Dissenting Opinion by
Mr. Chief Justice Horace Stern:What to my mind is the controlling fact in this case was given little if any consideration in the ma*167jority opinion, with the result, as I view it, that the present decision of the court is plainly erroneous.
There is no question as to Moyer’s embezzlement or breach of trust. He received from plaintiff two cheeks, one, a treasurer’s check of the Farmers Trust Company of Lebanon in the sum of $5,000 payable to the order of plaintiff and endorsed by him, and the other a cashier’s check of the First National Bank of Schaefferstown in the sum of $2,000 likewise payable to the order of plaintiff and endorsed by him. Each of these checks was further, endorsed “For deposit only to the credit of Samuel N. Moyer, County Treasurer” and deposited by him to the credit of the County of Berks, General Account, Samuel N. Moyer, County Treasurer, on November 26, 1951, and December 17, 1951, respectively. Moyer’s term as Treasurer expired very shortly thereafter, namely, on January 7, 1952, and he thereupon turned over to his successor the exact amount which the county was entitled to receive from him; in other words, his books were in balance. It is that fact which destroys the right of plaintiff to recover in this action. And while he naturally is entitled to sympathy for his loss it must be remembered that that loss was due to the embezzlement of his own agent to whom -he had entrusted the money for the purchase of some real estate and that the .County of Berks was a wholly innocent party in that it received from Moyer not a penny more than that to which it was entitled.
Under the Negotiable Instruments Law the County of Berks became a holder in due course of the two checks in question. Section 52 provides that a holder in due course is one who took the instrument “in good faith and for value,” and “at the time it was negotiated to him he had no notice of any infirmity in the instru*168ment or defect in the title of the person negotiating it.” The County of Berks had no such notice of infirmity or defect, it being an elementary principle of law that knowledge on the part of an agent under such circumstances is not binding upon his principal: Restatement, Agency, §282, especially illustration 13. Moreover, the County gave value. As already stated Moyer’s books were in balance and there are only two possible explanations to account for that fact — either he merely cashed the checks and took the equivalent amount of money from the funds in his possession as Treasurer, or, being in default at the time and therefore indebted to the County, he deposited the checks in his Treasurer’s account to make good the deficiency, in which case the County acquired a good title to the checks because section 25 of the Negotiable Instruments Law provides that an antecedent or pre-existing debt constitutes value. It is immaterial which of these occurrences took place because in either event the result is the same. The majority opinion chooses to characterize this as “supposition” and not “legal proof,” but I- cannot conceive of any more reliable proof than that which rests on an impregnable mathematical basis. It is true, as a mere matter of theory, that Moyer’s deposit of the checks might have constituted at the time an overpayment, that he was not then in debt to the County but defaulted- later in the same amount. It would, however, be so ridiculous to imagine that he committed a criminal act merely in order to present the money he embezzled to the County as a pure gift that to give legal countenance to such a theory would be— to say the least — wholly unrealistic. I repeat, therefore, that the controlling fact in this case is that, when Moyer left office, the assets were intact and his books in balance and that consequently the County of Berks did give value for these checks and became a holder *169of them in due course under the terms of the Negotiable Instruments Law.
I would reverse tbe judgments of the court below.