author: Sterrett, J.

text:
    May Term, 1881,
    No. 136.
    June 21st, 1881.
    Billings et al. versus Billings.
    1. B. and C. entered into an agreement which provided that C. should cut, peel, transport, and deliver into the Susquehanna Doom at Williamsport, within four years, all the merchantable pine timber then growing upon certain lands of B., for which O. should receive four dollars per thousand feet, payable “ in good merchantable pine saw-logs, equal in value to the timber cut upon said lands at the price or sum of eight dollars per thousand feet, to be delivered in said boom,” and which further provided that B. “ will not sell or dispose of said timber, or any part thereof, to any other person at any price without giving thesaid second party (O.) the refusal to purchase the same upon the same terms as he, the said first party (B.), shall sell the same.” Held, reversing the Court below, that upon the death of B., before any actual severance of the timber, it continued to be a constituent part of the real estate, and that his widow, as administratrix, was not entitled to the proceeds of the sale of timber severed after his death.
    2. Under the terms of the contract B. was not bound to sell the timber at all, and it therefore does not work a constructive severance.
    Error to the Court of Common Pleas of Tioga County.

    Amicable action of assumpsit by C. F. Billings, P. S. S. McNeil and Abby B. McNeil, in right of the said Abby B. McNeil against Sarah M. Billings, entered October 26th, 1880, with same effect as if a summons had been issued and returned served. The parties waived the right of trial by jury and submitted the decision of the issue joined to the Court.
    The facts were agreed upon, as follows:
    Upon the 25th of September, 1879, Silas X. Billings of the one part, and Henry Colton of the other part, entered into an agreement which provided, that whereas Billings was the owner of certain lots of land, “ the said party of the second part hereby agrees, in consideration of the covenants and agreements of the said party of the first part, to cut, peel, transport, and deliver into the Susquehanna boom at Williams-port, Pennsylvania, in a proper and workmanlike manner, according to the custom of lumbermen, all the merchantable pine timber upon said lots of land within four years from the date hereof, at the price or sum of four dollars per thousand feet, excepting, however, from said timber, so much thereof as the said party of the first part shall cut for the Cedar Run Tanning Company, and the said party of the first part hereby agrees to pay to said second party for cutting, peeling, transporting, and delivering said timber into said boom, the full amount of the aforesaid price in good merchantable pine saw-logs, equal in value to the timber to be cut upon the aforesaid lands at the price or sum of eight dollars per thousand feet, to be delivered in said boom; the said second party hereby agrees that from this date, annually, he will cut and deliver as aforesaid, about one-fourth of all the said timber, all of which shall be marked with the mark of said first party, to wit, ‘ S. X. B.,’ and the said first party hereby agrees to pay said second party for said cutting, peeling, and delivering of said timber each year, as fast as the same is delivered and the amount is ascertained, by orders upon the company owning or operating said boom. In the cutting and transportation of said timber, no hemlock timber upon said lands shall be destroyed. All of said timber, as fast as the same is cut, and before the same is put into water for transportation, shall be scaled by scalers chosen and agreed upon by the parties aforesaid, and whose services shall be paid for by said parties jointly, and said second party shall have a free right of way over and upon any adjoining lands of said first party, for the purpose of cutting, storing, and removing said timber, and said party of the first part hereby agrees that he will not sell or dispose of said timber, or any part thereof, to any other person at any price without first giving to said second party the refusal to purchase the same upon the same terms as he, the said first party, shall sell the same. And all charges for boomage upon said timber shall be paid by the person-or party to whom said boom company shall deliver the same, and the said party of the second part hereby covenants and agrees that he will not sell, assign, or transfer any interest in this agreement to any other person without the written consent of said first party.”
    Silas X. Billings died October 13th, 1879, intestate, without issue, leaving to survive him a widow, Sarah M. Billings, the defendant, and one brother and one sister of the whole blood, Charles F. Billings and Abby B. McNeil, wife of Peter S. S. McNeil, the plaiutiffs, and one brother and three sisters of the half blood.
    The defendant took out letters of administration October 27th, 1879. Since the death of the decedent, Colton cut and removed 3,095,000 feet of the timber mentioned in the above agreement, one-half of which the defendant delivered to him. She also sold to him the other undivided-half, for which she received six thousand six hundred dollars.
    Upon this state of facts the plaintiffs claimed that the timber was real estate, which descended to the heirs of the decedent.
    The Court below, II. W. "Williams, P. J., found, inter alia, as follows :
    “ The remaining question is that which grows out of the contract with Henry Colton. Its provisions are peculiar and require a careful examination. On the paid of Colton it is an agreement to cut, remove, and deliver in the boom at Williamsport all the pine timber on five warrants of unseated land, containing five thousand acres, within four years from the date of the contract, and not to sell or transfer his interest therein to any one without the consent of Billings.. The consideration for performance on his part is stated to be ‘ the covenants and agreements of said first party,’ and these are as follows: To pay four dollars per M ft. for cutting, removing, and delivering the timber in the boom, to pay this amount in pine saw-logs, equal in value to the timber to be cut under the contract at eight dollars per M ft. in the boom at Williamsport; to deliver the logs by the delivery to Col-ton of orders on the company operating the boom and having them in custody, and to give Colton the refusal of all the logs got in by him at the price at which Billings might be willing to sell them in the boom. Under this agreement Colton entered on the land, and after the death of Billings, cut, removed, and delivered in the boom at Williamsport, a large quantity of saw-logs. For this labor he received four dollars per M ft. in saw-logs of equal value, etc., at eight dollars per M ft., and the refusal of the logs remaining in the boom. He exercised his option and became a purchaser of all the logs at the price put upon them by the personal representative of Billings. The money paid by him for the timber so bought is in the hands of the defendant as administratrix. The heirs seek to recover it from her, alleging that the timber was, at the death of Billings, standing on, and, therefore, part of the freehold; and that the defendant has no more right to its proceeds than she would have if the contract had never been made.
    “ On the other hand it is urged that the contract is in effect an agreement to put in the timber for one-half of it, and is, therefore, an absolute sale of one-half to Colton, as the consideration for putting the whole into the boom.
    “ This may have been in the minds of the parties, but we are unable to see that it is expressed in the contract. In its terms it seems to us to be a contract for the performance of certain labor by Colton, and for payment therefor by Billings. The price of four dollars per M ft. is to be paid, it is true, in saw-logs., but not necessarily those gotten in by Colton. The contract declares that they shall be ‘equal in value,’ but it does not declare that they shall be the same logs; under this provision no title vests in Colton to any particular logs, nor has he a right to insist that he shall be paid in logs, and that the logs so paid to him shall be ‘ equal in value ’ to those he has already cut and delivered in the boom. If payment is not made in accordance with the contract his remedy is an action on the contract for damages. If payment is made or tendered in logs ‘ equal in value ’ to those got in by him, it is no matter on what land they grow, or by whom they were cut and delivered in the boom. We cannot regard this position, therefore, as well taken.
    “But the contract contains the following clause,to which reference has already been made, viz.: ‘ Said first party agrees that he will not sell or dispose of said timber, or any part thereof, to any person, at any price, without first giving to said second party the refusal to purchase the same upon the same terms as he, said first party, shall sell the same.’
    “This clause gives Colton the unqualified refusal of the whole quantity of timber to be cut and delivered in the boom by him. Billings divests himself of the power to sell to any one else until he shall have first offered it at his selling price to Colton. This is a sale at the option of Colton, and that option is part of the price agreed upon for his labor. In other words, we have in this contract an agreement by Col-ton, to perform certain labor for a certain price, plus the refusal under consideration. So far as Billings is concerned nothing remains to be done except to fix the price at which he will sell, and when this is done Colton may insist on his right to take, as a purchaser, without the slightest regard to the wishes of Billings. So far as Billings is concerned, then, this is a contract of sale at a price to be fixed in the future when the logs may be delivered in the boom. Now a contract of sale of standing timber made with a view to its immediate removal works its conversion into personalty, as in the case of the contract with J. M. & Michael Wolf, just considered. The effect of a sale resting on the option of the purchaser is the same: 1 Sugden on Vendors, 187.
    “ It may be said that this is not a sale of standing timber upon any terms but upon logs only, and that there is, therefore, no room for the application of the rule referred to ; but the contract must be construed as a whole. Taken altogether, it is an agreement by Billings to cut and deliver in the boom at Williamsport all the pine timber on certain lands, and to give to Colton the refusal of the same.
    “ Timber from any other lands of Billings, though ‘ equal in value,’ will not answer the requirements of the contract The timber must be from the lands described, and Colton has a right to the whole of it, — all that was standing, when the contract was made, suitable for cutting. Now this may not be a sale of standing timber, and it may be that losses by fire and flood occurring prior to the actual delivery of the logs to the purchaser would fall upon Billings; but it is at least a selection and designation by the owner of a particular lot of standing timber for cutting and removal from the land, an agreement for its immediate, cutting and removal, and an agreement with a purchaser for a sale at his option of the timber when removed. The jobber and the purchaser are the same person. Colton agrees to cut and deliver in the boom the timber from the designated lands, aud when delivered he has the refusal of the logs. They are never under Billings’s control for purposes of sale at any time, unless Colton declines to take them, but from the date of the contract the right of Colton as a purchaser is fixed. Whether such a contract passes any title to the standing timber or not, we think it is such a contract as works a constructive severance of the timber affected by it, and, therefore, a conversion of it into personalty.
    “ We are not called upon to express an opinion not necessary to the disposition of this case, but if the clause giving the refusal of the timber to Colton had not been in the contract we should then have had an entirely different question. The rights of the parties would then have depended upon the effect of the contract to cut and remove the timber at a fixed price for the labor. Whether such a contract under which nothing had been done prior to the death of the owner of the freehold would work a conversion is, so far as we know, yet to be decided. Its decision is not necessary to the determination of this cause, and we express no opinion upon it.
    The question we have upon this contract is whether its stipulations taken together work a constructive severance of the timber, which was cut and delivered under it, taken by Colton as a purchaser, and paid for by him to the defendant. Upon that question we feel very confident in the opinion we have expressed. We think the contract is binding and capable of enforcement in accordance with its provisions by and against the personal representatives; and that, as to both parties to it and as to the plaintiffs in this case, it worked a constructive severance of the timber at its execution without any regard to the question whether title vested in Colton at that date, or at the time his option was exercised.”
    Judgment for the defendant, whereupon this finding was assigned as error.

