author: Mercur, J.

text:
    The Union Railroad and Transportation Company versus Riegel & Co.
    1. Plaintiffs shipped goods to Indianapolis by defendants who gave this receipt: “ Received, Philadelphia, &c., of (plaintiffs) the following artioles, to be carried and delivered upon the terms, &c., on the back of this receipt. 1 Marked F., Indianapolis, for J. Furniss, care S. F. Gray, agent” of defendants. One of the terms was, that packages should be marked with consignee’s name, &c. The manifest corresponded with the receipt. There was evidence that by direction of Welsh, an agent at Philadelphia, the name of Furniss was not in fact on the box, and that he would order Gray not to deliver till directed. The receipt was filled in by the plaintiff’s clerk and signed by defendants’ clerk. Gray delivered the goods to Furniss who failed without paying. In a suit for negligence; the court charged “ The contract depends entirely on the verbal arrangement, of which you are judgesHeld to he error; the contract was to be ascertained by the jury from both receipt and verbal arrangement.
    2. Declarations of defendants’ agent within a reasonable time after the transaction were evidence against them.
    January 13th 1873.
    Before Read, C. J., Agnew, Williams and Mercur, JJ. Sharswood, J. at Nisi Prius.
    Certificate from Nisi Prius: To January Term 1870, No. 404.
    This was an action brought March 4th 1870, by Jacob Reigel, Samuel G. Scott and others, trading as Jacob Reigel & Co., against The Union Railroad and Transportation Company, for negligence in the wrongful delivery of goods, sent by the plaintiffs to the defendants, to be transported by them to Indianapolis.
    The plaintiffs’ allegations were that they had been negotiating with Eurniss & Co., of Indianapolis, for the sale of dry goods, but being doubtful of the solvency of Furniss & Co., they agreed with the defendants to transport the goods to that place, to defendants’ agent there, not to be delivered to Furniss & Co. without further instructions; that the agent delivered them to Furniss & Co. notwithstanding. After the delivery Furniss & Co. failed, and the plaintiffs were never paid for the goods.
    The case was tried at Nisi Prius, February 7th 1871, before Read, J.
    S. G. Scott, one of plaintiffs, testified: — •
    “ In December 1869, a member of the firm of Furniss & Co., of Indianapolis, called in our store to purchase goods. There was nothing concluded between me and Furniss. I sent for Mr. Welsh, agent of the Union Railroad and Transportation Company. He came to see me on December 10th 1869. I told him we had goods to ship to Furniss & Co. They were not to be delivered until we instructed the Union line to deliver them. Mr. Welsh told me not to put Furniss & Co. on the boxes, but to mark them F, Indianapolis, care of S. F. Gray, agent.” He said he would write to the agent next day not to deliver the goods until we instructed them. I told Mr. Welsh the reason, which was, because our salesman was anxious that Furniss & Co. should have the goods so that they might have them for sale during the holidays. After the 10th of December 1869, the first time I saw Mr. Welsh was after the delivery of the goods to Furniss & Co.
    The plaintiff proposed to ask what Welsh then said: This was objected to by defendant.
    Judge Read admitted the question, saying: “ I think that what this agent would say within a reasonable period after the transaction would be evidence.”
    A bill of exceptions was sealed.
    Witness: “I told him in the following month that I was surprised that the goods were delivered without our instructions. Mr. Welsh was also surprised. I told him we would have to look to the railroad company. I saw him a few days after. He then said we had given the consignees’ name on the shipping receipt, and the company would not be responsible. I asked him whether he had given us any directions as to drawing the shipping receipt. He said he had not. The receipt was kept by us. The receipt did not go from Philadelphia. It was brought back by our dray-man. This shipping receipt is in the handwriting of Fenner, our shipping clerk, who is now in our employ. It was written by our clerk, and sent by us to Thirteenth and Market ¡streets, and brought back by our drayman.”
    John W. Emmet testified: — “ I was salesman of Jacob Riegel & Co. in December 1869. I sold' Furniss goods about this time. * * * I went to Indianapolis. I got there in the first part of January 1870 ; I went to the depot of the Union Line, and asked if any goods were there for Furniss & Co. They said no. • The shipping agent opened a book and showed me some goods that were shipped to Furniss & Co., marked F I think, to care of Gray. He said they had been delivered. I told him they ought not to have been delivered until Jacob Riegel & Co. had sent instructions, as the goods were not paid for.”
    James M. Fenner testified :■ — “ In December 1869, I was in the ■ employ of Jacob Riegel & Co., as clerk in the store. My business was to receive goods sold, and send them out on drays. I took place of shipping clerk. These boxes, when I first saw them, were marked John Furnish & Co., Indianapolis. ‘John Furniss & Co.’ was planed off, and ‘F, care of S. F. Gray,’ put on before they left the store. 1 gave them to drayman. The drayman brought back this slip receipt. The writing, ‘ Jacob Riegel & Co., ’‘ John Furniss & Co.,’ ‘F,’ and everything in writing but signature, is in my handwriting. I knew of no arrangement Scott had made with Welsh. Scott told me to plane off ‘John Furniss & Co.’ These blanks are supplied by the railroad company.”
    Scott, recalled, testified: — “Mr. Welsh told me he had written to Gray about the goods, after I had heard of delivery of goods to Eurhiss. He said he had written to Gray not to deliver the goods. The goods have never been paid for; they are insolvent.”
    Eor the defendant James D. Welsh testified: “I am the agent of the Union Railroad and Transportation Company. On the 10th of December 1869, Mr. Scott told me he had six cases of dry goods he wanted to ship to parties in Indianapolis, and he was not sure they were good. I suggested to him to mark [E] care of S. E. Gray, agent, Indianapolis, and give no other consignee. They were to be consigned to S. E. Gray, agent; so that our agent in Indianapolis would not know to whom to deliver them. I said I would write to Mr. Gray, telling him what was done. He would have asked who was the consignee; to avoid this I wrote to him to allow them to remain in his depot. I simply told Mr. Scott to mark the goods. I did not say to Mr. Scott that I would write to Mr. Gray not to deliver the goods, as that would have been foolishness. Mr. Gray would not know to whom to deliver. I wrote to Mr. Gray on the 11th day of December. I told Mr. Scott to mark the packages [E] care of S. E. Gray, agent, Indianapolis, Indiana. I wrote to Mr. Gray that as to six cases of goods, marked as I said before, to hold them subject to our order. This was to prevent him asking for a consignee.”
    D. Buist, the slip clerk of the Pennsylvania Railroad Company, testified that the manifest on which these goods were entered went with the car which took the goods.
    The defendants gave in evidence the receipt for the goods and the manifest. The receipt, which was in a printed form, was:—
    “ This receipt, properly filled up hy the Shipper, must accompany the Freight.

    Pennsylvania Railroad Company’s Freight Station, * * *
    Received Philadelphia, Dee. 10th 1869, of J. Riegel & Co., the following articles, contents and condition unknown, to be carried and delivered upon the terms and according to the agreement as specified on the back of this receipt.
    Marked [El Indianapolis, Ind. Eor J. Eurniss & Co., care S. E. Gray, Agt.
    Number and description of packages. — Six (6) boxes dry goods.
    Buist.”
    On the back of the receipt was printed, among other things, as follows:
    “It is agreed, and is part of the consideration of this contract :
    “ 1. That all goods received for transportation shall be properly packed, and distinctly marked with the name of the consignee and the station where and to whom consigned.” * * *
    The manifest was:

      “ Manifest of Merchandise forwarded by the Union R. R. Transportation Co. to Pittsburg from Philadelphia, Dec. 10th 1769.

