dissenting:
Binding instructions for the plaintiff must be based on facts which are either admitted or clearly established by undisputed evidence. “ When facts are to be found from testimony or inferred from other proved facts or circumstances in the cause, or where general inferences of fact are to be drawn from all the evidence relating to a given question or subject, it is the duty of the jury, and not of the court, to make such findings and draw such inferences and conclusions of fact: ” Vandevort v. Wheeling Steel & Iron Co., 194 Pa. 118; Dixon v. Daub, 17 Pa. Superior Ct. 168. In this case the court gave the jury binding instructions to find for the plaintiff. In determining as to this correctness of such instructions, the credibility of the defendant’s witness must be admitted, and every fact testified to by him, and every fact which a jury might infer from his testimony must also be admitted.
I cannot assent to the proposition that under his testimony the jury were bound to find that there was an agreement to receive the money as a special deposit, which was violated by the bank in paying it out on the checks of Paul R. Weitzel, notwithstanding the fact that the note was not presented for over a year.
The contract set up by the plaintiff being oral, it was the province of the court to declare what facts were essential to the establishment of such a contract, and the province of the jury to determine what the parties meant. I think a jury might have inferred from the facts testified to by the defendant’s witness that the plaintiff’s intention was to put the deposit within the control of his father, in whose account he, in effect, directed it to be credited, and that the teller of the defendant *621bank so understood the transaction. If so, it seems to me that it would be unjust to compel the bank to bear the loss, and therefore it was error to give binding instructions for the plaintiff.
Judge Smith authorizes me to say that he concurs in the foregoing conclusions.