      W. H. Armstrong and C. H. Seymour for plaintiffs in error.
    In holding that the clause in the agreement about not selling the timber without giving Colton the refusal of it was a sale at the option of Colton, and gave him the unqualified refusal of the whole quantity of timber to be cut and delivered, the Court took a wroug view. There is nothing in that clause which required Billings to sell. He could saw the logs at his own mill. It gave Colton no present nor even a contingent interest in the timber. Such a contract cannot be specifically enforced: Elder v. Robinson, 19 Pennsylvania State, 364. There was no sale, since there was neither price, time, or place in contemplation: Nesbit v. Burry, 1 Casey, 208 ; Hutchinson v. Hunter, 7 Barr, 145.
    The contract was personal only and died with the parties: Lovering v. Buck M. C. Co., 54 Pennsylvania State, 291 ; Dickinson v. Calahan’s Admr., 7 Harris, 227 ; Bland’s Admr., v. Umstead, 11 Harris, 316 ; 1 Story on Contracts, § 275-287.
    If the administratrix was bound at all, she would be bound for four years, and the estate-must be kept open for all that time.

      H. Sherwood, J. Harrison and Elliott & Watrous for defendant in error.
    The contract when carefully examined shows that Billings intended to sell and Colton to purchase one-half of the pine timber on the tracts. If there was such a sale it clearly worked a conversion of the timber from realty to personalty : McOlintock’s Appeal, 21 P. F. Smith, 365 ; Sugden on Vendors, vol. i, p. 287 ; 1 Williams on Executors, 627.
    Even if an executory contract it could be enforced: Parsons on Contracts, 130; 2 Williams on Executors, 1560; White’s Executors v. The Commonwealth, 3 Wr., 175 ; Wentworth v. Cock, 10 Adolphus & Ellis, 33.
    If tlie contract is enforceable it operates as between the heirs and personal representatives to convert the standing timber into personalty.
   The opinion of the Court was delivered October 3d, 1881, by

Sterrett, J.

The contract of September 26th, 1879, between Billings, the husband of defendant, and Colton, by which the latter agreed “ to cut, peel, transport, and deliver into the Susquehanna boom at Williamsport,” within four years, all the merchantable pine timber then growing upon certain lands of the former, contains some peculiar provisions; but, aside from the clause hereinafter quoted, it is substantially an agreement, on the part of Colton, to do all the work of cutting and delivering the timber, for which he was to receive from Billings four dollars per thousand feet, payable not in money hut “in good, merchantable pine saw logs, equal in value to the timber cut upon said lands, at the price or sum of eight dollars per thousand feet, to be delivered in the boom ” After specifying the services to be rendered by Colton and the manner in which he was to be compensated therefor, Billings agrees, in the clause referred to, “’that he will not' sell or dispose of said timber or any part thereof to any other person at any price, without giving the said second party the refusal to purchase the same upon the same terms as he, the said first party, shall sell the same.” This is the clause, in the contract above referred to, upon the effect of which the present contention hinges. The several assignments of error relate either directly or indirectly to the construction given to it by the Court below.

Luring the lifetime of Mr. Billings there was no actual severance of any part of the timber in question; but defendant contends that by the terms of the contract it was constructively severed from her husband’s real estate, and thus became a species of personal property, which, after his decease, she, as his personal representative, had a right to administer, and that as his widow she is entitled under the intestate law to one-half of the net proceeds thereof. She accordingly settled with Colton for the work done under the contract, and sold him timber in the boom to the amount of six thousand six hundred dollars and received the money. If the proper construction and legitimate effect of the contract is as she contends the judgment should be sustained. On the other hand, if there was no severance, actual or constructive, during the lifetime of the intestate, it follows that the timber, at the time of his decease, continued to be a constituent part of his real estate, the title to which vested in his heirs-at-law, subject to such incumbrances and charges as may have existed against the same.

In construing the contract the learned president of the Common Pleas substantially held that the clause in question gave Colton an unqualified refusal of all the timber he agreed to cut and deliver in the boom; that this was in effect a sale at the option of Colton for a price to be fixed in the future, and that the case was brought within the recognized principle that a sale of standing timber, made with a view to its immediate removal, works a conversion of it into personalty. In thus construiug the contract, and especially in holding that it gave Colton the unqualified refusal of the timber cut and delivered in the boom, we think there was error. While Billings bound himself not to sell or dispose of the timber, cut and delivered under the contract, to any other person without first giving Colton the refusal to purchase upon the same terms, it is very clear he was not bound to sell either to Colton or any one else. He was entitled to the possession of it iu the boom, and might hold it for an indefinite period; or, if he chose, he might manufacture it into any kind of lumber for which it was suitable, and either use or dispose of the product as he saw fit. So far as any provision of the contract is concerned no one could question his right to do so. It was only in case he determined to sell the logs that he was required to give Colton the refusal to purchase them. We see nothing in the contract that can fairly be construed into a sale of the standing timber. On the contrary the agreement is so framed as to preclude Colton from successfully asserting any title to or interest in the timber either before or after it was cut, unless Billings determined to sell or dispose of it, and then he was only bound to first tender it to Colton on such terms as he was willing to make with any other person.' The title and possession were exclusively in him. While he was bound to pay Colton “ in good, merchantable pine saw-logs,” for the labor of cutting and transporting the timber to the boom, he was not required to use for that purpose any of the logs cut by Colton. He had a right to pay him in any other logs, provided only they were “equal in value” and good, merchantable pine saw-logs.

From what has been said it follows that the judgment should be reversed ; and, as to the only item of the plaintiff’s claim, viz, $6600, to which the assignment of error relates, judgment should be entered in favor of the plaintiffs. As to the other items of their claim, as set forth in the declaration, the plaintiffs have acquiesced in the judgment of the Court below.

The judgment of the Court of. Common Pleas is reversed, and judgment is now entered in favor of the plaintiffs and against the defendant for six thousand six hundred dollars ($6600), with interest from November 2uth, 1880.


source: Caselaw Access Project

author: Sterrett, J.:

license: Public Domain

text:
    May Term, 1881,
    No. 114.
    May 30th, 1881.
    Weaver versus Frantz.
    1. Where the consideration of a promissory note was the right to nse and vend- - a patented invention, and the note had not on its face the words, “ given for a patent-right,” required by the act of April 12th, 1872, and the indorsee took if knowing that it was given for a patented invention, he is not a bona fide holder,, and the note in his hands is subject to any defences that exist against the payee.
    2. Semble that upon the principle that a court of justice will not lend its aid to any one whose claim originated in the commission of a criminal act to which he was voluntarily a party, the note, in the hands of an indorsee having such, knowledge at the time he bought it, is void.
    3. It is competent for the maker of the note to introduce testimony bearing, upon both these grounds of defence.
    4. Hunter v. Hemminger, 37 Leg. In., 412, followed.
    Error to the Court of Common Pleas of Lycoming County.

    Assumpsit by L. M. Weaver against Daniel G. Frantz, upon a promissory note of which the defendant was the maker, and the plaintiff the indorsee.
    Upon the trial of the case the plaintiff offered in evidence the note, which was in the following form:
    “ $240 July 26th, Pa., Htjghesviele, 1877.
    “ Six months after date, for value received, I promise to-pay to the .order of II. W. Hogue & Co., two hundred and-forty dollars at Hotchkiss & Barber’s office, without defalcation, and without relief from any stay, appraisement, or exemption laws, with interest after date.
    “ Daniel G-. Frantz.”
    It was indorsed “ H. W. Hogue & Co.”
    The plaintiff then rested.
    Payment of the note was resisted by the defendant upon the grounds:
    first, That the note had been given for the right to use and vend a patented invention, that the words “ Given for a patent right,” were not written or printed across its face as required by the act of April 12th, 1872; that the plaintiff knew when he purchased the note, that it had been given for the right to use and vend a patented invention, and that the note being taken in violation of a penal statute, was void in the hands of the plaintiff.

      Second, That under these circumstances the negotiable character of the note was thereby destroyed, and it was subject to the same defences in the hands of the plaintiff' as in the hands of the original holder, and that the plaintiff was not a bona fide holder.

      Third, Failure of consideration.
    Counsel for the defendant put the defendant upon the stand, and offered to prove by him and other witnesses “that the note upon which suit is brought was given for certain patented inventions, known as perfect grass- and grain-seed cleaners and separators, and for the right to use and vend the same in the townships of Muncy Creek and Penn in the County of Lycoming; and also that these machines, at the time they were sold with the right to vend and use them in the townships aforesaid, and at the time the note in suit was given, the payees guaranteed the machines to be of good quality, and to do certain work, which they represented they would do, but which it turned out they would not perform, and that the said machines were perfectly worthless,” to be followed by evidence that the plaintiff in this case, at the time the note was negotiated by him, knew that the note had been given in part for a patent-right, and for the right to use and vend patented machines, .and also that he knew of the guarantee which the payee of the note had given to Mr. Frantz, guaranteeing these ma■chines as before stated ; and that the note has not written across it, on the face of it, as required by the act of Assembly, the words “ given for a patent-right.”
    Counsel for plaintiff objected :

      First, Because this offer is not evidence until it is shown that the plaintiff is not a bona fide holder for value.
    Second, Because the offer is not explicit enough in stating the character of the knowledge of the plaintiff of the fact set forth in the offer at the time he purchased the note in suit.
    Third, Because it is not proposed tó prove that at the time he purchased this note he knew the facts set forth in defendant’s offer.
    The objections were overruled and the evidence was admitted under exception, the defendant being required, however, to present it in the following order:

      First, What was the consideration of the note ?