    Samuel F. Gray, agent of defendant at Indianapolis, testified: “We did receive six packages mentioned on manifest, and delivered them to Furniss & Co. I received a letter from Mr. Welsh, dated 24th of January, stating he had sent me a letter on the 11th of December. The letter of December 11th was never received by me or subordinates. Mr. Emmet first called between the 27th of December 1869, and first week in January 1870, to see me. He made inquiry concerning these six packages. I informed him they had been delivered to consignees, J. Furniss & Co. He said, had you no word from Philadelphia to hold goods ? I said I had not.” * * *
    M. Horace McKay, a member of the firm of J. Furniss & Co., testified: “ I remember the purchase of goods from Riegel & Co.; remember the receipt of the bill. I made no contract about the goods. These goods were received by our firm, and delivered from line by our draymen. We received bills from this firm by due course of mail. There were conditions at same time as bills were received. We received notice from Riegel & Co. There were no directions not to receive the goods; but after they were received, certain conditions were to be complied with. Goods were received about middle of December. Emmet’s first visit was after the holidays, and about the 1st of January I saw him ; visited store several times; came in in a friendly way. He did not tell us we ought not to have received goods, and found no fault with us for receiving them. We closed our house on the 26th of January, the day our failure took place. Emmet’s next visit was two, three, or four days after this.” * * *
    The defendant proposed to ask witness : “ What would your firm have done if you had received hotice from the company, within a reasonable time, that the delivery to you had occurred through any mistake or alleged mistake of the company ?”
    This was objected to by plaintiff, overruled by the court, and a bill of exceptions sealed.
    Welsh again testified: “On the 22d of January 1870, Scott notified me of the non-delivery of goods. I went up to the depot, and found the name of consignee on manifest, receiving book, and slip receipt book ; came down and told Scott they must have put consignee on slip receipt. I then wrote to Gray. Scott did not then tell me he would hold the company responsible.”
    Read, J., charged: — “ This is an action between Jacob Riegel & Co., the plaintiffs, and the Union Transportation Company, the defendants, on a contract under which the defendants were to hold goods until further orders. [The contract depends entirely upon a verbal arrangement, of which you are the judges. The goods were not sent according to the usual and ordinary terms by which this company sends goods, but they were sent under a special contract.] The first question is, what the contract is ? The second, whether the plaintiff has complied with the terms of the contract. If the plaintiff complied, and the defendants did not, then the defendants are answerable. One of the parties to the arrangement was a member of the firm of Riegel & Co., and I will read portions of his testimony. Then I will read a portion of the testimony of Mr. Welsh.” (Judge Readhere read Scott’s testimony), £££Isent for Mr. Welsh on 10th of December 1869.- I told him I had six packages to send — that they were not to be delivered until we instructed the Union Transportation Company to deliver them. Mr. Welsh told me not to put the name of the firm on the packages; he told me to mark F, care of S. E. Gray, agent, Indianapolis, Indiana. He said he would write to ‘ the agent there. I told Mr. Welsh the reason, and that I wanted goods to arrive in time for the holidays. I do not know whether I told him the terms of the sale.’
    ££ Then in a subsequent conversation, £ I think it was. in January, I said I was surprised, and said I would look to the company.’ Mr. Welsh said we had given the name of the consignee in the [slip receipt], then I said ‘ Did you give any directions in regard to the shipping receipt ?’ He said £ No.’
    “Then Mr. Welsh said: £I am agent of the Union Transportation Company, my office is at No. 415 Chestnut street. In December 1869, Mr. Scott sent for me to come to his store. I went. He said he had goods to send to Indianapolis, to Eurniss & Co., who were not so good. I told him he had better mark the goods F, and give no other consignee, and then the agent would not know to whom the goods were to be delivered. I said I would write. I did write to our agent there. ’
    “ [There is the contract — there is no difference between them, in their recollection. It would appear, then, that the contract was specially to take these goods to Indianapolis, and not to deliver them to Eurniss & Co. Did Mr. Scott follow the instructions of Mr. Welsh?]
    “It is in evidence that the name ‘Eurniss & Co.’ was planed off [the boxes.] It is in evidence that they were marked exactly as Mr. Welsh directed, so that the name of the station and name of consignee on the boxes was in accordance with Mr. Welsh’s directions. If this be the case, then, Mr. Scott so far complied with the instructions of Mr. Welsh.
    “ [Then comes another element, that of the shipping receipt, which, as I understand it, is not a bill of lading, but merely a shipping receipt, given by the company to the drayman who delivers the goods, to show that the goods have been received. It is returned to the shipper, and does not go on with the goods. Where there is a special contract, such as this was, it is a question whether that receipt formed any part of the contract at all. The evidence is that Mr. Scott subsequently asked Mr. Welsh whether any instructions were given in regard to the shipping receipt, so that what was done with the shipping receipt does not make any difference in regard to the contract that was made.] Then this item of direction is on the back of the receipt. (Article 1 from the printed matter on the back of the receipt.)
    “ [The question is, whether Mr. Scott performed his part of the contract. If he did defendants are undoubtedly liable, for they have not performed their part; they did not keep the goods until instructions. If they made this contract, no matter whether the communication to their agent was made or not, they were bound to keep the goods.]
    ■ “Now there was another part. In order to make this more certain, there was a letter to be written. No doubt it was written. There is no doubt it never arrived. Whether it was not mailed by the agent or clerk of the transportation company, or whether it was mailed or miscarried, we have no evidence. It never was received. [If it was not put into the post-office, it was the negligence of the parties; and perhaps there should have been some testimony to show that that letter went into the post-office; because, when a party writes a letter and intended to send it, and it never arrives, it is proper to trace the letter into the post-office, if anyone knows anything about it.] We can only assume that the letter was written, and that it did not arrive. There is a good deal in the other parts of the case, that have formed food for argument, that have nothing to do with the case. Did Riegel & Co. comply with their part of the contract ? If they did the defendants are liable. • .
    “I am requested to charge on the following points by the defendants :—
    “ ‘ 1. The terms set forth in the receipt of 10th December 1869, superseded the arrangement made with Mr. Welsh respecting the consignee of goods.’.
    “I decline'so to charge.
    “ f 2. On the arrival of the goods at Indianapolis, the agent there was authorized by the terms of the said receipt to deliver them to J. Furniss & Co.’
    “ I decline so to charge.”
    The verdict was for the plaintiffs for $1944.69.
    The defendants took a writ of error and assigned for error:—
    1, 2. The rulings on the offers of evidence.

      3. The part of the charge first enclosed in brackets.
    4. The part of the charge secondly and fourthly so enclosed.
    5. The part of the charge thirdly so enclosed.
    6. The answer to the 1st point.
    7. The answer to the 2d point.

      W. A. Porter, for plaintiffs in error.
    Declarations of an agent, made not at the time of entering into a contract, but after the transaction is past, are not admissible in evidence against the principal : Hough v. Doyle, 4 Rawle 291; Hannay v. Stewart, 6 Watts 487; Hubbard v. Elmer, 7 Wend. 446; Stiles v. The Western Railroad Corporation, 8 Metc. 46; Clark v. Baker, 2 Whart. 340. The receipt was a contract between the shipper and the transporters : Bates v. Todd, 1 Moody & R. 106; Babcock v. May, 4 Hamm. (Ohio) 345; Ide v. Sadler, 18 Barb. 33. Previous conversations between Scott and Welsh were merged in the writing: Monongahela Navigation Co. v. Fenlon, 4 W. & S. 208; Mumford v. McPherson, 1 Johns. 414; Vandervoort v. Smith, 2 Cain. 161; Howes v. Barker, 3 Johns. 506; Creery v. Holly, 14 Wend. 26 ; La Farge v. Rickert, 5 Id. 187; Barber v. Brace, 3 Conn. 9. The receipt authorized the agent at Indianapolis to deliver the goods to Furniss: Bristol v. Rensselaer & S. R. R., 9 Barb. 158.

