text:
    October and November Term,
    No. 29.
    Burgan versus Cahoon et al.

    1. Where in an action to recover for lumber sold and delivered to a firm, one of the defendants'denied that he was a member of the firm, but there was evidence that one of the plaintiffs called on him in the place where the firm did business, talked to him about selling lumber, and he talked in such a way that he should have seen that they supposed him to be a member of the firm; that he discussed the lumber question prices; that he sent plaintiff to see one of the firm at the place of business of the firm; that after a bargain had been made he asked about it and approved it; that afterwards he was the party plaintiffs went to in negotiations for the purchase of lumber; that he talked about what he would do; that he, in conjunction with one of the partners, made the settlements; that he acted as principal man, giving the directions and doing the figuring, and that he wrote letters in the firm’s name ordering lumber. Held, that these facts were sufficient to justify the jury in finding that he held himself out to the plaintiffs as a member of the firm, and in rendering a verdict against him.
    2. Where one of three partners assigned his interest in the firm to the wife of another partner, and died, and afterwards the business was carried on in the same firm name, the wife and third partner being the nominal and intended partners, with the knowledge and consent of the husband, and the entire capital was loaned by the husband, for which he took a judgment note, and the wife took no active part or other part in the business except to sign the note, and had no means except her interest in the firm, and the husband, with the consent of the other partner, took an active part in the purchase from the plaintiffs of the lumber for the price of»which suit was brought, and the firm being insolvent, the husband, by entering and issuing execution on his judgment appropriated the entire assets of the firm ; Held, that the husband was liable as a partner to the plaintiff dealing with the firm without knowledge or express notice that he was not a pai’tner.
    3. A request to charge, which required a direction to the jury to find for the defendant, upon the hypothesis of the facts stated, but which ignored the effect of another class of facts, was properly qualified to that extent.
    4. The name of the wife who had been originally joined as a defendant could be stricken out of the record, by amendment, on motion of the plaintiffs, whether her husband was liable, as a member of the firm, by reason of holding himself out as such to the plaintiffs, or by reason of acts done by him, as her husband, in connection with her membership.
    5. For plaintiff in error to print in his paper-book his own testimony, and omit that of the defendant in error, where the writ of error is to a judgment on a verdict, is in entire disregard of tlie rule of court, and is a prastice which ought to be abandoned.
    6. In such a case the Court will assume that all the evidence to which the judge who tried the cause refers in his charge, when speaking of the acts and declarations of the plaintiff in error, was actually introduced before the jury.
    Error to the Court of Common Pleas, No. 2, of Allegheny County.

    vhssumpsit by Thomas H. Cahoon, George H. Hutchinson, and James H. Mahan, partners as Thomas H. Cahoon & Co , against R. P. Burgan, John H. Burgan, and Elizabeth Burgan, late partners as Burgan Bros., to recover the price of lumber and building materials sold and delivered to the firm of Burgan Bros.
    On the trial in the Court below, before Ewing, J., there was no dispute as to the sale or price of the materials, and the sole question was as to the liability of R. P. Burgan as a member of the firm.
    R. P. Burgan testified, in substance, that in 1875 he, together with John H. Burgan and Daniel B. Burgan, formed a partnership, under the firm name of Burgan Bros., in the lumber business at Mansfield. There were no articles of agreement drawn up, but the're was an understanding that they should go in together as partners, and should draw $40 a month each. R. P. Burgan was to furnish $6000, and was to receive $40 a month, not for his labor, but for the interest on the money he put in. On the 1st of June, 1876, he sold out to his brothers for $100 and a note for $6000, they to pay all the debts of the firm. On or about October 14th, 1877, Daniel B. Burgan died. For a year or a year and a half before his death he boarded with R. P. Burgan. He was unwell, and the wife of R. P. Burgan, Elizabeth Burgan, attended to him, kept him, and did everything that was necessary for him. Before his death he executed a written assignment, giving her his interest in the lumber-yard for her kindness to him. He signed it and placed it in the hands of John H. Burgan to be given to her if he died, and if he didn’t die it was to be handed back to him or to be destroyed. She got that share. He assigned it over to her. At the time of the dissolution, June 1st, 1876, articles were drawn which each party signed. The dissolution was published in the papers, and a copy of it was sent to all the parties the firm dealt with except those notified by wmrd of mouth. After Daniel died John H. and Elizabeth Burgan carried on the business. He, R. P. Burgan, believed that he was in the office when there was a sale effected or some lumber ordered o*r talked about from Cahoon.
    “ I had an interest in the firm. I watched the firm a little so I would get my money out some day. John, after Dan died, was not posted in the business thoroughly, and I assisted him all 1 could, and before Dan died 1 assisted them all I could. I promised them that when I went out that I would do all I could for them. Sometimes in the way of .loaning them money, . . . . assist them in buying and selling, or making any contracts, or anything I could, or get contracts for them, and sell liimber for them any way I could, which I did' do.”
    A letter produced from Burgan Bros, to Thomas II. Cahoon & Co. was in his handwriting. There was to be an explanation about some lumber shipped by mistake. John asked him to write it. He wrote many a letter for John, ordering goods and such like. This was the second letter. He wrote the letter, and John told him to sign it, and he signed it. He did it in good faith, believing it was all right. He wrote a letter, May ¿1st, 1878, ordering lumber for Burgan Bros, from Thomas H. Cahoon. He always made it a point that if he could talk up lumber any he would talk it up for his brothers, and sell lumber if he could. On this occasion he had sold a lot of lumber and come home and reported to John. He was well posted in ordering lumber, and used to order for his brother often. Mr. A. Fitzsimmons came to the office in the spring of 1878. “ He asked me if I was one of the Burgan Bros., and I told him yes. I could not tell him anything else. He said he came to see me about selling me some lumber. I told him that I didn’t know anything about that, that John attended to the lumber business. I suggested to Fitzsimmons that he order some plank to fill an order with.” After June 1st, 1876, there was coming to him $6000, the money he loaned and the interest. They were to pay him 8 per cent. It was $50 a month first, and afterwards lowered to $40. He did not directly or indirectly get any of the proceeds of the business after June 1st, 1876. Never got a dollar of the profits, only the interest on his money and some expenses he vrould be at in travelling around when he. would do any business for them.
    Upon cross-examination he testified:
    The indebtedness of the firm, June 1st, 1876, was not very much besides his own. There might have been $500, or $600, or even $1000 or $1500. He could not tell. He did not think it could have been more than $2000. Elizabeth Burgan was his wife. He never saw her over and about the lumber-yard doing business. He believed she was never there. She never did any business. She never gave any orders that he knew of. She never dictated any policy to be pursued that he knew of. He produced a note, saying it was the note Burgan Bros, gave him on which he sold them out in 1878. He bought most of the lumber at the sale, and continued the business there. He bought stock to the amount of $8200 and entered a receipt for that amount on the note. The note was signed by John H. Burgan and Elizabeth Burgan, payable to his order. He entered it up and issued execution.
    The other evidence in the case was not printed in the paper-books.
    On motion of the attorney for the plaintiff, the Court allowed the record to be amended by plaintiff discontinuing as to Elizabeth Burgan, one of the defendants, and amending all the records in the case so as to show tnem to be against R. P. Burgan and John H. Burgan, defendants, partners of the late firm of Burgan Bros.
    Counsel for the plaintiff asked the Court to charge, inter alia:

