text:
    Billmeyer, Dill & Co. versus Wagner.
    Damages for which compensation may be justly claimed and allowed are such only as naturally and ordinarily flow from the breach of the contract complained of. They should be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract, or such as might, according to the ordinary course of things, be expected to follow its violation.
    June 17th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Union county: Of May Term 1879, No. 198.
    Assumpsit by J. H. Wagner against Billmeyer Dill & Co.,;to recover the contract price of a car-load of lumber.
    The facts in substance were these: On the 7th September 1874, the defendants gave the plaintiff an order to furnish 2274 feet linear measure, white oak timber, and to mark as shipped by defendants to Phillipsburg Manufacturing Company at Hobo-ken, N. J., price, $27 per thousand. The plaintiff same day accepted the order; and on the 23d of September 1874, notified the defendants that one car-load was shipped; whereas in fact, it was not shipped until the 26th of September. Whereupon the defendants notified the Phillipsburg Company, which sent a barge to Hoboken, to receive the lumber. It appeared, however, that the plaintiff, instead of furnishing the lumber himself, contracted with the Elimsport Lumber Co., to fill the order; and this latter firm, instead of consigning the lumber to the Phillipsburg Manufacturing Co., at Hoboken, N. J., directed it to the Jersey City Car Shops by way of Rupert station; and in consequence of this misdirection the lumber went to the wrong' place, over different railroads, and did not reach its intended destination. The lumber was found by the Phillipsburg Manufacturing Co., on the 10th of October, on a car in the Erie car shops, Jersey City.
    The plaintiff sued the defendants to recover the contract price of the car-load of lumber, viz.: $169.91; and the defendants set up as a defence that the damages to them by reason of the delay occasioned by the misdirection of the lumber, was equal to the amount of the plaintiff’s bill, and therefore denied his right to recover.
    It appeared that $52.20 additional freight was incurred by reason of the misdirection. The defendants also claimed that they were entitled to set off $126, which they had been charged by the consignee as compensation to the latter for expenses incurred in sending a barge to Hoboken to receive the lumber, and for wages paid to a foreman who was kept idle some ten or fifteen days for the want of the lumber. There was no evidence to show that plaintiff was informed that the barge was to meet the lumber, nor that a foreman would be out of' employment unless the contract was performed.
    The court, Junkin, P. J., of the Forty-first Judicial District, rejected the evidence in relation to this detention of the barge and the pay of the foreman, and instructed the jury that they should exclude both from their consideration. The verdict was for the plaintiff for $105.08, when defendants took this writ, and, inter alia, assigned for error the rejection of the above testimony and the instruction of the court.

      Linn & Dill, for plaintiffs in error.
    The loss complained of arose from the reliance which the defendants placed upon the plaintiff’s fulfilment of his contract.
    The true measure of damages is the actual loss which the vendee sustains by not receiving the advance on his contract price upon any contracts which he had made in reliance upon the fulfilment of the contract by the vendor: McHose v. Fulmer, 23 P. F. Smith 367; Collins v. Baumgardner, 2 Id. 461. The incurring of the expense was reasonable, relying on the truth of the plaintiff’s representations as to the time of shipment and consignment: Fisher v. Val de Travers Asphalte Co., 3 N Y. Weekly Digest 366; Bennett v. Lockwood, 20 Wend. 223; Hadley v. Baxendale, 26 E. L. & E. 398; Dingee v. Hare, 7 C. B. N. S. 145.

      Wolfe & Wilson and P. Hachenberg, for defendant in error.
    October 6th 1879.
   Mr. Justice Sterrett

delivered the opinion of the court,

The contract between the parties was broken by the plaintiff below, in at least two particulars. Instead of consigning the lumber according to agreement, to the Phillipsburg Manufacturing Co., Hoboken, New Jersey, his agent, by mistake, sent it to the Jersey City Car Shops, in consequence of which it was delayed, and increased freight charges were incurred. He also agreed to to notify defendants when the lumber was loaded on cars, ready to move, so that they might promptly advise the Phillipsburg Manufacturing Company of the shipment. In this, also, a mistake occurred in notifying them two or. three days before the lumber was actually loaded. These breaches of agreement, on the part of the plaintiff below, resulted in several days’ delay in the receipt of of the lumber by the consignees, and consequent disappointment and outlay for which they demanded compensation in damages from defendants below, with whom they had contracted for the delivery of the lumber. The defendants in turn claimed to set-off against the plaintiff’s bill the damages to which they had thus been subjected, as they alleged, by plaintiff’s default.

One of the items of set-off was the excess of freight incurred by the misconsignment. This the consignees were compelled to pay in addition to what would have been required if the lumber had been properly consigned, and hence they were entitled to be reimbursed by the defendants below. It was conceded to be a proper matter of set-off, and was accordingly allowed.

Another demand made by the manufacturing company on defendants, and by them claimed as a set-off against plaintiff’s bill, was for detention of a barge at Hoboken, awaiting the arrival of the lumber, and wages paid their foreman, during the time he remained idle for want of the lumber. Testimony tending to prove these allegations was offered and excluded by the court, and the jury were instructed to disregard these items of set-off, on the ground that they were too remote and not reasonably within the contemplation of the parties at the time they entered into the contract.

Damages for which compensation may be justly claimed and allowed are such only as naturally and ordinarily flow from the breach of contract complained of. They should be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract, or such as might according to the.ordinary course of things be expected to follow its violation Sedgwick on Damages 78-9 ; Hadley v. Baxendale, 9 Exch. 341; Griffen v. Colver, 16 N. Y. 489.

If the plaintiff had been informed that the delay of a few days in the receipt of the lumber by the consignees would be likely to involve the defendants in damages of such a special nature as those claimed, exceeding, as alleged in this case, the value of the lumber furnished by the plaintiff, or if he might reasonably have supposed that such would be the probable consequences, there would be some reason and justice in holding him chargeable therewith. But there is nothing to show that the plaintiff had such information as to the plans and purposes of the consignees as would lead him to contemplate such consequences as are alleged to have resulted from the detention of the lumber. It is difficult to see how it could have entered into the contemplation of the parties that the manufacturing company’s barge would be delayed at Hoboken, without being used or required for any other purpose, or that the foreman would be unemployed for want of lumber, and yet be entitled to demand full wages. The business of manufacturing companies is not ordinarily so conducted that such consequences would be at all likely ■to result from a brief delay in the consignment of stock or materials. They may well be considered too remote and exceptional.

The general rule is, that on failure to deliver according to contract, the vendee has a right to supply himself in the market, and the measure of damages will be the difference between the necessary cost of the article and the contract price. In view of the circumstances disclosed by the testimony, we cannot say that any error was committed by the court, either in rejecting the testimony complained of or in charging the jury not to allow damages for detention of the barge or for wages of the foreman.

The jury were instructed to take into consideration, the loss, trouble and expense to which defendants were subjected by reason of plaintiff’s default, and make a fair allowance for the same, together with the excess of freight which they were required to pay to the Phillipsburg Manufacturing Company. This was all they were fairly entitled to claim.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    East Lewisburg Lumber and Manufacturing Co. versus Marsh, Dunkel et al.
    1. An assignment for a valuable consideration of demands, having 'at the time no actual existence, but which rests in expectancy only, is valid in equity as an agreement, and takes effect as an assignment, when the demands intended to be assigned are subsequently brought into existence.
    2. Equity will support assignments of contingent interests and expectancies ; things which have no present actual existence, hut rest in mere possibility ; not indeed as a present positive transfer operating in presentí, for that can only be of a thing in esse, but as a present contract to take effect and attach as soon as the thing comes in esse.

    .3. The firm of M. was engaged in manufacturing agricultural implements. D. was the general agent of the firm and made sales and receipted for the proceeds. M. being indebted to plaintiffs in the sum of $1350, authorized said agent to assume and pay over to plaintiffs in approved notes or money, out of the proceeds of sales of reapers of that year, said sum, as collateral security, within three months from date. At the same time said agent agreed to turn over said notes or money as specified in said authority. Held, reversing the court below, that while the indebtedness of M. to plaintiffs existed, the latter had the right to the possession of the property specified in the writings: that the agent was bound to deliver it to them, and that M. was excluded from any control or disposition of it which would interfere with the security.
    June 17th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.
    Appeal from the Court of Common Pleas of Union county: Of May Term 1879, No. 200. In Equity.
    This was a bill in equity filed by The East Lewisburg Lumber and Manufacturing Company against James S. Marsh and D. S'. Kremer, trading as James S. Marsh, Charles G. Dunkel, general agent of the firm of James S. Marsh and Charles S. Wolfe, John K. Kremer and J. T. Baker, assignees, in trust for the benefit of the creditors of James S. Marsh. The bill, in substance, alleged that James S. Marsh and D. S. Kremer were manufacturers of agricultural implements, under the firm name of James S. Marsh; that Charles C. Dunkel was their general agent; that the firm became insolvent, and made an assignment to the above-named assignees; that the firm was indebted to plaintiff, and on the day of its date, executed the following instrument of writing:
    “Lewisburg, Pa., May 27th 1878.
    I hereby authorize and empower my general agent, Charles C. Dunkel, to assume and pay over to the East Lewisburg Lumber and Manufacturing Co., in approved notes or money, the proceeds of the sale of reapers of this year, within the period of three months from this date, to the amount of $1350, the above to be collateral security of the payment by me of all claims by note or book-account, justly due them from me at this date, or to become due on the maturing of any notes now held by them against me.
    [Signed,] . James S. Marsh,”