      Second. That the plaintiff knew what the consideration was ?

      Third. The merits of the defence, if there be any.
    There was considerable conflicting testimony upon the point as to whether the plaintiff knew at the time he bought the note, that it was given for a patent-right.
    The Court below, Cummin, P. J., charged the jury, inter alia, as follows:
    “ The defendants set up as a defence here, that this note was given in whole or in part for a patent-right, and for the right to sell and use a patent-right, and that this plaintiff, L. M. 'Weaver, knew at the time he took the note, that it had been given for a patent-right and for the right to use and vend a patent invention, or something that was claimed to be a patent invention. And if they have made these facts out to you it becomes a perfect defence to the note, no matter whether these machines were good or bad.....If any person takes a note knowing that that was the consideration of it, and not having those words on it, they shall be guilty of a misdemeanor. If the party defendant in an action brought on such a note can show by clear and positive proof, that the person who took the note knew that it was given for a patent-right, in whole or in part, for the right to use or vend any patent invention or inventions, theu it is void, because it is transferred and taken in fraud of this act of Assembly, and that is the defence set up in this case.....The (juestion is, did he (Weaver) know at that time, on the 8th of August or before that time, for if he knew it before, he also knew it on the 8th of August, that this note in suit, which he that day purchased, had been given in whole or in part for the right to make, use, or sell, any patent invention or inventions claimed to be patent ? If he did, then he comes within the provisions of this act, and he takes the note in fraud of this act, and the note is therefore void in his hands, just as it would be in the hands of the original owner, because it is taken in violation of the provisions of this statute.....
    Therefore the proof to satisfy you of this must be clear and satisfactory before you would be justified in drawing the inference that the party taking the note had knowledge of that fact.”
    January 14th, 1881, verdict for the defendant, upon which judgment was entered.
    Plaintiff took a wi’it of error, assigning as error, inter alia, the admission of the above testimony.

      H. T. Ames and H. C. McCormick for plaintiff in error:
    In a suit by the indorsee of a negotiable note agaiust the maker, the presumption is that the plaintiff obtained it upon a valuable consideration, in the due course of business, before it was due: Hutchinson v. Boggs, 4 Casey, 294 ; Snyder v. Riley, 6 Barr, 168 ; Battles v. Loudenslager, 3 Norris, 446.
    He may rest upon this presumption until the defendant makes out a prima facie case against him: Knight v. Pugh, 4 W. & S., 445.
    But mere evidence of want of consideration is not sufficient to put the holder upon proof of title : Brown v. Street, 6 W. & S., 222 ; Albrecht v. Strimpler, 7 Barr, 476 ; Phelan v. Moss, 17 P. F. Smith, 59.
    In this case defendant did not offer to show that the note was obtained by fraud, duress, or mala fides, or that plaintiff knew at the time he bought the notes that the machines were worthless. The evidence was therefore improperly received ; it did not show such knowledge.
    If it made no difference what the defence set up, whether the machines were good or bad, as the Judge charged, why permit him to prove the demerits of the machines ? Why throw into the jury-box a mass of irrelevant testimony: Canal Company v. Barnes, 7 Casey, 196 ; Railroad Company v. Decker, 1 Norris, 119 ; Shaeffer v. Kreitzer, 6 Binn., 430 ; Nash v. Gilkeson, 5 S. & R., 352 ; Unangst v. Kraemer, 8 W. & S., 391 ; Miller v. Miller, 4 Barr, 317.

      John J. Metzger and William W. Hart for defendant in error:
    If plaintiff knew, when he became the holder of the note, that it was given for a patented invention in violation of the act of Assembly, he was not a bona fide holder, and defendant could prove any defence that could have been offered against the original holder: Hunter v. Henninger, 37 Leg. In., 412.
    There were two grounds of defence, and it would have been manifest error to have withdrawn any of the evidence offered by defendant: Sheaffer v. Eakman, 56 Penna. State, 150.
   The opinion of the Court was delivered October 3d, 1881, by

Sterrett, J.:

The plaintiff having given in evidence, without objection, the defendant’s note at six months from July 26th, 1877, indorsed by the payees, II. W. Hogue & Co., was prima facie entitled to a verdict for the amount of his claim. To meet the case thus presented, the defendant relied substantially on the following grounds of defence: 1st, That the consideration of the note was the right to use and vend a patented invention, and the words “ given for a patent-right ” were ^either written nor printed on the face of the note, as required by the act of April 12th, 1872; that the plaintiff acquired the note with full knowledge of these facts, and in so doing violated that clause of the act which makes it a misdemeanor for any one to knowingly take, sell, or transfer any such note ; and hence he had no right to recover. This defence is grounded solely on the penal clause of the statute, and the principle invoked is, that a court of justice will not lend its aid to any one w’hose claim originated in the commission of a criminal act to which he was voluntarily a party. 2d, That as against the payees of the note he had a good defence in this, that they guaitmteed the patented machinery, for which- the note was given, to be of good quality, and to do certain work, but, after a fair trial, it proved to be worthless, and consequently the consideration of the note failed ; that plaintiff, having taken the note with knowledge of its consideration and the omission to comply with the requirement of the statute aforesaid, was not a bona fide holder, and hence the note in his hands was subject to the same defence that existed against the payees.

If the first ground of defence was sustained, the second of course became unnecessary, but the defendant had a right to introduce testimony bearing on each, and ask the Court to pass upon the questions of law arising therein.

The object of the act in requiring the words above quoted to “be prominently and legibly written or-printed on the face of the note,” was to give notice of its consideration, and, in connection therewith, make the note non-negotiable. With the latter purpose in view, it is declared that “ such note or instrument in the hands of any purchaser or holder shall be subject to the same defence as in the hands of the original holder.” The defendant contended that inasmuch as plaintiff* took the note with actual notice of the consideration, etc., he was at least in no better position than if he had been warned in the manner contemplated by the act; and hence the note thus in his hands was subject to the same defence that it would be in the hands of the payees. It cannot be doubted he had aright to present this defence for the consideration of the Court. If the case was afterwards submitted to the jury on the broader ground that the plaintiff had no right to recover at all, if in taking the note, he knowingly violated the penal clause of the statute, he has no reason to complain, because he did not except to the charge of the Court. We do not mean to intimate that an exception would have been of any avail. On the contrary, we think it would not. The charge of the learned judge is in full accord with the construction given to the act in Hunter v. Henninger, 37 Legal Intelligencer, 412, in which it is said: “ The ací o| April 12th, 1872, was intended to destroy the negotiable character of notes given in whole or in part for the right to make, use, or vend any patent invention, in order that the makers thereof might have the right to defend as web when said notes were passed off to third parties as when in the hands of the original payees. In furtherance of this intent, the act requires the indorsement, ‘given for a patent right,’ to be marked across the face of the note. . . . Without this, of course the innocent purchaser for value would not be affected. Not so, however, as to one knowing the consideration of a note given for a patent-right, for such a one is by the act guilty of a misdemeanor if he receives this kind of paper without having the words above stated written upon its face. It follows that if the plaintiffs, through Dreman, received the note in suit, knowing it was given for the right to vend or use the patent grinders, they received it in fraud of the statute, and were for that reason not entitled to recover.” This language is equally applicable to this case.

There was no dispute as to the consideration of the note, but there was some conflict of testimony as to whether the plaintiff, at the time he purchased it, knew it was given for a patent-right. That was a question of fact for the jury. Tt was fairly submitted to them under properly guarded instructions, and they found in favor of the defendant.

Erom what has been said in regard to the nature.and character of the defence, it is evident there was no error in admitting the testimony complained of in the first assignment. The order of its presentation was properly controlled by the Court, and this was all the plaintiff could reasonably ask. The second and third assignments are not sustained. In connection with other evidence in the case, the testimony complained of was not improperly admitted.

Judgment affirmed.


author: Mercur, J.

text:
    May Term, 1881,
    No. 21.
    May 25th, 26th, 1881.
    Horton et al. versus Hall.
    1. In an action upon the case to recover damages for interference with the use of the plaintiff's saw and shingle-mill caused by tan-bark and other refuse cast into the stream above, at the tanneries of the defendants, evidence as to the proximity and quantity of timber belonging to the plaintiff is relevant.
    2. The producing power of the mill, and the profits in operating it when unobstructed, are pertinent facts in fixing the amount of damages.
    3. It would be error to admit evidence of the obstructed condition of the pond of plaintiff after suit brought, as a basis for damages; but such evidence, accompanied by testimony that it was in the same condition during the period for which damages were claimed is admissible.
    4. The ability of the mill to be run with profit without the obstruction is a fact clearly admissible.
    5. Any special contracts the plaintiff may have had, or been able to obtain, are not such speculative or anticipated profits as should be excluded from the jury, and for the Court to decline to instruct the jury not to consider them is not error.
    6. Though single sentences may be found in a charge subject to criticism, yet if the charge, taken as a whole, is not calculated to mislead, and contains a just statement of the law, the judgment will not be reversed.
    Error to the Court of Common Pleas of Warren County.