      G-. W. Piddle and P. McCall, for defendants in error.—
    Declarations of an agent acting as such, within a reasonable period of time after a transaction, are competent testimony against his principal : Stockton v. Demuth, 7 Watts 39; Hannay v. Stewart, 6 Watts 487; Clark v. Baker, 2 Wharton 340 ; McCotter v. Hooker, 4 Selden 407 ; Dodge v. Bache, 7 P. F. Smith 421. Parol evidence of what occurs at or shortly before the execution of a written instrument to control its effect is admissible: Bank v. Fordyce, 9 Barr 275; Rearich v. Swinehart, 1 Jones 238; Chalfant v. Williams, 11 Casey 212; Lewis v. Brewster, 7 P. F. Smith, 410 ; The Baltimore & Philadelphia Steamboat Co. v. Brown, 4 Id. 77 ; McCotter v. Hooker, 4 Selden 497; Blossom v. Griffith, 3 Kernan 569 ; Purcell v. Southern Express, 34 Georgia 315; Hutchins v. Ladd, 16 Michigan 493; Michaels v. N. Y. Central R. R., 30 N. Y. 164; Reed v. Spalding, Id. 630.
   The opinion of the court was delivered, February 3d 1873, by

Mercur, J.

The first and second assignments of error are not sustained. The 3d, 4th, 5th and 6th will be considered together. They all relate to the ascertainment of the contract under which the merchandise in question was delivered to the defendants.

The plaintiffs gave evidence that Furniss & Co., of Indianapolis, desired to purchase goods of them upon a credit. Not being satisfied as to their solvency, plaintiffs made an arrangement with Mr. Welsh, agent for the Union Railroad & Transportation Company, before delivering the goods for transportation, by which the boxes should be marked “[F] Indianapolis, Indiana, care of S. F. Gray, Agent,” and should not be delivered to Furniss & Co. until further orders from plaintiffs. The boxes thus marked were delivered to the defendants. The plaintiffs claimed this to be the contract under which they delivered, and the defendants received, the goods.

The defendants gave evidence that when the drayman subsequently, upon the same day, delivered the goods to them, he brought and presented for their signature, a shippers’ receipt, filled up by plaintiffs’ shipping clerk, in which the boxes were described as marked “ [F] Indianapolis, Indiana. For J. Furniss & Co., care S. F. Gray, Agent.” Upon the face of the receipt it declared they were “ to be carried and delivered upon the the terms and according to the agreement as specified on the back of this receipt.”

Upon the back of this receipt, inter alia, is printed, “it is agreed and is part of the consideration of this contract,

“1. That all goods received for transportation shall be * * * distinctly marked with the name of the consignee, and the station where and to whom consigned.”

That the defendants signed said receipt and returned it to the drayman, who took it back to the plaintiffs. This direction, as contained in the receipt, was substantially copied into the manifest which was sent on to Gray.

It appears that upon the arrival of the goods Gray delivered them to Furniss & Co., who soon after failed and the goods were lost to the plaintiffs.

The counsel for the defendants requested the court to charge the jury that the said shippers’ receipt superseded the arrangement made with Mr. Welsh respecting the consignee of the goods. The court declined so to charge. In this was no error. We think, however, the court did err in saying to the jury that the contract depended entirely upon the verbal arrangement. The court thus withdrew wholly from the consideration of the jury the shippers’ receipt which was executed after the verbal arrangement. The receipt, as well as the verbal arrangement ought to have been submitted to the jury to enable them to find from the whole evidence, what the true contract was.

The 7th assignment is not sustained. It assumes the receipt alone embodied the terms of the contract. Whether the agent was authorized to deliver the goods, depended not upon the receipt alone, but upon what the jury found the contract to be under the whole evidence as we have indicated.

Judgment reversed, and a venire faeias. de novo awarded.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Connery versus Brooke.
    1. Hatcher being owner of two lots used a lane from the back lot over the other to a turnpike with a gate there. In 1858 he conveyed the back lot, the gate remaining, “ with the free use, right and privilege of a passageway * * * extending from the * * * turnpike to the hereby granted premises with free ingress and regress at all times for ever.” Through divers conveyances, all reciting the grant of the passage, Brooke became the owner of the back lot in 1867, and Connery of the front lot in 1869 ; the gate had been used in common by the owners of both lots till 1870, when Brooke took it down and Connery put it up. In an action against Connery for obstructing the passage : Meld, that the grant of the privilege did not per se make the gate a wrongful obstruction; it was a question for the jury in connection with the circumstances.
    2. If the gate was not a practical hindrance and an unreasonable obstruction to plaintiff's use of the passage, it was not illegal.
    3. Generally a grant is to be taken in its natural and ordinary sense; and if there be doubt, most strongly against the grantor.
    4. A grant is to receive a reasonable construction which will accord with the intention of the parties, and the court must look at all the circumstances under which it was made.
    5. Contemporánea exposiiio est optima etfortissima in lege, applied.
    .6. The plaintiff took down the gate, defendant sued him in trespass before an alderman and obtained judgment against him. Held, not to be a bar to an action for the obstruction.
    7. Cox v. Freedley, 9 Casey 124, recognised.
    January 14th. 1878.
    Before Eead, 0. J., Agnew, Williams and Mercur, JJ. Sharswood, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 61, to July Term 1870.
    This was an action on the case brought September 17th 1869, by Gfeorge Gr. Brooke against Lawrence Connery for obstructing a passage-way of the plaintiff. The defendant owned a lot fronting on the Bustleton and Somerton turnpike road; the plaintiff owned a lot directly back of it and adjoining it. Both lots had belonged to John Hatcher in 1856, and were separated from bis neighbor, Wendle, by a fence, along which was a lane from the lot now the plaintiff’s to the turnpike; there was no fence on the side of the lane next Hatcher’s own land. Whilst Hatcher owned both lots he put a gate at the end of the lane on the turnpike. On the 26th of February 1858, the gate still being at the end of the lane, Hatcher conveyed the rear lot (plaintiff’s) to 0. C. Vandegrift, “ together with the free use, right and privilege of a passage-way, ten feet in width, along Wen die’s line, extending from the Bustleton and Somerton turnpike to the hereby granted premises, with free ingress and regress at all times hereafter for ever.”
    On the 14th of June 1862, the Vandegrift lot was sold by the sheriff and conveyed to David Saul; the sheriff’s deed contained the clause in relation to the lane which was’ in the deed to Vandegrift. Through various conveyances the plaintiff became the owner of the lot March 25th 1867, all the deeds containing a grant of the privilege as in Hatcher’s deed to Vandegrift; the gate continued at the turnpike up to the time of the plaintiff’s purchase. Hatcher and his estate owned the lot on the turnpike until March 27th 1869, when it was sold by his administrator under an order of the Orphans’ Court, to the defendant. Yandegrift and Hatcher and the plaintiff and Hatcher had used the gate in common. About March 1870, plaintiff took the gate down and it so continued about ten months; the defendant then put it up. He also brought suit on the 2d of April 1869, before an alderman against the plaintiff here, “ in a plea of trespass in damage to real estate on the 8th of April, the return-day, Connery appeared before the alderman, Brooks not appearing, and claimed “ five dollars and twenty-five cents in trespass for damages done by defendant to plaintiff’s real estate in tearing down and breaking plaintiff’s gate;” judgment was rendered for Connery on the same day for $5.25: after the issuing of an execution, the amount of the judgment was paid by Brooks and received by Connery.
    The cause of action in this case was the erection of the gate by the defendant at the turnpike end of passage.
    The court directed a verdict for the plaintiff, reserving these points:—
    1. Whether or not the putting up of the gate by the defendant was an obstruction to the plaintiff’s “ free use, right and privilege of a passage-way ten feet wide along Wendell’s line.”
    2. Whether the judgment obtained by the defendant against the plaintiff before Alderman Joseph H. Comly, barred the plaintiff from recovery in the present action.
    The jury found for the plaintiff.
    The court in banc afterwards entered judgment for the plaintiff on the verdict on the reserved points, Hare, P. J., delivering the following opinion:—
    “ The plaintiff is the owner and occupier of a messuage in the neighborhood of Philadelphia. It stands back from the road, and the only access to it is through the defendant’s land. Both parties claim under John Hatcher, who was the owner of a tract of land' near the Second Street turnpike. In the year 1858, J. Hatcher sold and conveyed the premises to Yandegrift, with the free use, right and privilege of a passage-way ten feet in width, through the land of the grantor, extending from the house to the turnpike. An execution was subsequently issued against Yandegrift, and his title came through divers mesne conveyances to the plaintiff. It appeared from the evidence given at the trial, that the way which had been laid out when Vandegrift went into possession in accordance with the provisions of the deed, was closed by. a gate at the point where it led into the turnpike. This was presumably done with his consent, and remained without objection until the title vested in the plaintiff. The gate was then taken down by him and put up again by the defendant. The plaintiff then brought suit to recover for the alleged obstruction of the right of way.
    “ The question may be considered as arising solely on the deed, or on the deed in connection with the parol evidence. The words of a grant are to be taken as strongly against the grantor as their «natural import warrants. By the ‘free use, right and privilege of a passage-way,’ we can only understand a way unimpeded by any means whatever. If the plaintiff can erect one gate he may put up another, or close the access to the road by movable bars. It has been said that some precaution of the kind was requisite to prevent cattle from trespassing on the lot through which the way passed. If the gate was the only means of effecting this object it does not follow that it could be used. But there are other methods which might have been resorted to, as for instance, a fence separating the lane from the field. That this would be more expensive and less convenient than a gate, is no reason for detracting from the words of the grant. The question is not one of good neighborhood, but of legal right.
    “ We are also clear, that the deed is not varied by the parol evidence. When the ambiguity is latent, and results from the application of the instrument to the matter in hand, the contemporaneous acts and declarations of the parties may sometimes be taken into view in arriving at a conclusion. Such evidence, however, has never been thought admissible when the question is what was intended, and not to what the intention applies. This is peculiarly true when the words are clear, and admit grammatically of but one construction. That Yandegrift suffered the gate to be erected and allowed it to remain without objection would not have precluded him from requiring it to be taken down unless the adverse use had continued for twenty-one years, and the plaintiff cannot be in a worse position than the persons under whom he claims. It was at the most an admission, which, if made in terms, would not have controlled the construction of the deed: Hamilton v. Neel, 7 Watts 517, 520; The Boston Hat Co. v. Messinger, 2 Pick. 223; The Bank v. McFarland, 5 Hill 432, 436.
    “ On the remaining question, whether the plaintiff is precluded by a judgment in a former suit growing out of the same matter, although not for the same act, before a justice of the peace, it is enough to say, that a magistrate can have no jurisdiction by consent or otherwise, to determine the title to land.”
    The defendant took out a writ of error and assigned for error, the entering of judgment for plaintiff on the reserved points.

