author: Sharswood, J. Williams, J.

text:
    Thompson, Executor of Shalkop, versus Stevens.
    1. On a trial an attorney, in discussing a question of evidence, stated in the hearing of the jury matters not evidence ; the court refused the motion of the other side to withdraw a juror. Held, to be in the discretion of the court below, and not reviewable on error.
    2. In an action for services of plaintiff in nursing, &¡a., a feeble man,' Held, proper to ask a witness whether plaintiff’s appearance did not show her constitution broken down by her duties.
    3. Contracts with nurses, housekeepers, &c., sought to be enforced after the death of the person to whom the services were rendered, ought to be very closely scanned, and juries instructed that they could be made out only by very clear proof.
    4. The correction of verdicts not founded on such proof, or unreasonable in amount, is confided to the sound legal discretion of the court below.
    5. Such contract must possess the element of certainty.
    6. The maxim, Id cerium est quod cerium reddi potest, applied.
    7. The promise to the plaintiff was, “ If she would stay with him as long as he lived, he would provide and give her full and plenty after he was gone, so that she need not work.” This was sufficiently certain and definite.
    8. The measure of amount would be what would keep her without work, taking into consideration her condition in life.
    9. Where services are gratuitously rendered under expectation of a legacy, there can be no contract and therefore no recovery for the services.
    10. Where one does services on request, no matter what his expectations were, there may be a recovery for them.
    11. Graham v. Graham, 10 Casey 475 ; Sherman v. Kitsmiller, 17 S. & R. 45 ; Roberts v. Swift, 1 Yeates 209, remarked on.
    March 1st 1872.
    Before Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Error to the District Court of Philadelphia: No 145, to July Term 1871.
    This was an action of assumpsit, brought April 29th 1870, by Rebecca M. Stevens against John P. Thompson, surviving executor of Abraham Shalkop, deceased.
    The declaration was in the common counts. The bill of particulars was as follows:
    Plaintiff’s claim is for services rendered to Abram Shalkop as housekeeper, nurse, and confidential business agent, for ten years prior to his death, at one thousand dollars per year, $10,000.
    The pleas were non assumpsit and payment, and the Statute of Limitations.
    The case was tried June 2d 1871, before Lynd, J.
    The evidence for the plaintiff was that about the year 1861, she went to live with decedent, and lived with him till his death, February 24th 1870: he was then eighty-seven years old; that besides the feebleness of age, he had fallen and injured himself, and during the time she was with him bad had a paralytic stroke. The wife of the decedent had died six or seven years before him : before the wife’s death the plaintiff helped to do all the general housework and afterwards took charge of the house, “ the same as any one would be as a wife:” that she attended to his money affairs; and transacted business with those who came to see him, about it; by reason of his paralysis his speech was affected so that he could not be understood by those coming to see him, and she had to interpret; that she also nutsed him, put him to bed, and attended to him generally; some of the duties performed in doing this were very offensive and laborious, doing “ what it took a man’s strength to do.”
    There was' evidence that he said if she would stay with him he would reward her for it in the future; that she had been a very good girl, and he intended to provide for her after his death so that she need not want: that she was a good girl, he oould trust her and wished her to stay with him while he lived; if she stayed with him he would reward her at his death; he would provide well for her if she would stay with him: that he said: “ I cannot spare her; if she is not able tó do the work, but stays here and sees to my house, and if she is never able to work again, she will have plenty to live on; I intend to provide abundantly for her, that she may have plenty to live on after my death, if she is not able to work.”
    One witness testified: “ He asked if I thought Eebecca would stay, and I told him I did not know, she must decide for herself. He said if she would not stay, he would have to break up housekeeping. I told him to ask her, and he said he would ask her, and he did ask her; and he said then that, if she would stay with him as long as he lived, he would provide and give her full and plenty after he was gone, so that she need not work. * * * And he said he never had anybody that done like she did — never; and I says, then, if she is a good girl why don’t you do something now; and he said I will never set her any wages. I will give her full and plenty when I am gone; there is enough for the others, plenty for all. I will give her plenty then; and I told him, well, he ought to do it now.”
    Another witness testified: “ He told her he would leave her independent of all work, when he was dead; he cried on and off during the day, for fear she would go; towards afternoon she promised she would stay.”
    Another said: “ He told me that he could trust her with anything ; and in a conversation we had at one time that she talked of going away, he didn’t want to lose her; that he could not do without her; that he wanted her to stay with him until he died, and after his death he would leave her comfortable; leave her enough to keep her without work; I think he told me that in two instances.”
    In the course of the trial, in a discussion on admissibility of evidence, as to the extent of the decedent’s estate, one of the counsel with the plaintiff said: “ I want to show that this old gentleman was worth $150,000; that his interests were scattered far and wide, that he was exposed to the peril of constant impositions, if he had not precisely this sort of care. I want to do that as part of the measure of compensation.”
    The defendant’s attorney moved to withdraw a juror, on'the ground that the counsel had made a statement of what was inadmissible as evidence. The court declined to withdraw a juror, and sealed a bill of exceptions.
    The defendant gave in evidence the will of the decedent, dated December 21st 1867, by wbicb a legacy of $2000 was bequeathed to the plaintiff, and proved that the executors had paid it to her, less the collateral inheritance tax.
    They called a number of witnesses to show the character and value of her services, and generally in answer to the plaintiff’s case. On cross-examination the plaintiff asked one of the witnesses : “ Whether her appearance did not show her constitution broken down by her duties at that time.” The question was objected to by defendant, admitted, and a bill of exceptions sealed.
    There was evidence-also tending to show that the services were rendered in expectation of being remunerated by a legacy.
    The defendant requested the court to charge:
    1. That if the jury believe, from the evidence, that the services rendered by the plaintiff to the decedent, were rendered in the expectation of being compensated by a bequest or legacy, she cannot recover.
    2. That if the jury believe, from the evidence, that the services of the plaintiff were rendered in part in expectation of a legacy, which she has actually received, she cannot recover further.
    5. That under no circumstances can the plaintiff recover for any services rendered more than six years before the commencement of her action.
    6. That if the jury believe that the services of the plaintiff, after deducting payments to her, were not worth more than the amount of her legacy, the legacy is presumed to be a satisfaction of the debt.
    7. That if the jury believe from the evidence that the services of the plaintiff were rendered under a contract to be compensated by a legacy, the amount of compensation was discretionary with the testator, and the plaintiff can recover no more than the legacy given her by his will.
    8. That if the services were to be compensated by a legacy, the plaintiff cannot recover unless no compensation were made by the will.
    9. That if the jury believe, from the evidence, that the plaintiff remained with Abraham Shalkop until his death, and performed services for him under a promise by him that, as regards payment for such services, he would make it all right in the future, that he did bequeath to her a legacy of two thousand dollars by his will, and that she accepted said legacy; then the law will treat the acceptance of the legacy as in satisfaction of whatever the testator may have been indebted to her for her services, and the plaintiff cannot recover.
    The court charged: * * .* “If there were nothing more in the case than simply that this plaintiff entered into the employ of the decedent, seven or more years ago, without any definite arrangement between them as to the amount of wages, or as to time for compensation, then the law would imply that she was to be paid what her services were fairly worth; that would be for you to determine ; and the law would imply that she was to be paid for these services, from time to time, as they were rendered. In the event of the merely implied contract between the parties, the plaintiff could not recover for the whole time of her services, because here the Statute of Limitation steps in, and limits her recovery to what her services were worth during a period of six years prior to the time of suit brought. * * * But, this matter of the Statute of Limitations, to which I have just adverted, will, perhaps, not be of any great importance in one view that I take of the law, and that you may take of the fact. Now, so much for the doctrine of implied contract, provided there were no allegations and no proofs on the other side setting up an express contract. [But, if I understand the facts before you, both parties maintain that there was an express contract in this case.] If that be true, and you so find it, then what I said about implied contract becomes of little or no consequence. The plaintiff, if I understand it right, maintains that there was an express contract,. That this old gentleman again and again declared to others, who communicated it to her, that if she would continue with him and serve him, that he would provide for her abundantly at his death, or that he would make such provision that she would never have to work any more. * * * Now, the defendant, on his part, also says there was an express contract, and, if I understand him aright, he says the contract was that this young lady was to remain in his employ and serve him as she had done him before the wife’s death, and that her compensation was to be such a legacy as he might choose to leave her; that she agreed to serve him, trusting to his generosity to make it right at his death. Now, gentlemen, these are the two opposite express contracts which are alleged here by the opposing parties. * * * [Either of these contracts would be entirely valid in law.] It is entirely competent for a man to agree to pay another man for services, at a rate vastly above what the services are worth, [and if, in this particular case, you shall find, that the testator agreed to pay this young lady for her services, by making such provision in his will that she should be under no necessity after his death- to labor for her livelihood, or to make an abundant provision for her by his will, then, in law, his estate must answer for that undertaking, though it should take the whole of it.] On the other hand, if she agreed to work for the decedent, trusting entirely to his generosity for such a sum as he might choose to bequeath to her in his-will, then she is bound by her contract to the sum of two thousand dollars that he left her, she would have to be satisfied with, if that is the contract. * * * There is another question that I have not yet adverted to, growing out of this two thousand dollar legacy. That the decedent left the plaintiff a legacy of that amount, and that she received it, are not disputed. But the defendant alleges that said legacy was left by decedent as and for the provision that he had contracted to make for her, and say that that legacy was in full, as,uf their view is correct, it necessarily would be; but the plaintiffs, under their view of it, say that it was part payment of what was due. * * * There are two ways, gentlemen, of proving that a legacy is payment of the debt. The one is by the will itself, and the other is by evidence or circumstances outside of the will. Now, as far as the will itself is concerned [I instruct you as a matter of law. There is nothing in the will itself that makes this legacy other than a pure gratuity, and, if there is nothing outside of the will you will then make up your verdict as though there was no such thing as a legacy in the case.] * * * There is evidence from which you may be able to find that there was an intention on the part of the testator, that the legacy should be in payment of what he owed her. The very contract on which the plaintiff relies, that is to say, a contract to compensate her fully at his death, or by his will, would be sufficient to justify you in finding such an intention; and there may be other facts in the case from which you may find his intention. But what his intention was in leaving this legacy, whether as a pure gratuity, or as payment either in whole or in part, is a question of fact entirely for you. If you find that there was such an intention on the part of the testator in giving this legacy, and that the defendant’s view of the contract between the parties is a correct one, that is to say, that he was to fix an amount, that it was to be discretionary with him as to how much he would pay her by his will, then the $2000 is in full; but if you find such an intention on his part, and yet that the plaintiff’s view of the contract is correct, that he was to make such a provision for her as would relieve her from the necessity of working in after life, or such other abundant provision as you may find from the expressions used by the witnesses he appears to have promised her, then these $2000 will merely go upon account, and will still leave you to determine from the whole case how much her entire services to the decedent were worth. Now, I repeat, gentlemen, that whether this legacy is to be considered by you at all in working up your verdict, will depend upon whether from facts outside of the will, you arrive at the conclusion that it was the intention of the testator, in leaving these $2000, to leave it as payment, and not as a pure gratuity. * * *
    “ [If you find from all the evidence, the contract was, particu-larly, as one of the witnesses states it was, to provide for her at his death, that she should not be under necessity of laboring during the rest of her life, you will be justified in then determining what sum would be adequate for that purpose, and your verdict will be for that sum.] If you find, however, that the contract, as alleged by the defendants, was the real contract betwe'en them, then the testator has fixed the sum. If she intended to rest upon his generosity, and that was the arrangement between them, then she must rest under whatever disappointment she may, but still the sum bequeathed to her is the only sum which she can recover. * * *
    In answer to the defendant’s 5th point the court said :