    Case by Orris Hall against Webb Hprton, Walter Horton, Isaac Horton, Jerry Orary, II. II. Crary, Jacob Sehoellkopf, and George Dixon, to recover damages for interfering with the use of plaintiffi’s saw-mill by causing large quantities of tan-bark and refuse to be cast into the stream above.
    The summons was issued January 19th, 1877. The narr. set forth the ownership of the mill, the injury, and “ that the said plaintiff was unable to use his said saw- and shingle-mill with advantage and profit, and has for a great length of time, to wit, from the saidAfirst day of March, A.D. 1871, down to the bringiug of this suit, been deprived of the use, benefit, and advantage of the said stream of water as fully and unobstruetedly as he was and is entitled to the same for the propelling of his said mills, and the floating of logs and other uses incident to the said mills, and by means whereof the said plaintiff, during all the time aforesaid, the profits of his said saw- and shingle-mill aforesaid, has lost,” etc.
    Plea of not guilty, with leave, etc.
    Upon the trial of the case in the Court below the following facts appeared:

      Plaintiff was the owner of a saw-mill on the north fork of the Tionesta creek, in Warren County, the building being 60 by 80 feet in dimensions. The mill consisted of one circular and one upright saw, and a shingle-mill. It was built in 1846-1847, rebuilt in 1856-1857, and repaired thoroughly in 1870, and was capable of cutting two or throe millions of boards a year when free from obstructions. The capacity of the pond for holding logs, outside of the main channel of the stream, was large. Seven or eight thousand logs could be safely stored by putting a boom across to prevent them coming out into the main channel. Prior to 1872 and 1878 the pond was in good condition, and no deposit of sawdust had come down to interfere with the proper use of the mill.
    The defendants owned two tanneries upon the stream, about a mile above, which consumed from ten to twenty thousand cords of bark a year. They were built in 1867. In 1874 the pond filled up with the tan-bark very much. In 1875 it filled up to the top of the slash, the whole area of the pond. It was testified that the effect of this was to shut the water out of the pond, diminish the water capacity, and prevent the floating of the logs. In 1875 and 1876 the use of the mill was not worth anything. This bark came from the defendants’ tanneries.
    Plaintiff stopped his mill in 1873, and made no arrangements to run it in 1874, from the fact that the price of lumber was very low.
    The plaintiff being on the stand, his counsel proposed to show the timber owned by the plaintiff in proximity to the mill, and used in connection with the mill, for the purpose of showing the damage sustained by him.
    The oiler was admitted, under objection and exception, and the witness testified:
    “ I have about three thousand acres of land around the mill and adjacent to it. A great portion of that is hemlock, — probably a million or two of pine; is very convenient to the mill; probably a half mile from the head of the pond is the location of the pine.”
    Counsel further proposed to ask the witness what his losses were during the years 1875 and 1876 in consequence of the obstructions to the mill and pond in question.
    Offer objected to, and admitted under exception.
    The witness answered:
    “ I think $2000 a year. When I speak of the $8000 I mean taking the timber and everything into consideration.”
    The witness also testified that he had contracts with a man by the name of Taylor for decking, and it was upon them he based his losses.

      Counsel further proposed to ask the witness the market value of the kind of lumber he proposed to make in 1875 and 1876.
    Offer admitted under objection, and excepted to.
    The witness answered: “It was worth $20 a thousand at Sheffield, on the cars.”
    Plaintiff’s counsel further proposed to prove by H. J. Miller the condition of the mill-pond in the summer of 1877, to be followed by evidence showing that its condition in 1877 was similar to its condition before bringing suit.
    Offer objected to, and admitted under exception.
    The witness testified that the condition of the pond was about the same in 1877 as in 1876. He and other witnesses then testified to the effect that they had hard work to get through the main channel with a boat. Along the bottom was principally tan-bark. There was tan-bark along the banks on each side, and from shore to shore, except the main channel, clear up to the dug-way. The tan-bark varied in depth from eighteen inches to two feet and a half or three feet in the main channel.
    Counsel for plaintiff asked the Court to charge, inter alia,
    2. If the jury believe, from the evidence, that plaintiff was the owner of a mill upon the Tionesta creek, that the defendants, owning or occupying a tannery upon or near said creek, and above plaintiff’s mill, cast, or caused to be cast, into the creek quantities of tan-bark and other refuse which by the current of the water was carried down the stream and deposited in the milldam of the plaintiff in such quantities as materially to interfere with the. profitable use of his mill, the plaintiff is entitled to recover as damages the loss of profits occasioned thereby down to the time of the commencement of this suit.
    4. That the measure of damages is the injury actually sustained by the plaintiff by the reason of the wrongful acts of defendants; and if the jury believe from the evidence that as the immediate consequence of the wrong complained of plaintiff suffered damages, he is entitled to recover compensation to the full amount of such damages, and this whether in general the business of manufacturing lumber was or was not depressed during the years for which the damage is claimed.
    The Court below, Wetmore, P. J., affirmed the second point, and as to the fourth, answered:
    The fourth point is affirmed, except the following words: “ and this whether in general the business of manufacturing lumber was or was not depressed during the years for which the damage is claimed.” If the mill, with its surroundings, including timber lands connected therewith, could have been carried on in making and marketing lumber in the usual way at a profit to the owner, then an interruption in the use of the mill by defendants, by which profits were lost, wmuld entitle plaintiff to recover. If the depression in the lumber market was such that in running the mill, manufacturing and marketing lumber in the usual way no profit would have accrued to the owner, then no damage would have respited.
    Counsel for defendant asked the Court to charge, inter alia,
    2. If the plaintiff’ is entitled to recover anything, the measure of damages is the difference between the annual value or use of his mill, unaffected by the deposit, and as affected by it. The jury cannot consider any prospective or anticipated profits which the plaintiff' claims he might have made; nor any special contracts which he may have had, or been able to obtain; all such evidence should be disregarded.
    The Court answered this point:
    The second point is affirmed, except the following words: “ The jury cannot consider any prospective or anticipated profits which the plaintiff claims he might have made.” For answer to this part of the point, reference is made to the qualification in answer to plaintiff’s fourth point.
    The Court charged the jury, inter alia, as follows:
    “You will determine, from the evidence, whether the defendants did use their tanneries in such a way as to only permit the escape of the tan-bark that was necessary and unavoidable. If you come to the conclusion that was all that was permitted to escape, they would not be liable in this case. If you cometo the conclusion, from the evidence, that they either threw into the stream or permitted the escape of the tan to the extent we have indicated, so as to impair the rights of the plaintiff, in the manner stated, then the plaintiff is entitled to recover damages in this suit.
    “ In case you find the plaintiff entitled to recover, then your attention is directed to the amount of damages to which he is entitled.
    “The plaintiff was in possession of a mill which has been fully described to you by the witnesses. In connection with the mill he had lands which he was using and occupying.
    [“ We say to you, that if he was interrupted in the use of his mill in consequence of the accumulation of tan-bark that had floated into the pond from the tanneries of the defendants, and by that interruption he did not, or could not, run his mill to advantage, and in consequence thereof he sustained loss, or he was deprived of profits which he would have had had he been permitted to run his mill in the ordinary way, and manufacturing and marketing the same, — we say to you the extent to which he was thus deprived of profits from the use of the mill would be the damages which he -would be entitled to recover in this suit. If, on the other hand, owing to the condition of the lumber market in the years that he alleges he was deprived of his property, there would have been no profit in the use of the mill, taking it in connection with the surroundings, its location, the timber land connected therewith, situated as it was, then there would be no damages sustained in consequence of the interruption by the acts of the defendants.] If there was no damage, there could be no recovery.
    “If you find there was a material interruption, and you come to the conclusion that in consequence of that interruption no damage was done to the plaintiff] situated as he was, then there can be no recovery.
    [“You will determine, first, whether the deposit of tan in the pond, in the manner we have indicated, rendered the defendants liable. If you come to that conclusion, then you will determine whether there was any injury sustained by the plaintiff in consequence of being deprived of the use of his property, in consequence of this deposit and interruption to his mill. If you come to the conclusion that there was no damage, you will find for defendants. If you come to the conclusion that there was, then you will determine, from the evidence, the damages the plaintiff sustained in consequence of the wrongful acts of the defendants in thus causing the pond to be filled up.]
    “ In getting at the amount of damages you will consider the time that has elapsed. The claim is for the interruption for the years 1875 and 1876. Suit was brought to March term, 1877.”
    Counsel for defendants excepted to the answers to the above points and to the charge.
    January 10th, 1880. Verdict for the plaintiff for $800, and subsequently judgment thereon.
    Defendants took out a writ of error, assigning as error the admission of the testimony, and the answers to the points as above set forth, and the portions of the charge in brackets.

      Charles H. Noyes and Brown & Stone for plaintiffs in error.
    The condition of the pond after suit brought was immaterial, and the large amount of testimony introduced to show that it was filled up in 1877 was irrelevant. The offer to show that the condition of the pond before bringing suit was similar to its condition in 1877 did not make it competent; Canal Co. v. Barnes, 31 Penna. State, 193 ; Railroad Co. v. Decker, 82 Penna. State, 119.
    As to'tke measure of damages.
    The proper measure of damages can be easily ascertained from the declaration itself, which only claims for the loss of the convenient use of the saw-mill and pond.
    How much less was that use worth in 1875 or 1876 by reason of the acts of the defendants ? Profits in any other sense, either from special jobs by contract, or from the lumbering business as usually carried on, are certainly too remote, and not covered by the pleadings: Laing v. Colder, 8 Penna. State, 479 ; Good v. Mylin, Ibid., 51 ; Seely v. Alden, 61 Penna. State, 302 ; McKnight v. Ratcliff, 44 Penna. State, 156.
    It was erroneous to leave the jury at liberty to find the profits plaintiff might have made out of alleged contracts: Navigation Co. v. Richards, 57 Penna. State, 142.
    The charge was confused and indefinite : Morris v. Platt, 32 Conn., 75 ; Railroad Co. v. Kelly, 31 Penna. State, 372 ; Railroad Co. v. Books, 57 Penna. State, 339 ; Railroad Co. v. Adams, 7 W. N. C., 329.

