The opinion of the court was delivered by: GIBSON
1. The Butler County Oil Refining Company is a corporation lately doing business at Bruin, Butler county, Pa.
2. At the times of the transactions involved by the instant petition, Lewis P. Litzinger was president of said refining company and its principal and controlling stockholder.
3. The petitioner, J. T. Kessler, was an employee of said refining company, being in charge of its barrel house, and was an uncle of Lewis P. Litzinger.
4. On October 17, 1929, from an account in the Butler County National Bank in the name of J. T. Kessler, the petitioner, the sum of $18,703.12 had, by checks signed by J. T. Kessler, been transferred to the said refining company. From time to time thereafter, to March 27, 1930, other sums were in like manner withdrawn from said account and turned over to said refining company, and on the date last mentioned the various sums so turned over amounted, in excess of partial repayments, to the sum of $50,000.
5. On August 30, 1930, the total amount so turned over to the refining company remained at the sum of $50,000, and on that date a demand judgment note for said sum, payable to J. T. Kessler, was executed by the refining company, by Lewis P. Litzinger, president, and F. J. McCorry, assistant secretary, with authority from the board of directors. Said note (see Exhibit A of petition) recited a deposit, as collateral security for its payments of certain assets "listed on schedule attached hereto," but no such schedule was attached. An agreement, of same date as the note (see Exhibit B of petition), recited that the refining company desired to sell to J. T. Kessler accounts receivable, notes, drafts, acceptances, raw material, and merchandise dealt in by the refining company, and provided, inter alia, for collection of the accounts receivable by the refining company.
6. On September 9, 1930, by paper signed by Lewis P. Litzinger, president, and F. J. McCorry, "Asst. Secretary or Treasurer," certain accounts receivable purported to be sold, assigned, and transferred to J. T. Kessler pursuant to the terms of the said agreement and note, each dated August 30, 1930.
7. From time to time subsequent to September 9, 1930, until January 14, 1931, memoranda of assignments of accounts receivable to J. T. Kessler were entered upon the books of the refining company. The accounts so purporting to be assigned were entirely under the control of the company, and the amounts collected from those whose accounts purported to be assigned were received by the refining company and used by it in the operation of its business. J. T. Kessler exercised no supervision or control over said accounts.
8. Late in 1930, as certain cars were loaded by the refining company, to each of them a card was attached which had written thereon: "Assigned to J. T. Kessler." When each of such placarded cars was sold and shipment made by the company, the card was removed. J. T. Kessler exercised no supervision or control over such cars.
9. On January 14, 1931, the refining company agreed to the institution of a suit against it by Ida E. Litzinger, wife of the president of the company, and to the appointment of receivers for it pursuant to the bill of complaint in said action; and on January 16, 1931, said bill of complaint was filed, and at the same time the answer of the company was filed, wherein consent was given to the appointment of receivers.
10. On January 15, 1931, employees of the refining company were engaged for the entire working day in marking the personal property of the company with cards indicating that it had been assigned to J. T. Kessler. Much of the property so marked had not theretofore been included in any purported assignments to J. T. Kessler. Accounts receivable were, by paper executed by the officers, and noted on the books of account, marked as assigned to J. T. Kessler.
11. All the moneys received by the refining company pursuant to checks drawn upon the account of J. T. Kessler in the Butler County National Bank had been so received prior to any assignment to J. T. Kessler of its accounts receivable or other personal assets.
12. When the refining company, on January 14, 1931, undertook to assign its accounts receivable and other personal property, as aforesaid, to J. T. Kessler, it was ...