    2. If the jury believe that Elizabeth Burgan, wife of R. P. Burgan, became a member of defendant’s firm with his knowledge and consent, he is liable for the debts contracted by said firm during her continuance therein as a member thereof with said knowledge and consent; and your verdict should be for the plaintiff in this case.
    The Court answered as follows:
    This point is refused as put. It is further answered as follow's: If the jury find that the previous firm of Burgan Brothers had been dissolved in the latter part of 1877 by the death of Daniel Burgan, or by his assignment of his interest in the firm to Elizabeth Burgan, wife of R. P. Burgan, and that thereafter the business -was carried on in the name of Burgan Bros., John Burgan and Elizabeth Burgan being the nominal and intended partners, and this with the knowledge and consent of R. P. Burgan; and further, that the entire capital, or the principal part of the capital of said new firm, consisted of six thousand dollars, loaned by said R. P. Burgan to John Burgan and Elizabeth Burgan as partners under the firm name of Burgan Brothers, for which he took their judgment note, dated September 17th, 1880, at six months; and that Elizabeth Burgan took no other part in said business except to sign said note to her husband, or took no active part in the business, and that Elizabeth Burgan was without means except her interest in the firm; and that R. P.- Burgan, with the knowledge and consent of the other partner, John Burgan, took an active part in the management of the firm business, and did take an active part in the purchase from the plaintiffs of the lumber for the price of which the present suit is brought; and that at the time the firm was in fact insolvent, and that, having entered his judgment note, R. P. Burgan soon thereafter, by virtue of executions thereon, took and appropriated to his judgment the entire assets of the firm: these facts in law made R. P. Burgan liable as a partner to such third parties so dealing with him and with the firm, without knowledge or express notice that he was not a partner, and would not be liable for the indebtedness. If the jury find the facts to be as stated in this answer, the verdict should be for the plaintiffs as against R. P. Burgan and John Burgan.
    Counsel for defendant asked the Court to charge, inter alia:

    3. If the jury believe from the evidence in this case that the partnership of R. P. Burgan, D. B. Burgan, and John H. Burgan, doing business under the name of Burgan Bros., was dissolved, on or about June 1st, 1876, and that R. P. Burgan retired from the firm of Burgan Bros., and that Daniel B. Burgan and John II. Burgan purchased his interest by paying him the sum of $100, and also by giving him a note, dated June 17th, 1876, for $6000; and if you believe from the evidence that said R. P. Burgan did not afterwards share in the profits of the firm of Burgan Bros., then he is not liable in this action, and your verdict should be for the defendants, unless you should find there was such a holding out as a partner by said R. P. Burgan to the said plaintiffs, as induced them to believe that he shared, or participated in, or enjoyed a share of the profits of the said firm of Burgan Bros., and thereby induced them to give the credit of the amount of lumber for which this suit is brought to said Burgan Bros.
    The Court answered the point as follows:
    This point is refused. It is affirmed if you find the facts to be as stated in the point without other controlling circumstances, in regard to the relations of R. P. Burgan to the business in connection with his wife being the nominal partner.
    In its general charge the Court said:
    “ R. P. Burgan makes defence that he was not a partner, and therefore is not liable in this case, and that is the question to be decided.
    “ There are two general grounds on which the plaintiffs claim to hold R. P. Burgan : First. They say that he was in fact and intention and in law, though not in form, a partner, namely, that by an understanding among themselves he was interested as owner in the profits and the losses of the concern. If he was he is liable. He is liable in that case whether the plaintiffs gave credit to him or not, whether they knew that he was a partner or not; if he was in fact such, even though concealed and intended so to be, he is liable for goods sold to the firm. Second. They say, that even granting as a matter of fact, it was not the intention between John H. Purgan and Elizabeth Purgan, or between John II. and P. P Purgan, that P. P. Purgan should have any interest in the profits or losses of the concern, still he is liable, and for this reason, a man may so act that his conduct reasonably leads parties dealing with a firm to believe that he is a member of it, and to give credit on that account. And if he has so acted — so held himself out as a partner— and has obtained credit for the firm by reason of such action, then he is liable; he is estopped from denying as to those parties who have given him credit, that he is a member of the firm. The plaintiffs say R. P. Purgan has done this. The defendants say he has not.
    “ The testimony going to show that he was a partner is distinguished from that going to show that he held himself out as a partner, as stated to you by counsel for the defence. A statement made to some third party that he was a partner, and that statement not communicated to the plaintiffs or their agent, is not evidence against the defendant on the question of his having held himself out to them as a partner. The evidence from which you would have to find that he had so held himself out and acted as a partner must be his acts in connection with the circumstances that were known to the plaintiffs when they gave him credit, and not only must his acts have been such as to justify a reasonable belief that he was a partner, but to hold him on that account you must further find, as a matter of fact, that they gave him credit as such; because, if they did not, his holding himself out as a partner would do them no harm. I call your attention to this because we admitted some evidence on that view of the case. It was on that solely that we allowed the plaintiff’s counsel to ask Mr. Cahoon on the stand as to whom he had given credit. "We allowed him to state affirmatively that he had given credit to R. P. Purgan. Now that is simply evidence of the fact that he gave credit to P. P. Purgan, and it is not evidence for you in determining whether or not the acts of the defendant were such as to reasonably lead plaintiffs to believe that he was a member of the firm.
    “ What the plaintiffs depend on to bind P. P. Purgan in this action are partly his words and partly his acts. The holding himself out as the member of a firm may be by words expressly stating that he was, or it may be by acts, or it may be by words and acts conjointly. In determining the effect you will give to acts or words, you will take into consideration the circumstances under which the parties were acting and dealing, and their surroundings.
    “ The principal facts that the plaintiffs rely on in this branch of the case — namely, that while they insist that he was in fact and intention a partner, that, even though he were not, he held himself out to them as such — are, that one of the firm of the plaintiffs went to Mansfield, where Burgan Bros, did business, and called on R. P. Burgan; that he talked to him (R. P. Burgan) about selling lumber, and he talked to him, as they claim, in such a way that he should have seen that they supposed him to be a member of the firm; that he (Burgan) discussed the lumber question, prices, and so on, and sent him around to see his brother at the place of business, where the firm name was Burgan Bros.; that finally a bargain was made, and R. P. Burgan asked afterwards about it, and approved it; that afterwards,at Mansfield, in negotiations for purchase of lumber, R. P. Burgan was the party that they (plaintiffs) went to; that he talked about what ‘ we would do;’ that he, in conjunction with John, made the settlements; that he acted as principal man, giving the directions, doing the figuring and the like; that he wrote letters in the firm name of Burgan Bros., or-'' dering lumber, — these and various other circumstances that have been given as to the manner of doing business. Plaintiffs claim that those acts, under the circumstances, were such as not only to lead them to reasonably believe that Robert Burgan was a member of the firm, but that he must have known that they were so treating him. On the other hand, defendant’s counsel argue that it is all explainable under the circumstances; that it was not a reasonable belief on the part of the plaintiffs, and that they ought to have made further and more definite inquiries. Now we leave that as a fact for you to decide.
    “ There is another branch of the ease, though, on which we have answered at some length the points of counsel, and which we will now explain to you. It is in relation to the alleged partnership of Elizabeth Burgan, and strikes us as being a very important part of this case. The general rule of law is this : A married woman is unable to go into business on her own account, or to contract debts, the maxim being that husband and wife are one,’ and that one is the husband, and that contracts of the wife, with the knowledge and consent of the husband, are the contracts of the husband himself.
    “It has been held very properly that, where a married woman engages in business with the knowledge and consent of her husband, and incurs debts, in the buying of goods, for instance, he is liable for those debts. The same rule applies in the case of partnership, where the husband is active in the management of the business, and especially where the husband loans the money himself, on which the business is done. We do not think that a husband can loan money to his wife to go into business, or loan money to his wife and another person to go into business in partnership, and thus, furnishing the principal part of the capital, encourage them in going on, encourage people in dealing with him, take an active part in the business himself, conceal the fact that he is not a partner, and that his wife is the partner, or fail to make known that he is not to be responsible, and yet say he is not responsible. We think the law holds him responsible, and if it did not, it would afford a very wide door for the grossest frauds. If a man could loan money to his wife and another, or to his wife alone, or to his wife and a dozen others, take their note for it, furnish the entire capital, encourage the business, and himself aid in contracting the debts, and then, when it is unfortunate, seize the whole property, and let the other creditors go unpaid, it would be a very gross fraud, and we do not understand that the law permits anything of that sort to be doue. Now, what is the testimony in this case? Take the testimony of the defendant, R. P. Burgan. It seems that he had been in the lumber business at Mansfield, and in the fall of 1876, formed a partnership with his two brothers, John H. and Daniel Burgan. He says he furnished the entire capital that was put in, as I recollect his testimony. The brother, John H.,says that he put in somewhere from $100 to $200, and Daniel, he thinks, may have put in about as much, but he does not know. There were debts at the time. The business was carried on, and, though it seems the partnership was dissolved by Robert selling out DanieFs interest at sheriff’s sale, he afterwards gave it back to him. They were to draw $10 a month each, the two brothers, John and Daniel, for their services, and Robert for the use of his money, Robert not doing the work, and the others doing it. After DanieFs interest was given back to him, the business appears to have been carried on in the same way. On the 1st of June, 1876, they dissolved partnership by Robert selling out to the other two brothers for a consideration of $100, and they giving him their judgment-note for $6000 — the amount he had put in the firm — payable in three months. The business was then carried on by John and Daniel. They took the assets, and were to pay the debts. What the debts were over and above the $6000 to R. P. Burgan does not appear, further thanR. P. Burgan says it may have been $1000 or $2000, and does not think it ran up to $3000. What the assets were worth we do not know. There were book accounts amounting to some $4000 ; whether they were good or not does not appear. What the lumber on hand was worth is not stated. It had been $5000 or $6000 in January before; whether it was more or less, or half as much, is not known.
    “ Probably, it would not be very far wrong, if you would take the amount R. P. Burgan received from his brothers as a pretty fair sale. They thus went on, until in the fall of 1877 Daniel was taken sick and died. The partnership of Burgan Brothers, as it had existed, whether Robert went out by that alleged sale or not, was dissolved by the death of Daniel Burgan. If .Daniel, during his sickness, assigned his interest to Elizabeth Burgan, with the knowledge and consent of the others, to take effect upon his death,"it dissolved the partnership, and if they went on in business after his death, it was a new partnership. Now, assuming the testimony of the defendant to be correct, and assuming the assignment to have been made with the intention that she should have been a partner, and not he (R. P. Burgan), a new partnership was formed in September, or October, 1877, the assets of that firm being those of the old firm of Daniel & John Burgan, and its indebtedness, the indebtedness of the old firm, and that which the new assumed and renewed. The indebtedness to Robert Burgan is thus made the indebtedness of Elizabeth and John II. Burgan. He made a new loan to them, and took their note, each of them signing a judgment-note to R. P. Burgan, the husband of Elizabeth, for $6000, payable in six months. So the new firm was formed. Now, what their capital was does not appear definitely, but it does appear that their debts went unpaid, that the property was sold out in the following October, and the entire assets, as far as appears, were absorbed by R. P. Burgan on his judgment-note, the creditors being left unpaid, and that j udgment-note was due, when R. P. Burgan was ordering lumber from the plaintiffs in the name of the firm.
    “ Then, whether you take the plaintiffs’ testimony, or the defendant’s testimony, R. P. Burgan appears to have taken an active interest in the management of this firm. Pie advised in regard to the purchases. Pie concedes he was present in the dealing with the plaintiff in this case. Pie concedes that he wrote the order for one of the car-loads of lumber yet unpaid for. He says that he made the sale of that lumber in the neighborhood of Cannonsburg, and wrote the order for it to be shipped. He knew all about this transaction, and about the condition of the firm, and, according to his testimony, John consulted him, with the knowledge, consent, and arrangement of his wife. [Now, if you believe his testimony in regard to what was done, and you find the other facts, it seems to me there is only the one fair conclusion. I may say here, that if Elizabeth Burgan had means to carry on this business herself, and was putting her money into it, it was the part of the defendants to show it.
    “ If you believe the evidence, and draw conclusions that we suggest you may draw from it, your verdict ought to be for the plaintiff's. It makes Robert P. Burgan a partner in law as to these third parties, with whom he so dealt; and tc hold anything else would be to open a very wide door to the grossest frauds. It would be difficult to get a case that would more plainly illustrate the danger and the wrong of allowing such a thing to be done, than the case on trial.] >
    “ You will take the case, and render the verdict that you think the testimony warrants under these instructions.”
    Counsel for defendants excepted to the answers to the above points and to the charge.
    November 24th, 1880, verdict for the plaintiffs for $644.25, upon which judgment was subsequently entered.
    R. P. Burgan then took a writ of error, assigning as errors the answers to the points as above, the portion of the charge within the brackets, and that the Court erred in permitting plaintiffs to amend the record, as above, for two reasons:
    1. Elizabeth Burgan admittedly was entitled to the one-half interest in the partnership.
    2. If R. P. Burgan is to be held by reason of his with having an interest, the record should contain, as defendants, the proper parties.