      “ If you find that there was no express contract at all between the parties, and you make up your verdict upon the general basis *of what her services were worth to the testator, then you can only find their value; you cannot go back of six years prior to the commencement of the suit. All her services beyond that she must lose. That is, upon the ‘ general quantum meruit;’ but if you find, and if you conclude, from the evidence, that there was an express contract between the parties, not only so, but that express contract, as the plaintiff maintains it to be, to wit: the old gentleman agreed to compensate her, either fully or otherwise, at his death, or by his will, which would be the same thing; then her right of action did not accrue until his déath, and she would have six years from his death in which to bring her action, if you please, at all events brought in that time; but her action has been brought in proper time. But in this action, as brought, she cannot recover for more than six years’ services. She can recover for the entire service in pursuance of the express contract to which I have alluded, if you find such an express contract.”
    In answer to the 7th and 8th points, the court charged:

      “ That depends upon the exact nature of the contract, which I have already said to you. If the contract between them was, that he was to compensate her at his death, or by his will, then the law of the contract obliged him to leave her such a sum as would amount to a compensation. If the contract was that she was to rely entirely upon his generosity, then it would be discretionary with him to leave her what he pleased.”
    The other points of the defendant were refused.
    The verdict was for the plaintiff for $10,000.
    The defendant removed the record to the Supreme Court and there assigned for error:
    1. The refusal of the court to withdraw a juror.
    2. Admitting the evidence objected to. •
    3-7. The parts of the charge in brackets.
    8-16. The answers to the points.
    • J. A. Olay and Gr. W. Thorn (with whom was — Potts), for plaintiff in error.
    The part of the charge which said, the testator must answer for his contract if it took the whole of his estate, was erroneous, as giving no definite rule for the measure of damages: Ewing v. Thompson, 16 P. F. Smith 382; Malaun v. Ammon, 1 Grant 123; Hertzog v. Hertzog, 10 Casey 418; McNair v. Compton, 11 Id. 23. The measure was the value of the services. There is nothing sufficiently definite in the contract: Graham v. Graham, 10 Casey 475. Eor services rendered in expectation of legacy there can be no recovery: Little v. Dawson, 4 Dallas 111; Osbourn v. Guy’s Hospital, 2 Strange 728.

      J. Dolman and T. Quyler, for defendant in error.
    The contract is sufficiently definite: Ridley v. Ridley, 11 Jur. (N. S.) 475; Sherman v. Kitsmiller, 17 S. & R. 45. Expectation to be compensated by a legacy did not preclude an action on the contract: Roberts v. Swift, 1 Yeates 209.
    May 13th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

The 1st assignment of error, that the learned judge refused to withdraw a juror, is a matter which is exclusively within the discretion of the court below and not reviewable here. The 2d error assigned is in permitting a witness to be asked whether the plaintiff’s appearance did not show her constitution broken down by her duties at that time. Certainly, if the offices performed by the plaintiff were of such a character as necessarily to be injurious to her health, it was a fair element to be taken into consideration in determining what her services were worth. The other errors assigned are to the charge and the answers to the points, and need not be separately considered. They present substantially only two questions. First, Was there evidence of such an express contract as ought to have gone to the jury ? And second, If the services were rendered in expectation of being compensated by a legacy, ought that to prevent a recovery ?

As to the first question, it is undoubtedly true, that contracts of this character, by which the estates of deceased persons are called on to pay large sums to nurses and housekeepers, ought to be very closely scanned, and juries instructed that they can only be made out by very clear proof. The courts are especially justified in setting aside such verdicts, when not founded on proof of this character, or when unreasonable in amount. Yet these are matters not within the province of a court of errors. They are necessarily confided to the sound legal discretion of the tribunal before which the trial has taken place. Such a contract must of course possess the element of certainty, as was held by this court in Sherman v. Kitsmiller, 17 S. & R. 45, and Graham v. Graham’s Executors, 10 Casey 475. But the maxim is, Id certum est quod, oertum reddi potest. In neither of the cases could that maxim be applied. In the first, the promise as set up, was to give the plaintiff 100 acres of land. One hundred acres of land where ? worth how much ? Five dollars an acre or five hundred ? “ The promise,” said Mr. Justice Duncan, “is as boundless as the terrestrial globe.” “ The action only lies where a man by express words assumes to do a certain thing. Not that this means an absolute certainty, but a certainty to a common intent, giving tbe words a reasonable construction. But the words must show the undertaking was certain; for, in assumpsit for non-payment of money, it is necessary to reduce the amount to a certainty; or on a quantum meruit, by an averment, where the amount does not otherwise appear. Express promises or contracts ought to be certain and explicit to a common intent at least. They may be rendered certain by a reference to something certain;" Sylvester’s Case, Popham 148; 2 Roll. Rep. 104; 1 Leo. 88. In Graham v. Graham’s Ex’rs., a promise to give the plaintiff, in consideration of services, “ as much as to any relation on earth,” was held to be indefinite. As our brother Williams said, in his opinion below, which was affirmed in this court: “ The testator did not intimate what or how much he would' give to any relative he had on earth.” Who could say how much that would be ? It depended on his own will, as if a man were to say, I will give you for these services just what I choose. In the case now before us, however, the contract as proved by Elizabeth Sheaf, and confirmed by the testimony of other witnesses was, that “if she (the plaintiff) would stay with him (the testator) as long as he lived, he would provide and give her full and plenty after he was gone, so that she need not to work.” Now, certainly, here is a measure by which the amount can be ascertained, and which brings the case within the rule of certainty to a common intent. Consideration being had of the condition in life of the plaintiff, what annuity would place her in such circumstances that she need not work ? The annuity tables settle what such an annuity is worth or can be bought for. It is true, that this mode of arriving at the plaintiff’s compensation does not appear to have been pursued on the trial below, hut it was left to the jury generally. The supervisory power of the court over the verdict must be resorted to where the amount found is more than was reasonable under the circumstances. We see no error in the manner in which the plaintiff’s right of recovery under the alleged express contractwas submitted to the jury.