      W. Hopple, for plaintiff in error.
    The plaintiff being the owner of the land subject to the right of way had the right to protect his land by a gate: Maxwell v. McAtee, 9 B. Monroe 20; Capus v. Wilson, 3 McCord 170; Houpes v. Alderson, 22 Iowa 160: and could exercise all the rights of ownership not inconsistent with the easement: 3 Kent’s Com. 420; Washburn on Easements 188, 195; Senhouse v. Christian, 1 T. R. 560; Robbins v. Borman, 1 Pick. 122; Adams v. Emerson, 6 Id. 57 ; O’Linda v. Lothrop, 21 Id. 297; Atkins v. Bordman, 2 Metcalf 467; Chandler v. Goodrich, 9 Shep. 78; Jackson v. Allen, 3 Cowen 220; Underwood v. Carney, 1 Cush. 292. What is such a use must be decided by a jury. Vandegrift took title while the gate was standing, and used it several years in common with Hatcher; the court in construing the deed, will look at the circumstances under which it was made: Johnson v. Kinnicutt, 2 Cush. 152; Atkens v. Bordman, 2 Metcalf 464; Cox v. Freedley, 9 Casey 124; Gloninger v. Franklin Coal Co., 5 P. F. Smith 9. The defendant having had notice of the erection and consent by Vandegrift, is bound by such consent or condition of things at the time he purchased: Campbell v. McCoy, 7 Casey 263; Lacy v. Arnett, 9 Id. 169; Hagey v. Detweiler, 11 Id. 409; Erb v. Erb, 14 Wright 388; Arnold v. Cornman, Id. 361. These matters were for the jury, as well as whether the gate was an obstruction and an interference with plaintiff’s right of way: Johnson v. Kinnicutt, 2 Cush. 153; Houpes v. Alderson, 22 Iowa 160; Kieffer v. Imhoff, 2 Casey 438; Phillips v. Phillips, 12 Wright 178.

      J. H. Sloan and J. G-oforth, for defendant in error.
    A right of way must be complete as granted: 2 Blackstone 36; 3 Id. 218, 241; Co. Litt. 36; Watson v. Bioren, 1 S. & R. 227; Shep. Touch. 88; Washburne on Easements 28. The deed must be construed most strongly against the grantor: Atkins v. Bordman, 2 Met. 463; Wissler v. Hershey, 11 Harris 333. ‘ The defendant in error even if the gate had remained across the lane for some time after he acquired title, would not by permitting it to remain waive any right: Lacy v. Arnett, 9 Casey 169.
   The opinion of the court was delivered, May 17th 1873, by

Williams, J.

We are of the opinion that the court erred in holding that by “the free use, right and privilege of a passageway,” we can only understand a way unimpeded by any means whatever, and that, as a necessary consequence, a gate hung across such way at its intersection with the turnpike, is a wrongful obstruction, for which an action will lie. Undoubtedly, as a general rule, the words of a grant are to be understood in their ordinary and natural sense, and if there is any doubt as to their meaning, they are to be taken most strongly against the grantor. But they are to receive a reasonable construction, and one that will accord with the intention of the parties; and, in order to ascertain their intention, the court must look at the circumstances under which the grant was made: Cox v. Freedley, 9 Casey 124. At the time of the grant in this case, February 26th 1858, there was a gate across the passageway at its intersection with the turnpike, and it continued there, with the exception of the short interval it was out of repair, until the institution of this action in September 1869. What then was the intention of the parties, and what did they mean by “ the free use, right and privileges of a passageway ten feet in width?” Did they mean that it should be an open passageway into the turnpike without any gate at its intersection? If so, why was not the gate removed as soon as the grant was made ? Why was it allowed to remain ? The fact that the gate was there at the date of the grant, and that it was allowed to remain, cannot change the plain meaning of the words of the grant, but it may help us to ascertain the intention of the parties, if there be any doubt as to their meaning. Contemporánea expositio est optima et fortissima in lege. Undoubtedly, the plaintiff was entitled to the free use, right and privilege of passageway ten feet in width, with free ingress and egress at all times, for this is the language of the grant. But what is meant by the free use of a passageway ? Does it necessarily mean that there shall be no gate or door hung across it, or if there is, that it shall always be kept open ? Has not the owner of a passageway its free use if he hangs a gate across it at its intersection with the street? If I grant the free use, right and privilege of the hall of my house, with free ingress and egress at all times, must I take off the door leading into it, or keep it wide open in order that the grantee may have the free use of it ? Or can he not have its free use if he can enter it by opening the door whenever he chooses ? Without doubt I cannot unreasonably obstruct his use of it, but if the door amounts practically to little or no inconvenience, it seems to me that it is not necessarily a wrongful obstruction. Free is a relative term when applied to the use of a thing. It does not follow that I have not the free use of a room because I have to open a door in order to get into it; nor does it follow that I have not the free use of an alley because I have to open a gate to go in and out of it. A gate may be so placed as to be a practical and unreasonable obstruction to the free use of a passageway; and it may be so constructed and placed as not to amount to any practical obstruction to its use. Whether the gate in this case amounted to a wrongful obstructipn was, therefore, a question of fact for the jury. If it was not a practical hindrance, and, under the circumstances, an unreasonable obstruction to the plaintiff’s use of the passageway, then it was not a wrongful or illegal obstruction for which an action will lie.