      “ I hereby agree to turn over to the East Lewisburg Lumber and Manufacturing Co., in accordance with the above authorization, approved notes or money in the amount, and within the time above specified. [Signed,] C. C. Dunkel.
    May 27th 1878.”
    That sales of reapers were made, and money and good notes in excess of $1350 were received by Dunkel, as agent; that demand was made on the firm and the agent for said amount, which was refused; that Dunkel turned over all of said money and notes to Marsh and his assignees, and refused to discover their amount. The bill prayed for discovery of the amount of sales and -the notes, and the character of the same; for an account of what was due plaintiff ; that in default of payment, money and approved notes should be set apart and delivered to plaintiff; that the firm, Dunkel and the assignees be restrained from collecting and appropriating to thé general fund until plaintiff was satisfied.
    The case was argued on bill and answer, and the court filed an opinion, wherein, they, inter alia, said: “The agreement is purely executory, and is a mere undertaking to do something in futuro. There was no pledge of anything then in existence, nor of which manual possession could be given or delivery made. It was no more than a prontise to secure a debt by transferring collaterals; admitting that the thing to be transferred came into esse, that did not, per se, make the complainants the owner of-it. But really no specific thing was the subject of the contract, and without knowing what things or choses in action were to be pledged, it is impossible to designate them by a decree. Suppose that these notes, as they came into existence, had been transferred to others bona fide, could it be pretended that the complainants had such a title in them as to have recovered the possession against such transferree ? Clearly not. These notes, as they came into esse, did not pass unless assigned, nor by the terms of both James S. Marsh and C. C. Dunkel, were they to pass to the complainants until assigned, but the contention on the part of the. complainants, is, that the agreement constitutes an assignment in equity. Let us see whether this position is tenable.”
    The court then quoted, at length, from Rodick v. Gandell, 1 De G., M. 778, and after citing the following authorities: Rogers v. Hosack’s Executors, 18 Wend. 319; Ford et al. v. Garner, 15 Ind. 298, 301; Hall v. Jackson et al., 20 Pick. 194, 198; 2 Spencer’s Eq. Juris., sects. 861, 862, 863, &c., also 2 Rose 357; Holland v. Humble, 1 Stark. 114, proceeded: “ It is clear, from these authorities, that the agreement did not operate as an equitable assignment to the complainants of the notes and money mentioned in it. They never were so assigned either in law or equity, and have passed to assignees for creditors, without any earmarks or means of identification; there is no ground for decreeing specific performance, indeed it is not known what notes were to he transferred. They were not pledged, nor capable of being pledged, for want of existence, so that the sum of the matter is, that there is no feasible way of putting the complainants in possession. The complaint is nothing more than that James S. Marsh has broken his contract to pay a debt. For this the law gives an ample remedy. The consideration of the promise was James S. Marsh’s prior indebtedness; no new consideration was paid, or advances made, or any valuable thing given on the faith of the promise. * * But these complainants parted with nothing, and have no equity over the several creditors of James S. Marsh.”
    The court then dismissed the bill, the plaintiff to pay the costs.
    The plaintiff took this appeal, and alleged that .the court erred in the dismissal of the bill, and in the imposition of costs.

      Linn & Dill, for appellant.
    The court erred in ruling, that the agreement was merely executory, an undertaking to do something in futuro. Marsh had passed his interest beyond recall. He could get possession of the property only by a violation of the trust imposed upon the agent. It was not necessary that the thing should be in esse: White & Tudor’s Leading Cases in Eq., vol. 2, part 2, 1644; Caldwell v. Hartupee, 2 P. F. Smith 74; Bayler v. Commonwealth, 4 Wright 37; 2 Story Eq. 46, sects. 846, 1040, 1055; Power’s Appeal, 13 P. F. Smith 445; Williams v. Nisly, 2 S. & R. 507; Sullivan et al. v. Tuck, Ex. 1 Md. Ch. 59. A pre-existing debt is a good consideration for any act on the part of the debtor that will operate as a security or payment: White & Tudor, supra.

    An equitable assignment is in the nature of a declaration of trust, which a chancellor never hesitates to execute when it has been made upon valuable consideration : Nesmith v. Drum, 8 W. & S. 9 ; Sharpless v. Welsh, 4 Dall. 279. A draft upon a particular fund in the hands of an attorney for collection is an equitable assignment of it, and although not accepted by the attorney, yet it is not afterwards subject to be attached for the debt of the drawer: Nesmith v. Drum, 8 W. & S. 9.

      Wolfe & Wilson and J. T. Baker, for appellees.
    The agreement in this case lacks the following essentials of an equitable assignment, viz.: There is no specific thing assigned; there is nothing showing an intention to make a present transfer; the authority or power is not to a debtor or any one holding funds of Marsh, but to an agent, into whose hands the proceeds of the sale of reapers may or may not come. What was to prevent Marsh revoking the agency of Dunkel ? Marsh had control over the property, and, therefore, there was no equitable assignment: Rodick v. Gandell, supra: White & Tudor’s Leading Cases, supra. See also cases cited in opinion of court below.
    [See Ruple v. Bindley, post, p. 296. — Rep.]
    October 6th 1879.
   Mr. Justice Trunkey

delivered the opinion of the court,

Equity will support assignments of contingent interests and expectancies ; things which have no present actual existence, but rest in mere possibility, not indeed as a present positive transfer operative in prcesenti, for that can only be of a thing in esse, but as a present contract to take effect and attach as soon as the thing comes in esse. Story’s Eq. Jur., sects. 1040, 1055; Field v. The Mayor, &c., of New York, 2 Selden (6 N. Y.) 179. In Field’s case he held an assignment made by Bell to Garread of all bills that might become due to Bell for printing, paper, and stationery, done or furnished the city to the amount of $1500, subject to two prior assignments for certain sums. The bills appeared to have accrued, and most of the services and materials upon which they arose, appeared to have been rendered and delivered, after the date of the assignment from Bell to Garread. It was held that the assignment by Bell to Garread was valid as an agreement, by force of which an equitable title to the benefit of the bills, as they matured and became due, vested in Field as assignee of Garread. In reference to the allegation that the interest was too uncertain to pass by assignment, because there was no contract binding the city to furnish Bell with printing, or purchase stationery from him, the court say: “ There was indeed no present, actual, potential existence of the thing to which the assignment or grant related, and therefore it .could not and did not operate eo instanti to pass the claim which was expected to accrue to Bell against the corporation; but it did nevertheless create an equity, which would seize upon those claims as they should arise, and would continue so to operate until the object of the agreement was accomplished. * * * Courts of equity will support assignments, not only of choses in action, but of contingent interests and expectations, and of -things which have no present actual existence, but rest in possibility only, provided the agreements are fairly entered into, and it would not be against public policy to uphold them.” At the time of the assignment, Bell was engaged, under various contracts, in printing for the city, as admitted by him in his answer. Possibly this should be considered as entering into the decision of the case. In Mulholl w. Quinn, 1 Gray (Mass.) 105, an assignment of all claims which the assignor then had or might have on the first of January next on the city of Boston for all sums of money due or to become due to him for services in laying sewers, was made by one who had been previously employed by the city on a particular job; and who, after the assignment, was again employed before the first of January; but who was under no contract with the city, at the time of the assignment: held, that the assignment did not pass money subsequently earned, because there was no subsisting engagement, under which wages were to be earned, and it depended altogether upon a future engagement whether anything would ever become due. But the rule was recognised that a debt conditional, uncertain in amount, or contingent, yet possible to become due, may be the subject of an assignment: for instance, where a party is under an engagement for a term of time, especially if he has entered upon his duties, although liable at any time to be removed, he has an assignable interest;.

Anything which shows an intent to assign on one side, and to receive on the other, will operate as. an assignment: 3 L. Cas. Eq. 807, 357. A draft on a particular fund in the hands of an attorney for collection is an equitable assignment of it: Nesmith v. Drum, 8 W. & S. 9. So is an order for part of the proceeds of a note, though not accepted by the trustee for collecting the note: Caldwell v. Hartupee, 20 P. F. Smith 74. See Cutts v. Perkins, 12 Mass. 206; Adams v. Robinson, 1 Pick. 461.

