text:
    The Third National Bank of Philadelphia versus Miller et al.

    1. Where a national hank charges usurious interest on overdrafts it thereby loses the right to recover any interest at all.
    2. Where an action is brought nominally upon a promissory note, which was held as collateral by a national bank for overdrafts upon it by another bank, the suit is actually to recover the overdrafts against the makers of the note as sureties, and if' usurious interest has been charged, the makers may defalcate all the interest charged against the whole amount of overdrafts claimed.
    3. The fact that there were monthly accounts between the banks, which were stated accounts, does not preclude such sureties from setting up an illegal charge of' usury.
    4. Nor does the fact that the bank,. which had made the overdrafts, charged illegal interest to their customers on the notes discounted for it by the national bank affect the right of the, sureties to set up, as against the national bank, its violation of the Act of Congress, in charging usurious interest.
    May 12th 1879.
    Before Sharswood, C. J., Mercur, Gordon and Trunkey, JJ. Paxson, Woodward and Sterrett, JJ., absent.
    Error to the Court of Common Pleas,.of Cumberland county: Of May Term 1878, No. 191.
    Debt by the Third National Bank of Philadelphia, upon the following promissory note, against the signers thereof, the President and Directors of the Farmers’ and Mechanics’ Bank of Shippenshurg, Pennsylvania:
    $20,000.
    Shippensbui-g, Pa., Nov. 22d 187S.
    One day after date we jointly and. severally promise to pay to the order of J. Hiram Hubley, cashier, twenty thousand dollars, without defalcation, value received. This note to be held as collateral by Third National Bank, Philadelphia, for the payment of any overdrafts by the Farmers’ and Mechanics’ Bank of Shippensburg, Pa.
    Signed,
    A. G. Miller; President,
    James B. Orr,
    J. M.. Means,
    T. P. Blair,
    H. G. Skiles,
    Henry Snyder,
    John A. Ahl.
    The Farmers' and Mechanics’ Bank of Shippensburg, about 1868, opened an account with the Third National Bank of Philadelphia. Each bank kept both debit and credit sides of the account. The Farmers’ and Mechanics’ Bank sent to the Third National Bank notes for collection, checks and drafts on other banks, currency and other cash items ; all of which it charged in its account to the Third National Bank, and the latter in its account credited to the Farmers’ and Mechanics’ Bank. The Third National Bank also discounted for the Farmers’ and Mechanics’ Bank notes taken by the latter, and also notes drawn by the individuals composing the directors of the Farmers’ and Mechanics’ Bank for the accommodation of the latter. The proceeds of these notes were in like manner respectively charged and credited in the accounts kept by each bank with the other. The. Farmers’ arid Mechanics’ Bank also issued drafts on-the Third National Bank, which were credited and charged in the several accounts. The Third National Bank sent collections, checks on other banks and currency to the Farmers’ and Mechanics’ Bank, and all these items entered into the accounts. At the end of each month, the Third National Bank sent an account-current, as kept by it during the month, to the Farmers’ and Mechanics’ Bank. The latter, after examining the account and comparing it with its own, reported to the Third National Bank that it had received the account; that it agreed with its books, and what the balance due was. With this balance, the account for the ensuing month in the Third National Bank would open, and the credits and debits were then continued during this month until its close; and so the accounts continued from month to month. The last report made by the Farmers’ and Mechanics’ Bank was in March 1875, for the month of February 1875. About September 1873, the Farmers’ and Mechanics’ Bank began to be indebted to the Third National Bank, and in November of that year its overdraft became very heavy. To secure this the above note was drawn by the individual members of the board of directors. This note was duly 'endorsed by J. Hiram Hubley, cashier, and delivered to the Third National Bank, and this suit was brought thereon to recover the overdraft by the Farmers’ and Mechanics’ Bank on the Third National Bank.- On the average daily balance due by the Farmers’ and Mechanics’ Bank for each month interest would be charged and entered in the account. The interest thus included in the overdraft amounted to $7893.30, and was in excess of the legal rate. Of this amount, $1324.15 were recouped by defendants in a former suit.
    At the trial before Herman, P. J., the plaintiff submitted, inter alia, the following points, to which are subjoined'the answers of the court:
    1. No excess of interest having been charged or exacted on the note in suit, or upon any evidence of indebtedness in suit, and the defendants having paid no such excess of interest, there has been no forfeiture of interest under the Act of Congress on the subject.
    Ans. “Refused.”
    2. The Act of Congress providing that excess of interest “ shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it or which has been agreed to be paid thereon,” destroys the interest bearing quality of the note only while it is running, but whenever a right to sue on the note, bill, or other evidence of indebtedness accrues, or when it becomes due and demand is made for its payment, interest is chargeable on the amount received from such time.
    Ans. “ This point is refused. The taking, receiving, reserving or charging usurious interest on a note, bill, or other evidence of debt destroys its interest-bearing power, and this taint continues whilst it represents the indebtedness.”
    3. An account current furnished by one party to the other, if not objected to in a reasonable time, becomes a settled account, and the plaintiff having furnished to the Farmers’ and Mechanics’ Bank of Shippensburg, Pennsylvania, its account current monthly for each month to March 1st 1875, the receipt of which was acknowledged by the Farmers’ and Mechanics’ Bank, as well as the correctness of the accounts so furnished, the accounts between the two banks became thereby settled accounts, and all notes for excess of discount-in which the defendants claim an offset that enters into and are alleged to have formed a part of such accounts were thereby settled and paid in law, and the only remedy that remains for such excessive interest is an action under the Act of Congress for the penalty incurred by that act; and only $8.66 of such discount entering into the account after March 1st 1875, only that amount can be set off.
    Ans. “ Refused. It is true that monthly balances were rendered and charged up at the end of every month, and to that extent wmre monthly settlements made; but the right of these defendants to have recouped the usurious interest paid is not for that reason extinguished.”
    The court was also asked to charge that, as far as the transaction in discounting notes were concerned, the Farmers’ and Mechanics’ Bank paid no illegal discount, nor had agreed to do so, but was'the mere agent for the party from whom it took the notes. Refused.

      The defendants, inter alia, submitted the following point, to ■ which is appended the answer of the court:
    The defendants having shown that plaintiff has charged as interest on balances the sum of $1982.17, all of which was at usurious rates, and that there is included in said account interest charged on notes discounted to amount of $5911.13, all at usurious rates, these two items amounting in the aggregate to $7893.30, should be deducted from claim of plaintiff, and that no interest should be allowed on plaintiff’s claim.
    Ans. “Of the aggregate amount of interest, $7893.30, the sum of $1324.15 was recouped in suit No. 77, November Term 1875, and it being a proper credit in that case and one to which the defendants in that case were lawfully entitled, it cannot be deducted again in this suit. These defendants are not entitled to it. Deducting it then from the aggregate usurious interest, $7893.30, leaves the sum of $6569.15, which must be recouped from the balance sued for. The balance sued for being $12,403.27, you will deduct therefrom the sum of $6569.15, and the balance $5834.12 should be the amount of your verdict for the plaintiff.”
    The verdict was in accordance with this instruction, and after judgment the plaintiff took this writ, and assigned for error, inter alia, the answers to the above points.