But the court was right in holding that the judgment in the action of trespass brought by defendant against the plaintiff, for tearing down and breaking the gate, is no bar to the present action. It was for a different cause of action, and did not necessarily involve the defendant’s right to keep up the gate. The plaintiff may have been guilty of trespass in breaking it down, though it is an obstruction to his free use of the passageway.

Judgment reversed and a venire facias de novo awarded.


author: Agnew, J.

text:
    Macky versus Dillinger.
    1. Dillinger consigned goods to Moorehead for sale; he pledged them for a loan to Macky, who knew they were owned by Dillinger: Held, that under the Factor Act of April 14th 1834, Dillinger could recover in replevin without tendering repayment of the loan.
    2. Moorehead had advanced to Dillinger on the goods before pledging them; Dillinger demanded them from Macky, who declined to deliver without payment of his loan, saying nothing of Moorehead's advance. Dillinger might recover the goods without payment of the advance.
    3. Macky gave a property bond and retained the goods; Held, that the amount due on the advance might be recouped from Dillinger’s damages.
    4. When a party declines to accept payment or performance, except in a way to which he is not entitled, he cannot insist that the action is prematurely brought.
    5. There is no set-off in replevin, but if the goods are subject to a charge, it can be enforced by way of recoupment.
    6. The Factor Act construed.
    January 14th 1873.
    Before1 Read, C. J., Agnew, Williams and Mercur, JJ. Sharswood, J. at Nisi Prius.
    Certificate from Nisi Prius: Of January Term 1869, No. 397.
    This was an action of replevin, brought by S. Dillinger & Son against Samuel Macky & Co., for 40 barrels of whiskey, of the value of $2500. The defendants gave a claim-property bond and retained the goods; they pleaded “non ceperunt” and “property in themselves.”
    The plaintiffs were manufacturers of whiskey in Westmoreland county, and in February 1869 consigned to Moorehead & Co., who were commission merchants, 50 barrels of whiskey, to be sold for plaintiffs at $1.60 per gallon. Moorehead & Co. sold 10 barrels of the whiskey, and pledged the remaining 40 barrels, with other goods, to the defendants to secure a loan of $3700, made by them to him.
    The cause was tried March 21st 1871, before Agnew, J.
    J. L. Dillinger, one of the plaintiffs, testified that he called on defendants before suit, and demanded the whiskey; they refused, saying there was an order against it in favor of Craycraft & Co., and that they had made an advance of $3700 on different lots of goods including this; that they were willing to deliver the whiskey to witness, upon paying the advances they had made, and getting the order of Craycraft & Co. out of the way.
    The defendants called G-. Raphael, their book-keeper, who testified that the whiskey was received as the property of Moorehead & Co., and they knew of no one else being the owner; the whiskey was sold, the account-sales made out to Moorehead & Co., June 10th 1869, and the net proceeds credited to them; the whiskey came into plaintiffs’ hands in the usual course of business, and was so treated. The proceeds of the sale of the whiskey were $2002.13 gross; of all the goods $5333.21, gross off $538.65; the freight on all the goods was $117.36.
    When the whiskey was received by defendants, Moorehead & Co. gave them the following paper:—
    “Received and borrowed from Samuel Macky & Co., $3700, for which we hereby hypothecate the following described goods and merchandise, to secure the payment within 30 days of the aforesaid $3700, viz.: 44 barrels of Moss & Fox whiskey, 40 barrels of S. Dillinger & Son whiskey, and ten barrels of Dillinger & Stevenson whiskey. The whole 94 barrels being valued at and covered by their policy of insurance for $6500.
    “We hereby authorize the said Samuel Macky & Co. to sell the said whiskey, or any part thereof, in default of the payment of the aforesaid loan at its maturity.
    Philada., Feb. 13th 1869.
    Moorehead & Co.”
    The order in favor of Craycraft & Co. was as follows:—
    “Philadelphia, February 24th 1869.
    Messrs. S. Macky & Co., 1232 Market St., Philadelphia:
    Please hold subject to the order of B. B. Craycraft & Co., the balance of whiskey in your hands, received for account of Moore-head & Co., Craycraft & Co. paying advance and charges.
    Moorehead & Co.”
    They called J. R. Moorehead, of the firm of Moorehead & Co., who testified: “I received 40 barrels of whiskey from plaintiffs on consignment to sell, and advanced on them about $1500 to the plaintiffs; defendants advanced $3700 on this and other property.”
    On cross-examination witness said, “ I told defendants that the 40 barrels were consigned to us by the plaintiffs, that their limit to us was $1.60 per gallon; defendants might sell at that price and I would divide the commissions with them; the advance of $1500 was on 50 barrels; I had sold 10 barrels to Geisinger & Co.; this sale amounted to nearly $700; this would have been a credit on the $1500.”
    S. Macky, defendant, testified, That the goods had been received in the course of their business, and he thought Moorehead & Co. had a right to dispose of them; the plaintiffs’ mark was on the barrels. When Dillinger called he seemed to think he would take the amount over defendants’ advances; witness understood plaintiff had no claim but for the excess.
    The parties each submitted a number of points ; the questions decided will however sufficiently appear in the charge, and in the opinion of the Supreme Court.