      Wilbur & Schnur, for defendant in error,
    cited Seely v. Alden, 61 Penna. State, 302 ; Railroad Co. v. Dale, 26 P. F. Smith, 47.
   The opinion of the Court was delivered by

Mercur, J.

The defendant in error was entitled to a reasonable use of the water of the stream for the purpose of operating his mill and machinery, and of the pond for the storage of logs, and for moving them and getting them to his mill, -without any undue obstruction or check by the owners of the tanneries above. The latter were not liable in damages for such interruptions of the water, as necessarily and unavoidably resulted from their reasonable use. The learned judge correctly stated the law as to the relative rights of the parties to the use of the water, and to this no error is assigned. The main objections are to the admission of evidence, and to the measure of damages.

The producing power of the mill, and the profits in operating the same when unobstructed by the acts of the plaintiff in error, are pertinent facts in fixing the amount of damages. The facilities and expense of getting logs to the mill, and the cost thereof, undoubtedly affect the profits arising from the manufacture of lumber. Evidence of the proximity and quantity of timber belonging to the owner of the mill was therefore relevant.

The claim was for damages sustained by obstructions in the pond in the years 1875 and 1876. The suit was brought in January, 1877. It would have been error to admit evidence of the condition of the pond after suit brought as a basis for damages; but no damages were claimed for that year. The evidence of its condition in 1877 was followed by showing that to be the same condition it was in the previous year, and the damages prior to 1877.

Damages for injury to property vary according to the nature and character of the property. The value of a mill depends on the profits which result from its being kept in operation. Whatever interrupts the use thereof, so that it cannot be worked to advantage, causes loss and damage. The ability' of the mill to be run with profit, without the obstruction, was a fact clearly admissible in evidence. The Court correctly said: “ The measure of damages is the difference between the annual value or use of his mill, unaffected by the deposit and as affected by it.” Nor did it err in declining to instruct the jury not to consider any special contracts which he may have had or been able to obtain. They were not such speculative or anticipated profits as to exclude them from the'jury. Whether or not the business of manufacturing lumber was depressed during the years in question, might seriously affect the profits, and consequently lessen the damages of an interruption; yet it by no means barred the right of the defendant-in error to recover for actual damages sustained as the immediate consequence of the wrongful act of the plaintiffs in error. The compensation might be less, but whatever it was he was entitled to receive it. We do not deem it necessary to consider all the assignments seriatim. Single sentences might be found in the charge subject to criticism; yet, taken as a whole, it is not calculated to mislead, and contains a just statement of the law: Pennsylvania Railroad Co. v. Dale, 26 P. F. Smith, 47.

Judgment affirmed.


author: Green, J.

text:
    May Teem, 1881,
    No. 59.
    May 31st, 1881.
    Lauth et al. versus Walker.
    1. Where the Court below made a perfectly fair and correct presentment of the case as it stood upon the contract between the parties, .but charged: “ If they (the defendants) in taking that measurement perpetrated a fraud for the purpose of deducting or getting coal without paying for it, he (plaintiff) would not be bound by that, because there is no law that would require you to carry out an agreement which was made with a view to perpetrate a fraud. But the plaintiff must satisfy you that there has been fraud perpetrated in the measurement of this coaland there was no evidence of fraudulent conduct upon the part of the defendants in the case; Held, to be error.
    2. It was agreed between plaintiff and defendants “ that the charcoal delivered shall be measured as follows: The wagon-bed to be calculated, and the number of bushels of twenty-six hundred and ninety (2690) cubic inches therein ascertained. The wagon to be filled full of, and the heapage put on with fine charcoal on the job; heapage to be with a twenty-bushel box of twenty-six hundred and ninety cubic inches per bushel. The wagon to be gauged upon the furnace bank by the said Lauth, Thomas & Co., or their authorized agent, at the lowest parts of the bed, and the load so gauged shall be the standard load from which to determine all others.” Held, that it would not be competent for the plaintiff to prove fraud in the measurement by proving what amount of coal ought, in the opinion of witnesses, to be produced from a cord of wood such as the plaintiff used when coaled in the manner in which he coaled it.
    3. Nor can he show that different results would have followed if a different method had been pursued.
    4. To prove that a teamster, when he asked for a square cut, was met with a smile, is entirely too indefinite and uncertain a method of establishing so grave a charge as fraud in the measurement.

      Note. — The Court ought not to be compelled to search through a large mass of testimony, in a paper book, for details of evidence to support the allegations of plaintiff in error, but a precise designation of such evidence should be furnished.
    Error, to the Court of Common Pleas of Centre County.

    Covenant by Jacob A. Walker against Bernard Lauth, A. H. Peacock, D. P. Greth, and R. C. Thomas, who survive B. B. Thomas, deceased, late trading as Lauth, Thomas & Co.
    The plaintiff" and defendants entered into an agreement under seal, February 22d, 1877, by which the former undertook to sell and deliver to the latter the charcoal to be by him made from cord-wood on his own land, the wood to be from 1500 to 2000 cords, to be paid for at the rate of six cents per bushel for every bushel of properly coaled charcoal of 2690 cubic inches delivered. It provided further: “ It is agreed by the parties hereto that the charcoal delivered shall be measured as follows: The wagon-bed to be calculated, and the number of bushels of twenty-six hundred and ninety (2690) cubic inches therein ascertained. The wagon to be filled full of, and the heapage put on with fine charcoal on the job; heapage to be with a twenty (20) bushel box of 2690 cubic inches per bushel. The wagon to be gauged upon the furnace bank by the said Lauth, Thomas & Co., or their authorized agent, at the lowest parts of the bed, and the load so gauged-shall be the standard load from which to determine all others. Said Lauth, Thomas & Co., or their authorized agent, shall have the option of determining which are the lowest places of the bed in all loads gauged, also of making any deductions they may think proper for dirt, etc., in charcoal delivered, also of determining which is the proper coal to be loaded on the standard load, also of determining disputes that may arise in regard to measurement of charcoal on the job or elsewhere.”
    Under this contract all the charcoal delivered by Walker was hauled upon four different wagons, which were respectively called the James bed, Boas bed, Clark bed, and the Gardner bed. The standard load of the James bed, as gauged by the defendants, was 127 bushels; that of the Boas bed 126 bushels ; that of the Clark bed 147 bushels ; and that of the Gardner bed 150 bushels. The plaintiff hauled on the James bed 47 loads; on the Boas bed 136 loads; on the Clark bed 55 loads ; and on the Gardner bed 35 loads.
    The measurements of the Boas and James beds, made by the defendants, were as follows :
    Length, top, “ bottom, Width, top, bottom, BOAS BED. 16 feet. ^ | Averaging 183 inches length. Height, 14 5 4 4 4 3 2 2 2 2 2 2 2 li 9! 8 If Hf lOf 9i 9f 9f 9f 7 Average width, 46f| inches. ■ Average height, 33 inches. Deductions, 12 pieces 2 feet 8 inches long, lx f 2 rods 4 feet 7 inches long, ¿ inch square. Length, top, “ bottom, Width, top, bottom, 1 rod 4 feet 10 inches long, f x-| JAMES BED. 16 feet, 2 inches. | Average length, 184 inches. Height, 4 4 4 5 2 2 3 3 2 2 2 2 Hf If 10 io| f 2! 9J 9f Average width, 47¶¶ inches. ■ Average height, 32jf inches.
    The plaintiff was credited on the books of the defendants with 38,529 bushels of charcoal at six cents per bushel, making $2311.74, and was charged with merchandise to the amount of $2270.08, which amount was not disputed, leaving a balance to his credit of $ 11.66. On the 14th of March, 1878, before suit was brought, defendants tendered to him $55, which sum was declined, and they then paid it into court.
    Plaintiff claimed that he had delivered more charcoal than had been credited to him, and in support of his claim at the trial below gave evidence of the following character:
    Plaintiff testified that he had bought the Boas and James beds from Andrew Heaton. Heaton testified that he got them made new ; that they were good and substantial beds; that he had run them for six or seven months before be sold them to the plaintiff, and that during this time Harry Cur-tin had measured them. Curtin testified as to the measurements.
    “ This is the Heaton bed :
    Length of bottom rail,. top rail, Width of bottom in front, “ “ behind, “ top in front, “ “ behind, . Height in front, . “ behind, . * * t--X 14 feet, 9 inches. 16 “ 31 “ 2 “ 11 “ 3 “ 6 “ 4 “ 8 “ 5 “ 3 <r 9 it q ¡t 2 “ lOJ “ * *
    “ Question. What was the length of the other bed ?
    “ Answer.
    Length of bottom rail, . “ top rail, Width of bottom, behind, “ top, “ “ bottom, in front, “ top, “ Height in front, . “ behind, . . 14 feet, 81 inches. 16 “ 2 “ 3 “ 5-1 “ 5 “ 2 “ 2 “ 11 “ 4 “ 8 “ 2 “ 91 “ 2 “ 11 “
    Nathan James testified that he bought the Boas bed from Walker, the plaintiff, in 1878, and proceeded :
    “ Question. Have you hauled since with that bed to Mr. Lauth’s furnace ?
    “ Answer. Yes, sir.
    “ Q. When?
    “A. In 1878 and fall of 1877.”
    Defendant’s counsel objects to what he hauled since to Mr. Lauth.
    Plaintiff’s counsel propose to show that this witness purchased the wagon-bed with which George Boas and he both hauled coal for Jacob Walker to Lauth, Thomas & Co. ; that after he purchased it he hauled coal by the bushel for Lauth Thomas & Co. from their own job to their furnace with the’ wagon. It is not denied to be the same as it was when he hauled for Jacob Walker; that he loaded substantially the same way when he hauled for himself as he did when hauling for Jacob Walker, and that whilst hauling by the bushel himself he hauled a load which was reported as containing 141 bushels; he measured the load himself, and found it to contain 168 bushels, and that as a compromise Mr. Peacock credited him in his book with 155 bushels, being 14 bushels more than he, Peacock, had measured it; that the load was loaded substantially as he had loaded that same bed for Walker when hauling for him, and that the charcoal.was measured the same way, the bushel being the same.
    The Court admitted this evidence under objection.
    The plaintiff being on the stand was asked by his counsel:
    “ Question. How much do these beds hold?’’
    Defendant’s counsel objects.
    Plaintiff's counsel propose to prove by this witness what the beds measured before they delivered this coal; secondly, what they measured■ since; thirdly, by the amount of cords of wood coaled, and what those cords of wood would make by this method of measurement, going to show that Walker got less in bushels than his wood makes.
    The Court overruled the objection, and admitted the evidence under objection.
    A. C. Boas testified that he had measured the James bed a week before the trial, and the measurement was—
    “ The length on top 16 feet and 2 inches, on the top on the front end was 4 feet and 7 inches, on the middle it was 4 feet and 8 inches, on the hind end 5 feet 2 inches, on the bottom 15 feet and 2 inches, along the front end 2 feet 10-| inches, in width on the middle 3 feet 2 inches, at the rear end 3 feet 6 inches, and the height of it 2 feet 10 inches; same behind as before.”
    Plaintiff' further showed by several witnesses that the wood which he coaled was pine, oak, and similar wood ; that over half of it was big wood, billet wood ; that it was well coaled, and that such wood ordinarily yielded from 30 to 33, 35, or even 45 bushels of charcoal to the cord.
    William James, for the plaintiff, testified:
    “ Question. How was the bed filled after that standard load; was it filled full ?
    “ Answer. I put on my bed all I could put on. I was hauling by the bushel.
    “ Q. You did that because it was to your interest to haul as large a load as possible'?