      Duncan M. Graham, J. H. Graham and John Hays, for plaintiff in error.
    The Act of Congress destroys the interest-bearing quality of the note only while it is running; but when it matures, interest is chargeable thereon and is recoverable from that time. It is only the interest agreed to be paid during the running of the note that is forfeited: Lucas v. Government National Bank, 28 P. F. Smith 231; Overholt v. National Bank of Mount Pleasant, 1 Norris 493; Cake v. First National Bank, 5 W. N. C. 244; Ludwick v. Huntzinger, 5 W. & S. 60.
    Usurious interest not exacted on the note in suit nor paid by defendants cannot be defalked: Bly v. Second National Bank of Titusville, 29 P. F. Smith 457; American Sewing Machine Co.’s Appeal, 2 Norris 293; Brown v. Second National Bank, 22 P. F. Smith 209.
    Where an account is rendered, and no objection is made thereto, it becomes an account stated and the parties are concluded thereby. All interest and discount were therefore settled and paid in law: Bevan v. Cullen, 7 Barr 281; Thompson v. Fisher, 1 Harris 313; Sergeant’s Ex’rs v. Ewing, 6 Casey 83; Killam v. Preston, 4 W. & S. 14; Van Amringe v. Ellmaker, 4 Barr 281; Phillips v. Tapper, 2 Barr 323; Bainbridge v. Wilcocks, Bald. 536.
    Defendants are not entitled to credit for illegal interest neither paid by them nor by the Farmers’ and Mechanics’ Bank.
    The bank had taken notes from parties to raise money on them, and on being notified of the net proceeds, the bank credited the parties from whom it took the notes with the net proceeds of them. It was simply the agent to have the notes discounted. It paid no illegal discount, it was paid in reality by the parties for whom the discounts w'ere obtained.

      W. Trickett, J. M. Weakley, F. F. Feltzhoover, W. F. Sadler and Lemuel Todd, for defendants in error.
    The payment, in fact, at any point of time in the history of a debt, of excessive interest, or .the stipulation at any point of time • in its history to pay in futuro, destroys the power of the debt to bear interest, under the general law, or in virtue of special agreement. Any interest paid is so much money to which the creditor has no legal claim, which he therefore holds for the debtor, and which the debtor can apply as payment pro tanto of a debt still subsisting, The cases cited by the plaintiff in error are authorities for this position.
    Although defendants never agreed to pay usurious interest, they are entitled to defalk the forfeited interest as against this plaintiff: Campbell v. Sloan, 12 P. F. Smith 482; Brown v. Second National Bank, supra; Overholt v. National Bank, supra; Hartman v. Danner, 24 P. F. Smith 40; Cake v. First National Bank, supra; Mitchell v. Emery, supra; 4 W. N. C. 236; American Sewing Machine Company’s Appeal, supra; Price’s Appeal, 4 W. N. C. 207.
    A debtor bank, which admits monthly balances, partly made up of excessive interest, and which are incorporated into each succeeding month’s business, and each succeeding balance, is no more entitled to set up, as part payment these usurious elements, than a debtor who has given renewal notes, each of which incorporates usurious interest charged on# its prédecessors. The same usury which taints a series of notes, will taint a series of balances, in each of which are embraced sums charged in a previous balance for usurious interest.
    In regard to the notes discounted for the Farmers’ and Mechanics’ Bank, the argument of the plaintiff is tantamount to saying, that if a borrower from a national bank, at usurious rates, himself lends these moneys at the same rates, or higher, the national bank can thus toll the right of its borrower under the Act of Congress.
    May 26th 1879,
   The judgment of the Supreme Court was entered

Per Curiam.

We have examined with care the several errors assigned in this case. It is unnecessary to discuss them separately. A statement of the principle upon which the cause turned, will showr, we think, that no error was. committed by the learned court in their rulings and charge to the jury. Though the action was nominally on a promissory note given by the defendants, yet, as it was expressed on its face that it was to be held as collateral by the plaintiffs, for the payment of any overdrafts by the Farmers’ and Mechanics’ Bank of Shippensburg, it was actually a suit to recover those overdrafts against the defendants as sureties. It cannot be disputed, that the defendants would be entitled to the benefit of whatever defence would he available to the Farmers’ and Mechanics’ Bank. The plaintiffs, being a national bank, by charging more than six per cent, interest on these overdrafts, lost the right to recover any interest at all. The point then, does the Act of Congress forfeit interest beyond the maturity of the note sued on, does not arise. No recovery was had on the note; it was evidence merely of the obligation of the defendants to meet and answer the liability of the Farmers’ and Mechanics’ Bank on the overdrafts. Admitting that the monthly accounts were stated accounts, that certainly never has been held to preclude a defendant from setting up an illegal charge of usury. Nor can the fact that the Farmers’.and Mechanics’ Bank charged illegal interest to their customers on the notes discounted for them by the plaintiff, affect their right to set up as against the plaintiffs, their violation of the Act of Congress, under which alone they have any right to do business at all.

Judgment affirmed.