      The court charged :—
    “ This case falls within the Factor Law of 14th April 1834. The plaintiffs manufactured the whiskey in dispute and consigned it to Moorehead & Co. of this city for sale, limiting the sale at $1.60 a gallon. Moorehead & Co. pledged the 40 barrels of whiskey in dispute with other property to secure a loan of $3700, raised from Macky & Co., on the 13th February 1869. These are facts about which there is no dispute. There is evidence tending to show that Moorehead & Co. advanced $1600 to the plaintiffs on a lot of 60 barrels, of which the 40 barrels are a part, and sold the 10 barrels for about $700, which would reduce the advance to about $800. There is also evidence tending to show that the defendant knew at the time of the loan of the $3700, that the 40 barrels in dispute had been consigned by the plaintiffs to Moore-head & Co. for sale. Mr. Moorehead testifies that he told Mr. Macky of the consignment, and offered to divide the commissions on the sale with him.
    “ These facts are. for the jury to decide on the weight of the evidence.
    “ The first and principal question of fact to be decided by the jury is whether Macky, the defendant, knew at the time he took the 40 barrels of whiskey in pledge for the payment of the $3700,, that the whiskey was held by Moorehead & Co., on consignment from the plaintiffs for sale by them as the factors of the plaintiffs.
    “ If you find that Macky did not know of the plaintiffs’ ownership of the whiskey, he would be entitled to hold the whiskey under the Factor Act as though it were the property of Moorehead & Co., for the loan made upon the pledge of it by Moorehead & Co., and the plaintiffs having declined to pay Macky’s advance upon it cannot recover.
    “In that case Macky would be an innocent holder, and could retain the whiskey on the terms of the writing of the 13th February 1869. But if you find that the defendant did know of the consignment and ownership of the plaintiffs, the defendant would under the act have no greater right to retain the whiskey than Moorehead & Co. would; that is until their advance was refunded by the plaintiffs, or the balance due on the advance.
    “ The Factor Act enables the plaintiffs to follow their property into the hands of the defendant, as pledgee of the whiskey, upon tendering the advances they have received from Moorehead & Co. To this extent, therefore, the defendant taking the whiskey in pledge with knowledge of plaintiffs’ right, had a right to retain the whiskey. But if the defendant with this knowledge of the plaintiffs’ ownership at the time of the loan of the $3700 to Moorehead & Co., upon demand being made by the plaintiffs, refused to deliver the whiskey unless the $3700 were paid, and unless the order from Craycraft & Co. was lifted or put out of the way by the plaintiffs, this refusal insisting on terms not binding on the plaintiffs, would be a waiver of the tender of the advance or balance of advance made by Moorehead & Co. on the whiskey to the plaintiffs. In that case the'defendant having no right to demand these conditions, can now be permitted only to recoup the advance of Moorehead & Co. (or the balance unpaid) from the damages. But the right of the defendant to recoup the advance of Moore-head & Co. from the damages is, I think, a fair inference from the Factor Law, especially the latter part of the 4th section of the Act of 14th April 1834.
    “ If you find á verdict for the jolaintiffs under these instructions, you will assess the damages of the plaintiffs at the value of the whiskey at the time of the demand by the plaintiffs, after allowing by way of recoupment the sum due by the plaintiffs to Moorehead & Co. for advances, with interest from the time of demand.”
    The Factors’ Act of April 14th 1834, Pamph. L. 375, 1 Br. Purd. 664, is as follows:—
    “ Sect. I. Whenever any person intrusted with merchandise and having authority to sell or consign the same, shall ship or otherwise transmit the same to any other person, such other person shall have a lien thereon—
    , “ For any money advanced * * * on the faith of such consign-
    ment, to or for the use of the person in whose name such merchandise was shipped or transmitted. * * *
    “ Sect. II. But such lien shall not exist for any of the purposes • aforesaid, if such consignee shall have notice by the bill of lading or .otherwise, before the time of such advance or receipt, that the person in whose name such merchandise was shipped or transmitted is not the actual owner thereof.
    “ Sect. III. Whenever any consignee or factor, having possession of merchandise, with authority to sell the same, * * * shall deposit or pledge such merchandise, or any part thereof, with any other person, as a security for any money advanced * * * by him on the faith thereof; such other person shall acquire by virtue of such contract the same interest in and authority over the said merchandise, as he would have acquired thereby if such consignee or factor had been the actual owner thereof: Provided, That such person shall not have notice by such document or otherwise before the time of such advance or receipt, that the holder of such merchandise or document is not the actual owner of such merchandise.
    “ Sect. IY. If any person shall accept or take such merchandise from any such consignee or factor, in deposit or pledge for any debt or demand previously due by or existing against such consignee or factor, and without notice as aforesaid, and if any person shall accept or take such merchandise from any such consignee or factor, in deposit or pledge, with notice or knowledge that the person making such deposit or pledge is a consignee or factor only, in every such case the person accepting or taking such merchandise or document in deposit or pledge, shall acquire the same right and interest in such merchandise as was possessed or could have been enforced by such consignee or factor against his principal at the time of making such deposit or pledge, and no further right or. interest.
    “ Sect. V. Nothing in this act contained shall be construed or taken—
    “ I. To affect any lien which a consignee or factor may possess at law, for the expenses and charges attending the shipment or transmission and care of merchandise consigned, or otherwise intrusted to him.

      “ II. Nor to prevent the actual owner of merchandise from recovering the same from such consignee or factor, before the same shall have been deposited or pledged as aforesaid, or from the assignees or trustees of such consignee or factor, in the event of his insolvency.
    “ III. Nor to prevent such owner from recovering any merchandise so as aforesaid deposited or pledged, upon the tender of the money * * * so advanced or given to such consignee or factor, and upon tender of such further sum of money, * * * if any, as may have been advanced or given by such consignee or factor to such owner * * *
    IV. Nor to, prevent such owner from recovering from the person accepting or taking such merchandise in deposit or pledge, any balance or sum of money remaining in his hands as the produce of the sale of such merchandise, after deducting thereout the amount of money * * * so advanced or given upon the security thereof as aforesaid.”
    The verdict was for the plaintiffs for $2545. The defendants had the case certified to the court in banc, and assigned nineteen errors to the charge of the court and the answers to the points.

      S. HoocL and Porter, for plaintiffs in error.

      Cr. S. Selden, for defendants in error.
   The opinion of the court was delivered, January 27th 1873, by

Agnew, J.

This was an action of replevin for forty barrels of whiskey. Dillinger & Son were distillers in the western part of the state, and consigned the whiskey to Moorhead & Co., of Philadelphia, for sale. Moorhead & Co. pledged the whiskey to Macky for the repayment of a loan .of $3700. The instrument of hypothecation embraced other whiskey pledged for the same loan, including ten barrels testified to belong to Moorehead & Co. themselves. On the trial, James R. Moorhead, who transacted the business, testified that he had told Macky that the forty barrels of whiskey were consigned to them by Dillinger & Son, for sale at a limit of one dollar and sixty cents a gallon. The question of Macky’s knowledge of the ownership of the whiskey by Dillinger & Son, was submitted to the jury, with the instruction that if he did not know of the consignment by Dillinger & Son to Moore-head for sale, when he took the hypothecation, that the plaintiffs could not recover. The verdict establishes the feet of Macky’s knowledge. This, therefore, raised the principal question in the cause, the defendant claiming the right of a consignee for sale, to pledge the goods for a loan to himself, made even with a knowledge that the consignee was not the owner, and had no authority from the owner to hypothecate. In Lausatt v. Lippincott, 6 S. & R. 386, it was said by Chief Justice Tilghman, “ that a factor cannot pledge the goods of his principal for his own debt, seems to be too well settled to admit of dispute.” He regretted that this will put it in the power of the factor to deceive innocent persons who deal with him bonfi fide, and on valuable consideration, for he says, “it bears extremely hard upon persons who deal with a factor, ■without a possibility of knowing that the goods do not belong to him.” The Revisers, who reported the Factors’ Act, passed on the 14th of April 1834 (1 Br. Purdon 664),referred to this case in their report, and to the alteration of the common-law rule by the statute of 6 Geo. IV., c. 94, passed in the year 1825, which they took as the foundation of the Factors’ Act reported by them. They say, also, that “ the evil complained of by the Board of Trade of Philadelphia, and by the mercantile community in general, is, tha,t consignees and factors authorized to sell the goods of their principal, and who are held out to the world as the owners thereof, have not power to pledge the goods in their possession, for advances made by persons who have every reason to believe that they are the actual owners.” They then add, “ now we would apply a remedy for this particular evil, but we think that it would not be prudent at present to go further, lest evils should be produced on the other side.” In remarking upon the third section, they say “ it is intended to protect all persons, who, in the ordinary course of business may have lent or advanced money to consignees or factors, authorized to sell goods of their principal, without knowledge that they were not the actual owners of the goods.” “ The phraseology of this section (the report adds) is designedly guarded, and we have thought it best to limit the power of factors more than we find it expressed in the statutes of England and New York, which we have alluded to.”

We have been referred by the plaintiff in error to the case of Navulshaw v. Brownrigg, 13 Law and Equity Reports 262, in support of the right’ of Mr. Macky to take the goods in pledge for a loan, even with the knowledge of Moorehead & Co. being consignees for sale only. That case, however, is decidedly against him, it being decided on the force and effect of the statute of 5th and 6th Victoria, ch. 39, which has not been adopted in this state. The Lord Chancellor states there the common-law rule, and the statute of 4 Geo. IV., ch. 83, and 6 Geo. IV., ch. 94, and commenting on the statute of 6 Geo. IV., said: “ So that the statute enabled the agent as regarded third persons, to sell or pledge provided the persons with whom he pledged did not know that he (the person that pledged) was not the actual and bond, fide owner of the property.”

