment of certain checks. Before Staples, P. J., specially presiding.

At the trial the court entered a compulsory nonsuit, charging in part as follows:

In the year 1908 there lived in the city of Scranton a merchant by the name of Adolph Marcus, who is the plaintiff in this present action, and he became acquainted with an attorney at law by the name of M. Morris Moskovitz. By the undisputed evidence in the case it appears that M. Morris Moskovitz secured the confidence of Adolph Marcus to a very large degree; and in November, 1908, Moskovitz represented to Marcus, the plaintiff, that he had a client who owned real estate in the city of Scranton, and upon which real estate he desired to borrow some money, giving as security for the payment of the same the real estate mentioned. He even went so far as to take Marcus to view the property; and Marcus, on November 12 and 16, gave to Moskovitz two checks, one dated November 12, 1907, for $ 400, and one dated November 16, 1907, for $ 500, each drawn on the People's National Bank of Scranton, in the name of Charles Kirst, who was the man alleged by Moskovitz to be the owner of the property, these checks being obtained from Marcus by an alleged executed bond and mortgage and insurance policy, certificate of title and a receipt from Kirst for the amount of the checks. These checks, it is supposed, were indorsed by Moskovitz, " Charles Kirst," although that does not appear from the testimony, but it does appear from the testimony that no such person as Charles Kirst owned the property, nor, as far as this case is concerned, was this Charles Kirst in existence at that time. These two checks were both indorsed by Moskovitz as a second indorser, and they were presented to the First National Bank, and by it presented to the People's National Bank, were paid by the People's National Bank and charged up against the funds of Adolph Marcus, the plaintiff, which were on deposit in the said People's National Bank.

In September, 1908, by the same methods or means Moskovitz obtained a check from the said Adolph Marcus, drawn to the order of Jacob Gdoweika, on the People's National Bank, for the sum of $ 629, and which check had indorsed upon it the name of " Jacob Gdoweika," and was also indorsed by Moskovitz, who obtained the money from the said People's National Bank, the amount of which check was also charged up against the funds of the said Adolph Marcus deposited in said bank. It appearing from the evidence that there was no such person as Jacob Gdoweika, nor did he own any such property as represented by Moskovitz when he obtained the loan, the misrepresentations as to property, deeds, mortgages, etc., being about similar to the first case.

In March, 1910, Moskovitz obtained another check from Adolph Marcus for the sum of $ 150, drawn to the order of Anthan Potker, which was given as a loan upon misrepresentations made by Moskovitz as to the said payee owning a property on Cedar avenue, in the city of Scranton, while in truth no such property was owned by such man, nor was any such person known to exist. This amount of money was also paid by the People's National Bank on said check, upon which the name of the payee appeared, and was also indorsed by S. Radin as second indorser.

The substance of all these acts was about this: That Moskovitz, pretending to represent clients, induced Adolph Marcus, the plaintiff, to draw these several checks on the People's National Bank, in which he had deposited funds, the said Moskovitz persuading the said Marcus that the persons whom he alleged he represented were the owners of property, and in pursuance of the fraud he produced pretended mortgages, insurance policies, etc., and in the last case represented the property to be owned by the payee, which the payee did not own at all. It was afterwards discovered by Marcus that these payees were fictitious persons; that they did not own the property they were alleged to have owned, and they did not execute the mortgages or papers that Moskovitz presented to Marcus as having been duly and properly executed by the parties as we have before stated and as appears at large in the testimony.

Marcus as soon as he found out the fraud had been perpetrated upon him, notified the officers of the bank and demanded that he be paid the several amounts which the People's National Bank had charged up against his funds deposited in its bank. This the bank refused to do, and therefore this suit was brought by Adolph Marcus, the plaintiff, to recover the said several amounts, or what was the balance due upon them from...