source: Caselaw Access Project

author: Chief Justice Shaeswood

license: Public Domain

text:
    Daley versus Koons.
    A testator, in apt and formal words, gave an'estate in fee to four of his children. To the fifth, his daughter Mary Ann, he gave the farm on which he then resided, “ for and during her natural life, and after her death to her children in fee; and in the event of my said daughter Mary Ann dying, without issue, I then, after her death, give and devise said farm, given to her for life, to my son William, and my daughters, Susan, Amanda and Wilhelmina, share and share alike, or their legal heirs and representatives (children taking the parent’s share) in fee.” Held, affirming the court below, that Mary Ann did not take a fee by the devise.
    May 13th 1879.
    Before Siiarswood, C. J., Mercur, Gordon, Trtjnkey and Sterrett, JJ. Paxson and Woodward, JJ, absent.
    Error to the Common Pleas of Cumberland county: Of May Term 1879, No. 190!
    Debt by Christopher Daley and Mary Ann, his wife, against Adam Koons, wherein a case was stated for the opinion of the court, in substance as follows: Samuel Westafer died in October 1872. By his- will, dated April -20th 1871, he gave estates in fee to four of his children. The clause of his will in reference to the fifth child, his daughter Mary Ann, was in these words:
    “I give and devise to .my daughter, Mary Ann Westafer, the farm on which I at present reside, situate in Newton township, containing one hundred and sixty-eight acres, more or less, for and during her natural life, and after her death to her children in fee, and in the event of my said daughter, Mary Ann, dying without issue, I then, after her death, give and devise said farm, given to her for life, to my son William and my daughters, Susan, Amanda and Wilhelmina, share and share alike, or their legal heirs and representatives (children taking the parent’s share), in fee.”
    In October 1874, Mary Ann married Christopher Daley. In 1878 Daley and his wife contracted to sell the real estate, above devised to Mary Ann, to Adam Koons, the defendant. In 1879, the plaintiffs tendered Koons a general warranty deed, which he refused to accept, on the ground that Mary Ann Daley did not take a fee by. the devise, and therefore could not convey such title. This suit was instituted to recover the first instalment of the purchase-money. If the court decided that she did take a fee, judgment Avas to be entered for the plaintiffs; if otherwise, for the defendant.
    The court, Herman, P. J., after reciting the foregoing clause of the Avill, in an opinion, said:
    “It will be observed that the phrase, ‘and in the event of my said daughter, Mary Ann, dying Avithout issue,’ is introductory to an .ulterior devise of the same land. By a well-settled rule of construction, the words ‘ dying without issue,’ or others of similar import, thus following a devise to children in fee, mean dying without children, and'are not referable to an indefinite failure of issue. See cases collected and rules deduced therefrom in 2 Jar-man on Wills, commencing on page 368. This rule is decisive of the- question presented by the case stated, for there is nothing to be found within the four corners of the will expressive of an intention to use the Avord ‘ issue ’ in any other sense than that of ‘ children.’ This does not conflict with the case of Haldeman v. Haldeman, 4 Wright 29, for there the words importing a failure of issue were not introductory to a devise over, but were manifestly employed by the testator to declare aneAv the duration of the estate he had previously given. Mr. Justice Strong,- delivering the opinion of the Supreme Court, states the rule to be, that Avhen an express limitation to a particular class of issue, by an appropriate term of designation, as ‘son,’ ‘daughter,’ ‘children,’ is followed by the Avords, ‘ in default of issue,’ or others kindred thereto, introducing an ulterior devise; these words are referable to the object of that limitation, and hot to an indefinite failure of issue.
    “The Avord ‘children,’ by which the remainder-men are described in the will of Samuel Westafer, is, in its usual sense, a word of purchase, and is so regarded, unless the testator has unmistakably used it as descriptive of the extent of the estate given, and not to designate the donors.
    “I think there is no rule of construction by Avhich it can be made clearly to appear, from the language employed by this testator, that he intended to use the word ‘ children ’ in any other sense than as a word of purchase.
    “It. is the opinion of the court that-the plaintiff, Mary Ann Daley, did not, under and by virtue of the will of her father, Samuel Westafer, take an estate in fee, and therefore is not seised of such an estate, and cannot convey to Koons such an estate, and judgment is therefore entered for defendant for costs.”

      F. F. Beltzhoover and W. F. Sadler, for plaintiffs in error.—
    In what sense did the testator intend to use the word children ? Could it have been his intention to limit his bounty to the immediate child or children of the plaintiff in error? If the word children is to be construed literally, then, in case his daughter should have a child, and it in time a child, and • then her child should die in her lifetime, and the grandchild should survive her, it would not inherit. The testator certainly did not intend that the estate devised to his daughter for life should be enjoyed after her death by her brothers and sisters, to the exclusion of her grandchildren. Ordinarily, the use of the word children imports words of purchase and not of limitation; but it is also true that when used in the sense of issue, it is to receive the same meaning as issue does. If the testator used the word in this sense, a fee vested in the first taker. Haldeman v. Haldeman, 4 Wright 29, is analogous to this case.

      Q-eorge S. Emig, for defendant in error.
    The ruling of the court below is- sustained by Walker v. Milligan, 9 Wright 179; Curtis et al. v. Longstreth, 8 Id. 301; Cote v. Von Bonnhorst, 5 Id. 243.
    May 26th 1879.
   Chief Justice Shaeswood

delivered the opinion of the court,

The cardinal canon in the construction of wills is to ascertain, if possible, the intention of the testator, and carry it into execution, if it be 'not inconsistent with the rule or policy of the law. Ancillary to this, though still subordinate, are some special rules, settled by precedents, as to the meaning to be given to certain language. It is rare that two wills are exactly alike, and even if a professional draughtsman studiously follows the form of some'adjudged case, it may sometimes happen that other parts of the will, or the circumstances of the testator’s family, may make a difference. As a general rule, precedents, however, are to be followed. We are of opinion that the determination of the courts, as to the construction to be put on the words used in the will now before us, entirely accords with the evident intention of the testator. He gives, by. apt and formal words, estates in fee to his other children. To his daughter Mary Ann he gives the farm on which he then resided, “ for and during her natural life, and after her death to her children in fee: and in the event of my said daughter Mary Ann dying without issue, I then, after her death, give and devise said farm, given to her for life, to my son William and my daughters Susan, Amanda and Wilhelmina, share and share alike, or their legal heirs and representatives (children taking the parent’s share), in fee.” He expresses-his intention twice that Mary Ann •should only take an estate for life. To lay hold of the words “ dying without issue,” to convert her estate into a fee so as to give her the power to dispose of it away from her children, if she had any, or away from her brothers and sisters and their heirs, if she had no children, would contravene and disappoint the manifest intention of the testator. Fortunately, there is no adjudged case in this state or elsewhere which requires or would justify us in doing so. Mr. Jarman, in his valuable treatise on wills, after referring to a number of authorities establishing the settled rule of construction to be that the words “in default of such issue,” following an express devise to any particular branch of issue, as children, sons or daughters, will be construed to refer to the issue before described, adds: “ It is well settled also that words importing a failure of issue (without the word such), following a devise to children in fee-simple or fee-tail, refer to the objects of that prior devise and not to issue at large:” 2 Jarman 872. The cases to which he refers fully support his position. There is nothing in Haldeman v. Haldeman, 4 Wright 29, which throws any doubt upon this doctrine. On the contrary, Mr. Justice Strong, in his opinion, quotes and affirms it. He says: “The words ‘child or children,’ by which the remainder-men were described, are in their usual sense words of purchase, and are always so regarded, unless the testator has unmistakably used them as descriptive of the extent-of the estate given and not to designate the donee.” But the opinion of the court in that case was that the testator had “ employed the words ‘child,’ ‘ children’ and ‘issue’ indiscriminately, and all of them as meaning an entire line of lineal descent.” The decision has clearly no application to the case now before us.