The appellees, conceding that the thing assigned may not be in'esse, and that a pre-existing debt may be a sufficient consideration, contend that the writings executed by Marsh and Dunkel constitute a mere executory agreement, an undertaking to do something in futuro. The firm of James S. Marsh was engaged in manufacturing agricultural implements, and Dunkel, as general agent of the firm, was engaged in the sale of said implements for said firm, and received and receipted for the proceeds of sales. Marsh, being indebted to the plaintiffs, on May 27th 1878, authorized said agent to assume and pay over to them in approved notes or money of the proceeds of the sale of reapers of that year, to amount of $1350, as collateral security, within three months from said date. At the same time the agent agreed to turn over approved notes or money, as specified in said authorization. If the parties intended an executory agreement by Marsh it was a vain thing, for the plaintiffs already had his contract for payment of the money. The object, visible on the face of the transaction, was collateral security for the indebtedness. That security, as contemplated by the parties, would come into the hands of Dunkel, who was selling reapers for the debtor and receiving the proceeds of the sales; and hence the authority to him and his obligation. He did not own the reapers, and had no right to retain the proceeds against the owner’s will; by authority of the owner he bound himself to turn over a certain amount to the plaintiffs, and thereupon they had right to demand and receive it; to that extent the authority became irrevocable, and the owner had no right to demand any part, until after Dunkel received sufficient to satisfy his liability, or it should otherwise be discharged. The specific thing assigned was the sum of $1350, proceeds of sales of the debtor’s reapers, expected to come into tlíe possession of Dunkel,.who was engaged in selling them. A period of three months was fixed, within which he was to have the approved notes or money and turn them over to be collateral security for a debt. They were not then in existence and there could not have been an intention of a present transfer; but the parties expected them to come into being, as they afterwards did, with right of possession in the assignees for the purpose of the assignment. Marsh had nothing to do to enable the assignees to take possession, nor could he prevent it without bad faith to them and Dunkel, unless he paid the debt. While that indebtedness exists, it is clear that the plaintiffs have the right of possession of the property specified in the writings, that Dunkel was bound to deliver it to them, and Marsh is excluded from any control or disposition of it, which will interfere with their security.

Rodick v. Gandell, 1 DeG., M. & G. 763, materially differs from this case. A railway company was indebted to the defendant, their engineer, who, owing his bankers, by letter to the solicitors of said company authorized, them to receive the money due to him from the company and requested them to pay it to the bankers. The solicitors, by letter, promised the bankers to pay them such money on raising it. It was held by Lord Truro that this did not amount to an equitable assignment of the debt, for reasons that if an assignment of the debt had been intended it would have been quite as easy to have directed the order to the railway company as to their solicitors, and the order was neither upon the debtor nor any one holding funds of the drawer, nor as regarded the solicitors was there any subject-matter upon which the order could presently attach. Here the order by Marsh was to his agent, for sale of specific property, who would receive the proceeds and hold the very funds named in the order; and, therefore, the case is within the principle stated by Lord Truro, namely, that an order given by a debtor to his creditor,- upon a person holding funds of the debtor, directing such person to pay such funds to the creditor, will create a valid equitable charge upon such fund; in other words will operate as an equitable assignment of the debts or fund to which the order refers.

All proceeds of sales of reapers made in the year 1878, received by Dunkel within three months of the date of the assignment, were subject thereto. The answer discloses his receipts and no further proceedings are necessary for discovery and ascertainment of the amount. It also appears that he turned over the entire proceeds to Marsh and .the assignees for benefit of creditors, upon their pretence of ownership. The sum of the indebtedness, $1350, by Marsh to the plaintiffs, is admitted; but it does not appear when it became due, other than it was prior to August 27th 1878. However the case need not be sent to a master to ascertain the amount of debt and interest, as the defendants, in this action, are only liable for $1850, with interest from said date.

Decree reversed, and it is now considered and decreed:

1. That the defendants deliver to the plaintiffs approved notes, or money, proceeds of sales of reapers made in 1878, received by defendant, Charles C. Dunkel, within three months from May 27th 1878, to amount of thirteen hundred and fifty dollars, with interest thereon from August 27th 1878, to be collateral security for the indebtedness of the firm of James S. Marsh to the plaintiffs.

2. That defendants, Charles,S. Wolfe, John K. Kremer and J. T. Baker, assignees in trust for the benefit of creditors of James S. Marsh, be enjoined from appropriating to the general fund for creditors any of the proceeds of the sales of reapers made in said year, received by said Dunkel during said period, until after the delivery required by the first paragraph of this decree.

3. That the costs, including costs of this appeal, be paid by defendants, the said assignees in trust for creditors, out of moneys of the firm of James S. Marsh.

4. That the record be remitted for execution of this decree.

On the 7th of February 1880, on motion, a rule on the plaintiffs was granted to show cause why the decree of this court should not be modified, and on February 16th 1880, Justice Trunkey filed the following opinion:

The rule” for a mandamus, and the motion for a modification of the decree, were argued together.

The schedule referred to in the answer, defendants consenting, was not printed by the plaintiffs, and the arguments were such, in connection with the bill and answer as printed, as to leave the impression that the notes, which belonged to the plaintiffs, had been delivered to the assignees. Had attention been called to the real facts respecting possession of the notes, or the proceeds thereof, the decree would not have been made as it now stands, though the opinion filed would have been the same. The respondents accept the statement of assignees that but one small note was in their hands,” and that note is described in their petition for a modification of the decree. This obviates the necessity for further inquiry to ascertain the facts; and the admission, based on the schedule, enables this court to act as justice demands. It is not too late to modify the decree, and it would be harsh, if nothing worse, to leave the assignees for creditors liable for property of the plaintiff, which they had not received and had no right to receive, because they agreed with, the plaintiff that the schedule should not be printed, and had overlooked the importance of showing clearly that the property was not in their hands.

If Dunkel, in violation of his agreement, delivered the notes and money of the plaintiff to other persons, he is liable for the amount. And if the firm of James S. Marsh, by their clerk, or otherwise, have given the said property to their other creditors, they are liable to a decree against them in this action.

It is considered and decreed that the first paragraph of the decree be changed and modified so that it shall stand as follows: That the defendants, James S. Marsh, Daniel S. Kremer and Charles C. Dunkel, deliver to the plaintiff approved notes, or money, proceeds of sales of reapers made in 1878, received by defendant, Charles C. Dunkel, within three months from May 27th 1878, to amount of thirteen hundred and fifty dollars., with interest thereon from August 27th 1878, to be collateral security for the indebtedness of the firm of James S. Marsh, to the plaintiff; or pay to the plaintiff said sum of $1350 with interest from said date.

2 . That the second paragraph of said decree be struck out, and instead thereof shall be: That defendants, Charles S. Wolfe, John K. Kremer and J. T. Baker, assignees in trust for creditors of James S. Marsh, deliver to the plaintiff a note made by O. H. Cather-man for $69.78, or proceeds thereof if collected, which was due October 4th 1878; to be held by plaintiff as stated in first paragraph.


author: Mr. Justice Paxson

text:
    Pennsylvania Central Insurance Co. versus Gaus.
    The Act of April 1st 1874, declares that no judgment shall be reversed unless a writ of error be taken within two years from the entry of the judgment. A judgment was entered January 10th 1876. The writ of error was not taken until June 10th 1878. Held, that the writ was not within the statutory period and should be quashed.
    June 10th 1879.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Olinton county: Of May Term 1879, No. 5.
    Assumpsit by John Gaus against the Pennsylvania Central Insurance Company.
    The summons in this case issued the 21st of December 1875, and judgment was entered for plaintiff January 10th 1876. On July lOtli 1877, defendants obtained a rule to show cause why said judgment should not be opened. The writ of error was not taken until June 10th 1878.

      Gruy E. Farquhar and H. T. Harvey, for plaintiff in error.
    The case was not finally disposed of until January 7th 1878. See Camp v. Welles, 1 Jones 206; Dawson’s Appeal, 3 Harris 480; Purd. Dig. 608.

      Edward P. McCormick, for defendant in error.
    The writ of error was clearly not within the statutory limit fixed by the Act of April 1st 1874, Pamph. L. 50, and the writ should be quashed.
    June 23d 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

The plaintiffs are too late with their writ of error. The Act of April 1st, 1874, Pamph. L. 50, provides, “That from and after the date of the passage of this act, no fine or common recovery, nor any judgment in any real, personal or mixed action, nor any appeal from the Register’s Court, shall be avoided or reversed for any defect or error therein, unless the writ of error be commenced, or the appeal be brought and prosecuted with effect, or the certiorari taken, as the case may be, within two years after such fines levied, common recovery suffered, judgment signed or entered of record, or decree be pronounced, &c.” The act contains a saving clause in favor of minors, married women, persons non com/pos mentis, or beyond seas; but the plaintiff does not come within any of the exceptions. The judgment was entered January 10th 1876; the writ of error was not taken until June 10th 1878. It is alleged, however, that there was no legal service upon the plaintiffs in error, who were the defendants below. This, if true, will not help them, as it appears they knew of the judgment against them as early as July 10th 1877. Upon that daythey obtained a rule in the court below to show cause why the judgment should not be opened. There was ample time, therefore, after they acquired knowledge of the proceedings, to have sued out a writ of error within the statutory period.