The second, question may be briefly disposed of. Certainly where services are gratuitously rendered under the mere expectation of a legacy, there can be no recovery, for in such a case there is no contract at all: Little v. Dawson, 4 Dall. 111; Swires v. Parsons, 5 W. & S. 357. But in Roberts v. Swift, 1 Yeates 209, it was decided that if one does services for another at his request, no matter what his expectations were, assumpsit may well be supported to recover a compensation. And in Snyder v. Castor’s Adm., 4 Yeates 353, it was said by Mr. Chief Justice Tilghman, in pronouncing the opinion of the court: “ It has been urged by the defendant’s counsel, that if a person serves another through the expectation of a legacy, in which he is disappointed, he cannot support an action. The law certainly is so, but cannot be applied to a case where the person for whom the services was done promises to pay for it; and it is immaterial whether the promise be made before or after the service.”

The plaintiff in error has not given in his paper-book a copy of the will of Abraham Shalkop, but if the legacy therein contained was given to Rebecca Stevens, by the designation of his housekeeper, and nothing more, we see no error in any of the rulings of the learned judge below upon that subject.

Judgment affirmed.

Williams, J.

I dissent from this opinion, on the ground that the alleged contract is as indefinite and uncertain in its terms as the contract declared invalid in Graham v. Graham’s Executors.


source: Caselaw Access Project

author: Sharswood, J.

license: Public Domain

text:
    Ulshafer versus Stewart.
    1. If a plaintiff in error die after issuing the writ, and before assignment of errors, the writ will not abate, but his representatives may be substituted.
    2. A writ of error is an action: a release of all actions will bar it.
    3. Acts of April 13th 1807, and February 24th 1834, sect. 26, applied.
    4. Judgment was entered, but the amount not liquidated: an execution was issued, and an amount endorsed on the writ: this presumed to be the amount for which the judgment was recovered.
    5. In 1798 judgment was recovered which was a lien on land in North! umberland county ; successive fi. fas. and venditionis were issued; in 1808 by Act of Assembly, part of Northumberland, including this land, was annexed to Luzerne, the powers of the officers of Northumberland to cease, “ except in the determination of suits now pending in said courts, so far as relates to that part annexed.” A pluries venditioni was issued to Northumberland in 1814, under which the land was sold by the sheriff of that county : Held that the title passed to the purchaser.
    6. The proceeding was one ‘‘pending in the court” of Northumberland, and the sheriff of that county was the proper officer to carry it into execution.
    March 4th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the court of Common Pleas of Schuylkill county: No. 208, to January Term 1871.
    This was an action of ejectment brought March 21st 1868, by Franklin Stewart against Solomon Ulshafer, for “ a tract of land lying partly in the township of Union, in Schuylkill county, and partly in Columbia county, warranted by the Commonwealth in the name of William Stewart, junior, and containing four hundred acres, &c.”
    After the issuing of the writ of error, and before the assignment of errors, the plaintiff in error died; defendant in error moved that the writ of error abate. This motion was argued with the main question. ■ •

      The premises were surveyed on a warrant dated January 3d 1793, to William Stewart, Jr., for 400 acres of land in Northumberland county, and patented to Walter Stewart March 24th 1794 ; they are now in Schuylkill county.
    On the 3d of September 1798, a judgment was recovered in the Supreme Court of Pennsylvania, at the suit of Joseph Ball, against the executors of Walter Stewart, deceased; the plaintiff claims under a sheriff’s sale upon this judgment as hereafter stated. On the same day three judgments in actions on the case were entered in the same court by Isaac Wharton et al. against the executors of Walter Stewart, deceased; it did not appear that the amount of the judgments had been liquidated.
    In January 1799, testatum fi. fas. were issued on two of the Wharton judgments to Northumberland county; the amount of debt was endorsed on the writs of fi. fa. The return was, “ levied on several tracts of land. Inquisition and condemned.” Venditionis and alias venditionis were issued to Northumberland county, to to December Term 1799; September and December Term 1801.
    On the 18th of March 1808, an Act of Assembly (4 Smith’s Laws 527) was passed, annexing a part of Northumberland county in which the premises were included to Luzerne county. By the 2d section of the act it was enacted, “ That the authority and jurisdiction of the court and of the civil officers of the county of Luzerne shall be and hereby are extended over the part so annexed to Luzerne county as aforesaid as fully and effectually as if such part had been included in the county of Luzerne from its first erection; and the powers of the county and of the civil officers of the county of Northumberland shall from and after the passing of this act cease in the part so annexed as aforesaid; except in the determination of suits (if any) now pending in the said court so far as relates to that part so annexed as aforesaid.”* * *
    A pluries venditioni was issued to Northumberland county on the 14th of May, to July Term 1814, the premises sold to John Hallowell, Esquire, and the sheriff of Northumberland county made a deed to'him for them. The title of Hallowell became vested in William A. Budd, February 11th 1845; the defendant Ulshafer was his tenant.
    On the Ball judgment, a testatum fi. fa. was issued to Luzerne county to July Term 1814, testatum venditioni to same county to December Term 1814; alias testatum fi. fa. to same county to December Term 1817; a testatum venditioni to same county to April Term 1818, and sheriff’s sale and deed, April 8th 1818, to Nathan Buck for the premises; Buck’s title became vested in the plaintiff, who claimed under this title. The defendant alleged that the sale by the sheriff of Northumberland county to Hallowell had divested the title of Walter Stewart, and that Buck took nothing by the sale to him by the sheriff of Luzerne county.

      This was the question upon which the case was decided in the Supreme Court, and therefore other questions raised on the trial and discussed in the Supreme Court are not presented in this report.
    The Court of Common Pleas (Ryon, P. J.) directed the jury to find a verdict for the plaintiff on the whole evidence. The jury found a verdict for the plaintiff.
    The defendant removed the record to the Supreme Court and, amongst others, assigned this instruction for error.

      Gr. D. Budd and 13. 0. Parry (with whom was -J. B. Barman),

    for plaintiff in error,
    cited West’s Appeal, 5 Watts 87; Hay’s Appeal, 8 Barr 182; Hart’s Appeal, Id. 185; King v. Cartee, 1 Id. 147; Tyrell v. Rountree, 7 Peters 464; Kent v. Roberts, 2 Story’s R. 591.

      ■J. JD. Ryon and B. W. Qummings, for defendant in error.
    May 13th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

An afiidavit by the defendant in error that the plaintiff died after the issuing of the writ, and before assignment of errors has been filed and a motion made to abate it. It would have been more regular and formal to have pleaded in abatement, so that if denied the fact might have been put at issue. No objection, however, has been made on this ground, and we will proceed to consider the question. It is undoubtedly true, that at common law a writ of error shall abate when the plaintiff in error dies before errors assigned, but if he die after, the writ does not abate, but the defendant may join in error: 2 Saund. 101, n. It was accordingly so held in Boas v. Heister, 3 S. & R. 271, on this authority; the attention of the court not having been called, as it appears, to any Acts of Assembly. If Boas v. Heister was a personal action, as we may presume it was, the Act of April 13th 1791, 3 Smith’s L. 30, then in force (now supplied by the Act of February 24th 1834, § 26, Pamph. L. 77), seems to have provided for the case. It enacted, “ when any writ shall be depending in any court of this Commonwealth, and either of the parties shall die before final judgment, the executor or administrator of such deceased, who was plaintiff, petitioner or defendant, in case the cause of action doth by law survive, shall haye full power to prosecute or defend such action until final judgment.” But if it was an ejectment, then the Act of April 13th 1807, 4 Smith’s L. 476, had provided: “No writ of ejectment shall abate by reason of the death of any plaintiff or defendant, but the person or persons next in interest may he substituted in the place of the plaintiff or defendant, who shall have died pending the writ.” There is no reason why remedial laws like these should not extend to proceedings in this court. A writ of error is an action; a release of all actions is a good bar to it: Co. Litt. 288 b. Certainly the same reason holds good in regard to it. The effect of abatement was simply to delay the proceedings; to compel the representatives of the deceased to commence a new action. If the action abated without the act or default of the plaintiff, he was permitted to sue out a fresh writ by jowrnées aceompts, which was quasi a continuance of the first writ: 1 Bacon’s Abr., Abatement G. So if a writ of error abate by the act of Grod or the law, a second writ shall still be a supersedeas: 2 Bacon’s Abr., Error G. Thus, when the cause of action survived, nothing followed from abatement but delay and costs. It was the object of the legislature to provide a remedy for this, and it would have been incomplete if it had not reached and applied to a cause in all its stages. An ejectment removed by writ of error to this court is still a “writ of ejectment” pending, and there is no reason if the death would not abate it in the court below, why the writ of error should fall, and the representatives of the party decedent be driven to take out a new writ of error. The English Statute of 8 & 9 W. 3, C. 11, s. 7, enacted that “if there be two or more plaintiffs or defendants, and one or more shall die, if the cause of such action shall survive to the surviving plaintiff or plaintiffs, or against the surviving defendant' or defendants, the writ or action shall not thereupon be abated, but such death being suggested upon the record, the action shall proceed.” It was held by the Court of King’s Bench, in Clarke v. Rippon, 1 B. & Ald. 586, that this statute applied to writs of error. The motion to abate the writ is therefore refused.