. The main argument urged upon us by the learned and zealous counsel for the plaintiff in error, was that, under the construction put upon this will by the court below, if Mary Ann should have children, who should die in her lifetime- leaving children, these grandchildren would be cut off. This the testator evidently did not contemplate. If it were so, there would be considerable force in this contention. But upon the birth of any child of Mary Ann, the remainder would vest in such child, subject to open and let in other children subsequently .born; so that upon the death of such child, the interest and estate being vested, would descend to chil dren, heirs and legal representatives, under the intestate laws.

Judgment affirmed


author: Mr. Justice Mercur

text:
    Croyle versus Moses.
    1. Fraudulent representations by a vendor may be as well by acts or artifices calculated to deceive, as by positive assertions.
    2. Where upon the sale of a horse the vendor knew him to be unsound in. . a certain respect, and by artifice concealed the defect, or in answer to inquiries gave evasive and artful replies, with intent to deceive the vendee,- and did thereby deceive him to his injury, it was such a fraud on the vendee as would justify him in rescinding the contract.
    3. ICrumbhaar v. Birch, 2 Norris 426, followed.
    May 13th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey and Sterrett, JJ. Paxson and Woodward, JJ., absent.
    Error to the Court of Common Pleas of Bedford county: Of May Term 1879, No. 34. '
    Case by Thomas J. Croyle against Jacob J. Moses, for the price of a horse.
    Plaintiff purchased from defendant a bay horse,-for which he paid $110 cash. Soon after he discovered that said horste was a cribber or wind-sucker and immediately returned him to the defendant and demanded his money. Defendant refused to refund the money, and the following day returned the horse to plaintiff, who declined to take ‘him, and the horse was subsequently sold as a stray. The declaration was upon two counts: 1st. Fraudulent warranty. 2d. Deceit and fraudulent representations. The plaintiff alleged on trial of case, 1st. That defendant, fraudulently warranted or guaranteed the horse to be sound, when he knew that he was a cribber and unsound. 2d. That the defendant used deceit, false representations, artifice and trickery in the sale of said horse.
    At the trial, before Hall, P. J., the plaintiff submitted the following points :
    5. If the jury believe that plaintiff inquired of defendant if the horse was sound, saying that he would not take him if he was not sound, and then the defendant in order to mislead him replied, by saying he insured. him to be sound in his limbs and sound so far he knew, and thus produced a false impression to the injury of plaintiff, this was such a false representation as would render the defendant liable in this case.
    6. That if plaintiff saw the horse with “a short hitch,” and the rein fastened tightly over the horn of the saddle, and inquired of defendant as to the cause of such hitching and reining; and he • replied “ that it was to prevent him from rubbing the saddle,” when in truth and in fact, it was done to prevent the horse from cribbing or wind-sucking, this was such a fraudulent concealment as would enable plaintiff to rescind the contract, and he should have the verdict.

      7. If the jury believe that at the time of the purchase of the horse by plaintiff, he was a cribber or wind-sucker, and that this fact was known to defendant, and was concealed by him from plaintiff, and that plaintiff asked him if the horse was sound, and defendant did not reply honestly and candidly, or replied evasively or in such a manner as to throw plaintiff off his guard, this was such fraudulent concealment of a latent defect as would avoid the contract, and the verdict should be for the plaintiff. ■
    8. If they believe that plaintiff, at the time' of ■ sale, asked defendant “ if the horse was sound,” and defendant replied: “ he is sound as far as I know,” or “ I don’t know,” and if 'at the same time defendant knew the horse was a cribber, this is such a misrepresentation and concealment as renders defendant liable in this suit.
    To these points the court answered:
    “The defendant was not bound to inform the plaintiff that his horse was a cribber. He had a right to remain silent, and let the purchaser examine for himself, and buy on his own judgment. It is for you to say, from the evidence, if he did so.
    “A seller has no right, by words or acts, to mislead a buyer, and prevent an examination or inquiry. But a mere evasive answer is hot, of itself, equivalent to a warranty. In morals, it is doubtless true that a man ought to frankly tell his horse’s defects to a prospective buyer. But the law does not require this. The seller may keep the horse’s defects to himself, if he does not warrant, nor make false representations, nor fraudulent concealment, and the buyer has an opportunity to inspect and test the horse, and buys on his own judgment. The mere short hitching of the horse to a fence, accompanied by the defendant’s statement that he thus-hitched him to keep him from rubbing the saddle, would not of itself, be a false representation, equivalent to a warranty, if the buyer bought on his own judgment, and after an express refusal on the part of the defendant to warrant the horse.”
    The verdict was for defendant, when plaintiff took this writ, and, inter alia, assigned for érror the answer to the above points.

      King and Cessna $ Cessna, for plaintiff in error.-
    The court did not consider the question of deceit and fraudulent misrepresentations, but submitted the case to the jury as though the only point was whether or not there was a warranty. The concealment of a material fact by a vendor constitutes a fraud: Krumbharr v. Birch, 2 Norris 426. Concealment of a known defect in a horse, not within reach of observation of the vendee, and not made known to him at the sale, will avoid the contract: Cassel v. Herron, 1 Am. Law Reg. 681; Dixon v. McClutchey, Add. Rep. 323; Kimmel v. Lichty, 3 Yeates 262; Price v. Lewis, 5 Harris 51; Cornelius v. Molloy, 7 Barr 293; Pennock v. Tilford, 5 Harris 456; 1 Pars. on Cont. 580-1. If vendor suffers vendee to buy under delusion created by his own conduct, it will be deemed fraudulent: 2 Kent’i Com. 483-4.

      J. M. Reynolds and Russell Longeneclcer, for defendant in error.
    The mere silence of the defendant would not avoid the contract: McFarland v. Newman, 9 Watts 55; Pulhamus v. Pursel, 2 Clark Pa. L. J. Rep., 141; Weimer v. Clement, 1 Wright 147; Jackson v. Wetherill, 7 S. & R. 480; Eagan v. Call, 10 Casey 236. The defendant was not found to disclose this defect: Harris v. Tyson, 12 Harris 347. By “suppressing” or “ concealing” a defect, is meant, some positive word or act intended to prevent or hinder its disclosure, and not mere silence. The rule of caveat em^tor applies in this case; and it applies with more force, as a rule, to the sale of a horse than any other article: Jackson v. Wetherill, 7 S. & R. 480-3.
    June 23d 1879.
   Mr. Justice Mercur

delivered the opinión of the court,

This is an action on the case to recover damages for the fraudulent sale of a horse. The declaration contains two counts. One, charging a fraudulent warranty, the other, deceit and fraudulent representations. ■ Twro distinct questions are thus presented; the one, whether the defendant warranted the horse to be sound, the other, whether, without any warranty, he fraudulently and deceitfully practised some trick or artifice in making the sale whereby the plaintiff was deceived and injured.