Writ quashed.


author: Per Curiam.

text:
    Eachus’s Appeal.
    1. In gifts of personalty the phrase “die without issue,” means die without issue 'living at the death of the person, the failure of whose issue is spoken of.
    2. A testator bequeathed to his son George a certain sum, and directed that if George should die without lawful issue the portion left to him should be equally divided between his brothers and sisters. All the rest and residue of his estate the testator gave and bequeathed to his daughters and sons, to be equally divided between them, share and share alike, the portion bequeathed to George to remain in the hands of his executor for George’s benefit, and to that end he only allowed him to receive, annually, the interest. Held, that the bequest to George was to go over on his death without lawful issue, and there was therefore a contingent limitation over. Held, further, that by the subsequent provisions of the will an active trust was created in the executor.
    June 16th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.
    Appeal from the Orphans’ Co-urt of Franklin county: Of May Term 1879, No. 7.
    Appeal of George Eachus from the decree of the court refusing to grant the prayer of the appellant as set forth in the petition in the matter of the will of Phineas Eachus, deceased.
    Phineas Eachus left a will which contained, inter alia, the following provisions:
    Item. To my son, Jesse, I give and devise all that house and ground situate on the corner of East and South streets, in the borough of Greencastle, together with the sum of $400. Item; To my sons and daughters named as follows: Mary Cooper, Nancy Hollar, Martha Stine, Sarah Kreps, George, Hannah, James, Joseph, Anna and William, I give and bequeath each the sum of $1000. Item. For advancements, I make George indebted to the amount of $300, Nancy Hollar indebted to the amount of $1000, Mary Cooper to the amount of $1300, and Martha Stine to the amount of $350. The above amounts I require to be accounted for in the settlement and distribution of my estate. Item. If my son, Jesse, should die without issue, it is my will that the portion left to him be equally divided between his sisters, Mary Cooper, Nancy Hollar and Martha Stine, or their heirs. Item. If my son, George, should’ die without lawful issue, it is my will that the portion left to him be equally divided between his brothers and sisters, to wit: Sarah Kreps, James, Joseph, Hannah, Anna and William, or their heirs. Item. All the rest, residue and remainder of my estate, I give and bequeath to my daughters, Mary, Nancy, Martha, Sarah, Hannah and Anna, and my sons, Jesse, George, James, Joseph and William, or their heirs, to be equally divided between them, share and share alike. Item. It is my will, and I so order and direct, that the estate, or portion bequeathed to my sons, Jesse and George, remain in the hands of my executor, in trust, for their benefit, and to that end I only allow my said sons, Jesse and George, to receive annually the interest.
    William Kreps was appointed executor of said will. He accepted said trust. He died in November 1878, leaving a will wherein his wife, Sarah Kreps, was his sole executrix. After his death she undertook the management of the trust in accordance with the terms of Phineas Eachus’s will.
    On or about the 28th day of January 1878, James C., William • G., Joseph H. and Anna C. Eachus, now Fulweiler, and her husband, C. H. Eulweiler, and Harriet Eachus, the mother, persons entitled to the remainder in the event of George W. Eachus dying without issue, released to George W. Eachus all their interest in said remainder.
    Sarah Kreps was the only one of the persons entitled to said remainder who refused to release. Hannah Eachus died before the commencement of these proceedings.
    On the 4th March 1878, George W. Eachus presented his petition to the Orphans’ Court, and after setting forth certain facts, prayed the court to issue a rule against the said Sarah Kreps to show cause why the said trust estate should not be paid over to the said George, he alleging that the will did not create an active trust. If the court refused this prayer, he prayed that such portion of the fund should' be paid him as was released by the said James, William G., Joseph H. and Anna C. Eulweiler and her husband, and Harriet Eachus, and in the event the court refused the above prayers, he prayed that a trustee should be appointed to take charge of his share in the estate of Phineas Eachus.
    The court, Rowe, P. J., in an opinion, inter alia, said:—

      “ The testator distinguishes clearly between the portion or estate bequeathed, and the interest or income annually derived from it. He expressly declares that George shall receive only the interest annually accruing on his portion, and that the principal shall remain in the hands of his executor. The intent is plain to sever the product from its source, and to carry the corpus or principal over to others. There is no rule which requires us to disappoint this manifest intention of the testator.
    “ The testator not only orders that George shall have the interest only, but there is a bequest over, first to his issue, if any, or if none, to his designated brothers and sisters. For the true reading of the will is, that George’s portion shall remain in the hands of the executor, in trust, for his benefit, as long as he lives, he receiving annually, the interest only. At his death, if he should die leaving issue — that is, children or grandchildren — the corpus or principal to go to them; but if he should die without lawful issue, then to his brothers and sisters. The period for the distribution of the corpus, and for the ascertainment of the persons entitled thereto, is that of George’s decease. The rule against perpetuities is not violated. I might content myself with referring to the case of Bently v. Kaufman, 5 W. N. C. 88, but Deibert’s Appeal, 28 P. F. Smith 296, and Hopkins v. Jones, 2 Barr 69, may be consulted.
    “ Now, if the will is to be so construed, I need not stop to point out that the release obtained by George is of no value. For if he have issue they will be entitled to the fund.” * * *
    “ ffm. Kreps was trustee only because he was executor. He who succeeds to the executorship succeeds also to the trust with which it is indivisibly joined. The payment of the legacies and portions according to the directions of the will belongs to the executor’s duties as such. Where a trust is annexed to the office of executor, it must, in case of his death, be exercised by an administrator, d. b. n. c. t. a. The rule must, therefore, be discharged. Mrs. Kreps must file the account of William Kreps, executor of Phineas Eachus, and the register must appoint an administrator, d. b. n., with the will annexed, who will give security and hold the fund as the executor did while he lived. Petition dismissed at the cost of the petitioner.”
    From this decree the petitioner took this appeal.

      Brewer & Winger, for appellant.
    The will created no active trust. The only purpose of the trust, with respect to George’s share, is to preserve a remainder to his brothers and sisters, upon George’s dying without issue. Such gift over after an indefinite failure of issue, is without effect, and the trust falls with the purpose for which it was created.
    Under the will it is worth noticing that the gift or bequest, by the first clauses of the will, is of an absolute estate. The title to the estate is in George, by the terms of the will.
    The directions in the latter clause of the will certainly do not divest the title which the appellant derives under the former clause. The latter clause is simply directory. Its effect is to make the executor the custodian of George’s share or portion. Under this clause in the will, the title to the share or portion remains in the appellant, and the executor is the* hand from which he is to receive the interest. If the portion or share devised had been real estate, a restrictive clause, like the one above, would be regarded as one against alienation, and of no effect.

      I. H. McCauley, for appellee,
    rested his argument on the opinion of the court below.
    June 25th 1879.
   The judgment of the Supreme Court was entered

Per Curiam.

The contention of the appellant is that he took an absolute estate under the will of Phineas Eachus. The ground. of this contention is that the devise over to the brothers and sisters, in default of issue, does not restrict the estate given to him for life — the failure of issue being indefinite. But this is clearly a mistake. In gifts of personalty the phrase “die without issue” means die without issue living at the death of the per'son, the failure of whose issue is spoken of. It was so settled in England before the rule of construction in devises of land was changed by the statute of 1 "Viet. c. 26, s. 29. So it • has been uniformly held in this state. Such is the obvious signification of the words, and the other sense applied to them in construing devises of lands is confessedly a false construction, supposed to be necessary in order to benefit the issue. Still v. Spear, 3 Grant 306, and cases there cited. Of course either in devises of land or bequests of personalty the words may be controlled by the intention of the testator appearing in other parts of the will. It is true that wherever an estate-tail is given in personalty, it is absolute. But the primary question is, does the will create such an estate. Here the bequest to George was to go over on his death “ without lawful issue.” There was therefore a contingent limitation over. From the subsequent provision in the will, George was to have only the interest during his life, and the principal was to go to his children or their descendants living at the time of his death. The trust in the executor was therefore an active trust and the decree below was right.

Decree affirmed and appeal dismissed at the costs of the appellant.


