Opinion,
Mr. Chief Justice Paxson:We do not think it was error to reject the offers of evidence embraced in the first and second assignments. The declarations of the defendant, which it was proposed to prove, were not relevant to the issue, and if admitted would not have been of any value.
The remaining assignments allege error in the charge of the court. The charge is cut up into a multitude of small fragments, and error assigned to each separately. Some of the statements of the learned judge in regard to the facts are criticised as being inaccurate. If we concede there were some inaccuracies in the lengthy review of the facts, they were slight, and the jury were expressly told that the facts were for them. It does not appear that the attention of the court was called to these alleged errors before the jury went out. Had this been done, they could and no doubt would have been corrected at the time. It is only fair to a judge who is dealing with voluminous facts and in the hurry of trial makes a slip, to call his attention to it, and thus give him an opportunity to rectify it. When this is not done, and the point is raised for the first time here, the error would have to be serious to induce us to reverse, especially when all the facts had been left to the jury, with a caution to remember them.
Complaint is made in the third, fourth, and twentieth assignments that the court below attached too much importance to the fact of Mr. Griffin’s relations to Mr. Knapp, his father-in-law, in considering the question of the presumption of payment. We have considered this feature of the case carefully, and are not prepared to say that the court erred. Taking the charge as a whole, we think it was justified by the circumstances of the case *617and the course of dealing between the parties. The mere fact that Griffin was Knapp’s son-in-law, standing alone, is not very significant; but, when it is coupled with the further facts that he was also Knapp’s agent and attended to many of his pecuniary affairs, and had been doing so for many years ; that he was constantly in the habit of receiving money for his father-in-law, and investing the same; and that a state of mutual confidence existed between them, it brings the case fairly within the doctrine of Eavenson’s App., 84 Pa. 172, where it was held that where a son-in-law acted as the agent of his father-in-law, and in liis presence and by his direction received money for him, in the absence of evidence to the contrary the money must be presumed to have passed into the possession of the latter.
This is in accordance with the known habits of business. Where one sends his agent or clerk to the bank with a check to draw money, or to a debtor to collect a debt, it is unusual for such agent or clerk to take a receipt from his employer when he pays him the money thus received or collected. In the absence of any evidence of non-payment, or of complaint on the part of the principal in regard to it, it is fair to presume the agent has performed his duty. In this case, there is no evidence that Mr. Knapp ever alleged or charged that his son-in-law had withheld any money due him, or had in any manner defrauded him. The complaint comes from his administratrix. It often happens that a course of dealing, which is entirely satisfactory to a man during his life, proves unsatisfactory to his legal representatives after his death. The learned judge below evidently entertained a very decided opinion upon the merits of the case. This is sometimes necessary in the interests of justice, and so long as he does not interfere with the province of the jury, we are not prepared to say it is error. In fact, we have repeatedly said it was not. In this case, there was nothing beyond the expression of an opinion, which it was his right and may have been his duty to give. The jury were left free to find the facts from the evidence. We are of opinion that the course of dealing justified the language of the court.
Judgment affirmed.