As bearing in some degree on the first count, we cannot convict the court of error in admitting the evidence covered by the first and second assignments. ■ The third assignment covers the answer of the court to the fifth, sixth and seventh points submitted by the plaintiff. No one of these points presents the question of a warranty against the defect complained ■ of, but all of them are based on deceitful, fraudulent and artful statements and representations. Each of them, in different language, substantially requested the court to charge the jury that the defendant was liable, in ease he, with intent to deceive the plaintiff, answered him artfully, so as to mislead him to his injury. ■

The learned judge answered all these points together, and appears to have overlooked the distinction between warranty and deceitful representations. As was said in Krumbharr v. Birch, 2 Norris 426, “ It needs no citation of authorities to prove that the wilful misrepresentation or concealment of a material fact by the vendor constitutes a fraud.” But fraudulent representations may be as well by arts or artifices calculated to deceive, as by positive assertions: 2 Kent’s Com. *483; 1 Story’s Eq., sect. 192; Brightly’s Eq., sect. 55; Cornelius v. Molloy, 7 Barr 293.

Although no answer to .the points, yet in the absence of artifice or deceitful representations, the jury was correctly told “ the defendant was not bound to inform the plaintiff that the horse was a cribber. He had a right to remain silent and let the purchaser examine for himself and buy on his own judgment.” The jury was also correctly instructed that “ a seller has no right, by words or acts, to mislead a buyer and prevent an examination or inquiry.” The error was committed in the next sentence, which declared, “ But a mere evasive answer is not of itself equivalent to a warranty.” This is undoubtedly true, but is no answer to the points. The request was not for instructions as to what constituted a warranty or what answers were equivalent to a warranty, but as to the effect of fraudulent acts and declarations in the absence of a warranty. The court again interwove the warranty saying: “ The seller may keep the horse’s defects to himself, if he does not warrant nor make false representations nor fraudulent concealment, and the buyer has an opportunity to inspect and test the horse, and buys on his own judgment. The mere short hitching of the horse to a fence, accompanied by the defendant’s statement that he thus hitched him to keep him from rubbing the saddle, would not of itself be a false representation, equivalent to a warranty, if the buyer bought on his. own judgment, and after an express refusal on the part of the defendant to warrant the horse.” Thus the prominent thought expressed in the answer of the court relates to a warranty, while no such question was presented in the points. They called for no instructions that any “false representations were equivalent to a warranty”; nor that “the mere short hitching of the horse,” and the defendant’s statement relating thereto, were of themselves equivalent to a warranty. The question presented by the points was substantially, if at the time of the sale the horse was known to the defendant to be “ a cribber or wind-sucker,” and this fact was artfully concealed by him to the injury of the plaintiff, .whether it was such a concealment of a latent defect as would avoid the contract. The points submitted did not rest on the mere facts that the horse was hitched short and the reasons assigned therefor, but also on the additional facts that the defendant knew him to be a crib-biter, and resorted to this artifice to conceal it, and gave an untruthful reason to mislead and deceive the plaintiff. The complaint is not for a refusal or omission to answer, but for an evasive and artful answer. That the horse was actually a crib-biter, and so known to the defendant, was clearly proved. Whether that defect made him unsound was fairly submitted to the jury, under the evidence. That it lessened his market value seems to admit of no doubt. If the jury should believe, as ,the plaintiff testified, that he said to the defendant, “If there is anything wrong with the horse, I do not want him at any price,” and that the defendant, with knowledge he was a crib-biter, answered the plaintiff artfully and evasively, with intent to deceive him, and did thereby deceive him to his injury, it was such a fraud on the plaintiff as would justify him in rescinding the contract. The answer of the court, blending warranty with fraudulent artifices, failed to present the latter to the mind of the jury in a proper manner. The answer was calculated to mislead them as to the law applicable to that branch of the case: Relf v. Rapp, 3 W. & S. 21; Wenger v. Barnhart, 5 P. F. Smith 300; Gregg Township v. Jamison, Id. 468; Stall v. Meek, 20 Id. 181.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Sterrett

text:
    Cornman's Appeal.
    Where an attachment issued under the Act of March 17th 1869, judgment was obtained and a venditioni exponas issued, it was not too late to claim the benefit of the exemption law, after, the venditioni exponas issued, and before the advertisement of the sheriff’s sale of the attached property.
    May 13th 1879.
    Before Sharswood, C. J., Merotjr, Gordon, Trunkey and Sterrett, JJ. • Paxson and Woodward, JJ., absent.
    Appeal from the Court of Common Pleas of Cumberland county: Of May Term 1879, No. 103.
    Debt by R. Bruce Petriken and J. S. Miller against Joseph S Cornman.
    On March 14th 1874, plaintiffs endorsed a promissory note drawn' by defendant, payable to their order, for his accommodation, which they were compelled to pay. On August 2d 1875, they commenced an action against him by attachment under the Act of 17th March 1869: Pamph. L. 8; Purd. Dig. 53; the sheriff attaching certain household furniture, together with type, presses, &c. On August 9th 1875, the defendant filed a motion to dissolve the attachment, supported by a denial under oath, of all the charges of fraud in the plaintiffs’ affidavit, on which the attachment issued. At the hearing, the defendant’s counsel consented that the attachment should be continued. A narr. in debt was filed and defendant pleaded. On October 15th 1877, by agreement, judgment was entered for plaintiffs for $504.95, with proviso that “ this judgment and record should not be used as evidence by the plaintiffs in any pending litigation for the purpose of sustaining any allegation of fraud on the part of defendant, either in the contraction of the debt or in connection with any other matter or thing whatever.”
    On 30th October 1877, a venditioni exponas issued, without previous issue of fieri facias, which, November 9th, was stayed, till 14th inst., on petition of the defendant, alleging that no fi. fa. had issued. On January 14th 1878, the opinion of the court was filed, deciding that the. vend. ex. was the proper writ.
    On January 18th 1878, an alias venditioni exponas issued. Before the advertisement of the sale, at the defendant’s request, the sheriff appraised and set aside the property attached, in value $257.65. The plaintiffs then moved to set aside the appraisement, and on January 27th 1879, the court set it aside in an opinion, saying: “It does not appear that any request was made by the defendant for an appraisement, under the exemption law, until after the issuing of the alias venditioni exponas. I am of opinion that in cases like this, where the action has been commenced by attachment and proceeded in under the provisions of the Act of 17th March 1869, the request for an appraisement comes too late from the debtor when not made until after judgment is recovered. I think it should be made before the cause is put at issue. That it should be so, the same reasoning will apply, as in cases of attachment execution, in which the rule is similarly applied: Strouse v. Becker, 8 Wright 206. See also Strouse v. Becker, 2 Id. 190.”
    From this order, defendant took this appeal.