It must be conceded that if the estate of Walter Stewart, deceased, in the premises, was divested by the sale by the sheriff of Northumberland, the plaintiff had no title. There can be no doubt that the judgment Wharton v. Stewart’s Executors, entered September 3d 1798, in this court, was at that time a lien upon lands all over the Commonwealth: White v. Hamilton, 1 Yeates 183. The Act of March 20th 1799, 3 Smith L. 358, enacted that from and after the last day of December Term then next no judgment rendered in the Supreme Court or any of the Circuit Courts, shall be a lien on real estate, excepting in the county in which such judgment shall be rendered. Although the amount of the judgment does not appear to have been liquidated by assessment, yet it will presumed to have been a final judgment for the amount endorsed on the execution: Sellers v. Burk, 11 Wright 344. That the regular mode of proceeding on this judgment was by a testatum fieri facias appears by Lesher v. Grehr, 1 Dall. 330. This, execution levied inter alia upon the tract in controversy preserved the lien indefinitely until the passage of the Act of March 26th 1827, Pamph. L. 129: Commonwealth v. McKisson, 13 S. & R. 144. Thus far there appears to be no difficulty. But pending the testatum fi. fa. and levy in Northumberland county, an Act of Assembly was passed March 28th 1808, 4 Smith L. 526, by which all that part of Northumberland county lying north-east of a straight line from the mouth of Nescopeck creek to the northwest corner of Berks county, was annexed to Luzerne county. The tract in question was within these limits. The act provided that the powers of the courts and of the civil oflicers of the county of Northumberland should cease in the parts so annexed “ except in the determination of suits (if any) now pending in the said courts, so far as relates to that part so annexed as aforesaid.” A venditioni exponas had been issued from this court December Term 1799, to the sheriff of Northumberland county, founded on the testatum fi. fa. and levy aforesaid; an alias venditioni exponas to December 1801; but the pluries venditioni exponas under which the sale took pla&e was to July 1814, after the division of the county in 1808. The question then is, whether the sheriff of Northumberland county had any power under this writ directed to him to sell the land at that time in Luzerne, though now in Schuylkill county. What would have been the law had there been no provision in the Act of 1808 on the subject we do not stop to inquire, because we are of opinion that upon that liberal construction which ought to be put upon the words of the statute to protect and preserve the vested rights and property of the citizen the sheriff of Northumberland was the proper civil officer to carry on and complete a proceeding by execution begun and pending in that county at the time the Act of 1808 was passed. Suit is a more general and comprehensive word than action. It means in its ordinary and popular acceptation “any action or process for the recovery of a right or claim, legal application to a court for justice, for prosecution of right before any tribunalWebster’s Diet., ad. verbum. It is undoubtedly derived orginally from the- seetd or suit of witnesses, which every plaintiff was required to produce or offer to produce when he preferred his claim in court. Indeproducit seetdm — thereupon he brings suit — a form of words still continued: 3 Blackst. Com. 295. In this wide sense a writ is pending and undetermined in court until the plaintiff has fully recovered and realized his just demand. While seeking to compel its satisfaction by a sale of the property of the defendant he is still pursuing his suit; prosecuting his claim. No violence, therefore, is done to the words of the Act of 1808, when we hold that the testatum and levy was “ a suit pending in the court of Northumberland,” and that the power of the civil officers of that county continued as far as regarded that subject-matter.

It is unnecessary to discuss the other specifications of error. It follows that the learned court below erred in directing a verdict for the plaintiff upon the whole evidence.

Judgment reversed, and venire facias de novo awarded.


author: Per Curiam.

text:
    Lower Makefield Road.
    1. Viewers laid out a road and vacated part of another, which was between the termini of the road laid out, and returned a plot both of the road laid out and the parts vacated ; reviewers refused to lay out, but vacated the same part and returned a plot; re-reviewers laid out the road and also vacated the same parts but returned no plot; exceptions were filed in the sessions, which were dismissed, but the court below set the report aside because no plot was returned: Held to be correct: there not having been an entire vacation.
    2. The want of a plot was not excepted to below. It was not error to set the report aside on this defect, although not excepted to.
    March 5th 1872.
    Before Thompson, O. J., Shasswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Certiorari to the Court of Quarter Sessions of Bucks county: No. 78, to January Term 1872. ^
    In the matter of a public road in Lower Makefield township.
    On the 15th of June 1869, the petition of citizens of Lower Makefield township was presented to the court, setting forth that part of a road known as the “Lower River Road,” beginning at the intersection of that road with Bridge street, and ending in the same road at John Doyle’s gate, by reason of the washing away of the road by high waters in the river Delaware, &c., had become useless, &e., “ and would better accommodate the public by being changed so as to begin and end at the same points, but by being further removed from the said river in many places along the same.” They prayed for viewers “ to vacate and relay the same or such parts thereof as in their judgment may be found necessary.” .
    Viewers were appointed accordingly: by the order they were directed, amongst other things, to return with their report, “a plot or draft thereof, with the courses and distances,” &c.
    The viewers reported that parts of the road had become useless, &c., “ and ought therefore to be vacated, and we do vacate the same in the manner set forth in the plot and draft hereunto annexed, which we make part of this our report.”
    This report was confirmed nisi September 16th 1869.
    The supervisors of the township on the 4th of November filed exceptions to the report. On the same day citizens of the township, petitioned, setting out the former proceedings, and praying for reviewers “ to review the said road as well that vacated as the one laid out,” &c.
    On the 17th of January 1870, the exceptions to the report of the viewers were dismissed, and the report confirmed: on the 9th of February reviewers were appointed. j
    They reported that there was no necessity for the road reported by the viewers; and as to the portions of the river road vacated by the viewers, they reported: “We do vacate the same in the manner set forth in the plot or draft hereunto annexed, which we adopt and make part of this our report.”
    This report was confirmed nisi, May 7th 1870.
    On the 19th of September 1870, a petition for a re-review was filed, setting forth all the previous proceedings, and stating that to the report of the viewers and reviewers a plot or draft was annexed, which they had adopted and made part of the reports respectively.
    Re-reviewers were appointed September 22d. The order, amongst other things, directed them to return with their report “ a plot or draft thereof, and the courses and distances,” &c.
    The re-reviewers made report, laying out a road, and stating particularly all the courses and distances, which were numerous, from the beginning to the ending, “ hereby first vacating all of the said river road lying between the said two points, viz., from the middle of the said Bridge street, and the said river road, where the road now being laid commences, to the terminus of said road now being laid out opposite the said John Doyle’s gate,” &c. They returned no plot or draft.
    The road was confirmed nisi, December 17th 1870, and five exceptions were filed to the report, March 13th 1871. There was no exception that a plot or draft did not accompany the report.
    On the 14th of November 1871, the court (Chapman, P. J.) dismissed all the exceptions; adding: “ But there is one defect which appears on the face of the proceedings we ought not to disregard. It is the omission to return a plot or draft of the road vacated. This is a material omission, and therefore the report is set aside.”
    James W. Paff, one of the persons through whose land the road was laid, removed the record to the Supreme Court by certiorari.

      JE. M. Lloyd,
    for certiorari, referred to Act of June 13th 1836, sect. 3, Pamph. L. 555; 2 Br. Purd. 1272, pl. 3; Hess’s Mill Road, 9 Harris 217; Southampton Road, Id. 356; Road in Abington, 14 S. & R. 31; Road in Jackson, 9 Barr 85.

      M. Yardley, contó,
    referred to same act and section, and also sect. 18, 2 Br. Purd. 1276, pl. 26; Rutherford’s Road, 10 S. & R. 120; Act relating to road in Bucks county, April 23d 1857, sect. 5, Pamph. L. 298.
    March 11th 1872.
   Judgment was entered

Per Curiam.

We think the court did right in noticing the defects in the report of the re-reviewers, for which it set the report aside. How a draft could be dispensed with where there was a report of a road between the termini, in which there were sixteen or seventeen courses and distances reported, I am not able to see. It is true, if an entire vacation had been reported, a draft would then have been unnecessary, for the cogent reason given in the argument for the exceptants, but that was not the case. The report, if it had been confirmed, would have required the action of the supervisors to open the road and keep it in repair. For this reason a draft was indispensable. The Acts of 1886 and of 1867 both require it.

It was not error in the judge to take notice of this omission. No doubt if counsel had desired argument on this point it would have been granted, but no request to that effect appears.