      Jacob H. Miller and Robb & Fitzsimmons for plaintiff in error.
    To what extent is a husband liable for the debt of his wife, in and about the management of a partnership, in which she is individually interested? The object of the act of 1848 was to protect the wife’s estate from being incumbered or conveyed by her husband, and not to enable her to sell, incumber, or give it away, without his consent: Haines v. Ellis, 12 H., 255 ; Pettit v. Fritz, Executor, 9 Casey, 120 ; Berger v. Clark, 29 P. F. Smith, 343.
    The interest Mrs. Burgan owned was nothing more than the residue left, after the final adjustment of the business, She could not have bound herself to pay the debts out of her other personal estate: Mahon v. Gormley, 12 Harris, 82.
    This was not a purchase of necessaries, where the husband could be held liable.
    The learned judge laid great stress upon the fact that R. P. Burgan attended to the business. A husband may act as the agent of the wife, without becoming the owner of her property: Trieber v. Stover, 30 Ark., 727 ; Ferguson v. Spear, 65 Maine, 277 ; Moore v. Foote, 34 Mich., 443 ; Wells v. Smith, 54 Ga., 262 ; Page’s Estate, 75 Penna. State, 87 ; Hitchcock v. Kiely, 41 Conn., 611.
    It is presumed that R. P. Burgan was acting as the agent of his wife: Riegel v. Wooley, 32 P. F. Smith, 227 ; Wieman v. Anderson, 6 Wr., 311; Gamber v. Gamber, 6 Harris, 366 ; Mahon v. Gormley, 12 Harris, 82.
    If the partnership had prospered, upon a final adjustment could the husband have seized and appropriated her interest ?
    It was error to allow the amendment: If the husband is to be held liable by reason of. his wife’s interest, the record should show who the parties are.

      E. Edgar Galbreth for defendants in error.
    By the assignment which Daniel P. Burgan made of his interest in the firm of Burgan Brothers to Elizabeth Burgau, in consideration of “ her kindness and attention towards him,” said interest belonged to and became vested in her husband, it being acquired by her in consideration of her labor and services: Bucher v. Ream, 18 P. F. Smith, 426 ; Robinson v. Wallace, 3 Wr., 132 ; Hallowell v. Horter, 11 Casey, 379.
   The opinion of the Court was delivered, November 7th, 1881, by

Green, J.

In this case the plaintiffs claimed that the defendant, R. P. Burgan, by his acts and declarations, held himself out to them as a member of the firm of Burgan Bros., and that they were thereby induced to sell the bill of lumber in controversy, to that firm, upon this reasonable belief on their part that he was a member. In support, of this allégation, testimony was given. What it was in all its details we do not know. The counsel for the plaintiff in error has printed the testimony of his own client in the appendix, but he has printed none of the testimony of the defendants in error who were the plaintiffs in this action-. This is in entire disregard of the rule which requires all the testimony to be printed, where the writ of error is to a judgment on a verdict, and is .a practice which ought to be abandoned. In a case like the present, where the questions raised by the assignments of error depend upon the testimony delivered on the trial, it is absolutely essential that all the testimony affecting those questions should appear in the paper-book. We shall and do assume that all the evidence to which the judge who tried the cause refers in his charge when speaking of the acts and declarations of the defendant, was actually introduced before the jury. The charge, upon this branch of the case, was a most careful and correct statement of the law applicable to the subject, accompanied with cautious restrictions as to the kind of facts which must be found in order to justify a verdict for the plaintiffs. Thus the learned judge said to the jury: “The evidence from which you would have to find that he has so held himself out and acted as a partner, must be his acts in connection with the circumstances that were known to the plaintiffs when they gave him credit, and not only must his acts have been such as to justify a reasonable belief that he was a partner, but, to hold him on that account you must further find as a matter of fact that they gave him credit as such, because if they did not, his holding liimself out as a partner would do them no harm. I call your attention to this because we admitted some evidence on that view of the case.”