      W. Triohett, John Cornman and W. JF. Sadler, for appellant.—
    Attachment under the Act of March 17th 1869, Pamph. L. 8, is not a process of execution as in the case of an attachment execution. It is a mere preliminary process for the detention of the goods or to compel an appearance, and after service thereof, the action proceeds as if commenced by summons: Megee v. Beirne, 3 Wright 62; Albany City Insurance Co. v. Whitney, 20 P. F. Smith 252; Gould v. Walker, 2 W. N. C. 81; Waugh v. Burket, 3 Grant 319. The cases of Strouse’s Executors v. Burket, relied upon by the court, were eases of attachment in execution. The application for the exemption was not too late: Waugh v. Burket, supra; Hillbrooner v. Sternberger, 4 W. N. C. 186.

      S. Hepburn, Jr., and S. Hepburn, for appellees.
    The claim for exemption was too late, and the appraisement was properly set aside: Strouse v. Becker, 8 Wright 208; Diehl v. Holben, 3 Id. 213; Commonwealth v. Boyd, 6 P. F. Smith 402.
    June 16th 1879.
   Mr. Justice Sterrett

delivered the opinion of the court,

The only question in this case is, whether the appellant was too late in claiming the benefit of the exemption law. Suit was commenced against him by attachment- under the Act of March 17th 1869; and after the court had refused to dissolve the attachment, judgment was entered by consent in favor of plaintiffs, coupled with an agreement that the record should “not be used as evidence by he plaintiffs in any pending litigation, for the purpose of sustaining any allegation of fraud on the part of the defendant, either in the contraction of.the debt, or in connection with any other matter or thing whatever.” A vend. ex. which was subsequently issued for the sale of the goods attached, was stayed by order of court at the instance of the defendant, and an alias issued to the next term. About two months prior to the return-day, and so far as appears by the record, before sale was advertised, the sheriff was duly notified by the defendant of his claim under the exemption law. The goods, amounting to $257.65, were appraised and set apart to him and the writ returned accordingly. The plaintiffs thereupon moved the court to set aside the appraisement, on the ground that the demand was not made in time. The motion was allowed, and the learned judge, in his opinion ordering the appraisement to be set aside, says- the claim should have been made before the cause was put at issue; that it came too late after judgment. This action of the court has been assigned for error.

The exemption act provides that the officer charged with the execution of any warrant, for levying and selling the property, real or personal of any debtor, shall, if requested by him, cause to be appraised the property which he may elect to retain; “and property thus chosen and appraised, to the value of $300, shall be exempt from levy and sale on the said execution.” It will be observed that the request must be addressed to the officer charged with the execution for levying upon and selling the property. It is against final or execution process that the claim is to be made, and not against original or mesne process, by which property may sometimes be seized or attached and held to answer the plaintiff’s demand. The exemption is declared to be “from levy and sale on execution issued on any judgment,” &c. Hence, the claim need not be made until after judgment has been obtained and execution issued. While attachment in execution is strictly a final or execution process, so far as the debtor is concerned, other forms of attachment are not. In foreign attachment, the first step is the seizure of the non-resident defendant’s property, which, if personal and not perishable, may be held until the claim of the plaintiff is adjudicated; and if he is successful, final process may then issue to sell the same in satisfaction of the judgment. In its inception and before judgment, foreign attachment is a species of mesne process. It is equivalent to a summons for the commencement of a personal action. The proceeding under the Act of 1869, is of the same general nature. When the necessary ground has been laid, the defendant’s property is attached, and may be held to await adjudication of plaintiff’s claim. If he obtains judgment, execution may issue against the property attached. Then, and not before, does the right of the defendant to have the property appraised and set apart to him arise. While he might, perhaps, in anticipation of the execution, make the claim before it is issued, it is only by virtue of his having, in his hands, the execution to levy and sell, that the officer is required to have the property appraised and set apart under the act. There can be no doubt that the defendant below was not required to give notice of his claim before the execution was issued. Did he give it within a reasonable time thereafter? We think he did. In furtherance of the humane and beneficent object of the act, the exemption which it authorizes should always be allowed when it can be done without prejudice to the rights of creditors. In Diehl v. Holben, 3 Wright 213, it is held that, in the case of a fi. fa. levied-on personal property, the 'demand^ must be made before the day of sale, and generally before it is advertised, unless delay is justified by absence from home, ignorance of the levy or other circumstances. When a defendant has waived inquisition on real estate, his right to the benefit of the act still remains as in ordinary proceedings to effect a sale, and his demand may be made at any time before the property is advertised: Commonwealth v. Boyd, 6 P. F. Smith 402. So, also, in the case of an attachment execution, which is a form of final process, the claim must be made in a reasonable time after service of the attachment on the garnishee: Strouse v. Becker, 8 Wright 206. These, and other cases that might be .cited, show that while some consideration is due to the creditor as well as the debtor, the claim of exemption is not too late, unless it has been unnecessarily delayed until costs have been incurred which otherwise might have been readily avoided. In the present case, owing to some doubt as to the validity of the first execution, it was stayed by order of court before any action was taken under it. After the alias was issued and before any expense was incurred, by advertising the sale or otherwise, the claim was made and duly recognised by the sheriff. This, according to all our cases, was in ample time. It follows, therefore, that there was error in setting aside the appraisement returned by the sheriff.

The order of court setting aside the appraisement is reversed, and the appraisement-is confirmed.


author: Per Curiam.

text:
    Foulke et al. versus Commonwealth.
    Where there is a regular, formal forfeiture of a recognisance, the liability of the recognisors is absolutely fixed thereby, and relief therefrom must be sought by petition to the court, to respite the cognisance for cause to be shown,, under the provisions of the Act of 1783.
    May 13th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey and Sterrett, JJ. Paxron and Woodward, JJ., absent.