Proceedings affirmed at costs of exceptants.


author: Williams, J.

text:
    Leidy versus Messinger.
    1. Leidy and. Messinger as partners, purchased for $1000 one share of the stock of an unincorporated oil company ; Messinger paid $500 in cash, and Leidy gave his note for $500, which was passed in payment for the purchase-money of the land of the company, placed by the vendor in the hands of counsel for collection and was unpaid. The company became insolvent. Held that Messinger in assumpsit could not recover from Leidy the one-half of the cash paid by him.
    2. Leidy’s liability to Messinger resulted from the partnership relation, and Messinger could not recover until there was a settlement of their accounts and a balance struck.
    3. Partnership accounts must be settled in one proceeding; by account render or bill in equity; until there has been a settlement of partnership accounts, assumpsit will not lie for advanees unless there has been an express promise to repay.
    4. This rule applies whether the property of the partnership has ceased to exist or not.
    March 5th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Bucks county: No. 63, to July Term 1871.
    On the 26th of March 1870, Charles Messinger brought an action of assumpsit against Zachariah Leidy, to recover one-half of the sum of $500, which the plaintiff had paid on account of a share of oil stock alleged by him to have been bought jointly with the defendant.
    The plaintiff testified that he and the defendant had jointly purchased one share of the stock of the Fayette Oil and Mining Company, of which the price was $1000, and that he had paid $500; that the defendant paid nothing at the time, but had given his note to the company for $500; the note was endorsed by the plaintiff, who took from the treasurer of the company the following receipt:—

      “ Rec’cL, May 20th 1865, of Z. Leidy and C. Messinger (by C. Messinger), Five Hundred Dollars on account of one share in the Fayette Oil and Mining Comp.
    Mo: Loeb,
    $500. Treasurer of said Company.”
    The evidence was undisputed that the plaintiff and defendant were partners in the stock. The company was an unincorporated company. The note was passed to Robert Alsop by the company on part payment of the land of the company in West Yirginia, and was at the time of the trial in the hands of an attorney for collection against Leidy. The plaintiff gave evidence that “ the company collapsed, became defunct, insolvent.”
    The following is a copy of the note:—
    “ $500. “ Doylestown, Pa., April 22d 1865.
    “ Four months after date, I promise to pay to the order of Charles Messinger, at the Doylestown National Bank, Five Hundred Dollars, without defalcation, value received.
    (Endorsed,) Z. Leidy.
    Charles Messinger,
    Mo: Loeb.”
    The defendant submitted a number of points, not necessary to set but — which the court denied, and Chapman, P. J., charged :—
    * * * “It is contended by the defendant that he is not liable to contribute in making up the loss which the plaintiff has sustained by his advancement of the $500. We decline so to charge you, because if you find they jointly engaged in the purchase of a share of stock, they would be' equally bound to the company for the whole price, and consequently, as between themselves, • liable to contribute to one another. In a common undertaking between two persons, if the enterprise fails, the whole burden of the loss cannot be thrown on one. It is urged that defendant purchased but half a share of stock, and is only responsible to the company for half the price. But the receipt recognises them both as purchasers of the whole share, and in order to treat the share as divisible, it is necessary there should be some evidence that there was an arrangement between the parties to that effect. As the matter stands, both parties are still responsible to the company, if the company has not forfeited its right to resort to either.
    “ It is further contended, that if plaintiff and defendant are partners, the plaintiff has mistaken his form of action, which should have been account render. We charge you, as this was a single transaction between themselves, and as such involving no complication of accounts, the form of action adopted was a proper remedy. And we further charge you, if you believe the evidence, the plaintiff is entitled to your verdict.”

      The verdict was for the plaintiff for $389.25.
    The defendant took out a writ of error, and assigned the denial of his point and the charge of the court for error.

      G. Lear, for plaintiff in error,
    cited Knerr v. Hoffman, 15 P. F. Smith 126; Finlay v. Stewart, 6 Id. 183; Ferguson v. Wright, 11 Id. 258.

      G-. Loss and L. Watson, for defendant in error.
    The suit was instituted to recover upon an implied, if not direct, promise, growing out of a case of a single partnership transaction, or joint adventure. Under such circumstances assumpsit was the proper form of action: Wright v. Cumpsty, 5 Wright 102; Meason v. Kaine, 13 P. F. Smith, 338; Finlay v. Stewart, 6 Id. 183; Brubaker v. Robinson, 3 Penna. Rep. 295; McFadden v. Erwin, 2 Whart. 37.
    May 13th 1872,
   The opinion of the court was delivered, by

Williams, J.

The plaintiff and defendant jointly purchased a share of stock in the La Fayette Oil and Mining Company, an unincorporated association formed for the purpose of buying oil and mineral land in West Virginia. The price of the share was $1000, for which the plaintiff below paid the treasurer $500 in cash, and the defendant gave him his note for a like amount endorsed by the plaintiff. The treasurer applied the money and the note to the payment of the purchase-money of the property bought by the association. The note was endorsed to the vendor before maturity, and was in the hands of his attorney for collection at the time of the trial. The company became “ defunct and insolvent,” and this action was brought by the plaintiff to recover from the defendant the one-half of the amount which he had paid on account of the stock. The court below instructed the jury that if the evidence was believed, the plaintiff was entitled to a verdict; and the correctness of this instruction is the main question presented by the record.

Admitting that the stock was purchased in partnership, as alleged, what right has the plaintiff to recover of the defendant the one-half of the amount which he paid for his moiety of the share, so long as the defendant is liable for the note given for his half? It is clear that if the defendant had paid the note, he would not be responsible to the plaintiff for any part of the money claimed in this action. Why then should he be bound to make contribution so long as he is liable for the note ? If the plaintiff can recover, then the defendant, on the payment of the note, may recover the half thereof from the plaintiff. The defendant’s liability, if any, for the money claimed in this action, does not arise from any express promise or undertaking on his part. There is no evidence that it was paid at his request and upon his promise to repay it. If he is liable for it, his liability depends solely on the obligation arising from the partnership relation created by the joint purchase of the stock. But a partner cannot maintain assumpsit against his copartner to recover the excess of his advances, unless there has been a settlement of the accounts and a balance has been struck. And this rule applies whether the subject-matter or property of the partnership has ceased to exist or not. It would beget an intolerable multiplicity of suits to allow one partner to sue another for contribution as often as he paid moneys or made advances on account of the partnership. To prevent such burdensome litigation, the law has wisely provided that the partnership accounts shall be settled in one proceeding either by an action of account render, or by bill in equity, and that, in the absence of an express promise to repay, assumpsit will not lie by one partner against another to recover for advances, until there has been a settlement of the partnership accounts. It follows that under the evidence the court should have instructed the jury that the plaintiff was not entitled to recover. This view of tide case renders it unnecessary to consider the other assignments of error.

Judgment reversed.


text:
    The Wolf Creek Diamond Coal Company versus Schultz et al.

    1. In action for timber delivered, a witness for plaintiffs, on cross-examination, said in answer to defendants’ question, that he had told plaintiffs not to deliver any more timber, and asked them to cancel the contract: the plaintiffs might properly ask him to give the whole conversation.
    2. This rule obtains whether the part of the conversation is brought out by the direct examination of the party’s own witness, or cross-examination of his adversary’s.
    3. A contract was signed “Wolf Creek Co., per J. K. Siegfreid, Supt., [seal] ” (a scroll seal); and also with the names and seals of the other parties who were individuals. Assumpsit was brought against the company for breach of the contract: the declaration was on a parol contract; the written contract was given in evidence without objection. Held, to be a waiver of the objection that the instrument was a- specialty.
    4. Such variance can be taken advantage of only when the evidence is offered.
    5. To take advantage of the form of action afterwards, the defendants should have proved affirmatively that the seal was the corporate seal.
    6. By the contract the plaintiffs agreed to furnish the defendants all the timber they should require at their coal-mines, they to pay at the rate of eighteen cents per ton for all the coal mined, and should the tonnage during the year not amount to 75,000 tons, the defendants to pay the difference between the amount shipped and 75,000 tons at the rate of eighteen cents per ton. Held, the price agreed on by the parties for the fulfilment of the contract was eighteen cents per ton for 75,000 tons.

      7. Eighteen cents on the difference between the amount delivered and 75,000 tons, were stipulated damages, not a penalty.
    8. Whenever the stipulation is a measure to determine a damage which would otherwise he uncertain and difficult to ascertain, it is a liquidation of damages and not a penalty.
    March 6th and 7th 1872.
    Before Thompson, O. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Schuylkill county: No. 461, to January Term 1871.
    This was an action of assumpsit brought February 28th 1868, by John Schultz and Thomas Patten, Jr., trading as John Schultz & Co., against The Wolf Creek Diamond Coal Company; the defendants were an incorported company.
    The declaration was for an indebtedness of $12,000 on the common counts. There was also a special count, setting out in ipsissimis verbis, as a parol contract, an agreement dated January 9th 1867, between the defendants of the first part and the plaintiffs of the second part, by which the plaintiffs stipulated to deliver to the defendants at a place designated, “ all kinds and sizes of sound timber” required about the Wolf Creek collieries for all “mining purposes and repairs inside and outside,” from January 1st 1867 to January 1st 1868; in consideration of which the defendants agreed to pay the plaintiffs eighteen cents per ton for all the coal mined from the Wolf Greek Colliery, &c. Should the tonnage in 1867 not amount to 76,000 tons, the defendants to pay the difference between the amount shipped and 75,000 tons at eighteen cents per ton; the plaintiffs, during the continuance of the agreement, to keep a sufficient supply of such timber as the defendants should require; the timber to be furnished at rates particularly specified in the agreement and always to keep a supply of timber on hand at the colliery, “at least $2000 worth.” The plaintiffs averred that they had faithfully performed their covenants, but the defendants did not perform their part of the agreement, viz: they “ did not pay the plaintiffs eighteen cents per ton on 45,000 tons of coal, the difference between the number of tons actually shipped and 75,000 tons,” and had not paid the plaintiffs for the timber furnished, &c., “ as by the terms of its agreement it had undertaken and promised to do.”
    On the trial, March 25th 1870, before Ryon, P. J., the plaintiffs gave in evidence the contract declared on, it was executed thus :
    “In witness whereof the parties have hereunto set their hands and seals; this * * *
    “ Wolf Creek Diamond Coal Co.
    Per J. K. Siegfried, Supt. seal.
    John Schultz. seal/
    Thomas Patten, Jr. SEAL.'

      all the seals being scroll seals.