author: Mr. Justice Mercur,

text:
    Rothrock, Ex’r., versus Gallaher.
    1. The testimony of a witness once duly taken in a pending cause may afterwards be read in evidence in another cause between the same parties in regard to the same subject-matter, when in the interval the witness has lost his memory by reason of old age and ill health.
    2. In a suit by an executor the defendant is not incompetent to testify to any fact occurring or existing after the death of the decedent, by reason that said testimony may inferentially tend to prove the same fact existed prior -to his death.
    3. Where it is proposed to discredit a witness by proof of contradictory statements, whether his attention must first be called to the matter rests in the sound discretion of the court, and unless that discretion is abused, its exercise is not ground for reversal.
    June 6th 1879.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey and Sterrett JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Franhlin county: Of May Term' 1878, No. 214.
    Trover and conversion by Joseph Rothrock, executor of Robert Gallaher, deceased, for use of Joseph H. Gallaher, against Jane Gallaher, for twenty-three United States bonds, of the value of $80,000, and one promissory note of the value of $150.
    The questions, as passed upon by this court, are sufficiently illustrated by the following offers of evidence in the court below, and the facts as stated by this court.
    At the trial before Rowe, P. J., defendant proposed to prove, that in a conversation witness had with S. Y. Shelly (whose deposition was produced by plaintiff), that Shelly told the witness in said conversation, that Seth Zeigler took that trunk himself (speaking of the trunk taken from Kauffman’s), and that the man that took the trunk took the bonds.
    This was offered to show: 1. That Shelly and Zeigler took these bonds themselves: 2. To show that Shelly charged another person than this defendant with taking the bonds in dispute.
    Objected to because when the deposition of Shelly was taken he was not asked about, nor was his attention turned to this conversation ; because Shelly did not, in his deposition, testify to any knowledge he had of the taking of the bonds or who had them, and therefore it is not a contradiction of his testimony; because these declarations were made out of the presence of Seth Zeigler, and are wholly irrelevant and collateral to the issue.
    The'court overruled the objections, on the ground that counsel had no knowledge of this testimony in the lifetime of Shelly. (8th assignment of error.) It was proposed to ask another witness whether Shelly ever’told him that he had opened the Gallaher safe, between the time of the death of Gallaher and the appraisement for Mrs. Gallaher, for the purpose of contradicting Shelly.
    Objected to, because the answer of Shelly on that subject was conclusive and cannot be contradicted, being a wholly collateral and immaterial fact. Objection overruled. (10th assignment.)
    The defendant also offered to prove, by John Wright, that he was examined in the case of Rothrock, executor of Gallaher, v. John Wright and Jane Gallaher, in the Court of Common Pleas of Juniata county, about the subject-matter of this controversy. That on that occasion he cannot say that he testified about the little memorandum-book, marked B. F. J., but if he did give testimony on the subject and the numbers on the two leaves torn out of the book, such testimony was correct and true, but that his memory has failed him now. Extract read to the witness and the jury, from the notes of his testimony taken- by Judge Junkin, on the former trial, as part of the offer, as follows: “John Wright. * * * When I went home, the paper that was shown me excited my curiosity, and I examined the book and the paper was gone. I saw where the paper had been. There were two leaves torn out of the little book. I had made a memorandum on that leaf of bonds that I was going to sell. They were the bonds sold to Jay Cooke & Co., and the coupons I sold to Saylor & Stevenson.”
    It was objected that the witness’ testimony could not be supplemented by such evidence. The court admitted the evidence, saying, “ This is a very old man, sick, and by reason of his old age, his memory, he says, has failed him in the matters inquired of. On principle,' he ought to be allowed to show that what he swore to, was true, with a view to its introduction afterwards from the judge’s notes.” (13th assignment.)
    On the part of the defence, it was proposed to ask Jane Gallaher, the defendant, whether the package, when opened by Mr. Wright, was in the same condition that it was in, from and immediately after the death of her husband.
    Objected to because the question necessarily involves the condition of the package at the moment of her husband’s death, and inferentially, its condition before his death, and this the witness is not competent to prove; and because the evidence goes to prove a delivery of the package to her in her husband’s lifetime, which she is incompetent to prove. The court overruled the objections. (14th assignment:)
    The verdict was for defendant, when plaintiff took this writ, among the assignments of error being those noted above.

      E. S. Doty and J. McDowell Sharpe, for plaintiff in error.—
    Evidence of statements contradictory to what & witness has testified to, on the trial of a cause, are inadmissible to discredit him unless he is first examined as to such statements: Wright v. Cumpsty, 5 Wright 102; McAteer v. McMullen, 2 Barr 32; Wertz v. May, 9 Harris 279.
    The witness, Wright, did not refresh his memory by reference to the notes of the former trial. His memory was a blank, and could not be refreshed. This would have opened the way for the admission of a memorandum made by himself, as independent proof, provided he could swear to its accuracy when it was written. But no such memorandum was produced. In lieu thereof a portion of the judge’s notes was read, to supply omissions in his testimony, the result of a faded recollection. We submit that this was going beyond any recognised authority, and, if sanctioned, will inaugurate a dangerous precedent.
    To allow Mrs. Gallaher to testify that the package was in the same condition when opened by Mr. Wright and herself, as it was immediately after her husband’s death, was tantamount to permitting her to swear as to its condition at and before his death. If the package was in the same condition the very, instant of his death, it would be an inevitable inference that the condition was the same the instant before his death.

      E. D. Parker, L. E. Atkinson, F. M. Kimmell and T. M. Mahon, for defendants in error.
    The admission of evidence of the declarations of a witness for the purpose of discrediting him, without a previous examination of the witness to the same matter, is in the discretion of the court: Walden v. Finch, 20 P. F. Smith 460.
    The notes read were a deposition taken in court in a former trial, and the plaintiff had the opportunity of cross-examination. The case is in principle the same as if the witness was dead, insane or sick, or out of the jurisdiction of the court. If the witness had been deceased at the time, the notes of the learned judge would have been admissible: Moore v. Pearson, 6 W. & S. 51; Rhine and Robinson, 3 Casey 30.
    So of an absent witness: Wright v. Cumpsty, 5 Wright 102. The notes of counsel, showing what a deceased witness testified on a former trial between the same parties, are evidence when proved to be correct in substance, independently of his recollection: Rhine v. Robinson, supra; Philadelphia & Reading Railroad Co. v. Spearen, 11 Wright 300; 1 Greenl. on Ev., 11 ed., sect. 168. If, in cases of disqualifying interest,'the witness has previously given a deposition in the case, the deposition may be read in chancery, as if he were since deceased, or insane, or otherwise incapacitated: Jack v. Woods, 5 Casey 378; Emig v. Diehl, 26 P. F. Smith 359.
    The language of the Act of the Assembly, April 1st 1870, is “ that no interest or policy of law shall exclude any party to the record from testifying to matters occurring since the death of the person whose estate, through a legal representative, is a party to the record.” There is n-o difference in the meaning of the two expressions, “since the death” of a person, and “from and immediately after the death” of a person. “ Immediately” refers to time, “ after the death.” The moment the breath was out of the body of Mr. Gallaher, “from the time of,” that moment, the mouth of Mrs. Gallaher was opened' to testify to any matter occurring subsequently.
    October 6th 1879.
   Mr. Justice Mercur,

delivered the opinion of the court,

This was an action by the executor of Robert C. Gallaher, to recover for the alleged conversion of certain United States bonds. At one time during the life of the decedent, they were owned by him, and were in his possession. The plaintiff attempted to prove that the defendant had purloined them either a short time before Gallaher’s death or soon thereafter. The defendant alleged they had been taken by some of the plaintiff’s witnesses. In a previous suit by the plaintiff against the defendant for the same subject-matter’, and after witnesses had testified, the plaintiff took a non-suit. Many of those witnesses testified again on the trial of this cause. There was no direct evidence of the taking or conversion of the bonds. The plaintiff sought to prove the taking by showing the defendants had access to the safe in which the bonds were kept and had actually caused it to be opened. This attempt as well as the effort to show that some of the witnesses had sworn differently on the former trial, gave a wide range to the evidence. Under all the circumstances we see no error in the court having admitted evidence of the declarations as well as of the acts of the persons sought to be inculpated.

The ease was so w'ell and carefully tried that we do not deem it necessary to consider all the assignments in detail. We will briefly consider the thirteenth and fourteenth. The thirteenth is to the admission of the evidence of Wright given on the former trial. Plis evidence was then taken down by the judge before whom the case was tried, and on the present trial the judge testified to the correctness of his notes of evidence. That evidence was of entries which he testified he had made in a small book, of bonds and coupons, which he was going to sell and did sell. Those entries showed in figures the various numbers and, amounts of twenty bonds. Two leaves showing the entries, had by some person been torn out of the book, prior to the first trial. From memory and some written memoranda he then testified to the entries which he had made on the lost pages of the book. On the present trial he was present but was unable to state that he had testified in regard to this matter on the former trial. He swore, however, that if he did so testify, his testimony was correct and true. The judge swore he did so testify. It appearing on the last trial that the witness was eighty-seven years old, and in consequence of his great age and ill health his memory had failed him in respect to the facts in question, the court permitted the testimony which he had given on the former trial, to be read in evidence.

If he had been dead or beyond the jurisdiction of the court, it is clear this evidence would have been admissible. Chess v. Chess et al., 17 S. & R. 411; Moore v. Pearson, 6 W. & S. 51; Jones v. Wood, 4 Harris 25; Rhine v. Robinson, 3 Casey 30; Haupt v. Henninger, 1 Wright 138: Wright v. Cumpsty, 5 Id. 102: Evans’s Adm’x v. Reed, 28 P. F. Smith 415: Pratt v. Patterson, 31 Id. 114. We cannot see any substantial reason why the testimony of a witness once duly taken in a pending cause may not afterwards be read in evidence in another cause between the same parties in regard to the same subject-matter, when in the interval the witness has lost his memory by reason of old age and ill health. The justice and propriety of receiving the evidence are as strong as if the witness were dead, insane, out of the jurisdiction of the court, or unable to attend by reason of sickness. Although bodily present, yet if shown to have become so bereft of memory by senility or sickness, that he is unable to recall a past transaction to which he had once testified and has forgotten that he,ever testified in regard to it, he may be considered as practically absent, and his former testimony, if otherwise admissible, may be read in evidence: 1 Greenl. on Ev., §163 n. It is also intimated in Jack v. Woods, 5 Casey 375, and ruled in Emig v. Diehl, 26 P. F. Smith 359.

The 14th assignment presents an objection to the defendant’s testifying to a fact existing after the death of Mr. Gallaher. It is claimed that inferentially, this tends to prove a condition of things prior to his death, and inasmuch as the suit was brought by the executor, the defendant was incompetent to so testify. We think this objection unsound. The Act of 9th April 1870 makes the defendant competent to testify “ to matters occurring since the death of the person whose estate, through a legal representative, is a party to the record.” It fixes no period of time after his death, when the matters shall have occurred, whether they be immediately thereafter or whether months or years have intervened; the defendant is thereby made competent to testify in regard to them. She is not made incompetent to testify to any fact occurring or existing after the death of the decedent, by reason that her testimony may inferentially tend to prove the same facts existed prior to his death.

