¶1Opinion,
¶2The learned president of the Common Pleas rightly refused to charge “ that under the evidence the verdict must be for the plaintiffs.” Indeed, he could not have done otherwise without ignoring the manifest bearing of their- own evidence, and all the circumstances of the transaction. The defendant never received a cent of the $2,500 loan, which the mortgage in suit was intended to secure. It was paid to John Ruhl, by check of one of the plaintiffs, to his order, before they ever saw the mortgage ; in fact, it was so paid sixteen days before the mortgage was even executed, and without the slightest evidence that Mr. Ruhl was authorized to receive it, and, so far as the evidence shows, without any inquiry on that subject.
¶3Mr. Sergeant, one of the plaintiffs, after testifying, inter alia, .thathe treated with John Ruhl as a conveyancer, and as he would any other reputable conveyancer, said: “In this matter,no one acted for me as conveyancer. I looked at the papers myself afterwards. In this instance, I depended on the conveyancer who brought the security to me. I thought he was acting for the other man. If the mortgage had not been a first mortgage, I would have held Ruhl responsible. Ruhl was not my conveyancer, but Martin’s. If a conveyancer comes to me, and says a matter is all right, I give him a check. I have no conveyancer. I supposed that Ruhl was an honest and capable conveyancer.....I did not investigate the matter. I don’t think I have a brief of title; if I have, it is with the papers. .....I gave this cheek January 22,1887. I cannot recollect but I presume I received a note from Ruhl saying the mortgage was correct.....All I know or recollect is, that before I got the mortgage I gave the check to Ruhl, and didn’t know anything more about it until Ruhl ran away.” The same witness had previously testified in regard to his mode of doing business with Mr. Ruhl, indicating the confidence he had in his personal integrity, etc.: “ Ruhl would come in or send me *133word tliat papers were ready, and that he wanted the money, and I would send him my check.”
¶4In view of the testimony above quoted, and other evidence tending to show that the money was paid directly to Mr. Ruhl, at his request, on the faith of his supposed personal integrity and financial responsibility, and not because he was the agent or supposed agent of the defendant authorized to receive the same, the learned president of the Common Pleas was clearly right in refusing to charge, as requested, “ that under the evidence the verdict must be for the plaintiffs.” Indeed, he went to the very verge of propriety, in their favor, by submitting the case to the jury on the question of fact, whether, in receiving the money, Rulil was authorized to act as Martin’s agent. The jury, however, rightly settled that question by finding, in accordance with the decided weight of plaintiffs’ own testimony, that Ruhl had no such authority.
¶5The subjects of complaint in the second to sixth specificacations, inclusive, are certain portions of the charge, recited therein, respectively. Upon the conclusion of the general charge, each of these excerpts was excepted to, and thereupon the learned judge, addressing the jury, said: “ I have said that, upon receipt of a letter, Mr. Sergeant wrote to Ruhl to see that the title was good; I also said that Mr. Ruhl had an office with Mr. Sergeant; and I said that Martin repeatedly saw Ruhl at Mr. Sergeant’s office, and about other transactions connected with the Sepviva estate. I withdraw what I said upon those points, as there is no evidence to that effect.” The withdrawal of the statements complained of was so distinct and emphatic that the jury could not fail to understand that they were thus wholly eliminated from the charge, and therefore to be treated by them as though they had never been uttered.
¶6The seventh and eighth specifications are without merit. It was clearly competent for the defendant to prove that he never in any manner received any consideration for the mortgage in controversy. It was also competent, for the same purpose, to prove that the defendant never received the check for §2,500, drawn by the plaintiffs in favor of John Ruhl.
¶7Neither of the several specifications of error is sustained.
¶8Judgment affirmed.