      Siegfried-testified that the plaintiffs furnished timber during the year as agreed on by their contract, at one time they were a little short of $2000 worth of timber on hand ; there was sufficient for all the company’s requirements except for one day; the collieries were never suspended for want of timber. The president of the defendants knew all about the contract with plaintiffs and approved it. There had been a “crush” in July in one of the veins and work was suspended for the remainder of the year; the plaintiffs after the “crush” furnished timber to the plaintiffs as they required. Witness tried to get the plaintiffs to cancel the contract, “ after consultation they replied that they would carry out the contract.”
    On cross-examination the witness, in answer to a question of defendants, said, that he told defendants “ not to bring any more timber after July, and tried to get them to cancel the contract.”
    The plaintiffs proposed to ask witness to state “ all the conversation which passed between them at the time.” This was objected to by the defendants admitted by the court and a bill of exceptions sealed.
    Schultz, one of plaintiffs, testified that they had a stock of teams and ivagons on hand for carrying on the business, and at the beginning of 1867, had $3500 worth of timber at the colliery; they kept the defendants supplied all the time; after the “ crush,” Siegfried the superintendent told them they need not haul timber for a day or two and in a day or two told them to haul again.
    The defendants gave evidence that the amount of coal actually mined during the continuance of the contract was 29,931 tons; that estimating that amount of coal only, there was still due to the plaintiffs on the 1st of January 1868 a balance of $2135.91; there was also on the bank of the colliery at that date $3117.03 worth of timber; the defendants accounted to plaintiffs for the amount of tonnage actually shipped. • Also, that sometimes there was not timber of the kind they wanted, and the hands had to stop; they did not mine any coal after their stoppage in June 1867.
    The defendants proposed to ask William Beddow one of their superintendants, “ whether if the defendants had continued mining during the year 1867, they would or not have used up more timber than remained on the bank or at the colliery in December of that year.” Also to prove by same witness, “ that prior to the stoppage of mining by the defendants in June 1867, the quantity of timber consumed was not greater in any one month or for any given period, than would have been required for a like time or period after that time, had the defendants continued to mine for the balance of the year.”
    Both offers were rejected by the court and several bills of exception sealed.
    After the evidence had closed, defendants’ counsel had closed his argument and plaintiffs’ counsel had progressed in his argument, the plaintiffs offered to prove by Mr. Siegfried, that the defendants had a corporate seal, that the contract was not executed under the corporate seal, but the individual seal of witness who was their general agent. The offer was admitted by the court and a bill of exceptions sealed.
    The witness testified that the company had á corporate seal, that he did not intend the scroll seal as their seal, it was put there by him at their request; “ I intended simply to make a contract, that would be binding on both Schultz and the company by me as their agent. This scroll was put on simply as my own act, I knew this was not the official act of the company.”
    The plaintiffs asked the court to charge: That if the plaintiffs in good faith entered immediately after making the contract upon its performance, and during the yóar supplied the timber required according to the terms of the agreement, they are entitled to a verdict for the difference between 29,930 19-20 tons of coal actually shipped, and 75,000 tons of coal, at the rate of 18 cents per ton, with interest upon such sum from January 15th 1868.
    The defendants requested the court to charge:—
    1. That the plaintiffs’ claim for damages in this suit is merely what they would have made under their contract, had the defendants continued to mine during the year 1867.
    2. That plaintiffs have not shown they could have made any profit out of their contract, had the defendants continued to mine during the year 1867, and consequently can recover nothing in this suit.
    3. That the plaintiffs have offered no evidence of any contract made with defendant, and seek to recover in no other except the agreement of January 19th 1867, in evidence. That such agreement is covenant under seal sealed by the defendants, and that as this suit is an action on the case, there can be no recovery in this suit.
    4. The demand of the plaintiffs is according to the narr. filed for non-performance of a simple contract obligation in writing of the defendants, and none other, that the plaintiffs have given no evidence of any such contract, and consequently cannot recover.
    5. That under the whole evidence the verdict of the jury must be for the defendants.
    The court charged:—
    [“ If the plaintiffs have substantially and bonfi fide complied with their contract, they are entitled to recover. If there are any small deficiencies, they can be compensated for in damages, which should be deducted from the amount due upon the contract.”]
    “ The plaintiffs have supplied the Wolf Creek Diamond Collieries inside and outside for the year 1867 with timber under the contract in evidence. [The defendants agreed to pay for the timber 18 cents per ton on seventy-five thousand tons, whether that amount was shipped or not. This amount the defendants are entitled to recover for, allowing any losses from want of timber to one or two sets of mines, as testified on the part of the defence. This is a sufficient answer to the points.”]
    The verdict was for the plaintiffs for $11,000.
    The defendants removed the record to the- Supreme Court by writ of error.
    They assigned for error:—
    1. That the court allowed Siegfried to state additional conversation between him and plaintiffs at the time he asked them to cancel the contract.
    2. That the same witness was permitted to testify that the defendants had a corporate seal, but that the contract was executed by his individual seal.
    8, 4. The refusal to admit the testimony of Beddow.
    5. Denying plaintiffs’ point.
    6, 10. Not affirming defendants’ points.
    11,12. The parts of the charge in brackets.
    18. Not submitting to the jury whether the seal to defendants’ name on the agreement was the defendants’ seal, and whether they had adopted it.

      F. (?. Farquhar and F. W. Hughes, for plaintiffs in error.
    As to the 2d specification, parol evidence is inadmissible for the purpose of altering the legal operation of an instrument by evidence of an intention to an effect which is not expressed by the instrument: Stark. Ev. 666-8; Wright v. Weakly, 2 Watts 89. The common seal of a corporation is not necessarily the seal that is commonly used. A corporation may adopt the seal of another or an ink impression: Crossman v. Hilltown Turnpike Co., 3 Grant 225; 10 Cushing 27; Story on Agency 181, 141 and note; Reynolds v. Glasgow Academy, 6 Dana 37. The action should have been covenant: 1 Chitty’s Pl. 111, 128, 134; Crossman v. Turnpike Co., supra.

      J. W. Ryan (with whom were S. W. Greer and L. Bartholomew), for defendants in error.
    Seal of a corporation must be proved: Maises v. Thornton, 8 T. R. 303; 2 Starkie on Ev. 300; Jackson v. Pratt, 10 Johns. 381; Hopkins v. Mehaffy, 11 S. & R. 126; Foster v. Shaw, 7 Id. 156. The evidence might be admitted after the case was closed: Richardson v. Stewart, 4 Binney 198. The damages were stipulated by the contract; it was not a penalty: Powell v. Burroughs, 4 P. F. Smith 329.
    March 18th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

The first assignment of error is, that after a witness of the plaintiffs below had said on his cross-examination: “ I think I did tell Schultz & Company not to bring any more timber after July. I tried to get them to cancel the contract,” the learned judge before whom the cause was tried allowed the plaintiffs’ counsel to ask him to relate the whole of what was said at that time. It is elementary law, that when part of a conversation is given in evidence by one party, the opposite party is entitled to bring out the rest of it. The whole may be, and generally is, necessary for the proper understanding of all its parts: 1 Greenl. Ev. § 201. Nor can it make any difference whether the part is brought out by the direct examination of a party’s own witness or the cross-examination of the witness of his adversary. When the witness said: “ I tried to get them to cancel the contract,” leaving the inference that Schultz & Company had refused, if they gave any reason for their refusal, it was right that they should have the benefit of it in explanation of their conduct.

The second assignment of error is, that the court permitted the plaintiffs below to prove that the defendants had a corporate seal. It matters not whether this was an error or not, or at what period of the trial the plaintiffs introduced the evidence, it did not harm the defendants below, who are the plaintiffs in error. This action was in form assumpsit. The declaration was special on a written contract set out in hceo verba. The instrument in evidence had an ink scroll opposite the name of the defendant — by their superintendent. It was also expressed in the body to be under the hands and seals of the parties. It may be, and there are cases which decide, that such a scroll may be adopted and used as a corporate seal: Angelí and Ames on Corpor., § 218. In this case, however, the instrument was declared'on as a parol contract, it was offered in evidence as such, and not having been objected to, because it was a specialty, it was admitted. This was a waiver, for certainly variance can only be taken advantage of when evidence is offered. If the defendants wished to raise the question of the form of action after that, it was incumbent on them to prove affirmatively that the scroll had been authorized or recognised as the seal of the corporation. Hence there was no evidence before the jury that this was not a parol contract as declared on, and no question could properly have been submitted to them upon that subject. This disposes also of the eighth, ninth, tenth, and thirteenth assignments.