If the executor had given evidence to prove that certain chattels had been destroyed or a certain animal killed during the life of the decedent, it cannot be successfully contended, that the defendant would have been precluded from testifying that she saw the property immediately after his death, and then the chattels were uninjured and the animal in full life.

The decisions applicable to the eighth and tenth assignments are not in harmony with each other. In 2 Greenl. Ev., sects. 462, 467; McAteer v. McMullen, 2 Barr 32; Wright v. Crumpsty, supra, it is said that a witness cannot be discredited by proof of contradictory statements, unless he be first examined as to such statements, so as to give an opportunity for explanation. On. the contrary it is held in Sharp v. Emmet, 5 Whart. 288; Kay v. Fredrigal, 3 Barr 221; Walden v. Finch, 20 P. F. Smith 460, whether his attention must first be called to the matter, rests in the sound discretion of the judge, and unless that discretion be abused, its exercise is not ground for reversal. We think it best to adhere to the rule laid down in the last case. So holding we see no such abuse of a sound discretion in this case as to give cause for reversal. The testimony of the witness was by deposition. When it was taken, the defendant does not appear to have had knowledge of the declarations sought to be proved. The remaining assignments are without merit.

Judgment affirmed.


author: Mr. Justice Sterrett

text:
    Motz versus Mitchell.
    If A. obtains possession of a deed and uses it for the purpose of extorting money from B. as the price of its preservation or of permission to use it in defending his title, and by threats, express or implied, gives B. to understand that the deed would be withheld or destroyed unless his demand were complied with, the payment is to be deemed involuntary, and the wrongdoer shall be compelled to make restitution.
    June 18th 1879.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, of Union county: Of May Term 1879, No. 183.
    Assumpsit on a book account by Robert J. Mitchell against John C. Motz. The defendant pleaded non assumpsit, payment, and payment with leave to give special matter in evidence. The plaintiff was an attorney-at-law, and this action was for an alleged balance of $317.62, due him by defendant for services rendered. The material facts are stated in the opinion of this court.
    At the trial before Bucher, P. J., the defendant offered to prove that the plaintiff had in his posssesion a deed from Shem Spigelmey er and wife, to Daniel Weidensaul, for forty-two acres and forty-four perches of land, with a water-power, grist-mill, saw-mill, &c., said deed being for the undivided half of said property. That defendant was the owner of the said property, and purchaser at sheriff’s sale of the interest set out in said deed. That said deed was unrecorded. That Mitchell, the plaintiff, proposed to sell this title paper, and that Motz, for fear said title paper would be destroyed, paid Mitchell $150 in order to get possession of said deed. This offered for the purpose of showing that the plaintiff has $150, obtained from the defendant, under duress, which defendant claims the right to defalcate in this action.
    The court rejected the evidence, saying: “ There is nothing in the position that a plea of set-off is not admissible under the pleadings, because a set-off can be admitted under the plea of payment, and it is well settled that a set-off arising out of a distinct transaction can be set-off, but the difficulty we have in the admission of the evidence is this: That the defendant, by virtue of the sheriff’s sale, acquired no special property in the deed, and that the payment of the $150 on his part was voluntary, and for that reason it cannot be recovered back, and though it is true that the doctrine of duress has been extended from what it was at common law, so as to include money paid, in order to extort it from a party, in order to enable him to get the possession of his goods, yet we cannot say that this deed was the goods and chattels of the defendant, and for that ¡reason we reject the evidence.” (First assignment of error.)

      The defendant also offered to prove that the plaintiff had in his possession the deed mentioned in the preceding offer, and, notwithstanding the defendant’s right to a subpoena duces tecum,, he feared the evidence would be destroyed and he would suffer a great loss if he refused to comply with the demand of the plaintiff for $150 in money, and that he paid that sum of money not voluntarily, but under duress per minas, of withholding and destroying the evidence.
    The court rejected the evidence, saying: “There is no offer to prove that the plaintiff threatened to destroy the deed as an instrument of writing, and we cannot hear evidence of the hopes and fears and expectations of the defendant not communicated to’ the plaintiff.” (Second assignment of error.)
    The verdict was for the plaintiff, when defendant took this writ and alleged, inter alia, that the court erred as set forth above.

      Samuel H. Orwig, for plaintiff in error.
    The withholding of a title paper under circumstances such as are presented in this case, whereby one party is constrained to pay money to another, to get possession of such title paper under a well-grounded fear of loss and injury, and without means of preventing such loss and injury, except by paying the money demanded, is within the doctrine of duress: White v. Heylman, 10 Casey 142; Miller v. Miller, 18 P. F. Smith 486.
    The offer to prove that the payment of the money was not voluntary, but under the threat of withholding and destroying the evidence, and that the plaintiff had in his possession the deed mentioned in the preceding offer, rvas distinctly made. And it is respectfully contended that the defendants below had the right to an explicit ruling upon the offer; to show that the deed in question was then and there in the hands of the plaintiff at the time of the promise and the payment of the $150 ; to show the facts and circumstances under which he paid it; and as he offered to do in his third and fourth offers, that he had well grounded reasons to lelieve that his evidence, contained in said deed, would be destroyed, unless he paid the money demanded. And it was also apparent, from the second offer, that the defendant below, notwithstanding his right to a subpoena duces tecum, had not the means to prevent the injury threatened.

      William Van Gezer, for defendant in error.
    Being rightfully in possession of the deed, and having the right to continue in possession until such time as the -plaintiff in error should, by availing himself of the provisions of the statute law, become entitled to its delivery to him, defendant in error was guilty of no duress by withholding it. “ Duress implies an illegal detention:” Gulliver v. Cosens, 9 Jur. 666. Goods must be “ wrongfully withheld” to avoid a note given to obtain possession of them: White v. Heylman, supra.

    To constitute a payment under duress per minas, the threats must emanate from the one by -whom the payment is demanded. It follows, as a corollary, that an offer to prove payment under duress per minas, should specifically allege ~by whom it is claimed the threats were made, and set forth the grounds upon which the alleged apprehensions, inducing the payment, were based. Otherwise testimony would be admissible, under the offer, of fears and expectations on the part of the payer that, however real they might be, and however well calculated to induce unwilling payment, were in no sense the creation of the payee, and for the exciting of which he could in no manner be held responsible.
    The payment of the $150, by the defendant to the plaintiff, was a purely voluntary payment, for which there was a sufficient consideration, and it cannot be recovered back.
    October 6th 1879.
   Mr. Justice Sterrett

delivered the opinion of the court,

The defendant below contended that the plaintiff wrongfully obtained from him $150, under circumstances which made the payment involuntary, on his part, and justified him in defalking the same against the plaintiff’s demand.

It appeared that Spigelmeyer conveyed to Weidensaul his interest, as tenant in common, in a mill property, and that on a judgment against the latter, obtained after he had acquired Spigelmeyer’s interest, the property was sold and purchased by the defendant below; that subsequently litigation arose between him and Spigelmeyer’s assignees, who, under the deed of voluntary assignment for the benefit of creditors, asserted title to the undivided moiety of the mill property; that the deed from Spigelmeyer and wife to Weidensaul had never been recorded, and neither of them could or would give any information concerning it, except that Spigelmeyer alleged such a deed had been made, but had no recollection that it had ever been delivered.

It was alleged by the defendant that while suit was pending and his title was in jeopardy for want of the deed, or evidence of its existence and subsequent loss, the plaintiff below, then residing in the family of Weidensaul, obtained possession of the deed, and after failing to negotiate with the assignees for its surrender, in their interest, demanded the money from defendant, as the price of his being permitted to use the deed in defending his title; that jn view of the circumstances in which he was placed and the conduct of the plaintiff, he was firmly impressed with the belief that the deed would be withheld or destroyed, and that he would suffer great loss if he refused to comply with the demand; that he was constrained to yield to the pressure thus brought against him and paid the amount demanded.

The principle contended for by the plaintiff in error, that money obtained by duress, extortion, imposition or otherwise involuntarily paid, may be recovered back, appears to be sustained in White v. Heylman, 10 Casey 142. In that case, money had been paid and a note given to procure the reconveyance of land, the title to which had been vested in a stranger by the wrongful act of an agent. After stating that the defendant was forced to pay his faithless agent money and give him the note in suit, in order to procure a transfer to himself of what was in reality his own, the court proceeded to say: “Neither the payment of the cash nor the giving of the note was voluntary, but both were extorted from the defendant and come within that class of cases in which money illegally claimed and paid has been recovered back, where goods, deeds, or papers have been wrongfully detained until the money has been paid.”

The general rule, as stated in Chitty on Contracts 625, “ seems ' to be, that the payment of money by the owner of goods, in order to redeem them from the hands of a person who unlawfully withholds them and demands such money, may be treated as a compulsory payment, so that the amount is recoverable, as having been obtained by oppressive means. Thé owner of the goods may have so urgent occasion for them that the ordinary action may afford very imperfect redress.”

