[McKelvey v. Jarvis.] could defendant not under the rules of evidence object to the offer? He raised this question squarely by his affidavit of defence and by his pleas. True the plea of no lien is held to be no plea, but under the statutory plea of payment the defendant may give in evidence anything which goes to show the plaintiff is not entitled to recover: Act of 1705, Bright. Purd. 487. We submit that there is nothing in the evidence that shows that on the 17th day of April 1876, when this order was given and received, that the defendant was indebted to the plaintiffs on any other account than for the plumbing and gas-fitting in these two houses. And even if there was no specific appropriation of it at the time, the law would apply it to the account due and owing. And therefore it was error in the court below to submit this question to the jury upon a general proposition as contained in the plaintiff's first point. The streetwasher was no part of the original contract. It was something not attached to the house at all. The court had no right, as a matter of law, to decide the question of fact whether or not this street washer was a substitution for the hose-plates, required by the original contract. Blakeley & Bigham, for defendants in error.-Advantage of a formal defect in a lien must be taken by demurrer on motion to strike off. Plea of "no lien" raises no question as to sufficiency of lien: Lee v. Burke, 16 P. F. Smith 336. On the plea of payment advantage cannot be taken of the invalidity of the lien: Lewis v. Morgan, 11 S. & R. 234; Shelly's Appeal, 12 Casey 374. In the absence of any appropriation by the parties at the time, the law will apply the payment to the claim least secure: Pierce v. Sweet, 9 Casey 151; affirmed in Foster v. McGraw, 14 P. F. Smith 470. In Parrish and Hazard's Appeal, 2 Norris 111, it is expressly ruled that work done in altering mud-drums of the machinery built for use in a furnace, which alteration was necessary to operate the muddrums, although the mistake was that of the architect and not of the mechanic, and the mechanic was allowed for this work, in addition. to his contract price, was such a portion of the original work as to make the date of completing the alteration the date of the finishing of the original contract; and that a lien filed within six months. from that day was in time. And our case is stronger in this, that when we were required to do this work, it was as a part of the original contract for which we were to get nothing, and for which we have gotten nothing. Mr. Justice SHARSWOOD delivered the opinion of the court, October 28th 1878. The objection that the contract was not set out in the claim filed was properly overruled by the learned court below, under the case of Lee v. Burke, 16 P. F. Smith 336, which decides that where 6 NORRIS-27 [McKelvey v. Jarvis.] the plea in a scire facias on a mechanic's lien was "no lien," no question as to the sufficiency of the lien on its face can arise on the trial of issues of fact. This disposes of the first assignment of error. The second assignment relates to the question of appropriation of payment. There was no error in affirming the plaintiff's first point: Foster v. McGraw, 14 P. F. Smith 464. The third assignment, however, must be sustained. There was evidence that the contract for plumbing and gas-fitting was substantially completed, and was accepted by defendant as finished before May 10th 1876, and that defendant claimed that the work had not been done according to contract, and that plaintiffs agreed to do, and did do, other outside work to compensate for the deficiency. There was a street-washer put in June 28th 1876, according to Bailey's testimony. According to the evidence given by Samuel Jarvis, McKelvey, the defendant, met him and complained about the arrangement he was using for a hose. "I told him that never was put in for that purpose at all; it was merely a branch put in for the use of the bricklayers to make mortar, and that the street-washer arrangement had been overlooked. He said our arrangement was to put in a hose-plate for each house. I admitted that, and we talked the matter over a little, and he wanted it done right away, and he proposed the street-washer; wanted to know if that would answer in place of the other two. I said it would if he was satisfied, and he says, 'Go ahead and put it in.' This evidence certainly covered the facts presented in the defendant's third point, which ought, therefore, to have been affirmed, for if the jury believed on this testimony that the street-washer was outside work, done to compensate the deficiency in the work done under the contract, it ought not to preserve the lien. In like manner we think the refusal to affirm the defendant's fourth point was error, for certainly if the jury found that the contract was completed before May 10th 1876, the claim having been filed November 10th 1876, work or materials furnished after that time under any new arrangement or with any purpose whatever would not preserve the lien. We are of opinion also that there was error in refusing defendant's fifth point, which was sufficiently based upon the evidence of Jarvis above stated, independently of any evidence offered and ruled out. We are of the opinion, however, that if the defendant, being the owner as well as contractor, did agree that the street-washer should be put in as a substitute for the hose-plates provided in the original contract, and that it should be done under that contract, and not to be paid for as extra work, and the plaintiffs assented and did the work, it would have the effect of extending the time for filing the claim in six months from the time such work was done. This was a question for the jury, and ought not to have been assumed as a [McKelvey v. Jarvis.] question for the court, and the seventh assignment of error must therefore be sustained. Judgment reversed, and a venire facias de novo awarded. German American Bank versus Auth. 1. The bond of a bank messenger conditioned that it should be his duty "to account for and pay over all moneys that may come into or pass through his hands as such messenger, and that he shall in all things conduct himself honestly and faithfully as such messenger." Held, that the sureties on this bond were liable for moneys stolen from the bank by the messenger, whether he was acting within the scope of his employment or not, as the robbery was a breach of the condition to "conduct himself honestly and faithfully." 2. It was not negligence to intrust such a messenger with the keys of the vault, and the combination of the safe of the bank. October 18th 1878. Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and TRUNKEY, JJ. WOODWARD, J., absent. Error to the Court of Common Pleas, No. 2, of Allegheny County: Of October and November Term 1878, No. 87. Debt on a bond brought by the German American Bank, for use of C. Seibert, assignee, against John C. Auth, George A. Bannantine and Michael Ward. Auth having been appointed messenger of the bank, gave to it his bond in the sum of $10,000, with Bannantine and Ward as sureties, conditioned as follows: "Now, if the said John C. Auth shall and do well and truly, during any and all times hereafter, so long as he shall continue to hold the office of such messenger (under this or any future election), account for and pay over any and all moneys that may come into, or pass through, his hands as such messenger-and shall, moreover, attend to all the duties appertaining to said position, and perform the same to the best of his ability, and shall in all things conduct himself honestly and faithfully as such messenger, without any fraud or further delay, then this obligation to be void, otherwise to be and remain in full force and virtue." At the trial it appeared from the testimony of Seibert, the cashier, that the bank intrusted Auth with the combination of the safelock; that on Friday the 28th of May 1875, the cashier had counted the money in the bank, and placed it in a tin box, which was placed in the safe by either the cashier or the messenger; that on Saturday the 29th, being a holiday, the bank was not opened, and remained closed until Monday, when it was discovered that about $3000 had been taken from the safe. The door of the bank and the safe were both locked, and everything in the bank was as it was left on Friday. It was found also that the messenger had 87 419 139 602 [German American Bank v. Auth.] absconded. The officers of the bank consisted of a president, cashier and the messenger. No night watchman was employed. Nothing was heard of Auth after his departure by the bank's officers. The plaintiff having shown the above facts and rested, the defendants moved for a nonsuit, "because the evidence of the plaintiff shows that if the money was taken by John C. Auth at all, it was taken from the safe, and in consequence of his having the combination of the safe, and not in his capacity as messenger; and that there is no evidence that it is within the scope of the employment of a messenger that he should have the combination of the safe and access thereto." The court, Kirkpatrick, J., granted the nonsuit, and the court in banc, having subsequently refused to take it off, the plaintiff took this writ and assigned this action for error. J. Ludewig Koethen and Slagle & Wiley, for plaintiff in error. -In granting the nonsuit the court assumed, as matter of law, that the possession of the combination by Auth was the means whereby the theft was perpetrated. Further, that it was no part of the duty of the messenger to have possession of the keys and access to the safe. Both of these assumptions were clearly erroneous. he has But admitting that the money was taken when he was not in the performance of duty as messenger, would the bank not be liable, nevertheless? By reason of his employment as messenger access to the bank building; he comes to be regarded as a part of the establishment, and, therefore, allowed to pass back and forth without the observation which would be given to a stranger. It would be a narrow construction of the hond which would limit the liability to thefts committed of money intrusted to him to carry to and from other banks, and not to include the theft of money which he only could have the opportunity to commit by reason of his employment as messenger. James P. Sterrett, J. M. Kennedy, and J. C. Doty, for defendants in error.-Auth had been elected messenger of the bank. The obligation was to secure the bank for moneys which might come into his hands as messenger. If he conducted himself honestly and faithfully as messenger he fulfilled the condition of the bond." The rights of the parties must be determined by the condition of the bond. A surety cannot be held liable beyond the terms of his obligation: Commonwealth v. Simonton, 1 Wright 310: Building Association v. Benson, 2 W. N. C. 541. Auth had the keys of the bank and the combination of the safe. He left home between ten and eleven o'clock on the night of Sunday May 30th 1875. He must have opened the bank, unlocked the vault and safe and taken the money at night. He was enabled to do this, because the bank allowed him to carry the keys and have the combination of [German American Bank v. Auth.] Auth's the safe. By so doing, the bank assumed the risk itself. sureties are not answerable for the loss. In the absence of evidence it cannot be customary to accord to messengers such extraordinary privileges. Mr. Justice GORDON delivered the opinion of the court, October 28th 1878. John C. Auth, the principal in the bond in suit, was messenger for the German American Bank, and as such was, from time to time, trusted to handle the moneys of that institution. On the 28th day of May 1875, according to the statement of Charles Seibert, the cashier, some three thousand and sixty-six dollars were placed in a tin box or till, used for such purpose, and, as he thinks, was delivered to Auth to be put into the safe. This was on Friday evening; the bank-vault and safe were not opened until the next Monday morning, but when opened, it was found that the abovementioned sum of money was missing. In the meantime, Auth had eloped. There is not much doubt, if the testimony is to be credited, but that he stole this money; certainly the evidence is sufficient to justify a jury in so finding, especially since, in addition to what has been above stated, it was in proof that he had in his possession duplicate keys of the bank and vault, and had also knowledge of the combination necessary to open the safe-lock. The court, however, on motion of the defendants, sureties of Auth, nonsuited the plaintiff, for the reasons following, viz.: because the evidence of the plaintiff showed that if the money was taken by John C. Auth at all, it was taken from the safe, and in consequence of his having the combination of the safe-lock, and not in his capacity as messenger; that there was no evidence "that it was within the scope of the duties of a messenger to have the combination of the safe and access thereto." From this action of the court we feel obliged to dissent, and as a reason for so doing, it might be sufficient to call attention to the fact, that whether Auth's duties as a messenger required that he should or should not be intrusted with the bank-keys, it certainly was his duty, as a bank employee, to act honestly. Granting, therefore, that the cashier acted negligently in committing to him the combination, he did not the less violate his duty in stealing the money of the bank, It is not necessary, however, to look beyond the face of the bond itself, in order to discover the incorrectness of the court's ruling. The bond recites that it shall be the duty of John C. Auth to account for and pay over all moneys "that may come into or pass through his hands as such messenger, and that he shall in all things conduct himself honestly and faithfully as such messenger." Here are two things made obvious: (1) he is to be intrusted with the funds of the bank; (2) he is to be honest and faithful in the exe |