      Error to the Court of Common Pleas of Cumberland county : Of May Term 1879, No. 160.
    Scire facias sur recognisance from the Court of Oyer and Terminer of said county.
    Charles H. Foulke was< indicted at the August session of 1878, of the Court of Oyer and Terminer of Cumberland county for arson. He was subsequently arrested, and entered into a recognisance with Peter Spahr and Stephen F. Weakley, in the sum of $2000, conditioned for his appearance at the November sessions following, to answer the indictment. At the time fixed for his appearance, he failed to appear. An application was made to the court by his sureties for a continuance on the ground that Foulke was confined to his bed by sickness in Colorado, and an offer was made to renew the recognisance for his appearance at the next term of court. This application was refused, and the recognisance forfeited. Suit was brought on the forfeited recognisance in January 1879, and the sureties filed affidavits of defence, averring their ability to prove that Foulke was sick and unable to travel at the time fixed for his appearance, and that after his recovery from his sickness he was deterred from returning by letters received from the attorneys of the Commonwealth advising him not to appear. A rule was taken to show cause why judgment should not be entered by reason of the insufficiency of these affidavits, and on March 19th 1879, the court made the rule absolute, and entered judgment against the sureties for the amount of the recognisance with interest and costs. The sureties then took this writ and assigned this action for error.

      •J. M. Wealdey, for plaintiffs in error.
    The court below in overruling the affidavit of defence practically decided that no equitable defence could be offered to a suit on a forfeited recognisance. It was proposed to prove that at the time fixed in the recognisance for the- appearance of Charles H. Foulke to answer the charge of perjury, he was confined to his bed by sickness, unable to travel or to be brought into court. In Scully v. Kirkpatrick, 29 P. F. Smith 331, the same question was raised on the trial in the court below on an offer of evidence in almost the identical words of the affidavit of defence in the present case, which was rejected. On a writ of error, the decision ef the court below was reversed, and it was held that the facts offered constituted an equitable defence to the action on the forfeited recognisance, and that the offer should have been admitted. If the facts were proved to the satisfaction of a jury, it would be conclusive that Charles H. Foulke was prevented by the act of God from appearing at the time fixed by his recognisa'nce, and under the ruling in Scully v. Kirkpatrick, his sureties would be discharged from their liability. See also Dickey v. Linscott, 7 Shep. 453; Knight v. Bean, 9 Id. 536; Fenton v. Clark, 11 Vt. 560; Fuller v. Brown, 11 Metc. 440; Fahy v.
      North, 19 Barb. 342; Wolf v. Howes, 24 Id. 174; Jarrel v. Farris, 6 Mo. 159; People v. Manning, 8 Cowen 297.

      Gr. S. Emig and S. Hepburn, Jr., for defendant in error.
    It was competent for the Court of Quarter Sessions to inquire into the ground on which the defendant asked for a continuance, and it is presumed that the court did so inquire, and upon proper inquiry, overruled the application for a continuance, and directed the forfeiture of the recognisance; and this is in substance, admitted in the affidavits of defence. “Even were the amendment erroneous, the regularity could not be inquired into in a collateral proceeding:” Rhoads v. Commonwealth, 3 Harris 277. “The forfeiture of the recognisance fixes the liability:” Mishler v. Commonwealth, 12 P. F. Smith 59; Fox v. Commonwealth, 1 W. N. C. 243.
    May 26th 1879,
   The judgment of the Supreme Court was entered

Per Curiam.

In Scully v. Kirkpatrick, 29 P. F. Smith 331, there was no forfeiture of the bond. The very groundwork of the decision was that the judge had no power to decree such forfeiture, or enter it of record. Here there was a regular, formal forfeiture of the recognisance. The liability of the recognisors was absolutely fixed by it: Mishler v. Commonwealth, 12 P. F. Smith 59. Their remedy was by petition ,to the court below to respite the recognisance. They could have done this under the Act of 1783. Besides, the affidavit showed no good reason why the defendant Foulke did not appear and offer to submit himself to trial, on which alone would there be any ground to respite the recognisance. Letters written to him by the counsel for the Commonwealth certainly were no reason.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    Eberly versus Rupp.
    1. Although legal process may, by its malicious use, give rise to a cause of action, yet in such a case there must not only be a malicious use but there must be no reasonable or probable cause for such process, since if there be such cause, the intention goes for nothing.
    2. As. a writ of estrepement is purely preventive, and neither arrests the person nor seizes the goods of a defendant, the lawful use of such process cannot be the foundation of an action.
    May 14th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey and Sterrett, JJ. Paxson and Woodward, JJ.,, absent.
    Error to the Court of Common Pleas of Oumberland county: Of May Term 1879, No. 44.

      Case by Mary Rupp against Christian • Eberly and Mary, his wife, to recover damages for an alleged injury, by reason of certain civil proceedings instituted by the defendants, in the Common Pleas of Cumberland county. The facts are substantially stated in the opinion of this court.

      S. Hepburn, Jr., and S. Hepburn, for plaintiffs in error.
    This action was not maintainable: Potts v. Imlay, 1 South. N. J. R. 332; Savil v. Roberts, 1 Salk. 14; Parker v. Langly, Gilbert’s Cases 161; Purton v. Honnor, 1 Bos. & Pul. 206; McCullough Grishobber, 4 W. & S. 201; Kramer v. Stock, 10 Watts 115; Mayer v. Walter, 14 P. F. Smith 283.

      Lemuel Todd, for defendant in error.
    June 2d 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

' The facts of this case, in brief, are as follows: In 1837, Henry Buttorff, husband of Elizabeth Buttorff, to whom the premises then belonged, leased one acre of ground to Henry Rupp, for the term of twelve years, with privilege of erecting thereon a warehouse, which the tenant was to have the right to remove at the end of the term. Rupp entered and erected the warehouse. This lease was afterwards assigned, by Rupp’s assignee, to H. G. Mpsef, by Moser to Daniel Rupp, and by the latter to Mary Rupp, the plaintiff below. She, in turn, sublet to her two sons Jacob and John S. The lease was extended from time to time, and finally expired on the first day of April 1873. In August 1872, as is alleged on part of the plaintiff, she, with the consent of her sub-tenants, and by them as her agents, commenced to take down and remove the warehouse, erected on the demised premises, as above stated. It was then that defendants, Christian Eberly and Mary Eberly, his wife (formerly Mary Buttorff), brought an action of ejectment against Jacob and John S. Rupp, issued ' a writ of estrepement, and thus put an end to the removal of the warehouse. The ejectment was determined in the court below in favor of Mrs. Eberly, but was removed to the Supreme Court, and there the judgment was reversed. In the meantime the lease expired and no further attempt was made to remove the building. It is for the recovery of damages thus alleged to result from the writ of estrepement, that this action is brought.