Those which remain relate directly or indirectly to the measure of damages. By the agreement the plaintiffs stipulated “to furnish and deliver” to the defendants “a good and sufficient supply of all kinds and sizes of sound timber,” such as might be required by them for all mining purposes for one year, and the defendants agreed to pay the plaintiffs the sum of eighteen cents on each and every ton mined, which should be mined and sent away from their colliery, and they also agreed, that should the tonnage not amount to seventy-five thousand tons, they would pay “ the amount of difference between the number of tons actually shipped and seventy-five thousand tons, at the rate of eighteen cents per ton.” There was no dispute that the number of tons actually shipped was 29,030 19-20ths, and the plaintiffs had been paid for that amount. It is clear from the point presented by the plaintiffs, and which it is complained here that the court did not negative, that all that was claimed below was the difference between the amount of coal actually mined and seventy-five thousand tons, at the rate of eighteen cents a ton. This was the measure of compensation or price agreed upon by the parties for the fulfilment of the contract by the plaintiffs. The charge of the court is to be consti'ued accordingly, and could not have been otherwise understood by the jury. The terms of the agreement are perfectly plain, and indeed its construction is not in dispute.

But it is contended that so far as it exceeds the amount of coal actually delivered it is a penalty, and that the plaintiffs should be limited to the damage actually suffered by them. But how is this to be ascertained with any degree of certainty ? Clearly the stipulation is neither in name or in substance a forfeiture or penalty, but a measure to determine what otherwise rvould be a loss or damage, uncertain and difficult to be ascertained. Whenever this is the case, it is held to be liquidated damages: Sedgwick on Dam. 449; Westerman v. Means, 2 Jones 97; Streeper v. Williams, 12 Wright 450. In Powell v. Burroughs, 4 P. F. Smith 329, just such a covenant in the lease of a coal-mine for the payment of rent was held to be liquidated damages to the extent of non-performance, and it is there said that the uncertainty as 4to the extent of the injury which may ensue is a criterion by which to determine whether it is a case of liquidated damages or a penalty.”

Judgment affirmed.


text:
    Klase versus Bright.
    1. Bright sold out to Klase, who was his partner, took his notes for the purchase-money and transferred them, still retaining the ownership, to Dye, who retransferred them to Bright. Suit was brought, Bright, to Dye’s use, against Klase. Afterwards Dye settled with Klase, allowing Bright’s alleged indebtedness on the partnership; a note for the balance from Klase to Dye was put into his attorney’s hands; he was notified by Bright not to deliver it to Dye. Held, that the settlement did not prevent a recovery by Bright in the suit against Klase.
    - 2. Klase, having given no value, was not prejudiced by the settlement with Dye, he not owning the note; the suit being to the use of Dye, did not estop Bright from repudiating Dye’s settlement.
    3. In this action evidence of partnership debts paid by Klase, was not admissible as set-off.
    4. Whaiher Bright was indebted on account of that payment could be ascertained only by account render or bill in equity between the partners; not in assumpsit.
    5. Bright sold to Klase his “ right, title and interest ” in the firm: a mill mentioned in the agreement as part of the firm property, was sold by the sheriff as the property of a third person. Held, that Klase could not defend for a failure of consideration, his knowledge of ownership being the same as Bright’s; and Bright sold his right only.
    March 7th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Schuylkill county: No. 108, to January Term 1871.
    The action in this case as appeared on the record was: “ William H. Bright for the use of D. Martin Dye v. Abraham Klase. Summons in assumpsit on promissory note, issued January 29th 1869.”
    The first count of the declaration was that Bright for the use of Dye complained of Klase, that the defendant on the 18th of April 1868, made his promissory note and delivered it to the plaintiff and thereby promised to pay him $1000 in 9 months.
    Another count was that Klase made his note on the 18th of April 1868, and promised to pay at the Dimes Savings Institution to William H. Bright or order $1000, and that Bright before the payment of the note, “to wit on the day and year aforesaid,” endorsed the note and thereby ordered the money due on it to be paid to D. Martin Dye, &c., and that when it became due neither Bright nor Klase paid the note or had paid it since.
    The note was as follows:—
    “ $1000. Ashland, Pa., April 11th 1868.
    Nine months after date I promise to pay to the order of Wm. H. Bright at the Dime Savings Institution one thousand dollars, without defalcation or discount, value received.
    Credit the drawer. Abraham Klase.
    Endorsed — Pay to order of D. Martin Dye. August 24th 1868.
    Wm. H. Bright.”
    Additional counts were filed August 8th 1870; from the paper-book it appeared that they were declared on in the name of Bright for the use of Dye.
    The defendant pleaded, “ non assumpsit, payment, set-off with leave, accord and satisfaction.”
    The case was tried September 23d 1870, before Byon, P. J.
    The plaintiff gave in evidence the note; also paper dated April 29th 1869, transferring the note from Dye to Bright, and rested.
    The defendant-gave in evidence an agreement dated April 18th 1868, between Bright and Klase, whereby Bright sold to Klase , “ all his right, title and interest to a certain leasehold interest ” in ground belonging to the Girard estate, with all the personal property, &c., being mules, &c., lath-mill, &c. In consideration Klase agreed to pay $5000 in payments as set out in the agreement, $500 to he paid in hand, Klase and Bright being partners in the leasehold and property of which he conveyed his interest by this agreement.
    The defendant then offered to prove:—
    1. That he had paid Martin Dye, in full, the balance due upon the note in suit.
    2. That the consideration for that note has failed to the extent of the value of a half interest in a lath-mill.
    8. That at the time this note was given, it was agreed that the consideration for the same should be the half interest of said Bright in certain partnership property, theretofore owned by said Bright and said defendant in partnership, and that the said Bright would make good a title to one-half interest in the same free and clear from one-half the debts then owing by the said partnership, and which was then composed of the said Bright and said defendant. That the said Bright failed to keep said half interest clear as aforesaid, and that in consequence the defendant was bound to protect the same by the payment of debts of said firm to the extent of $1000 and upward.
    4. That the defendant has, since giving said notes, paid over $1000 of firm debt of said partnership, one-half of which Bright agreed he would pay but failed to do so: defendant claims to set off that half against the plaintiff.
    The court rejected the offer and sealed a bill of exceptions.
    The defendant testified that he had met Dye at the office of Mr. Spinney, the attorney of defendant; Dye wanted a settlement; defendant said they could settle if his offsets against Bright were allowed; it was agreed to allow them-, and they settled; the note in suit being included in the settlement; the defendant gave his note for $600, at ninety days; defendant, Mr. Spinney and Mr. L’Yelle, Dye’s attorney, afterwards examined the docket; defendant gave the note to Mr. L’Yelle and took a receipt; this was on the 22d of August 1869. The lath mill on the premises was sold by the sheriff as the property of 0. R. McG-inley.
    On cross-examination he said he was not told that Dye had re-transferred the note to Bright; on the 24th Mr. L’Yelle told him that a notice had been served on him (L’Yelle) to hold the note, and he would do so till the matter was decided; “ the judgment was satisfied.”
    Dye testified as to settlement with Klase: “ We summed up the offsets and struck a balance; I did not think of this transfer (of April 29th 1869, given in evidence by plaintiff) ^at the time, was the reason I did not inform Klase; I hesitated signing it; Bright said the notes were worth nothing unless I signed it. He did not pay me anything.”
    On cross-examination he said that Mr. L’Yelle, his attorney, wrote to him that there was some transfer. Klase did not pay him anything. At the time of the transfer he gave Bright a note and check which Bright handed to him again.
    The defendant then offered to prove “that certain paper vouchers, &c., were the same papers which were presented at the settlement between Klase and Dye, and from which Klase’s claim was made up, and the deductions from the face of the note allowed made, for the purpose of showing that the settlement consisted of bond fide claims, and that the settlement was a fair one.”
    The defendant offered a statement of the claims mentioned in the last offer. The offers were rejected by court, and bills of exceptions sealed.
    In rebuttal Bright testified that Dye said he knew he had no interest in the notes; he had no interest in the notes when they were retransferred; “ I transferred them to Dye, thinking that Klase would pay them without protest; he had possession of them only for the time being when this transfer took place; the notes were in the hands of H. S. Marr, Esq. I put the transfer into the hands of my lawyer. * * * I handed back the note and check to Dye in half an hour. I did not bring suit in the name of Dye to cut out Klase from any offsets.”
    W. A- Marr, Esq., testified that he brought suit on the note; a considerable time after suit he told Mr. Spinney, the attorney of Klase a year before the settlement, that Bright had a retransfer, and witness intended to have Dye’s name stricken from the record; Klase told witness that Mr. Spinney had told him; the note had been in possession of witness ever since suit was brought. He told Bright to bring suit in Dye’s name and get a transfer.
    A. P. Spinney, Esq., Klase’s attorney, testified that Mr. Marr told him that he thought he would have the record changed, as Bright had paid Dye.
    M. M. L’Velle, Esq., attorney for Dye, testified that when Mr. Marr notified him to hold the $600 note, he showed him and Mr. Spinney, Dye’s transfer to Bright. Witness entered satisfaction on two judgments.
    There was evidence also by C. R. McGinley, that Klase and Bright had paid for the lath-mill, and that' he was to run it and have a portion of the lath.
    The defendant requested the court to charge :—
    1. That the record shows that the suit was brought for the benefit of D. Martin Dye, and that the additional declaration filed on the 8th of August 1870, showing a special endorsement by Bright to Dye, is a declaration made in this suit at that time; that the note belonged to D. Martin Dye, and was sufficient authority to warrant Klase in making a settlement with said Dye.
    2. If they believe that the settlement made by Klase with D. Martin Dye was without notice of any re-assignment by Dye to Bright, their verdict must he for the defendant.
    3. That if Bright transferred these notes to Dye to cut out any defence that Klase might be able to make to the notes in the hands of himself (Bright), then Bright is estopped from denying the right to Dye to settle with Klase until after a retransfer by Dye to him and notice to Klase of that fact.
    4. That if any such notice had been given to Klase’s attorney, and that afterwards the attorney for Bright filed the additional count to the narr. of 8th of August 1870, therein averring that the said suit was for the use of said Dye, the said Klase had a right to treat said notes as belonging to said Dye until another and further notice had been given him.
    The court charged :—