In Miller v. Miller, 18 P. F. Smith 486, it is said that in civil cases, the rule as to duress per minas has a broader application at the present day than formerly. Where a party has the property of another in his power, so as to enable him to exert his control over it to the prejudice of the owner, a threat to use this control may be in the nature of the common-law duress per minas, and enable the person threatened with this pernicious control to avoid a bond or note obtained without consideration, by means of such threats. The constraint that takes away free agency and destroys the power of withholding assent to a contract must be one that is imminent and without immediate means of protection, and such as would operate on the mind of a person of reasonable firmness. As it is expressed in Astley v. Reynolds, 1 Strange 915, the rule voluntó non fit injuria is applied only “ where the party had his freedom of exercising his will.” The same general principle is also recognised in Colwell v. Peden, 3 Watts 327; Foshay v. Ferguson, 5 Hill (N. Y.) 154; Sasportas v. Jennings, 1 Bay 470, and Collins v. Westbury, 2 Id. 211.

If the plaintiff below obtained possession of the deed and used it for the purpose of extorting money from the defendant, as the price of its preservation or of permission to use it in defending his title, and by threats, express or implied, gave defendant to understand that the deed would be withheld or destroyed, unless his demand was complied with, the payment should be deemed involuntary and the wrongdoer should be compelled to make restitution.

Several offers were made for the purpose of showing the circumstances under which the alleged involuntary payment was made. The first of these was to prove in substance that the plaintiff had the deed in his possession and proposed to sell it, and for fear it would be destroyed, Motz paid him “ one hundred and fifty dollars to get possession of'the deed.”

Standing alone the testimony proposed in this offer was insufficient to show an involuntary payment, and there was, therefore, no error in excluding it; but we think the learned judge was not quite accurate in saying that the defendant, by virtue of the sheriff’s sale had acquired no special property in the deed. In a certain sense this may be true, but in another it is not strictly so. He had an interest in the deed. It was an important link in the chain of the title which he was defending in the action of ejectment. This interest is recognised by the Act of 1863, which provides a mode in which, after six months’ notice, he might have compelled Weidensaul to either record the deed or deliver it to him. As an instrument of evidence, he was deeply interested in the preservation and production of the deed. Without it, he might have failed to procure such secondary evidence as would enable him to successfully defend his title to the undivided moiety of the property in dispute.

While the offer embraced in the second assignment is not as full and specific as it might have been, we think the testimony should have been received. The learned judge in excluding the testimony assigns as a reason therefor that there was no offer to prove that the plaintiff threatened to destroy the deed as an instrument of evidence if he was not paid the money. As Ave understand the offer, this was substantially what the defendant proposed to prove. If he was prepared to show that the plaintiff in express terms, or by reasonable implication, threatened to destroy the deed, or otherwise deprive him of the use of it as an instrument of evidence, he should have been permitted to do so. Of course, it was impossible for the court to know whether the defendant was prepared to sustain his offer or not, but when he proposed to prove among other things that he paid the money “not voluntarily, but under duress minas of withholding and destroying the evidence,” it Avas bound to assume that the offer was made in good faith. Nor was it necessary to show that the hopes and fears of the defendant Avere communicated to the plaintiff. If the latter acted as it is claimed he did, the natural inference would be that he intended to operate on the mind of defendant, and so excite his fears and apprehensions as to insure the accomplishment of his purpose, whether that was to obtain the money as the naked price of preserving the deed and permitting defendant to use it in defending Ms title, or as compensation, so called, for professional services coupled with permission to use the deed.

The testimony embraced in the second offer should have been received, in connection with proof of other facts tending to show that the plaintiff obtained possession of the deed and used it for the purpose of extorting money from the defendant, by threats, express or implied, of withholding or destroying it, unless his demand was complied with.

Judgment reversed and a venire facias de novo awarded.


text:
    Smith and Kausler versus Harry.
    H., who was an executor, gave to his sureties a mortgage to indemnify them against “ all loss, cost, damage and expense which they could or might be put to by reason of their being securities on his bond.” H. filed his account, showing a balance of $2000 in his hands. The court approved the account and ordered the fund to be distributed. II. at this time was insolvent, and one of the sureties advanced the money to pay the legacies. These payments were made before suit brought or before any demand was made upon the sureties by the legatees. The court below held that said mortgage was not an indemnity against mere liability, but against loss, cost, damage and expense, and that the mortgagees could not voluntarily and without demand upon them, convert their liability into loss, but only after proceedings in inviiwml Held, that this was error; that the decree of the court approving the account, fixed the liability of the sureties for an absolute debt, a sum certain, for which there was then a present right of action; and that they were not obliged to wait until after the legatees formally demanded the money, or issued process for its collection, before moving to protect themselves ; that the plaintiffs’ rights as sureties were not waived by- taking an indemnity such as this mortgage, and that they were entitled to all the advantage of said security.
    June 19th 1879.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, of JPranTdin county: Of May Term 1879, No. 216.
    Scire facias sur mortgage issued by George W. Smith and John H. Kausler against Jacob K. Harry.
    On the 28th day of May 1872, Jacob K. Harry, as executor of the last will of George J. Harry, deceased, executed to the state of Maryland his bond in the sum of $20,000, with George W. Smith and John H. Kausler as sureties thereon, conditioned as follows : “ The condition of the above obligation is such, that if the above bounden Jacob K. Harry shall well and truly perform the office of executor of George J. Harry, late of said county, deceased, according to law, and shall in all respects discharge the duties of him required by law as executor aforesaid, without any injury or damage to any person interested in the faithful performance of the said office, then the above obligation shall be void; it shall otherwise be in full force and virtue in law.”
    On the same day Harry executed and delivered to his said sureties a deed of mortgage for a lot of ground in Franklin county, Pennsylvania, conditioned as follows : “ Provided, that if the said Jacob K. Harry, do and shall well and truly save harmless and keep indemnified the said George W. Smith and John H. Kausler from any and all loss, cost, damage and expense which they could or might be put to by reason of their being my sureties on said bond, then this mortgage shall be void, otherwise to be and remain in full force and virtue in law.” This mortgage was duly recorded on the 12th of June 1872.
    On the. 8th of April 1873, William McCrory obtained a judgment by confession against Harry, the mortgagor, in the Common Pleas of Franklin county, for $1000.
    On the 5th August 1873, Jacob K. Harry settled his sixteenth account as executor of George J. Harry, deceased, in the Orphans’ Court of Washington county, Maryland, which contained a schedule of distribution to the legatees, and which showed a balance in his hands, thus distributed, of $2000. This account was the same day approved and ordered to be recorded.
    On the 14th April 1874 he filed his seventeenth account, showing a balance of $1006.18 in his hands, which was approved and the balance distributed by the court.
    The legatees were eight in all. The balance on the sixteenth account was paid by check of Kausler for $1750, dated 5th August 1873, and the executor’s own legacy of $250.
    The balance on the seventeenth account was paid by the executor’s commissions and dividend, with'$134.77, advanced by Kausler by check dated 3d August 1874.
    These several advancements were made by Kausler after the confirmation of the respective accounts, on.which they were paid, but not upon the request or demand of any of the parties in interest. Harry, the executor, was insolvent; excepting the mortgaged premises he had no property or resources whatever but household furniture worth $300. This fact was known to Kausler at the time, and the money was advanced by him because he believed that those entitled to the money would begin proceedings at law to compel payment by the sureties.
    McCrory sued out writs of execution upon his judgment against Harry, and by virtue of these sold the mortgaged premises at sheriff’s sale, himself becoming the purchaser for the sum of $50. The sheriff’s deed was acknowledged 11th December 1876.
    Kausler sued out a scire facias upon his mortgage 20th January 1877. It was on this latter proceeding that this case arose. Mc-Crory having been allowed to intervene made defence to the action on several grounds.

      The court below, to whom the case was submitted without a jury, ruled the case against the plaintiffs, in an opinion, inter alia, saying:
    “ I think a correct statement of the law on the facts found to be this: the bond was a contingent liability, but notwithstanding there was no suit to fix the executor with a devastavit and it was not judicially ascertained that the assets were no longer to be reached by an execution (Commonwealth v. Evans, 1 Watts 439), yet when the Orphans’ Court, on the 5th of August 1873, approved the sixteenth account which distributed the sum of $2000 to the legatees, awarding a definite sum to each of them, thereby fixing the amount of the executor’s personal responsibility, that was all that was necessary as a pre-requisite to a suit on the bond. For such is our law, and since it does not appear in evidence what the law of Maryland is, I am to assume that it is the same as our own. See Commonwealth v. Stub, 1 Jones 157; Commonwealth v. Wenrick, 8 Watts 161. A judgment or decree against the principal will authorize an action against the surety on the bond; nothing more is needed. And where the right of the legatee to demand payment from the executer is determined by due course of law, then it becomes an absolute debt, for which the surety is liable on his bond. Furthermore, here the executor resided in Pennsylvania, and suit would lie on the bond against the surety without previous recourse to the principal: Commonwealth y. Wenwick, supra. Smith and Kausler, the sureties on Harry’s bond, were therefore liable to suit on the bond, at the instance of the legatees, for the sums due them on this distribution, immediately on the passing of the sixteenth account. And the observations are correct with regard to the seventeenth account.

