Appeal from judgment of County Court of Philadelphia, Sept. T., 1966, No. 9005E, in case of Benjamin Pollin et al. v. Mindy Mfg. Co., Inc. et al.
Martin J. Resnick, with him Techner, Rubin & Shapiro, for appellant.
Edwin S. Moore, III, with him Moore, James, Wright & Gibbons, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Montgomery, J. Watkins, J., dissents.
[ 211 Pa. Super. Page 89]
This appeal by Robert L. Apfelbaum, one of the defendants, is from a judgment entered against both defendants on the pleadings in an action of assumpsit. The corporate defendant did not appeal.
The complaint sets forth in Count No. 1 that plaintiffs are in the business of cashing checks, that on September 23, 1966 Mindy Mfg. Co., Inc. issued and distributed payroll checks to its employes payable to their orders*fn1 and drawn on the Continental Bank and Trust Company in payment for wages earned by said employes; that plaintiffs cashed these checks for a small fee on the endorsement and delivery of same by the payees, and in turn endorsed same and deposited them in their account at the Provident National Bank of Philadelphia, which in turn presented them to the Continental Bank and Trust Company, which institution refused payment because Mindy Mfg. Co. did not have sufficient funds on deposit then to cover them; and that thereafter demand was made on Mindy Mfg. Co. for payment, but it was refused; and
In Count No. 2, after incorporating by reference the foregoing allegations it stated that Robert L. Apfelbaum, an individual, signed all of the aforementioned checks, with but one exception, which signature was "absolute and unqualified" but that he has refused to pay those which he signed which total $2,252.09.
The checks are in evidence and are boldly imprinted at the top, Mindy Mfg. Co., Inc., 26th & Reed Streets,
[ 211 Pa. Super. Page 90]
Philadelphia, Penna. 19146 -- Payroll Check No. /--, and also Mindy Mfg. Co., Inc., is imprinted above two blank lines appearing at the lower right-hand corner; also on the lower left-hand corner appears Continental Bank and Trust Company, Norristown, Pa., in type. Under the imprinted name of the corporate defendant, on the first line, appears the signature of defendant Robert L. Apfelbaum without any designation of office or capacity on all of the checks before us in this appeal; the name of Estelle Apfelbaum appears on the other check mentioned in Count No. 1 which was in the amount of $81, but she was not made a party to the action.
In answer to the allegations contained in the first count appellant admitted all of them but alleged that on September 23, 1966 when the checks were drawn, Mindy Mfg. Co., Inc. had on deposit in Continental Bank and Trust Company approximately $4,400 which, on September 26, 1966 was appropriated by that institution and applied on a $7,000 demand note of the Mindy Mfg. Co., Inc. which it held, without notice to the corporation. Mindy Mfg. Co., Inc. filed no answer.
In answer to the other allegations of the second count appellant averred that he signed the checks as president of Mindy Mfg. Co., Inc., ...