The learned judge then recounts a number of facts as having been given in evidence on this part of the case by the plaintiffs. He says, “ The principal facts that the plaintiffs rely on in this branch of the case, namely, that while they insist that he was in fact and intention a partner, that even-though he were not he held himself out to them as such, are, that one of the firm of the plaintiffs went to Mansfield, where Burgan Bros, did business, and called on R. P. Burgan; that he talked to him (R. P. Burgan) about selling lumber, and he talked to him, as they claim, in such a way that he should have seen that they supposed him to be a member of the firm ; that he (Burgan) discussed the lumber question, prices, and so on, and sent him around to see his brother at the place of business where the firm name was Burgan Bros. That finally a bargain was made, and R. P. Burgan asked afterwards about it, and approved it, and afterwards at Mansfield, in negotiations for purchase of lumber, R. P. Burgan was the party that they (plaintiffs) went to; that he talked about what he would do; that he, in conjunction with John, made the settlements; that he acted as principal man, giving the directions, doing the figuring and the like ; that be wrote letters in the firm name of Burgau Bros, ordering lumber — these and various other circumstances that have been given as to the manner of doing business. Plaintiffs claim that those acts under the circumstances were such as not only to lead them to reasonably believe that Robert Burgan was a member of the firm, but that he must have known that they were so treating him.”

There is no assignment of error to this portion of the charge, nor any allegation that these facts were not given in evidence. We are, therefore, in the absence of the actual testimony, bound to presume that all the facts stated by the Court in the charge as above quoted, was proved on the trial, and if so, they were sufficient to justify the jury in finding that the defendant, R. P. Burgan, held himself out to the plaintiff's as a member of the firm and in rendering a verdict against him.

There was another aspect of the case. The plaintiff's claimed that R. P. Burgan was liable because his wife was a member of the firm, from October 11th, 1877, and during the time when the debt in suit was contracted. On that date D. B. Burgan, who was a member of the firm, but was sick and shortly after died, assigned his interest to the wife of R. P. Burgan, and from that time it appears that she and John H. Burgan were actual members of the firm. The Court was asked by the plaintiffs to charge that the mere fact of her membership with her husband’s knowledge and consent would make him liable for debts contracted during her membership. This request was refused, but the Court proceeded to state that he would be liable if the jury found certain other facts enumerated in the answers, as to which considerable testimony was given. This answer is assigned for error, but it is very clear there was no error in it if the facts referred to were known, and of that the jury were to judge. Most of the testimony as to these facts came from the defendant himself.

The second assignment of error calls in question the answer of the court to the defendant’s third point. The point was refused in terms, but was affirmed if the jury found the facts as stated in the point without other controlling circumstances in regard to the relations of R. P. Burgan to the business' in connection with his wife being the nominal partner. The point might have been affirmed absolutely if it had not required a direction to find for the defendant upon ¡the hypothesis of the facts stated in the point subject only to the qualification of a finding that the defendant had held himself out as a partner. This branch of the point ignored the effect of all of the other class of facts growing out of the relations of the defendant with his wife as a member of the firm. It was therefore necessary for the Court to add that qualification, and in doing so there was no error.

There was clearly no error in the matter complained of in the third assignment, because it was based upon a finding of all the other facts in the case in addition to those testified to by the defendant. In that contingency, of course, the verdict should be for the plaintiffs, and this was all the Court said.

There was no error in amending the record by striking out the name of the wife. She had been joined originally in the suit, and therefore could be stricken out, on motion of the plaintiffs. Whether her husband was liable as a member of the firm by reason of holding himself out as such to the plaintiffs, or by reason of acts done by him as her husband in connection with her membership, the amendment was equally proper.

Judgment affirmed.


source: Caselaw Access Project

author: Trunkey, J.

license: Public Domain

text:
    October and November Term, 1881,
    No. 288.
    Appeal of Mary Ann McAleer, Trustee.
    1. The owner of lands, being out of debt, conveyed them, for a nominal consideration, and they were reconveyed back to him, upon the trust tha-t his wife should have the rents, issues, and profits during her life, unless, in case of her widowhood she should marry again, and after her decease or such marriage, that her children should have the rents and profits during their minority, and on their arrival at the age of twenty-one years, to them and their heirs. Power was given to the trustee to sell at any time, and for such sum as he should deem best for the interest of the children.- The trustee having, with his wife, executed a mortgage of the lands, and having died leaving his wife surviving him, and unmarried, they were sold under the mortgage. Held, that the pro-. ceeds, remaining after the satisfaction of the mortgage, were not assets for the payment of his debts, but should be held for the purposes of the trust.
    2. The omission to express in the deed that in case of sale the same persons should receive the interest of the money who were entitled to.the rents of the land did not defeat the trust.
    Appeal of Mary Ann McAleer, trustee, from the decree of the Court of Common Pleas, No. 2, of Allegheny County, confirming the report of an auditor distributing the proceeds of the sheriff’s sale of certain real estate.
    The material facts found by the auditor were as follows :
    The property sold, originally belonged to Daniel McAleer, who, with his wife, conveyed it, January 27th, 1866, to John Callaghan. At this time Daniel McAleer was not indebted,- and was not contemplating liabilities. He owned no other real estate, but he had a one-fourth interest in the steamboat “ Sampson,” and fourteen barges.

      The same day Callaghan conveyed the property back to McAleer, his heirs and assigns forever, upon the following trust:

      “ In trust, nevertheless, and for the uses following, and none other, that is to say, for the sole and separate use of Mary Ann McAleer, wife of the said Daniel McAleer, while she continues the wife of the said Daniel McAleer, and in the event of his decease before her, while she remains his widow and unmarried, so that she alone or such person as she shall appoint, shall take and receive the rents, issues, and profits thereof, to be used and appropriated as she may deem advisable for her maintenance, and the maintenance-and education of the children begotten and hereafter to be begotten by the said Daniel McAleer on the body of the said Mary Ann Mc-Aleer, and in the even t of the decease of the said Mary Ann Mc-Aleer before the said Daniel McAleer, or her marriage after the decease of the said Daniel McAleer, then in trust for the children of the said Daniel McAleer and Mary Ann McAleer, begotten and to be begotten as aforesaid, and their heirs, to take and receive the rents, issues, and profits thereof, to be used and appropriated during their minority for and to their maintenance and education, and upon their arrival at the age of twenty-one years, to them and their heirs forever, with power, nevertheless, to the said Daniel McAleer, the natural guardian of his said children, at any time hereafter to sell and convey in fee simple the whole or any part of the aforesaid premises and appurtenances, to any person or persons, and for such sum or sums of money as he may deem best for the interests of his said children and their heirs. And, provided, nevertheless, that nothing herein contained shall be taken and construed to authorize the said Mary Ann McAleer to sell and convey said premises and appurtenances or any portion thereof, or to sell and convey, or, otherwise than as herein mentioned, to dispose of the rents, issues and profits aforesaid, but the same to be used and disposed of as herein limited and appointed.”
    The consideration mentioned in both of these deeds was $6000, but it was in fact nominal, no money having passed.
    On the 25th of August, 1869, Daniel McAleer and his wife executed a mortgage to Samuel Roberts, Sr., for $1100, and March 17th, 1871, another mortgage to the same person for $2800 upon this property.
    In 1878 John C. Bindley obtained a judgment against 'Daniel McAleer, for $914.90. . . . McAleer died in 1873, and his wife was still living at the time of the audit and unmarried. On the 7th of April, 1879, the property was sold by the sheriff, under proceedings upon the first mortgage of Roberts, for$8000. Mary A. McAleer was appointed trustee by the Court,-under the deed of January 27th, 1866, in the place of Daniel McAleer, deceased. The sheriff made a special return, showing a payment of the costs and various claims of the two mortgages to Roberts, of the Bindley judgment, $950.12, and of the balance of $3263.64 to Mary A. McAleer, trustee,
    Mary A. McAleer, trustee, excepted to the return in so far as it showed the payment of $950.12 to the Bindley judgment, and this sum constituted the fund in Court for distribution.
    The auditor found as follows :
    “ The contention arises principally upon the effect of the clause in the deed, as follows: ‘ With power nevertheless, to the said Daniel McAleer, the natural guardian of his said children, at any time hereafter to sell and convey in fee simple, the whole or any part of the aforesaid premises and appurtenances to any person or persons and for such sum or sums of money as he may deem best for the interest of his children and their heirs,’ and in the same connection a clause prohibiting Mrs. McAleer from disposing of the rents, issues, and profits.
    “It is claimed by Bindley that the clause (admitting a valid trust in McAleer) constituted a power in him for his own use, which, when exercised, if not before, made the property assets for payment of his debts, and it was consequently bound by the judgment in favor of Bindley, who is thereby entitled to tbe surplus, aud at all events the trust was limited to tbe land, and did not follow the proceeds in case of sale under tbe power.
    “ On the contrary, the trustee claims that the power of sale was only to be exercised for the benefit of tbe children, and the mortgages being in execution of tbe trust, the surplus after payment of the mortgages must be remitted to the hands of the trustee.
    “ It is questionable whether any valid trust was created by the deeds in the ease. The property belonged to Daniel McAleer. He could not by any device have it conveyed to himself upon a trust in which he was the beneficiary. The legal and trust estate uniting in him he would then stand as if no such deeds had been made. This would seem to be the effect of the deed in this case. As before remarked, as John Callaghan had no real interest, hut was merely used for the purpose of declaring the trust, any reversion falling upon the determination of the trust estate would belong to Daniel McAleer. If the trust, as declared by the deed and. the power reserved to McAleer were for his own interest, it. would leave the title in him substantially as before the conveyances.
    “ It will be observed that the first trust declared is for Mrs. McAleer for life or widowhood, for her maintenance and the maintenance and support of the children. The rents, issues, and profits could be used for no other purpose. This was directly in relief of Daniel McAleer, who was by law bound to support his wife and educate his children, and it was therefore merely authorizing his wife to dispose of his own money, in relief of his own obligations.
    “ The interest of the children was contingent upon two events: 1st. The death of Mrs. McAleer in the lifetime of Daniel McAleer, and 2d, her marriage after she became his widow. In case she survived her husband, and died unmarried, there is no provision in the deed for the children, and the estate would then revert to Daniel McAleer’s heirs. One of these contingencies has been disposed of by the death of Daniel McAleer, and the children still have no vested interest, and never can have unless she should re-marry.
    “We find, then, the legal estate in Daniel McAleer with a trust nominally for his wife, but really for his own interest and benefit, with a contingent interest in his cnildren and a reversion to himself, and this, coupled with a power to sell and convey the property at any time at his own will. Such a contrivance ought not to deprive his creditors of the right to subject the property to the payment of his debts.
    “ But, there is another question in the case which seems to be conclusive of the controversy.
    “ As before said, the deed must speak for itself, and any trust not found in its words or necessary implications does not exist. It will be observed that the trust in the first instance is, that Mary McAleer shall ‘ take and -receive the rents, issues and profits/ and in case of her death in the lifetime of Daniel McAleer or remarriage afterwards, to the children ‘ to take the rents, issues, and profits.’ This language is applicable to real estate, and could not be construed to refer to the proceeds of the same. The deed does not pretend to dispose of the proceeds in case Daniel McAleer should choose to sell the property. There is no direct trust as to them, and the words used could not be construed as applicable to such proceeds, aside from the difficulty of raising a trust as to this fund. From the inference that the proceeds were to stand in place of the property, it is a convincing argument that the power to sell was not in execution of the trust, but intended to be used by Daniel McAleer for his own benefit and at his own will. If such be the case, it falls within the principles of Tobin v. Gregg, 10 Casey, 446.

      “ I therefore find that J. C. Bindley is entitled to the balance of the fund in Court after paying the mortgages and costs, including costs of audit, and that the special return of the sheriff so amended should be confirmed.”
    To this finding the trustee, Mary Ann McAleer, excepted, and the Court below, October 1st, 1881, dismissed the exceptions, and confirmed the report of the auditor.
    The trustee then appealed, assigning as error the dismissal of the exceptions.

      Bruce and Negley for the appellant.
    At the time the trust-deed was made, McAleer owned the property, and owing no one, he had a right to sell it, give it away, or set it apart for the use of his family.
    The trust-deed sets it apart for the sole use of Mrs. McAleer and her children during life and widowhood. She still survives, and is unmarried. It is claimed that by the terms of the deed there is no trust for the children in ease of their mother not marrying again. If that be the case, time alone will tell whether she will remarry, and in the meantime she is entitled to support herself and children, and the trust provides therefor.
    There is nothing in the deed that intimates that the power was to be or could be exercised for the benefit of Daniel McAleer, and therefore the exercise of that power as trustee does not make the proceeds assets for the payment of debts.

      Knox and Reed, for the appellee.
    The exercise of the power of sale by the mortgages to Roberts, brings the case within the rule of Sugden on Powers, 27, that the property appointed shall form part of his assets: Talmadge v. Sill, 21 Barbour, 34 ; Johnson v. Cushing, 152 N. H., 306 ; Brinton v. Ward, 2 Atkyns, 172 ; Pack et al. v. Bathurst, 3 Atkyns, 270 ; Holmes v. Coghill, 7 Vesey, Jun., 498 ; Hinton v. Toye, 1 Atkyns, 465 ; Mackason’s Appeal, 6 Wr., 330.
    A power of sale may be executed by a mortgage: Lancaster v. Dolan, 1 Rawle, 231 ; Zane v. Kennedy, 23 P. F. Smith, 192.
    A man cannot make such a disposition of his property, whether in the form of trust or not, as will enable him to receive the profits, to mortgage, and sell it without such estate being liable for his debts: 4 Kent, 311; Johnston v. Harvey, 2 Penna. Rep., 82.
    The power of sale was intended for the benefit of Daniel McAleer, as he was practically the grantor, and it contained no power of revocation: 1 Perry on Trusts, 96; Garnsey v. Mundy, 24 N. J. Eq., 243 ; Hall v. Hall, L. R., 14 Eq., 365.
   The opinion of the Court was delivered, November 21st, 1881, by

Trunkey, J.

By deeds executed January 27th, 1866, the naked legal title to the laud was vested in Daniel McAleer, in trust that his wife, Maty Ann, should have the rents, issues, and profits during her life, unless in case of her widowhood, she should marry again, and after her decease, or such marriage, their children shall have the rents and profits during their minority, and on their arrival at the age of twenty-one years, to them and their heirs. Power was given to the trustee to sell and convey the whole or any part of the land, at any time, and for such price as he should deem best for the interest of the children.

McAleer had previously owned the land, and it is admitted that he was not indebted or contemplating liabilities so as to mate the deed void as to creditors. It is conceded that he had the right to create the trust in favor of his wife and children, and himself be the trustee. ' He mortgaged the premises, and he could have done this only by virtue of the power contained in the trust deed. The fund in controversy arises from sale of the mortgaged premises, and the appellee claims that in reality McAleer owned the land at and before the time of the sale.

McAleer was a mere trustee, without interest in the premises, and had no power other than to sell. He made an absolute gift of the land to his wife and children. In equity the entire estate was vested in the children of “ said Daniel McAleer and Mary Ann McAleer, begotten,” subject to the use of their mother during her life or widowhood. We are unable to adopt the view of the learned auditor, to wit, “ in case she survived her husband and died unmarried, there is no provision in the deed for the children, and the estate would then revert to Daniel McAleer’s heirs.” This is too strict a reading of the deed, avoiding its plain intent and the clear meaning of the language used, namely, that the children shall take the use immediately after their mother’s death, or before, should she become a widow and marry. Had McAleer’s wife died before him, and the power hot exercised, at once they would have come into the enjoyment and use of their estate, and so will they if the widow marries, by the express terms of the deed ; the necessary implication is, that they shall have it if the widow dies unmarried. '

The power having been exercised, the proceeds of the land belong to the same persons, subject to the same uses, as did the land itself. The interest-, or use, of the money belongs to them who were entitled to the rents, or use, of the land, and the omission to express in the deed that in case of sale the same persons should receive the interest of the money who were entitled to the rents of the land, will not defeat the purposes of the trust. Conversion gave the trustee no interest in the money, no power of appointment, no right of disposition for his own benefit, and will not deprive the owners of their property.