      “ The payments by Kausler therefore were not voluntary in the sense that they were made before the debt became an absolute one, and before the sureties became liable to suit on the bond. They were voluntary payments only in the sense that they were made before any demand by those entitled, and not upon any suit or proceeding in invitum.

    , “ But the question still remains whether a payment voluntary in this latter sense is protected by the mortgage. For the mortgage is an instrument of mere indemnity to save the sureties harmless, not from liability on account of their suretyship, but from ‘ any and all loss, cost, damage and expense’ by reason thereof. Now although, as I have shown, the sureties were liable at the time of the payment by Kausler, to be called on and compelled to pay, yet it did not appear with legal certainty that they would be called on, in the absence of any demand by those entitled to compel payment; for non constat that such demand would ever be made, and if not there would be no loss or damage. As against William McCrory a subsequent judgment-creditor, the mortgagees could not voluntarily create a breach of the condition in the mortgage by turning that which was only a liability into an actual loss, of their own head without any motion on the part of those entitled to demand payment. In Crippen v. Thompson, 6 Barb. 532 (cited U. S. Digest, 108, 111, 2042), it was held ‘ that in order to recover upon a bond of mere indemnity to save the obligee harmless from another bond executed by him, the obligee must show damage and that involuntarily sustained: the damage must have been suffered or paid by compulsion, by some proceedings in .invitum against him.’ See also U. S. Digest, 24, 111, 411, 414, 420.”
    The court therefore found as a conclusion of law, that said mortgage was not an indemnity against mere liability, but against loss, cost, damage and expense, and that the mortgagees could not voluntarily and without demand upon them, convert their liability into loss, but only after proceedings in invitum. *
    This ruling was assigned for error.

      William McLellan and John Stewart, for plaintiffs in error.—
    The settlement of his account and its confirmation by the court, fixed the executor’s liability, and non-payment thereafter was a breach of-his bond: Commonwealth v. Moltz, 10 Barr 530.
    It determined also the liability of the sureties; it was thereafter to be measured by the liability of the principal; it was thereafter not contingent, but absolute: Patterson’s Appeal, 12 Wright 342; Boehmer v. Schuylkill Co., 10 Id. 452; Stovall v. Banks, 10 Wallace 583.
    The breach of the bond occurs whenever the claim becomes a lawful one, capable of being enforced, and the surety is put in jeopardy. The latter is not bound to wait until an action is brought against him before proceeding for indemnity.
    Although, says Lord Keeper North, the surety is not troubled or molested for the debt, yet, at any time after the money becomes payable on the original bond, this court will decree the principal to discharge the debt, it being unreasonable that a man shall always have such a cloud hang over him: Renelaugh v. Hayes, 1 Vern. 188.
    In the absence of any express authority we cannot agree that the law regards such an indemnity as this available only after actual loss. There is no warrant for thus limiting its character. The following cases are irreconcilable with such rule: McCann v. Farley, 2 Casey 173; Huzzard v. Nagle, 4 Wright 181; Bamford v. Keefer, 18 P. F. Smith 390. The settlement of an administration account, confirmed by the court, is tantamount to a final judgment obtained as against the administrator: Commonwealth v. Moltz, supra; Commonwealth v. Evans, 1 Watts 439; Commonwealth v. Wenrick, 8 Id. 159.
    If obtaining a judgment against a surety be held such a damage as works a breach of the contract of indemnity against damage, why shall not the settlement of the account in the present case be so held. See Bamford v. Keefer, supra; Stroh v. Kimmell, 8 Watts 157; Leber v. Kauffelt, 5 W. & S. 442; Constant v. Matteson, 22 Ill. 546.

      W. U. Brewer and J. McD. Sharpe, for defendant in error.—
    The liability of Smith and Kausler, as sureties in the bond of Harry, was originally contingent. No liability attached to them until the personal responsibility of their principal for the debt was first established, either in an action at law, or by a decree of the Orphans’ Court, fixing the amount of money in his hands and making distribution: Commonwealth v. Evans, 1 Watts 437; Commonwealth v. Wenrick, 8 Id. 159; Myers v. Fretz, 4 Barr 346; Commonwealth v. Stub, 1 Jones 151.
    The cases cited by plaintiff in error do not support his contention,' and are plainly distinguishable from this case. When Kausler advanced the money to Harry, no demand had been made either upon him or upon his principal, for any part of the money, by any of the legatees. No judgment had been recovered against the sureties. No suit was brought, or even threatened. It was a purely voluntary and unsolicited payment by Kausler. Even the'principal did not request him to pay the money. We submit, therefore, that the court ruled correctly, when they held that the payment by Kausler was purely voluntary; that he could not, as, against William McCrory, create a breach of the condition of indemnity in the mortgage, by.turning that which was only a liability into an actual loss, at his own volition, without any motion on the part of those entitled to payment: Crippen v. Thompson, 6 Barb. 534; 3 Pars. on Cont. 186; Weller v. Eames, 15 Minn. 461; Churchill v. Hunt, 3 Denio 32; Beaver v. Beaver, 11 Harris 169.
    October 6th 1879.
   Mr. Justice Trunkey

delivered the opinion of the court,

The defendant concedes that the decree of the Orphans’ Court, approving the executor’s account and making distribution, was all that was necessary as prerequisite to a suit on the bond. That decree established the executor’s personal responsibility and it was his duty to make immediate payment. It fixed the liability of his sureties for an absolute debt, a sum certain, for which there was then a present right of action against them; and they were not obliged to wait till after the legatees formally demanded the money, or issued process for its collection, before moving to protect themselves. “ Harry had no means wherewith to pay the said distribution,” and neither reason nor law required them to suffer the debt to become swollen by interest and costs, before they paid it, on pain of being treated as mere volunteers. . Their liability had arisen because of the principal debtor’s default, and the law implies that he requested them to pay the money. Where a surety pays an overdue debt, he can recover what he pays from the principal debtor, who will be considered as having requested him to pay the debt in receiving him as his surety: 1 Par. Con. 393.

In equity, as soon as the surety pays the debt, he is considered as subrogated to all the remedies of the creditor against the person and estate of the principal. In some cases, without payment, a surety, apprehending danger from the delay of the creditor, may compel him to sue the principal debtor on giving an indemnity against the consequences of risk and expense. A surety may file a bill in equity against the principal to compel him to pay the debt at maturity, and make the creditor a party in order that he be at hand to receive the money. In an early case it was said: “ Although the surety is not troubled or molested for the debt, yet at any time aftpr the money becomes payable, the court will decree the principal to discharge it, it being unreasonable that a man should always have such a cloud hanging over him Renelaugh v. Hays, 1 Vern. 188; 1 Story’s Eq., sect. 327; 1 L. C. Eq. 144; 3 Id. 557; Hays v. Ward, 4 Johns. Ch. 123; Beaver v. Beaver, 11 Harris 169.

When the executor made default in payment to the legatees, according to the decree of the Orphans’ Court, well settled principles authorized his sureties at once to commence proceedings to compel him to pay the debt, or themselves could pay it, as they did, and recover the money from him. The mortgage contains no express or implied contract depriving the mortgagees, as sureties, of any remedies against the mortgagor, as principal. Both on its face and in its circumstances it was a security to the sureties against “all loss, cost, damage and expense which they could or might be put to by reason of their being sureties on said bond.” Upon the executor’s default in complying with the said decree, they could have been put to damage and expense; they were legally bound to pay the debt, and had a right to discharge it and avail themselves of the security. The mortgagor has no color of defence. Was not that recorded mortgage notice to a subsequent purchaser or creditor ? He could see that the land was pledged to save harmless the sureties on an executor’s bond fully recited in the mortgage. He is presumed to have known the extent of their liability, and that, upon the executor’s default, it would become the sureties’ duty to pay the money according to the adjudication of the Orphans’ Court. The facts show no superior equity in favor of a subsequent creditor.

This case differs widely from Crippen v. Thompson and Bishop, 6 Barb. 532, cited by the court below. There the action was on a bond, given to Crippen by Thompson as principal and Bishop as surety, conditioned that Thompson should “ save harmless the said” Crippen “from a bond executed by him to Nathan R. Crippen, deceased, dated on or about the 3d day of March 1840, the said Crippen giving the said Thompson notice of any proceedings át law oi' otherwise thereon.” That bond was to pay the debts of Crippen, Sr., the plaintiff’s father. After it was given and before the defendants gave their bond, the plaintiff agreed with Dayton to pay him a debt owing by the father, making himself directly liable for it and thereby precluding all examination and defence as to that debt. The court, in the opinion, said: “ The question in this case, as we shall see, is -whether the plaintiff can pay the debt of his father, voluntarily and without notice, and then recover upon the bond, against him and his surety?” It was held he could not. Here the mortgagor was the principal debtor, had his day in court, with opportunity to test the legality of the claim ; and after final decree and his default, his sureties, the mortgagees, actually paid the debt, before commencing proceedings on the mortgage. The doctrine in Crippen v. Thompson, if sound, does not apply.

The plaintiffs had rights as sureties which were not waived by taking an indemnity against “loss, cost, damage and expense,” and having suffered loss, by reason of their suretyship, are entitled to advantage of their security.

Judgment reversed and a new trial ordered.