With these guides to the interpretation of the Factors’ Act of 1834, it would not be difficult to arrive at its meaning, if the language were more doubtful than it is. But the language is clear. The pith of the act is contained in the first and third sections. But the second section and the proviso to the third section, expressly except the case of one having notice by the bill of lading document or otherwise, that the person in whose name the merchandise was shipped, or transmitted, or who is the holder, is not the actual owner thereof. The fourth section is equally explicit; for one who accepts a pledge for a pre-existing debt, without notice, or one who takes the pledge with notice, shall acquire the same interest only in the merchandise, as the factor himself had at the time of making the pledge. The purpose of the 4th section, say the revisers, was to reserve to the person taking on deposit, goods for a precedent debt, without notice, or for any debt with notice, of the person being only a factor, all the rights of the factor over the property as against his principals, which might be supposed to be impaired by the preceding section. The 5th section is also intended (they say) to prevent the preceding sections from operating injuriously to existing interests. An examination of the several clauses in the 5th section, bears out the intent as obvious in the clauses themselves, and furnishes at’ once the answer to the argument of the plaintiffs in error, which sought to give an extension to the pledgee’s rights by these clauses, instead of the protection they are designed to give to existing rights of the owner as well as the factor. On the trial of the cause, the defendant, Macky, rested his case wholly upon his right to hold the whiskey for his entire claim of $3700. Neither at the time of the demand of the goods by Dillinger, nor on the trial, did he set up any claim for the advances made by Moorehead & Co., but'the jury were instructed by the judge, that if they found Macky had notice of the ownership of the whiskey, they would still allow the defendant for the advances made by Moorehead & Co. .to Dillinger & Co. on the whiskey, or whatever balance was unpaid by way of recoupment from the damages. It was insisted in the argument, that, although no claim was made for freight or storage, and no attention called to them, the judge erred, because the language of his charge would, in effect, restrict Macky’s claim to the advances of Moorehead & Co., and the sum of $117.86, contained in Macky’s account of sales, as charges for freight, ought to have been allowed. But evidently, the language was not intended to lay restrictions on the extent of the recoupment. The whole subject of the charge was upon the right of Macky to hold the whiskey in pledge for the repayment of the loan of $3700, and when it was said, the defendant in that case, having no right to demand these conditions, can now be permitted only to recoup the advance of Moorehead & Go. from the damages, it is clear this was by way of contrast of these two aspects of the case, and not to limit the rights of Macky to any claim he could legally set up by way of recoupment. It was his own fault, therefore, if he did not claim the freight.. But in fact, as the evidence stood, he had no such claim on this whiskey. The hypothecation shows, that Macky had taken three lots of whiskey in pledge, of which, the testimony proved, that ten barrels were the property of Moorehead & Co. The account of sales shows that the. gross proceeds of the three lots amounted to $5333.26; and gross off, $538.65; of this gross, the $117.36 was the freight on the whole. Thus, by his own showing, the freight was paid by the charge in the account; while the ten barrels of Moorebead’s whiskey were ample to pay all expenses. No attempt was made to prove how much, if any, of this charge for freight applied to the forty barrels of. Dillinger & Son’s whiskey, and besides this, Macky’s knowledge of Dillinger & Son’s ownership of the whiskey being found by the verdict, how can a charge for expenses incurred by Macky in the transfer and storage of the whiskey, as a pledge in violation of Moorehead & Co.’s authority, stand on a higher ground than the loan itself; viewed in any aspect, therefore, the charge, in this respect, did the plaintiff no harm.

The only question remaining which we need notice, relates to the tender said to be necessary. Macky refused to deliver the whiskey unless Dillinger & Son paid him the loan of $3700, and' put the Craycraft & Co. order out of the way._ In charging that this refusal, and insisting on terms not binding on the plaintiffs, would be a waiver of a tender of the advance made by Moorehead & Co., clearly the judge did not mean to say that it was a waiver of Macky’s right to these advances, but only of a tender as an act precedent to a suit; the instruction following immediately, to allow Macky the advances by way of recoupment, proves this. The instruction was according to the general doctrine of tender, that when a party declines to accept payment or performance, except in a particular way, to which he is not entitled, he cannot insist that the action is prematurely brought. Macky would deliver the whiskey only on his own terms, and these terms the verdict shows he was not entitled to demand. This necessarily left his rights to be determined by this suit. Set-off does not exist in replevin, but when the goods are the subject of a lien or charge, the charge upon them can be enforced by way of recoupment, for the charge is inseparable from the thing itself, and therefore, when the value of the thing is to be allowed in damages, the charge necessarily reduces the damages by way of a recoupment, in order to do justice to both parties. As to the order to Craycraft & Co., there was no evidence given to show that it had fastened upon the whiskey, by such a boná fide sale or pledge as would attach to the property, and enable Mackey to use the title of Craycraft & Co. to defend his possession.

We discover no error, and the judgment is therefore affirmed.


text:
    Hacker versus The National Oil Refining Co.
    1. By the Act of July 18th 1863 (Manufacturing Companies), a note given after the organization of the company for additional stock, is valid notwithstanding the provision in the act that “ no note given by a stockholder be payment of any part of the capital stock.”
    2. A note was given for additional stock in a manufacturing company; Held, that evidence of a parol agreement when the note was executed that it was not to be paid except on a contingency, was inadmissible.
    3. Hacker subscribed for additional stock in a corporation and she gave her note for the amount; a certificate was tendered her and refused and no credit was given her in the stock ledger: Held, the note was not without consideration ; she had the right to demand and receive the stock.
    4. Anspach v. Bast, 2 P. F. Smith 356 ; Erie & W. Plank Road v. Brown, 1 Casey 156; Phila. & W. C. R. R. v. Hickman, 4 Casey 318, followed. Hibernia Turnpike v. Henderson, 8 S. & R. 219; Leighty v. Susquehanna, &c., Turnpike, 14 S. & R. 434, distinguished.
    January 15th 1873.
    Before Read, C. J., Agnew, Williams and Mercur, JJ. Sharswood, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 4, to July Term 1870.
    This was an action of assumpsit by The National Oil Refining Company against Harriet B. Hacker. The writ was issued to March Term 1869 of the court below.
    The cause of action was a promissory note for $2041, dated October 10th 1866, drawn by the defendant, payable four months after date to the order of James H. Stevenson, endorsed by him and held by the plaintiffs.
    On the trial, May 3d 1870, before Stroud, J., the plaintiffs gave the note in evidence and rested.
    The defendant offered to prove, that she was a subscriber for 500 shares of the stock of the National Oil Refining Company; that she was solicited by the said Stevenson, then the treasurer of the said company, to subscribe for additional shares of the stock of said company, at $10 per share; that she agreed with him orally to subscribe for 200 additional shares, provided she should receive $2000 from Jeremiah L. Hutchinson, in part payment of his bond and mortgage to her, of which $2250 would become due November 18th 1866. That this note was given by her on the 10th of October 1866, at the instance of the said Stevenson, who drew it up for her signature, and was for the par value of the shares of stock with interest from date to the maturity of the note; that Mr. Hutchinson paid no part of this sum of money before the maturity of the note, nor until the year 1868; that having failed to receive the payment from him, she notified said Stevenson that she declined to take the stock ; that she never received any certificate of the stock; that this note was taken in payment of such stock, and that there was no credit to her on the books of the company of this stock.
    The court refused the offer, and sealed a bill of exceptions.
    James H. Stevenson testified: “lam treasurer of the plaintiffs; on the 10th of October 1866, this note was given for a subscription for stock of the company, made by a nephew of hers, Wm. B. McMain, at a meeting called at the National Oil Refining Company’s works; Mrs. Hacker subscribed through him, at a stockholders’ meeting called in August 1866, for obtaining additional working capital. The subscription was not made in writing, but in the presence of the stockholders, and a record was made at the time by the secretary. It was announced at the meeting that subscriptions for additional stock would be made, and Mr. McMain announced his subscription of 200 shares for Mrs. Hacker. A certificate of 200 shares was tendered to Mrs. Hacker. It was announced that a subscription of a former subscriber would entitle the subscriber to have the stock at $8 a share. I wrote the date and amount. Mr. McMain brought the note to me signed. I called upon her afterwards and showed it to her, and she said it was all right. Mr. McMain filled up the blank with my name.”
    Defendant called Henry C. Stevenson, who testified that he was the secretary of the said company. The stock register of said company showed the following entry: “ Harriet B. Hacker, October 13th 1866, for 500 shares.” There was no other entry relating to Mrs. Hacker in it, except one in pencil in these words, “H. B. Hacker refuses to accept.” The note in suit did not appear in the balance-sheets of the company for the years 1866, 1867, 1868 and 1869; he had never stated to Mr. Washington Bladen or Mr. Robert L. Allen that the note in suit was a private matter of Mr. James H. Stevenson, and that the company had nothing to do with it.
    The defendant called Robert L. Allen, and offered to prove by him that the said Henry C. Stevenson had said to him, in answer to an inquiry made by him as the attorney in fact of the defendant, that the note in suit was a personal matter of Mr. James H. Stevenson, and not the property of the company.