Decree reversed, and it is now considered and decreed that the money in Court, less costs of audit, be paid to Mary Ann McAleer, trustee, costs of appeal to be paid by the appellee, J. C. Bindley.


author: Green, J.:

text:
    October and November Term, 1881,
    Nos. 249 and 250.
    Reck et al. versus Clapp.
    1. Where, in one of the deeds in the line of defendant’s title to real estate, the dates of the deed and the acknowledgment had been erased, mutilated, and changed so as apparently to make the conveyance antedate a judgment which was a lien on the land, defendant is not, as to a sheriff’s vendee, under execution upon the judgment, an innocent purchaser without notice, though he paid full consideration, and at the time of the purchase used reasonable diligence, without success, to obtain access to the original papers, and though the title as recorded was fair and free from blemish.
    2. A purchaser who examines the records is protected by them as far as they can protect him, but he necessarily takes the risk of having the actual state of the title correspond to that which appears of record.
    Error to the Court of Common Pleas of Clarion County.

    Ejectment by W. B. and F. M. Peek against E. E. Clapp to recover the undivided one-fourth of two several tracts of land containing about twelve hundred acres. There were two cases, which, depending upon the-same title, were by agreement of the parties tried before the same jury.
    Upon the trial in the Court below the following. facts appeared :
    Both parties claimed through James W. Guthrie, to whom the land was convejmd September 6th, 1872. The plaintiffs obtained a judgment against Guthrie August 6th, 1875, upon which execution was stayed until July 9th, 1878. After the expiration of the stay plaintiffs issued an alias fi. fa., November 6th, 1878, and levied upon the lands in dispute, which were sold by the sheriff to the plaintiff and a deed executed to him, dated November 23d, 1878, and acknowledged December 5th, 1878.
    Defendant offered in evidence an instrument signed and sealed by J. W. Guthrie, dated and acknowledged December 20th, 1874, transferring, selling, and conveying “ all my right, title, interest, and claim of, in, and to the cleed hereto attached and also to the land described in said deed to Hugh Maguire, his heirs and assigns,” which assignment was recorded March 29th, 1877.
    He also offered the following papers:
    A deed from Hugh Maguire assigning all interest in these lands back to James w . Guthrie, dated and acknowledged February 1st, 1877, and recorded March 29th, 1877.
    A deed from James W. Guthrie to defendant for the same lands, dated February 3d, 1877, acknowledged February 5th, 1877, and recorded June 9th, 1877, for the consideration of $2875.
    The defendant produced evidence to show that he had paid the whole of the consideration, that before purchasing he had had thorough and careful examination of the records made, and that he had never before seen the deed of December 20th, 1874, Guthrie having told him it could not be found, and having supplied him with an exemplification from the record.
    John Beatty, for the plaintiffs, testified in substance:
    I am a justice of the peace; an assignment of a deed from J. W. Guthrie to Hugh Maguire was acknowledged before me about February, 1877 ; there was another acknowledgment of an assignment between Guthrie and Maguire before me; the same property was assigned back to Guthrie by Maguire; it was the same year as the first assignment mentioned. Guthrie acknowledged a deed to E. E. Clapp before me.
    J. W. Guthrie brought one deed or one of the assignments already mentioned in my testimony before me, and said it ought to have been acknowledged at a certain time, and Guthrie dated the acknowledgment back to the time mentioned. Except these three acknowledgments I had not taken any acknowledgments for J. W. Guthrie for a* good many years, and I have no recollection that he has acknowledged any deed or papers before me since these three.
    G. W. Arnold, an expert for the plaintiffs, after an examination of the deed of assignment from Guthrie to Maguire, dated December 20th, 1874, testified in substance:
    I find the figure 4 in the assignment and in the acknowledgment heavier than the other figures; there has been something under it; it is either a 5 or an 8. I would say there was at one time before tbe figure 4 was placed there that it was 5 in the acknowledgment; I feel very confident it was a 5; in the assignment I am not so confident; I cannot feel determined in my own mind whether it was a 5 or an 8; there has been an erasure there for some cause or other, and the figure 4 is heavier; the paper has been rubbed with something; it is soiled ; that at the top might perhaps have been put in the fire; I would say if it was mucilage, as it probably is, it was rubbed -with a pretty dirty finger; the coloring at that figure 4 and around it is soiled ; the shade of ink in the 4 is different from that in the 187 — .
    Charles Kaufman, for the plaintiffs, an expert, testified:
    There certainly was an erasure in the figure 4 in the assignment, and there was a round figure under it, whether that was a 6, 5 or 8, it is hard to tell; the figure 4 in the acknowledgment stands upon erased paper, but you can’t tell what was formerly, if anything, under it; it is heavy; I would not want to swear what was under the figure 4 in the assignment there, but there was a figure under it; I would not want to swear what was under the figure 4 in the assignment, but you can see the outlines of a line or figure, which represents either 5 or 6 ; it looks more like 6 or 5 than anything else; where the figure 4 is placed in assignment there certainly was an erasure; the paper is certainly thinner there.
    Counsel for plaintiffs asked the Court to charge, inter alia :

    2. “ If the jury find from inspection and other evidence that the date of the assignment or transfer by Guthrie to Maguire of his title-deed for the land in controversy, and also the date of the acknowledgment thereof were erased, mutilated and changed on the paper itself, from December 20th, 1875, to December 20th, 1874, it would render such assignment or transfer fraudulent and void ; and being in the direct line of his title defendant was bound to take notice of it, and if he failed to do so he is not an innocent purchaser without notice, and the verdict of the jury should be for the plaintiffs for the land in controversy.”
    The Court answered this point as follows :
    “ If the date of the assignment was fraudulently changed as stated in this point it would destroy the validity of the paper as affecting all interests intended thereby to be prejudiced, but we do not think that such change would affect the defendant as stated in the last part óf said point, if he used due diligence in obtaining correct information, and was unable to do so. The proposition is divisible, the point is double. One part of it declares as a result of the facts hypothetically stated that the assignment would be void. We state if this change was fraudulently made it would be void and not prejudice any right or any parties intended to be defrauded. But the other part of the point asserts that this alteration was in the direct line of the title of the defendant, and that he was bound to notice it, and if he failed to do so, he was not air innocent purchaser without notice. To that part of the point we have already said that if he examined all the papers that he had access to or could by reasonable diligence obtain, if he examined the titles on the record and found them fair, and did all that he could reasonably do to find out all about this claim of title, and after having used such diligence was unable to get hold of this paper, the fact that the paper he could not thus get was altered, would not affect him with the consequences stated in the last part of this point.”
    Plaintiffs excepted to the answer.
    August 30th, 1881, verdict for the defendant, upon which judgment was entered.
    Plaintiffs then took a writ of error assigning as error, inter alia, the answer to the above point.

      W. L. Corbett and Boggs & Weidner for plaintiffs in error.
    The main contention in the case is, whether an innocent vendee for value was protected as against a lien-creditor where there was a forgery in one of the links of title under which he claims. The point is predicated on facts which, if found by the jury, would have made the alteration in the assignment a forgery. The assignment had been delivered, and as it appears the alteration in the date was made in 1877. It was a forgery clearly intended to defraud plaintiffs by avoiding the lien of their judgment: 2 Wharton Am. Criminal Law, secs. 1422, 1423, 1427.
    A bona fide holder for value cannot recover on forged negotiable paper, and should a purchaser of real estate be protected from a forgery in a link in his title under which he claims ? 2 Sugden on Vendors, 738; Dovey’s Appeal, 10 W. N. C., 389.
    To apply the doctrine of bona fide purchasers in cases of forgery would be not alone to sweep away secret equities, but legal rights and titles.