      “ The settlement with Dye is no prejudice to Klase. Np money was paid by Klase, and the note has not been delivered to Dye, but was held by the notice from defendant’s counsel not to hand over the $600 note until the question between Bright and Dye as to the ownership of the notes was arranged. This note is now held by Mr. L’Yelle at the notice of the plaintiff and defendant. Nothing, therefore, has been done to Klase’s prejudice.
    “ As to the notes, they always belonged to Bright. The delivery to Dye was a mere pretext, and never passed away title, but the subsequent assignment by Dye to Bright being long before this settlement, passed all Dye had in the note to Bright, if Dye had any interest.
    [“ The record of the suit against Klase was to the use of Dye, but Klase’s attorney notified Klase in accordance with notice from Bright’s, that Bright had got the transfer of the notes from Dye. This was long before this settlement between Klase and Dye. It is therefore with notice that Mr. Klase made this settlement with Dye that Dye had no interest in the notes. Dye did not have the notes at the time of this settlement with Klase, and Klase acted with his eyes open. Notice to Klase’s attorney is notice to Klase.]
    [“ In regard to the sale of the lath-mill, Mr. Klase swears that Bright and Klase paid for the mill, and McGinley swears that he was to have an interest in it. If McGinley had an interest in the mill, Klase knew it as well as Bright at the time Bright sold out to Klase. If McGinley had an interest Klase was not injured by the sale, and therefore the sale by the sheriff is not defence.]
    [“ Upon the whole evidence, the plaintiff is entitled to recover.] This makes it unnecessary to answer the defendant’s points more specially.”
    The verdict was for the plaintiff for $1116.87.
    The defendant removed the record to the Supreme Court, and assigned for error:—

      1-3. The rejection of defendant’s offers of evidence.
    4-7. Not affirming defendant’s points.
    8-10. The parts of the charge in brackets.

      F. G. Farquhar and F. W. Hughes, for plaintiff in error.
    Plaintiff could not contradict the record that Dye was the owner of the note: Ranck v. Becker, 12 S. & R. 426; Kelly v. Eichman, 3 Whart. 419; 1 Greenlf. Ev., § 27. Klase’s knowledge of McGinley’s interest in the lath-mill did not estop him from setting up a failure of title: Uhler v. Sanderson, 2 Wright 128.

      J. W. Ryan (with whom were Marr Brothers), for defendant in error.
    Unsettled partnership-accounts could not be set off: Ozeas v. Johnson, 4 Dall. 434; Andrews v. Allen, 9 S. & R. 241; Russell v. Miller, 4 P. F. Smith 154.
    October 23d 1872,
   The opinion of the court was delivered, by

Williams, J.

The settlement, shown to have been made by the defendant with Dye, for whose use this action was brought, gives rise to the principal question in the case. The plaintiff alleges that it was collusively made after notice to the defendant that the note in suit belonged to him, and that Dye had no interest or property in it. The defendant denies that he had any such notice when he settled with Dye, and for this reason insists that the settlement is valid and binding on the plaintiff. The positive testimony given on the part of the plaintiff, and the circumstances under which the settlement was made, strongly tend to show that the defendant made it with full notice of the plaintiff’s ownership of the note; and if the case turned on the answer to the question, whether he had such notice or not, it should undoubtedly have been submitted to the jury for their determination as a matter of fact. As the evidence was conflicting, the court could not determine the fact without trenching on their province. But as it respects the validity of the settlement, it seems to us that the case does not turn on the fact of the alleged notice. It might, if the defendant had been prejudiced by the settlement in any way; but it is manifest that he was not. It is clear beyond all doubt that the note belonged to the plaintiff at the date of the settlement,- and his right to it is not questioned by the defendant. Dye had no interest in it, and never had any. Its endorsement to him was merely colorable, and was not intended to pass the property; and long before the settlement he had formally retransferred it to the plaintiff. He was examined as a witness in relation to the settlement, and did not pretend that he had any right or claim to the note, and the only excuse which he gave for not informing the defendant of its transfer to the plaintiff was, that he did not think of it at the time. He did not have possession of the note, and it was not surrendered to the defendant when the settlement was made. It was in the hands of the plaintiff’s attorney, by whom the suit was brought. The defendant did not release any right, or give anything of value to Dye in consideration of the settlement. It is true, that he handed to L’Velle, who acted as Dye’s attorney in the transaction, his note at ninety days for $600, but it is still held by L’Velle upon notice not to deliver it to Dye until the rights of the parties have been determined. Why then should the defendant be allowed to set up the alleged settlement with Dye as a defence to the note against the plaintiff? What if the suit was brought for the use of Dye ? If he was not the real owner of the note, he had no right to settle or compromise the suit, and if the defendant was not prejudiced by the settlement, as he clearly was not, he has no right in equity or justice to set it up as a bar to the plaintiff’s action. If he had released any right, or paid anything of value as a consideration of the settlement, the case would be different. He might then say that the plaintiff had misled him to his prejudice by bringing the suit for the use of Dye, and that having settled with him in good faith, and paid him a valuable consideration, the plaintiff was estopped from denying his right to make the settlement. But as it is, he. has no foundation for such an estoppel. If he was misled, it was not to his hurt, for he has not parted with anything of value. The note which he gave to L’Velle is still in his hands abiding the result of this controversy. To allow the defendant, under the circumstances, to set up the settlement as a defence to the plaintiff’s action would contravene the plainest principles of equity and justice. Even if a judgment had been obtained against the defendant for the amount of the note before the settlement was made, and it had been satisfied of record by Dye’s attorney, a court of equity, on proof of the facts, would order the entry of satisfaction to be stricken off, and compel the defendant to pay the plaintiff the amount of the judgment : McClurg v. Wilson, 7 Wright 439. There was then no error in the refusal of the court to charge that if the jury believed that the settlement made by the defendant with Dye was without notice of the plaintiff’s ownership of the note, or of its re-assignment to him by Dye, it was a defence to this action.

The question next to be considered is, was there error in rejecting the defendant’s offer to show the payment of over one thousand dollars of partnership debts for the purpose of defalking the plaintiff’s half thereof against his demand on the note. There can be no pretence that the defendant was entitled to set off one-half of the amount 'which he had paid on account of the partnership indebtedness, if the plaintiff was not indebted to the partnership by reason of such payment. Whether he was indebted or not, could only be ascertained by a settlement of the partnership accounts, which could not be made by the jury in this action. The only mode provided by law for the settlement of partnership dealings is by a bill in equity or by an action of account render. The offer, therefore, was clearly incompetent, as it would have involved an inquiry into the state of the partnership accounts, which it was not competent for the jury to make, and the evidence was rightly rejected.

Nor was the defendant entitled to any deduction or abatement, on account of the alleged failure of title to the lath-mill. If Mc-Ginley had any interest in it as a partner or joint owner, which, so far from being clear, is very doubtful, the fact must have been as well known to the defendant as to the plaintiff when he sold his interest in the partnership property. Besides, the plaintiff, as the written contract shows, sold only “his right, title and interest” in the lath-mill, and consequently the defendant took the mill subject to whatever interest McGinley had in it.

The other questions raised by the assignments of error were not pressed on the argument, and there is nothing in them that calls for discussion.

Judgment affirmed.