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COMMONWEALTH TO USE v. UNITED STATES FIDELITY & GUARANTY CO. ET AL. (05/22/50)

May 22, 1950

COMMONWEALTH TO USE
v.
UNITED STATES FIDELITY & GUARANTY CO. ET AL., APPELLANTS



Appeals, Nos. 111 and 179, Jan. T., 1950, from judgments of Court of Common Pleas No. 5 of Philadelphia County, June T., 1949, No. 1241, in case of Commonwealth to use of Willow Highlands Company v. United States Fidelity & Guaranty Co. et al. Judgments affirmed; reargument refused June 7, 1950.

COUNSEL

Daniel Mungall, Jr., with him Stradley, Ronon, Stevens & Young, for defendant, appellant.

George P. Williams, 3rd, with him Orr, Williams & Baxter, for additional defendant, appellant.

Herbert A. Barton, with him Swartz, Campbell & Henry, for appellee.

Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.

Author: Stern

[ 364 Pa. Page 545]

OPINION BY MR. JUSTICE HORACE STERN

Through the machinations of one Bennewitt and the negligence of a notary public the use plaintiff, Willow Highlands Company, suffered a loss by the disbursement of its money on a forged mortgage. It instituted the present action against the United States Fidelity & Guaranty Company, the surety on the notary's bond.*fn*

Bennewitt purporting to represent Charles and Kaethe Rose, owners of premises 5534 North 7th Street, Philadelphia, made application on their behalf to the use plaintiff for a mortgage loan in the amount of $8,500 to be secured by a first lien upon the premises. Application for title insurance was made to the Land Title Bank & Trust Company. W. C. King, a notary public, was employed by that company as a settlement clerk. Bennewitt appeared at the settlement and produced a mortgage on the premises bearing the forged signatures of the mortgagors. At his request King certified that Charles and Kaethe Rose had personally appeared before him and acknowledged the mortgage as their act and deed and desired that it might be recorded as such; as a matter of fact they had not so appeared nor had they any knowledge of the transaction whatever; indeed Charles Rose had been dead for several years. Bennewitt also produced at the settlement a letter addressed to the Land Title Company authorizing and instructing it to distribute to him the proceeds of the mortgage settlement; the signatures of Charles and Kaethe Rose to this letter were likewise forged although another notary, T. Roland Madden, had certified thereon that they had subscribed

[ 364 Pa. Page 546]

    their names to it before him. Prior to the settlement the use plaintiff had advanced the amount of the mortgage, $8,500, to the Land Title Company. King, as settlement clerk, disbursed this fund by a check drawn on the company to Bennewitt's order, which check was delivered to Bennewitt and subsequently endorsed and cashed by him.

The present action is to recover the sum of $3,000, the amount of the notary's bond. The surety brought King on the record as additional defendant. The use plaintiff moved for judgment on the pleadings; the court granted the motion and directed the entry of judgments in favor of the use plaintiff against the surety and in favor of the surety against the additional defendant. The defendants now appeal from those judgments, their contentions being that the false certificate of acknowledgments was not the proximate cause of the use plaintiff's loss, that the case should have been submitted to the jury to determine whether the money was paid out by the Land Title Company in reliance on King's false certificate or in reliance on the forged letter of authority to pay the mortgage proceeds to Bennewitt, and that the use plaintiff is barred from recovery because of its alleged contributory negligence.

Not only are all the essential, primary facts in regard to the transaction set forth in the pleadings but they are not in dispute; therefore the court below was justified in treating the controversy as involving only questions of law and not as one requiring submission to a jury for determination. That King's false certificate was not only a cause, but the proximate cause, of the use plaintiff's loss is clear beyond the necessity of discussion, for if that certificate had not been placed upon the mortgage instrument the ...


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