      “A. Yes, sir.
    “ Q. State whether or not it made any difference as to how much you heaped on the bed ? What difference did it make whether you put on much or little ?”
    No answer.
    “ Q. Who usually did the measuring at the bank?
    “A. Mr. McKinney, Taylor, and Peacock.
    “ Q. Did you have any conversation with them ?

      “ A. Sometimes I would. Sometimes I would ask them to give me a square cut.
    “ Q. What reply did they make ?
    “ A. Didn’t say anything; sometimes laughed.

      % ifc
    “ Q. Did you at any time haul that brag load stated by Mr. Boas? What was there in reference to that?
    “A. Yes, sir, I did; 149 bushels; I wanted to stick on— get in — 150 or hust my wagon, and went in.
    “ Q,. How much was in that load after they had measured it, — the load that had 149 bushels?

      “ A. 132 bushels.
    “ Q. Did you have any conversation of any kind at that time as to that load ?
    “ A. I heard one of them saying, no use in hauling big loads.
    “ Q. How did that conversation arise ? Had you said anything to them about it ?
    “A. We talked. I thought I had over, and it was less.
    “ Q,. And then, in reply, they said, — do you remember who it was said it ?
    “ A. No, sir ; I don’t recollect which said it.
    “ Q. Was it any of these gentlemen here ?
    “ A. Yes, sir.”
    The testimony was voluminous, but the portions given above constitute that which was material.
    The Court below, Or vis, A. L. J.. charged the jury, inter •alia, as follows:
    “ It is alleged on the part of the plaintiff that the measurements of the coal-beds made by the defendants would not agree with the measurements by him. It is stipulated in the agreement that the measurement shall be made in a particular way, and the measurement shall be made by a rule governing measurements of this kind; that in this case, as a matter of law, we instruct you their measurements would be binding upon the plaintiff in this case, unless plaintiff satisfies you that there was fraud in their measurements.

      “ [They may have stipulated that a bed should be measured and that a load should be gauged according to the measure stipulated in the agreement, but in making that measurement have used deception or fraud; why then, as a matter of course, the plaintiff would not be bound by it. In this case, though the plaintiff has consented that the defendants should make these measurements, and also shall have the option of determining certain things connected with the measurement of this charcoal, and unless the plaintiff himself satisfies you that there was fraud practiced in such measurement, then as a matter of law we instruct you that he is bound by their report of measurement. He agreed to abide by their measurements made in a particular way, and he cannot after that go and claim that he is not getting a fair measurement. lie agreed with the defendants that they should pay him six cents a. bushel for all the charcoal delivered by him in that year upon the furnace banks, measured in that way, not measured in some other way. The plaintiff is bound by it. But if they, in taking that measurement, perpetrated a fraud for the purpose of deducting or getting coal without paying for it, he would not be bound by that, because there is no law that would require you to carry out an agreement which was made with a view to perpetrate a fraud. But the plaintiff must satisfy you that there has been fraud perpetrated in the measurement of this coal.]
    “There is no dispute as to the contents of the bushel. There have been testified to by witnesses on the stand, four or five different standards for a bushel to measure charcoal. No two of them agree in every particular. But they will have nothing to do with the finding of your verdict. .If there were no stipulations in the agreement as to what the bushel shall contain and how it should be measured, there would be room for dispute on that point; but the agreement stipulates what the bushel should be by which it was to be measured, and also how the loads were to be measured and the number of bushels ascertained; and consequently there can be no room for dispute, except that the measurements were made fraudulently. If these provisions were put into the agreement for the purpose of measuring and ascertaining the amount of this coal, and if they did not act fraudulently in the measurement, then "Walker is bound by it; and it makes no difference whether the defendants got more charcoal by the operation or less, the plaintiff' would be bound by it, or whether the plaintiff' got more by it, the defendants would equally be bound by it.
    “ The only question for you to determine in this case is concerning the measurement of this coal by the defendants. If they were made by these defendants or their agents in an honest and upright manner, and without fraud, then this contract is to be observed in every particular and the plaintiff is bound by their measurement. If there was fraud perpetrated in the measurement of this coal by these' defendants or their agents, then it is not binding upon the plaintiff, and he -would be entitled to recover the amount of coal you find was delivered by him and for which he has not been paid. This is the only real question in the case, and you must consider everything that may throw light upon that question. If you find from the evidence that this measurement -was made fraudulently, then the plaintiff has a right to recover; but if you find that it was made without fraud, then he is bound by their measurement, for he agreed to be bound by it in the articles of agreement. If you find that these measurements were not fraudulently made, but were made wit'h the articles of agreement with a view of honestly ascertaining the actual number of bushels of charcoal delivered, then the plaintiff' is bound by it, and then he has been paid for all the coal he has delivered, except in the amount of $41.60, and they have tendered him that and more and have paid the money into Court. If you find there is only due the plaintiff' the sum of $55 or less, then your verdict should be for the defendants, because that money has been tendered him, and it is deposited here in Court for him. [But if you find that he is not bound by their measurement, then you must ascertain the number of bushels he has not been credited with by the defendants, with 2690 cubic inches for a bushel, at the price per bushel as stipulated in the agreement.
    “ You will now take this case and consider all the evidence that throws any light upon that part of the case, and render a verdict accordingly.”]
    Verdict for the plaintiff for $507.78, which the Court subsequently reduced to $400.
    Judgment entered.
    The defendants took a writ of error, assigning for error the admission of the testimony under exception as above specified, and those portions of the charge of the Court contained within brackets.

      A. O. Furst and Adam Hoy for plaintiffs in error.
    No fraud vras shown or offered to be shown, and no mistake in any of the measurements or calculations under this contract. The measurements were therefore conclusive, and ,the plaintiff below was bound thereby. These parties were competent to fix a standard of measurement by which they were to be bound, and that measurement must be resorted to in order to establish their rights and obligations : Leebrick v. Lyter, 3 W. & S., 365. The agreement provided that all disputes as to measurement were to be determined by Lauth, Thomas & Co.: Lauman v. Young, 7 Casey, 306 ; O’Reilly v. Kerns, 2 P. F. Smith, 214 ; Herdic v. Bilger, 11 "Wr., 60; Faunce v. Burke et al. 4 H., 469 ; Navigation Co. v. Fenlon, 4 W. & S., 205 ; Reynolds v. Caldwell, 1 P. F. Smith, 298 ; Snodgrass v. Gavit, 4 Casey,. 221; Howard v. Railroad Co., 19 P. F. Smith, 489.
    The Court, instead of referring it to the jury, to find fraud where none was proven, should have instructed the jury in positive terms, that no fraud having been shown by the plaintiff, the measurements were conclusive: Herdic v. Bilger, supra ; Dubois v. Smiley, 37 Leg. In., page 486.

      Beaver and Gephart for defendant in error.
    There was a distinct allegation of fraud or mistake in the measurement of the coal. The evidence, many-sided in its character, showed that such mistake was made or fraud was perpetrated.
   Oct. 3, 1881. The opinion of the Court was delivered by

Green, J.