      Wilson & Jenks for defendant in error.
    The plaintiffs’ second point asks the Court to take the case from the jury on the mere alleged fact that the date of the deed of assignment of Guthrie to Maguire was changed from 1875 to 1874. The answer of the Court was that such a fraudulent change would render the deed void as to the parties intended to be defrauded. But it did not follow that the verdict of the jury should be for the plaintiffs, as that would depend upon whether Guthrie owned the land at the date of the entry of the plaintiffs’ judgment.
    The Court turned the case on its real points.
   The opinion, of the Court was delivered, November 7th, 1881, by

Green, J.:

The second point of the plaintiffs was in the following words: “ If the jury find from inspection and other evidence that the date of the assignment or transfer, by Guthrie to Maguire, of his title-deed for the land in controversy, and also, the date of the acknowledgment thereof were erased, mutilated, and changed on the paper itself, from December 20th, 1875, to December 20th, 1874, it would render such assignment or transfer fraudulent and void, and being in the direct line of his title, defendant was bound to take notice of it, and if he failed to do so, he is not an innocent purchaser without notice, and the verdict of the jury should be for the plaintiffs for the land in controversy.”

The hypothetical facts of this point were an absolute obliteration of the actual date of an instrument conveying title to land, and the substitution in place thereof, of an anterior and false date. Beyond all question such an alteration of such an instrument would be a forgery as against any person affected by the damage, and who was not a party or privy to it. The plaintiffs claim to be, and apparently are, such persons. They acquired title by purchase at sheriff’s sale under a judgment entered August 6th, 1875. Whatever title Guthrie, the defendant in that judgment, had on that day, in the land in controversy, passed to the plaintiffs by their purchase. This gives them a sufficient interest to question the condition of Guthrie’s title. Now, the legal effect of the alleged alteration was to divest Guthrie’s title as of August 6th, 1875, by subjecting it to the operation of a transfer dated December 20th, 1874. He held title by a deed in fee simple, dated September 6th, 1872, which on its face contained no conditions or qualifications. But the defendant, Clapp, claims to have been, and apparently is, an innocent purchaser for value of Guthrie’s title as it stood on the record. Tested by the record alone his claim would be good because that- afforded no evidence of the forgery. In this condition of things the plaintiff’s second point was put, in order to charge the defendant with the effect of forgery, for the reason that the forged instrument was itself a link in his chain of title directly through that paper. The question is reduced to one of the plainest and simplest character, to wit, does a forged deed pass the title which it assumes to convey, as. against one who has no participation in or knowledge of the forgery ? Of course, it can accomplish no such result.

The second point of the plaintiffs was answered by the Court below by their saying, in effect, that the defendant would not be affected by the forgery, because he could assert the rights of a.n innocent purchaser without notice if he used reasonable diligence to obtain access to the original papers, but without success, and the title, as recorded, was fair and free from blemish. The consequences of such a doctrine would be of a most serious character if it received the sanction of the courts. Eor then it would only be necessary for the forger of a deed or mortgage, after having it placed on record, to lose or destroy the original instrument and convey his title to an innocent third person for value, pretending to him that the original paper was mislaid and would be subsequently delivered. Of course, a purchaser who examines the records is protected by them as far as they can protect him, but he necessarily takes the risk of having the actual state of the title correspond to that which appears of record. The language of this Court in the case of Arrison v. Harmstead, 2 Barr, 191, fully illustrates this subject. “ A deed, good in its creation, may become void by matter ex post facto, as by interlineation, erasure, or by alteration in a material part. But a deed may be good in part and void in part. It may be good against one person and void against another.” . . . “It is said that Mrs. Lewis is a bona fide purchaser without notice, and that the action may be sustained on that ground. But conceding that she is, her situation is no better than the fraudulent grantor’s; although the title of the grantor -was, in its inception, good, it became entirely void by matter ex post facto. At the time of the assignment, the title being avoided, the assignor had nothing to convey; of course, nothing passed to the assignee. It may be, and perhaps is, a hard case. Eraud may be committed on an innocent purchaser, who may find it difficult to guard against imposition. This is conceded; but it is far better to encounter this risk, than to give the least countenance to any alteration whatever of a solemn instrument of writing, which would certainly be the result if the guilty party could escape the consequences of his fraud by a transfer to a person who might assume the garb of an innocent purchaser for a valuable consideration. We cannot lay too many restraints upon trick, artifices, and fraud.” In Van Amringe v. Morton, 4 Wh., 382, it was held that if a deed which has been executed and acknowledged by the grantor, with a blank for the grantee’s name, be surreptitiously and fraudulently taken from the grantor’s house and the blank filled up, no title passes thereby; and a bona fide purchaser for a valuable consideration from the person holding the deed stands in no better situation than such fraudulent holder. In the case of Wallace v. Hármstad, 8 Wright, on page 494, Woodward, J., speaking of the cases of Arrison v. Harmstad, 2 Barr, 191, and Wallace v. Harmstead, 8 Har., 462, said, “ The stern ruling in those cases was applied without hesitation to a bona fide purchaser of the ground-rent without notice of the fraud, so that as far as concerns Arrison and all persons claiming under him the part of the deed which was intended to be to his benefit, may indeed be said to be dead. It .was not merely a voidable instrument, it was void. It was called a forgery, and treated as such, and neither law nor equity would tolerate it even in the hands of an innocent purchaser.”

We are clearly of opinion that the learned Court below was in error in the answer to the defendant’s second point, and for that reason the judgment must be reversed. The views we have expressed require a modification of the answers given to the defendant’s third and seventh points, and the case is also reversed on the seventh and ninth assignments, in which those answers are complained of. As to the other matters presented by the various assignments we forbear discussing or deciding them, for the reason that the case goes back for another trial, and these questions may be affected by testimony to be then delivered.

Judgment reversed, and venire facias de novo awarded.


author: Mercur, J.

text:
    October and November Term, 1881,
    No. 19.
    Schneider versus The New York and Cleveland Gas Coal Company.
    1. Where the parties to the cause agreed that the testimony before arbitrators, under the act of June 16th, 1836, should be taken by a stenographer, and that his charges should be taxed as costs, and paid by the losing party, and the arbitrators, along with their award, designated the amount of these charges, but the losing party, having paid all costs taxed, appealed without paying these charges, having objected to their taxation, and filed exceptions to them, his appeal was properly stricken from the record, under section 27 of that act..
    2. These charges were taxable as costs in the cause.
    3. The agreement of the parties may make services performed, or expenses incurred in the case, taxable costs, though they were not so made hy the statute.
    Error to the Court of Common Pleas, No. 2, of Allegheny County.

    Case by William Schneider, Sr., against the New York and Cleveland Gas Coal Company for alleged injuries to the land of plaintiff, through the negligent mining of the coal underlying it by the defendant company.
    The defendant took a compulsory rule under the act of June 16th,' 1836, and the case was referred to arbitrators. The plaintiff and the attorney for defendant entered into the following agreement:
    “ It is agreed that the testimony taken before arbitrators shall be taken, by a stenographer, and his fee shall be taxed as costs, and paid by the losing party.”
    The stenographer testified that it was the understanding with both parties that he should receive forty cents per page, at which rate his fees amounted to $89.60.
    The arbitrators filed their award September 9th, 1880, “ in favor of the defendant, together with costs of suit.” On the award was written, “Arbitrators’ fees, $105, paid by defendant; stenographer’s .fees (not paid), $89.60.” This was also entered on the docket.
    On the 25th of September, at the request of counsel for plaintiff, the prothonotary taxed the costs at $116.25, which sum did not include the fees of the stenographer. Counsel objected to their being taxed as costs, and filed exceptions to the stenographer’s bill, on the ground that he was solely employed by defendant, and that the bill was excessive. Later upon the same day he paid the costs as taxed, and the prothonotary entered on the docket, “Costs paid September 25th, 1880, by William Schneider, Sr.” The plaintiff then appealed from the award, and filed his affidavit and recognizance.
    September 27th, 1880, the following bill was filed, and noted on the docket:
    “ William Schneider, the defeated party, as per agreement hereto annexed,
    To W. A. Schmidt, Dr.
    For services rendered as stenographer, in reporting and transcribing testimony, 224 pages, at 40 cents per page, $ 89.60 Received payment.”
    The following is a copy of the paper, referred to in the above bill, and annexed to the same:
    The New York and Cleveland Gas Coal Company. “ Schneider
    It is agreed that the testimony, taken before arbitrators, shall be taken by a stenographer, and his fee shall be taxed as costs, and paid by the losing party.
    S. Schoyer, Jr.,

      Defendant’s Attorney.

