The opinion of the Court was delivered, January 2d, 1882, by
Sterrett, J.
The single question of fact, involved in this feigned issue, was whether the money deposited in the Second. National Bank of Titusville, January 28th, 1870, to the credit of Payne, the plaintiff below, belonged to him or to Egbert, the defendant.
The deposit having been in the name andto the credit of Payne, the money was prima facie his, and the burden was thus cast on Egbert of proving that it belonged to himself and not to the plaintiff below. He undertook to do this by proving that the money was deposited by himself, as was shown in the deposit slip in his own handwriting, and by introducing other testimony tending to prove that the deposit -was made, not for the individual use and benefit of Payne, but for the purpose of enabling him to use it in the business, either of Egbert himself, or of Egbert & Brown, of which firm Egbert was a member, and for both of which parties Payne was then acting as agent, and that the money having never been applied to the use of either Egbert & Brown or Egbert, still belonged to thelatter. A single question of fact solely for the consideration of the jury was thus presented.
There appears to have been no exception to the admission or rejection of testimony, at least none is urged here, but the complaint is that the charge of the Court was calculated to prejudice and mislead the jury. In that portion of the charge which constitutes the first assignment of error the learned judge, referring to Egbert, thedefendant below, says: “Pías he explained to your satisfaction that it was his money ? If he gave it to Payne for some purpose; if he gave it to Payne for any illegal or improper purpose, it would be an executed gift, and he could not take it back.” This suggestion of a gift for an illegal or improper purpose was unwarranted by anything that appears in the record, and was calculated to invite the jury to an inquiry in which their only guide was vague suspicion or conjecture. There was no testimony tending to prove a gift either for a proper or an improper purpose. It is scarcely necessary to cite authorities to show that this was error. In Stauffer v. Latshaw, 2 Watts, 165, it is said : “ To submit a fact destitute of evidence as one that may nevertheless be proved, is an encouragement to err which cannot be too closely observed or unsparingly corrected.” The same general principle is recognized in Sartwell v. Wilcox, 8 Harris, 117 ; Newbaker v. Alricks, 5 Watts, 183 ; Whitehill v, Wilson, 3 P. & W., 405. The contention of the defendant below was fairly and clearly presented in his prayer for instructions. The testimony was quite sufficient to justify the submission of that proposition to the jury, and it should have been affirmed without the qualifications complained of in the second assignment.
Some of the remarks made by the learned judge in that connection were not warranted by the testimony and cannot be regarded as harmless. On the contrary, when considered in connection with the previous suggestion that the money may have been given “ for an illegal or improper purpose,” they were calculated to mislead the jury, and for aught we know may have had that effect in that portion of the answer covered by the third assignment. The defendant’s point was virtually negatived, and the case withdrawn from the jury, by an assumption of fact which the testimony did not justify. Speaking of the money the learned judge says: “ Was it deposited for a specific purpose, to wit, to be used in the business of Egbert, or Egbert & Brown, by Payne as. their agent ? If not, then it would seem to be a gift, in some mysterious way, to this plaintiff. There is no evidence of a specific purpose for which this was deposited, because there is no evidence upon either side for a specific or general purpose.” Being thus instructed that there was no evidence that the money was deposited either for a general or specific purpose, connected with the business of Egbert, or the firm of which he was a member, the jury was necessarily driven to the conclusion that it “ was a gift, in some mysterious way,” to Payne, as suggested by the Court, or that there was nothing in the case to rebut his prima facie right to the money, based on the fact that it was deposited to his credit. In either view the result would be the same, — a verdict in favor of the plaintiff’ below. The radical error in this part of the answer is in assuming that there was no testimony, for the consideration of the jury, tending to sustain the contention of the defendant below. If such had been the fact, it would have been the duty of the Court to have withdrawn the case from the jury by directing a verdict for the plaintiff, but there was evidence, both direct and circumstantial, which it was the province of the jury to consider, and from which they might, perhaps, have found the facts substantially as embodied in defendant’s proposition. The rule is, as stated by the present Chief Justice in Howard Express Company v. Wile, 14 P. F. Smith, 201, “ where there is any evi dence which alone would justify an inference of the disputed fact, it must go to the jury, however strong or persuasive may be the countervailing proof.” Among other items of evidence, tending to sustain defendant’s view of the case, is the letter addressed to him, by Payne, in October, 1880, in which the latter, speaking of the deposit, says: “ On a reference to the deposit slip, I think the N. H. Payne is in your handwriting. I am unable thus far to find my old book of that date to show how it came to be overlooked. The probability is, that you deposited it to save bringing it home, or for some special purpose, and reported to me, and I have forgotten to draw it.”
Other facts and circumstances, which need not be referred to, had a similar leaning, and, on the whole, we are of opinion that the plaintiff in error has just reason to complain of the charge and the manner in which the case was submitted to the jury.
Judgment reversed, and a venire facias de novo awarded.