      To the admission of this offer the plaintiffs objected; it was rejected by the court, and a bill of exceptions sealed.
    The defendant gave in evidence letters patent, showing the incorporation of the plaintiffs under the Act of July 18th 1863 (Pamph. L. 1864, 1102, 2 Br. Purd. 1407).
    The defendant’s points were:—
    1. Under the provisions of the Act of 18th July 1863, the plaintiffs were not authorized to take a promissory note in payment for stock subscribed. Consequently, if the note in suit was given by defendant in payment for stock agreed to be subscribed by her, no recovery can be had upon it.
    2. If the note in suit was given by defendant for shares of stock verbally agreed to be subscribed by her, it could not, under the provisions of the Act of 18th July 1863, be considered as payment therefor ; consequently no title to the stock passed to her. She did not become a holder of such stock, or entitled to the rights and privileges of a stockholder. There was no mutuality of obligation. The note was without consideration, and no recovery can be had on it. The plaintiffs’ remedy, if any they have, is on the alleged agreement to subscribe, and not on the note.
    Both points were refused, the judge saying that he did not consider anything thus presented to him as matter of defence.
    The verdict was for the plaintiffs for $2434.57.
    The following are sections of the Act of July 18th 1863:—
    “ Sect. 11. The capital stock of every company, the amount whereof has been fixed and limited by such company according to law, shall remain so fixed, subject to be increased or reduced pursuant to the provisions of this act.
    “ Sect. 13. Every company may at any meeting called for that purpose, increase its capital stock, and the number of shares therein, &c.
    “Sect. 16. Every company may,.from time to time, at a legal meeting called for the purpose, assess upon each share of stock such sums of money as the company may think proper, not exceeding the whole amount at which each share was originally limited. And such sums assessed shall be paid to the treasurer at such times and in such instalments as the company directs, and no note or obligation given by a stockholder, whether secured by pledge or otherwise, shall be considered as payment of any part of the capital stock.
    “ Sect. 17. If the proprietor of any share neglect to pay a sum duly assessed thereon, for the space of thirty days after the time appointed for payment, the treasurer of the company may sell by public auction, a sufficient number of the shares to pay all assessments then due, &c.”
    The defendant removed the record to the Supreme Court, and assigned for error:

      1 and 2. Rejecting the defendant’s offer of evidence.
    3 and 4. Refusing to affirm the defendant’s points.

      J. Oadwalader and F. S. Miller, for plaintiff in error,
    cited as their first point, Hibernia Turnpike Co. v. Henderson, 8 S. & R. 219; Leighty v. Susquehanna & W. Turnpike Co., 14 Id. 434; Ogle v. Somerset, &c., T. R. Company, 13 Id. 256; President, &c., v. McConahy, 16 Id. 147; Clark v. Monongahela Navigation Company, 10 Watts 364.
    On the second point, Essex Turnpike v. Collins, 8 Mass. 292; Taunton Turnpike v. Whiting, 10 Id. 327.

      T. F. Qlayton, for defendants in error.
   The opinion of the court was delivered, May 17th 1873, by

Williams, J.

There was no error in rejecting the offer of evidence set out in the bill of exception embraced in the first specification. It was an offer to prove in substance a contemporaneous parol agreement at variance with the written contract, without any allegation or offer to show that the note was given or obtained by fraud or mistake. It is too well settled to admit of doubt that such evidence is inadmissible: Anspach v. Bast, 2 P. F. Smith 356. It did not tend to prove that the consideration for which the note was given had failed. There was no offer to show that the company had no stock which it was authorized to issue or sell, and it was not bound to transfer the stock on its books, or to deliver a certificate therefor to the defendant until the payment of the note. Nor was there error in rejecting the offer embraced in the second specification. If the evidence was offered for the purpose of contradicting the testimony of Henry C. Stevenson, the secretary of the company, it was rightly rejected, for it was not competent for the defendant to contradict the testimony of her own witness. If it was offered as a declaration or admission binding the company, it was inadmissible, because it was not within the scope of his authority, or in the course of his business as secretary of the company; and it was not offered to be shown that he had express authority to make the declaration.

The next specification presents the question, whether the company was authorized under its charter to take a promissory note for the stock subscribed by the defendant, and whether a recovery Can be had thereon in this action ? The company was organized under the Act of 18th of July 1863, Pamph. L. 1864, p. 1102, the 16th section of which provides “that every company may, from time to time, at a legal meeting called for the purpose, assess upon each share*of stock, such sums of money as the company may think proper, not exceeding in the whole the amount at which each share was originally limited; and such sums assessed shall be paid to the treasurer at such times and in such instalments as the company directs; no note or obligation given by a stockholder, whether secured by pledge or otherwise, shall be considered as payment of any part of the capital stock.” It is strenuously contended that under the latter provision of this section, the company had no authority to take the note in payment of the defendant’s subscription. But the clause does not in terms forbid the corporation from taking a note or obligation from a stockholder. On the contrary, it impliedly admits the right, but declares that no such note or obligation, however secured, shall be considered as payment of any part of its capital stock; and the reason is found in the next section, which authorizes the sale of the stock for nonpayment of the assessments for the space of thirty days after the time appointed for payment. It is obvious that if a note given for the assessments was to be considered as payment, the authority of sale could not be exercised. The cases of the Hibernia Turnpike Road Co. v. Henderson, 8 S. & R. 219, and Leighty v. The Susquehanna and Waterford Turnpike Co., 14 Id. 434, have no application to the subscription in this case. In each of these cases the subscription was made to the commissioners prior to the organization of the company, under acts of incorporation requiring the payment of a specific sum on each share subscribed at the time of making the subscription.

In one case the subscriber paid nothing, and in the other gave a note for the amount required to be paid, and the subscriptions were held to be void, and the company not entitled to recover thereon. And why ? For the simple reason that the giving of a note was not payment of money within the meaning of the act, and a subscription without such payment conferred no rights on the subscriber, and therefore, neither the commissioners iior the future company would enforce payment by action.

But here the defendant’s subscription was made to the company after it was organized, under an express authority given by the act, to increase its capital stock; and therefore, as ruled in The Erie and Waterford Plank Road Company v. Brown, 1 Casey 156, and The Philadelphia & West Chester Railroad Company v. Hickman, 4 Id. 318, it had authority to accept subscriptions on such terms, as to time and mode of payment, as might in the exercise of a sound discretion be regarded for the best interests pf the company. Nor was the note without consideration. It was given for the stock subscribed by the defendant, and though it was, not transferred on the company’s books, nor a certificate therefor delivered to the defendant at the time the note was given, she was entitled to demand and receive the stock on payment of the note. The contract was mutually obligatory. The defendant was bound to pay the note when it became due, and the company was bound to transfer and deliver to her the stock for which she subscribed: and the evidence shows that before bringing suit the company tendered her a certificate for the stock.

Judgment afiirmed.