    William Schneider.”
    It was verified by affidavit, October 2d, 1880.
    Counsel for defendant then took a rule to strike the appeal from the record, for the reason that all of the costs had not been paid at the time the appeal was, taken. This rule the Court, October 30th, 1880, made absolute.
    Plaintiff then took a writ of error, assigning that the Court erred in quashing the appeal, and not discharging the rule.

      A. Weidman and R. E. Stewart for plaintiff in error.
    The plaintiff paid all the statutory costs legally demand-able. Could the prothonotary have properly assumed to pass upon a claim, with respect to which the fee bill furnished him no rule of liquidation ? Should the provision of the statute, relative to costs on taking an appeal, be held to require the prepayment of other than such charges as by the law are made taxable ?
    No data had been furnished the prothonotary for taxing the fee of the stenographer when the plaintiff appealed. It has not even yet been duly taxed.
    Plaintiff paid all the costs taxed at the time of his appeal, and the appeal being valid in other respects, the Court below could not legally dismiss it: Williams v. Hazlep, 2 Harris, 157; McKeown v. Boudinot, 1 Browne, 150 ; Fraley v. Nelson, 5 S. & R., 234 ; Stewart v. Jewell, 11 S. & B., 359 ; Carr v. McGovern, 66 Pa. St., 457.

      S. Schoyer, Jr., for defendant in error.
    The payment of all costs is a condition precedent: Rice v. Constein, 8 Norris, 477.
    The agreement between the parties made in advance ought to be enforced. This agreement was that the bills should be paid as other costs. It was in effect an agreement not to appeal until this bill was paid: Williams v. Danziger, 10 Norris, 232; Bingham’s Trustees v. Guthrie, 7 Harris, 419.
    The arbitrators awarded a precise sum for this bill: Hewitt v. Furman, 16 S. & R., 135.
    The bill was filed before appeal was taken, and plaintiff knew of it, and was not misled.
   The opinion of the Court was filed, October 24th, 1881, by

Mercur, J.

This contention is as to the right of the Court to strike off an appeal from the award of arbitrators under the following facts : They were chosen under the compulsory arbitration law. When they met it was agreed in writing by the parties that the testimony should be taken by a stenographer (who was present), and his fee be taxed as costs, and paid by the losing party. It was further agreed that he should be paid 40 cents per printed page. He took the testimony, and at the price named his fees amounted to $89.60. The arbitrators awarded “in favor of the defendant, together with costs of suit.” At the bottom of the paper, containing the award filed, was written, “ arbitrator’s fees $105.00, paid by defendant. Stenographer’s fees, not paid, $89.60.” This award, with the entries at the foot thereof, was filed and entered, by the prothonotary, on the record, on the 9th of September. On the 25th the plaintiff filed exceptions to the fees of the stenographer, and then, without paying any part of those fees, appealed from the award. By reason of their non-payment the Court struck off the appeal. This is assigned for error.

The act of 1836 makes the payment of all costs, that have accrued in the suit, a condition precedent to an appeal from the award. If they are not all paid through the fault or negligence of the party appealing, the appeal will be stricken off on the application of the opposite party. If, however, the non-payment is caused by the exclusive fault of the officer in withholding from the appellant a knowledge of the existence of a portion of them, the appeal should not be stricken off, but the payment of the omitted portion be enforced by attachment: Fraley v. Nelson, 5 S. & R., 234; Carr v. McGovern, 16 P. F. Smith, 457 ; Palmer v. Wilkinson, 28 Id., 339.

Here not only did the record show the return by the arbitrators of the stenographer’s fees, but the precise sum was entered on the docket, and the attention of the plaintiff was especially called thereto. Pie objected to a more formal taxation, filed exceptions, and declined to pay them.

The question now presented is, were these fees taxable costs in the case ? The written agreement of the parties expressly declared they “ shall be taxed as costs and paid by the losing party.” Thus the agreement clearly negatives the idea that his fees should be deemed a common law claim or enforced as such. They were to be taxed as costs and paid as costs. That is, they were to be taxed as the other costs were to be taxed, and to be paid as the others were to be paid. Sueb was the clear intention ctf the parties. The plaintiff was the losing party, and these fees were filed in the office and entered on the record in manner and form substantially like the arbitrator’s fees. "Why, then, shall not due effect be given to the agreement? It cannot be objected that there was no more formal taxation of them, for that was caused by the plaintiff’s own act. In so far as the arbitrators could control or indicate the amount of these costs they did so. It is not now contended that the sum returned was not correct for the services rendered under the agreement. In a common law submission the arbitrators may award costs for a precise sum, and subjoin it to the award: Hewitt v. Furman, 16 S. & R., 135. It is there said: “It seems to have become the settled law in England that in a suit pending the arbitrators, unless otherwise stipulated in the submission, or directed by law, may award costs, and they are taxed by the officer.”

It is, however, urged that the agreement of the parties cannot make services performed, or expenses incurred in the case, taxable costs which are not so made by statute. We think the contrary is fully sustained by the authorities.

Huling v. Drexel, 7 Watts, 126, was a case of scire facias on a mortgage, wherein the mortgagor agreed, on non-payment of the debt thereby secured, a scire facias might issue to recover the principal and interest, “ and all costs, charges, and expenses of every kind ” to which the mortgagee might be put by reason of default in the payment. In the Court below a judgment was recovered for $147.33 for costs and charges. In this Court' the right to recover therefor was distinctly affirmed if there had been the slightest proof to sustain it, but inasmuch as there was no evidence of such costs and expenses, the judgment was reversed.

Since then it has been repeatedly ruled that the maker of a bond or note is bound by his agreement to pay attorney’s commissions for collecting in case he makes default in the payment. It has been questioned whether they must enter into and form a part of the body of the judgment, or whether they may be indorsed as costs on the execution. The former view was taken in Mahoning County Bank’s Appeal, 8 Casey, 158 ; Robinson v. Loomis, 1 P. F. Smith, 78, and in McAllister’s Ap., 9 Id., 204.

In Schmidt and Friday’s Appeal, 1 Norris, 524, the judgment was on a single bill filed, authorizing an attorney’s commission of 5 per cent. It was held, the indorsement of the commission on the execution, although informal, was not material, and should be paid out of the proceeds of real estate sold on which the judgment was a lien. Thus in either aspect of thebase the obligor, by his agreement, makes that costs which would not otherwise be so. He unites it to the principal debt, so that no separate action need be brought to enforce its payment. It is enforced either as an integral part of the judgment, or as a necessary incident thereto.

It is objected that giving these fees the effect of other costs tends to abridge the right of appeal and defeat a trial by jury. This may be conceded. A party, however, may, by his agreement, wholly deprive himself of a right of appeal and even of a writ of error: Andrews v. Lee, 3 P. & W., 99 ; Rogers v. Playford, 2 Jones, 181 ; Bigham’s Trustees v. Guthrie, 7 Harris, 418 ; McCahan v. Reamy, 9 Casey, 535 ; Shisler v. Keavy, 25 P. F. Smith, 79; Watson v. Wetter, 10 Norris, 385. It follows that he may undoubtedly clog or check the enjoyment of a right which he may wholly waive.

The fact that after the appeal was taken there was a more specific taxation of these costs, verifying the entire accuracy and correctness of the amount set forth on the record when the appeal was entered, does not change the case. The item was legally there, and with full knowledge thereof the plaintiff declined to pay what the law required to perfect his appeal.

Judgment affirmed.

Gordon and Trunkey, JJ., dissent.