The charge of the learned judge of the Court below was a perfectly fair and correct presentment of this case, as it stood upon the contract of the parties. But ~we encounter a practical difficulty in sustaining what he said to the jury on the subject of fraud. There was nothing legally inaccurate in his remarks as to the effect of fraudulent practices by the defendants in the measurement of the coal. If there were evidence in the case to which those remarks would be applicable, we would affirm the judgment without a moment’s hesitation. But, after a most patient and careful examination of the charge of the Coart, of the argument of the learned and able counsel for the plaintiff, and of the testimony in the cause, we are unable to discern any evidence of fraudulent conduct on the part of the defendants. The learned judge said several times in his charge that if fraud was perpetrated by the defendants or their agents, in the measurement of the coal, then the measurement was not binding upon the plaintiff, and he could recover, for the actual amount delivered. But in no part of the charge is there the least testimony tending to prove fraud, nor is any such testimony submitted to the consideration of the jury. The plaintiff admits, to its fullest extent, the binding character of his obligation to abide by the very precise method of measurement prescribed in the contract. Was that method observed ? If it was, the plaintiff is concluded. by the results. If it was not, it is his duty to show it by testimony. He cannot discharge that duty by showing that different results would have followed if a different method had been pursued. Above all, it would not be competent to prove fraud in the measurement, by proving what amount of coal ought, in the opinion of witnesses, to be produced from a cord of wood, such as the plaintiff used when coaled in the manner in which he coaled it. The very object of the agreement was to avoid all such uncertain modes of measurement, and the litigation which would naturally result from resorting to them, by prescribing a particular and exact method. In this case the very method fixed by the contract was adopted, and a most precise and definite measurement of the beds in question was made, a record of which was kept and given in evidence. There is not a particle of testimony to contradict either the fact of that measurement or its accuracy. Nor is there any evidence showing that' the number of bushels to the load, as ascertained by that measurement, was incorrectly returned, or credited to the plaintiff. Topi’ove that a teamster when he asked for a square cut, was met with a smile, is entirely too indefinite and uncertain a method of establishing so grave a charge as fraud in the. measurement. It was equally incompetent to make out such a charge by proving what the beds measured at another time, before or after the delivery of coal under this contract, as that was not in accordance with the terms of the contract. If the plaintiff was dissatisfied with the results of the measurement, he should at once have complained to the defendants, and then a re-measurement could have been made while the contract was being performed. But this he did not do, and he now seeks to accomplish such results by resorting to methods not permitted by the contract.

It is to be regretted that a more precise designation of the evidence tending to show fraud has not been furnished to us. For lack of sueff information we have been compelled to expend valuable time, which we cannot spare, in searching through a large mass of testimony for details of evidence which would support the plaintiff’s allegations. With a perfect willingness to find it if it existed, and to sustain the action of the Court below in submitting the case to the jury on the question of fraud, if we could do so, we have been quite unable to discover the evidence necessary for that purpose, and we are therefore obliged to reverse the judgment on that ground.

Judgment reversed, and venire facias de novo awarded.


text:
    May Teem, 1881,
    No. 115.
    May 5th, 1881.
    Eby versus Hoopes.
    1. Whether an assignment of securities by a debtor to a creditor is in payment or as collateral security is a question of intention depending upon the testimony.
    2. In the absence of evidence tending to show an intention to pay and receive the securities assigned as satisfaction of the debt, in whole or in part, the law presumes that they were assigned only as collateral.
    3. The duty of establishing that they were assigned in payment rests upon the debtor.

      4. If he fails to perform this duty the law makes a positive inference that the assignment is only as collateral security, and that inference is substantial evidence upon which the creditor may rely.
    5. That the assignment is absolute in form is of no consequence on the question of intention.
    6. Nor is the legal effect of the assignment dependent-upon the relations which may subsist between the parties, whether husband and wife, parent and child, or strangers.
    7. In an action against a husband by the executor of the wife for money loaned, an assignment of a judgment and mortgage by the husband for the benefit of the wife was proven. The judge charged the jury, “ when an absolute assignment is made by a husband to a wife of a judgment or mortgage there is no presumption of law that it or they are assigned as collateral security, independent of proof that they were so accepted.” He further charged that the Court had no knowledge of evidence that the assignment was as collateral; “ but that the evidence in the case is for the jury, and whether there is such evidence is for the jury to determine.” Meld, that it was error.
    Error to the Court of Common Pleas of Lancaster County.

    Action of assumpsit by Simon P. Eby, executor of the last -will and testament of Elizabeth K. Hoopes, deceased, against William B. Hoopes, the husband of the decedent. Mrs. Hoopes had received from the estate of her father, chiefly in April, 1868, the sum of $6403.92, and from the estate of her mother $400 or $500. Of the money received in April, 1868, she loaned her husband $3000, and took from him a judgment bond for the amount, payable with interest. This bond was never entered up. On the 11th of April, 1874, she received a cheek for $2500 from a third party to whom she had loaned that sum, and this cheek she indorsed and her. husband deposited it to his own credit in bank. Defendant testified that $700 of this latter amount belonged to him. On the 31st of March, 1874, defendant took a judgment bond against Mordecai Markwood for $1800, and judgment was entered of record April 29th, 1874, for the use of the testatrix. On the 12th of May, 1878, the defendant took a bond and mortgage against David H. Lewis and wife for $1850. He assigned these securities to Samuel H. Hoopes by writing indorsed, and the latter in the same way assigned them to the testatrix. Upon the Markwood judgment the executor realized $1163.55, and on the Lewis mortgage $952.73. Defendant had also transferred to the testatrix- in her lifetime bank stock to the value of $1016. The main question at issue was whether the Markwood judgment and the Lewis mortgage had been assigned in payment or as collateral security.
    The counsel for defendant' asked the Court to charge, inter alia:

    “3. That when an absolute assignment is made by a husband to a wife of a judgment or a mortgage there is no presumption of law that it is assigned as collateral security.
    “4. That there is no evidence that either the Lewis mortgage or the Markwood judgment was assigned as collateral.”
    The Court, Patterson, J., charged upon the third point r
    “ The Court answer that the rule of law is that a higher security between different parties and for a different sum will be presumed in the first instance to have been accepted only as collateral security. If one who is indebted on simple contract gives a bond or has a judgment entered against him for it, the simple contract is merged in the higher security, and any one may agree to accept of a different security in satisfaction of his or her debt. When an absolute assignment is made by a husband to a wife of a judgment or mortgage, there is no presumption of law’’ that it or they are assigned as collateral security, independent of proof that they were so accepted.”
    Upon the fourth point the Court charged:
    “ The Court answer, that they have no knowledge of such evidence, but that the evidence in the case is for the jury, and whether there is such evidence is for the jury to determine.”
    The verdict was for the plaintiff for $200.
    Plaintiff took a writ of error assigning as error the answers to the above points.

      H. M. North and R. E. Monaghan, for plaintiff in error.
    The aid of the Court was invoked to charge that the assignments were not presumed to be collateral. In this it erred: Leas v. James, 10 S. & R., 315 ; Perit v. Pittfield, 5 Rawde, 171 ; Stone v. Miller, 4 Harris, 456 ; Jones v. Johnson, 3 W. & S., 278 ; Covely v. Fox, 1 Jones, 174.
    The effect of the charge was to relieve the defendant from the burden of proof of payment, and to substitute therefor a presumption of payment to the extent of the assigned securities.

      M. Brosius and William M. Hayes, for defendant in error.
    The authorities cited by plaintiff' sustain the judge in'his charge that it is a question of intention, and upon which intention the jury must pass judgment and decide. If they conclude that the assignment is absolute, as they did in this case, then, as the judge says, “ there is no presumption of law that it or they are assigned as collateral security.”
   The opinion of the Court was delivered by

Green, J.

The learned judge of the Court below in his general charge correctly stated the law relative to the assignment of securities by a debtor to a creditor. Whether such assignment is "in payment or as collateral security is certainly a question of intention depending upon the testimony in the particular case. In the absence of evidence tending to show an intention to pay and receive the securities assigned as satisfaction of the debt, in whole or in part, the law presumes that they were assigned only as collateral. The duty of establishing the contrary is affirmative, and it rests upon the debtor. If he fails to perform this duty the law makes a positive inference that the assignment is only as collateral security, and that inference is substantial evidence upon which the creditor may rely.

The circumstance that the assignment of the security is absolute in form is of no consequence on the question of intention, because the assignment simply operates to transfer the title. Nor is the legal effect of the assignment dependent upon other relations which may subsist between the parties. Whether they be husband and wife, or parent and child, or strangers in blood, can make .no difference when the one relation of debtor and creditor is under consideration, and there are no special circumstances affecting the case. In Leau v. James, 10 S. & R,., 315, this Court said, Tilghman, C. J.: “ When the defendants set up the assignment of the bonds as a payment, it is incumbent on them to prove that it was so intended. The writing itself shows no such thing, and in ease where a chose in action is assigned by the debtor to the creditor, I think the presumption is that it was not intended as an absolute payment unless it is so expressed. The reason of this presumption is that such assignment is not in its nature a payment. It puts no money in the hands of the creditor, but only gives him the means of collecting money from another.”

We said, in the case of Perit v. Pittfield, 5 Rawle, 171: “ The general principle is that property placed by the debtor in the hands of the creditor is not to be construed as received in full discharge of the debt, unless that plainly appears to have been the intention of the parties.”

In Jones v. Johnson, 3 W. & S., 278, Gibson, G. J., said: “ There are presumptions which operate even in cases of intention as prima fade evidence on the one side or the other; for instance, that a bond given by a stranger, after the debt iucurred, was accepted as collateral security.” The learned judge of the Court below, in his answer to the defendant’s third point, said: “When an absolute assignment is made by a husband to a wife of a judgment or mortgage, there is no presumption of law that it or they are assigned as collateral security independent of proof that they were so accepted.” As an abstract proposition, independent of any relation of debtor and creditor existing between the husbáfid and wife, this is true; but it is said in an action at law where that relation does exist, and the husband, who is the debtor, is seeking to have an inference of payment affixed to a mere transfer of a security by himself to his wife because it was absolute in form. When said in such a connection and between parties so circumstanced, it tended to mislead the jury, and was therefore erroneous.

This is still more apparent when we consider the answer to the defendant’s fourth point, which was, “ That there is no evidence that either the Lewis mortgage or the Mark-wood judgment was assigned as collateral;” to which the Court answered, “ that they have no knowledge of such evidence ; but that the evidence in the ease is for the jury, and whether there is such evidence is for the jury to determine.” This answer entirely ignores the force of the legal presumption, which is in itself evidence the securities in question were assigned as collateral. This evidence there was in the case, and the Court should have so said to the jury instead of leaving it to them to say whether there was any such evidence.

Upon these two answers the jury were at liberty to infer that, unless there was affirmative evidence on the part of the plaintiff showing that the mortgage and bond were taken as collateral only, they were really taken as payment. This would shift the burden of proof from the debtor to the creditor, who requires no proof, having already a legal presumption which, in itself, was evidence that the assignment was as collateral and not as payment. For these reasons the judgment must be reversed.

Judgment reversed, and venire de novo awarded.


text:
    May Term, 1881,
    No. 180.
    May 31st, 1881.
    Menges versus Muncy Creek Township.
    1. A judgment -will not be reversed because the Court below failed to give a novel and peculiar instruction when no request to that effect was made.
    2. The rule established in Huber ». Wilson, 11 Harris, p. 181, that “ it was not error in the Court to omit a distinction which at most could only have affected the amount of damages, and which the party entitled to did not think proper to claim ” is a salutary one.
    Error to the Court of Common Pleas of Lycoming County.

    Action of trespass on the case by William Edward Menges, by his next friend and father, Daniel Menges, against Muncy Creek Township for injuries alleged to have been received through the negligence of the township officers in keeping a certain road in proper condition.
    The plaintiff was a boy fourteen years of age. In August, 1876, the father of the plaintiff took him with a horse and buggy to his farm, and on returning it was necessary for them to go over a steep piece of narrow road built along the side of a hill, with a very steep and high hill on the upper side of the road, and a declivity on the lower side. In going up this hill they came to a curving portion of the road and there met three teams. Menges, the father, turned his buggy off to the lower side of the road on the left, and jumping $ut took the horse by the head. The swingle-tree of the first team struck the buggy and overturned it. The plaintiff was thrown off into a tree below, and the buggy following on top of him, he was lodged up against the tree. He was badly injured ; his neck and head and other parts of his body had received numerous bruises, and his jawbone was broken. Plaintiff presented several points of law to the Court below, but none with reference to the measure of damages.
    The Court below, after charging at length upon the questions of negligence and contributory negligence, said, inter alia:

    “ The only items proper for you to consider in this action will be the pain and suffering which this boy has sustained by reason of this injury, and the permanent injuries that there may be which will affect him after he is twenty-one years of age. Because, so far as these injuries affect his power to do work or to earn money before he is of the age of twenty-one years, that belongs to the father. So that, in getting at the injury done to the son of a permanent character, you must remember that they are such injuries as would affect him after he is twenty-one years of age.” And “as to the permanent injury, it seems that one of the teeth is exposed, and there is some testimony upon the point as to the probability of the boy losing that tooth. There is a claim that the side of his face is sunken, that he has been subjected to palpitation of the heart, and that there is some defect in his speech. These are all matters for you to consider, and to fix the compensation upon if you are satisfied that they will affect his power to earn mouey, to do work, either mental or physical, after the age of twenty-one years, because whatever injury they are to his earning before twenty-one the father is entitled to and not the son. But whatever injury it is to his earning-power after the age of twenty-one, that far it is a proper item for compensation in this case. These are the only items wffiich it will be proper for you to consider in fixing the amount of damages, if you find that the plaintiff is entitled to recover. You are to consider the question of pain and suffering at all times after the accident; and you are to consider the matter of permanent injury after the boy arrives at the age of twenty-one years, and no other items, if you find he is entitled to recover.”
    To this part of the charge the plaintiff excepted. The jury found a verdict for the plaintiff, and assessed the damages at $25. Judgment was entei’ed on the verdict, and plaintiff took this writ of error, assigning for cause the portions of the charge excepted to.
    His paper-book did not contain the evidence. *

      Clinton Lloyd and John J. Metzger for plaintiff in error.
    The rule laid down as to the measure of damages for permanent injuries is too narrow. The privation and inconvenience to which the plaintiff is subjected, which are in addition to bodily and mental suffering, and also in addition to the mere pecuniary loss from his disabled condition, constitute an element of damage: Scott Township v. Montgomery, 9 W. N. C., 389 ; McLaughlin v. City of Corry, 27 P. F. Smith, 109 ; Penna. R. R. Co. v. Books, 7 P. F. Smith, 339 ; Passenger R. R; Co. v. Donahue, 20 P. F. Smith, 119 ; Penna. R. R. Co. v. Allen, 53 Penna. State, 276 ; Laing v. Colder, 8 Barr, 479.
    He was entitled to damages for any disfigurement of his person: for deprivation of personal comfort or of capacity to derive pleasure from the use of his faculties, powers, members, or appetite, and for injuries that enhance the danger to life: Ives v. Humphreys, 1 E. D. Smith, 196, cited in Sedgwick on Damages, 4th ed., note, p. 618 ; Illinois Central R. R. Co. v. Barron, 5 Wallace, 90 ; Aldrich v. Palmer, 24 Cal., 531. The restriction of damages, in the pecuniary sense, to the loss of earning power after the boy becomes of age, is believed to be without the sanction of any adjudicated case.

      Henry Johnson and Robert P. Allen for defendant in error.
    The judge is not answerable for errors of omission to which his attention was not directed: Huber v. Wilson, 11 Harris, 178 ; Klein v. Franklin Ins. Co., 1 Harris, 249. The rule as to damages was properly indicated: P. R. W. Co. v. Donahue, 70 Penna. State, 124 ; P. R. R. Co. v. Kelly, 31 Penna. State, 372 ; P. R. R. Co. v. Zebe, 33 Penna. State, 318. The damages contended for are special, and must be specified in the declaration: Laing v. Colder, 8 Penna. State, 481. The damages must be strictly compensatory, and the injury must have a pecuniary value: P. R. R. Co. v. Books, 57 Penna. State, 339 ; P. & O. Canal v. Graham, 63 Penna. State, 299 ; P. R. R. Co. v. Keller, 67 Penna. State, 308 ; Same v. Allen, 53 Penna. State, 280 ; P. R. R. Co. v. Adams, 55 Penna. State, 503. All that plaintiff contends for was embraced in the charge: Penna. R. R. Co. v. Butler, 57 Penna. State, 338 ; Fink v. Garman, 4 Wr., 101. As a whole, the charge was correct: Arbuckle v. Thompson, 37 Penna. State, 175.
   The opinion of the Court was delivered by

Green, J.

This was an action to recover damages for an injury alleged to have resulted from the defective condition of a public road. The plaintiff is a boy who was fourteen years of age at the time of the injury. The boy’s father had a personal right of action for the expenses of medical attendance, nursing, etc., and also for loss of his son’s services during minority, for which a separate action could be or was brought. In this ease the damages sought to be recovered were those which belonged exclusively to the boy. The learned Court below, in a very fair and full charge, of which no complaint is made, presented the facts of the case to the consideration of the jury, and directed them, if they found for the plaintiff, to allow him damages for all the pain and suffering he had endured or might endure in the future, and for all permanent injury which would or plight affect his earning power after he arrived at his majority. The verdict being for the plaintiff for a small sum, he brings this writ of error, and complains that the Court laid down too narrow a rule for the damages to be recovered.

No point was put to the Court by the plaintiff*as to the measure of damages. He now complains that the Court did not specially charge that, in addition to the damages mentioned, the plaintiff might also recover for an}' “ disfigurement of his person ; for deprivation of personal comfort or of capacity to derive pleasure from the use of his faculties, powers, members, or appetite, and for injuries that enhanced the danger to life.” If the plaintiff had wished for such instruction, it was very easy to ask for it, and it is hardly fair to the Court to charge it with error for not giving the peculiar and novel instruction described when no request to that effect was made. It is not necessary to decide whether, if it had been asked, it should have been given, because there is nothing on this record, as contained in the paper book, upon which such a question can be raised. As we have said, there was no point and no request of any kind calling the attention of the Court to the subject, and as none of the testimony delivered on the trial is printed, it is impossible for us to say whether there was any evidence in the case upon which such instructions could have been founded. The argument for the plaintiff in error is based upon some allusion in the charge to the possible exposure of one tooth, and to a claim that one side of the plaintiff’s face is sunken, and that “ he has been subjected to palpitation of the heart ” and some defect in his speech. But the Court does not state, nor does it in any manner appear, that these are established facts. The allegations, such as they are, and whatever facts might bear upon those matters, were referred to the jury, with directions that if they found the plaintiif’s earning power after his majority to be affected, they should allow him damages therefor. We certainly cannot say there was any error in this. As the jury only allowed $15 [$25] damages, it would seem most probable that they found there was no permanent injury of any kind. It would surely be of very questionable propriety for us to reverse in such a ease in order that the plaintiff might have another opportunity to present his peculiar view, now suggested, when nothing appears on the record to show that there are any facts upon which it could be submitted; and the present verdict proves, with practical conelusiveness, that there were no such facts in the case. In Huber v. Wilson, 11 Harr., on p. 181, we said: “ It was not error in the Court to omit a distinction which at most could only have affected the amount of damages, and which the party entitled to did not think proper to claim.” This is a salutary rule, and we see no reason for departing from it in this case.

Judgment affirmed.