The court instructed the jury, that if the plaintiff was, by the writ of estrepement, prevented from removing the warehouse during the continuance of the lease, and so deprived of th"e. use of the materials composing it, she was entitled to recover the full value of such materials. There is here no allegation of any abuse of legal, process, nor, indeed, does the,, evidence warrant such allegation; on the other hand, the right to recover is put on the ground of damages, which the jury might find to arise from the lawful use of such process. This was a mistake. The writ of estrepement was authorized, in all cases of ejectment, by the Act of April 2d 1803, and was made issuable, as of course, on the filing by the plaintiff, with the prothonotary, of an affidavit that the defendant either “has committed or is committing waste.” This writ is purely preventive; it neither arrests the person, nor seizes the goods of the defendant. Such being the case, it is impossible to see how the use of this process can be the foundation of an action any more than the writ of ejectment itself. It is true injury may result from the use of the writ of estrepement, but so may it result from the writ of ejectment. In the one case the defendant may be hindered in the exercise of his business, in the other he may, from the cloud thrown upon his title, be prevented from making an advantageous sale of his property. But no matter, executio juris non habet injuriara. In fact, the plaintiff has little of which to complain, for she might, on application to the court, have had the writ dissolved; neglecting to do so, if injury resulted, she has herself to blame. That the plaintiffs had probable cause for believing the right to the property to be in them, is made manifest by the judgment of the court below in the ejectment suit, so that had their action been one involving the attachment of the defendant’s person or goods, this would be a sufficient justification. The writ under discussion could, by no possibility produce.results more than equivalent to those flowing from a domestic attachment, and yet in McCullough v. Grishobber, 4 W. & S. 201, where suit had been brought for an alleged abuse of that process, by which the plaintiff’s goods had not only been seized but sold, Gibson, O. J., says: If then the defendants were competent to sue out the attachment, or, in other words, if the writ was not originally illegal, little more remains to be decided; for it is conclusively settled, that where process is-legal, the plaintiff is answerable only for a malicious abuse of it; and that where the circumstances afford no inference of malice, as in Gibson v. Chaters, 2 Bos. & Pul. 129, actual malice must be proved.”

And though legal process may, by its malicious use, give rise to a cause-of action, yet, even in such case, there must not only be a malicious use, but there must be no reasonable or probable cause for such process, since if there be such cause, the intention goes for nothing. Mr. Justice Sharswood in Mayer v. Walter, 14 P. F. Smith 283.

It is clear, therefore, that from no point of view, which was found in this c.ase, was the plaintiff entitled to judgment.

The judgment is reversed.


text:
    Rinesmith versus Peoples’ Freight Railway Co.
    In an action for the amount of a subscription to stock, the defendant alleged that it was expressly stipulated by the agent of the company, in the presence of S., that the defendant’s subscription was not to be paid, until a certain amount had been subscribed. The agent, on cross-examination, denied having made such representations. Defendant then called S. to prove that the agent had made such representations, although they were made at a time previous, to the subscription. The court excluded the oifer. Held, that the testimony should have been admitted as tending to corroborate the defendant, and as part of the res gestee.

    May 14th 1879.
    Before Sharswood, C. J., Mercur,, Gordon, Trunkey and Sterrett, JJT Paxson and Woodward, J.J., absent.
    Error to the Court of Common Pleas of Perry county: Of May Term 1879, No. 149.
    Debt by the Peoples’ Freight Railway Company against Henry Rinesmith, to recover instalments on a subscription to stock of said company.
    Subscriptions to the amount of $100,000 had been asked from Perry county, and of this amouut defendant subscribed ten shares. This subscription he alleged was made upon the express condition, stated by the agent of the company at the time of the subscription, that the amount subscribed was not to be paid, unless the. whole contingent of Perry county was subscribed. Only $62,000 were subscribed in the county, and very little work was done upon the road. In the belief that the whole $100,000 had been subscribed, defendant paid some of the instalments on his subscription, but ascertaining that the whole amount was not subscribed,, he declined to pay the rest, when this suit was brought to compel their payment.
    At the trial, before Junkin, P. J., one of the plaintiff’s -witnesses, who had solicited defendant’s subscription, testified, on cross-examination, that he had made no representation to defendant that his subscription was not binding, unless $100,000 -were subscribed in the county, nor stated that defendant could keep the book until he knew that amount -was subscribed; and further, that witness did not make a similar statement in the presence of one Sheibley.
    The defendant then proposed to call Sheibley, to prove that the witness had made such a statement in Sheibley’s presence, although made before defendant actually did subscribe. The court rejected the offer, saying:
    “ The defendant having sworn himself that he refused to subscribe on the offer made by Milliken to him and the witness Sheibley, and that he did not hold the offer under consideration, the matter was then and there ended, and this becomes immaterial, and the offer to contradict Milliken is within the rule that immaterial evidence developed by cross-examination cannot be contradicted.”
    The verdict was for plaintiff for $300, when defendant took this writ, his fifth assignment of error being the exclusion of the above offer

      Charles J. T. Mclntire and Charles A. Barnett, for plaintiff in error.
    The evidence should have been admitted, because it related to the res gestee: Whart. on Evid., sect. 529; Hildeburn v. Curran, 15 P. F. Smith 59; and to show that the defendant’s subscription was made upon the verbal conditions stated.

      J. JE. Junlcin and W. A. Sponsler, for defendant in error.—
    As defendant did not subscribe at the time of the alleged conversation, when Sheibley was present, the evidence offered was as to a collateral fact. This the defendant could not have offered in chief, if objected to, under the well-known rule, that as to immaterial and collateral matter developed on cross-examination, the party must abide the answer. Then defendant proposed to prove by Sheibley what Milliken had said. It was not part of the res gestee; the defendant refused to subscribe and both parties separated.
    June 16th 1879.
   Mr. Justice Sterrett

delivered the opinion of the court,

One of the main grounds of defence in the court below was that the subscription in suit was made not only on the written condition annexed thereto, but also upon the further express verbal conditions that the defendant should not be required to pay his subscription unless $100,000 of stock was subscribed in the county, and tha-t he should retain the subscription, or the book containing it, until that amount was actually subscribed. The evidence was clear that the written condition had been fully complied with, but the testimony as to the alleged verbal condition was directly conflicting. The defendant testified, without objection, to matters of inducement to his subscription, including the terms proposed by Dr. Milliken to Sheibley and himself, which, he alleges, were shortly afterwards accepted by him; that while he subscribed expressly on the conditions above stated, they had not been performed; that subscriptions to the amount named had never been obtained, and that he was not permitted to retain the subscription-book, as had been agreed upon. On the other hand, Dr. Milliken, on behalf of the company, testified that no such verbal conditions were attached to the subscription, and denied he had ever said to Sheibley and defendant that the subscriptions would not be binding until the sum of $100,000 was obtained, nor that the defendant should retain the book until that amount was subscribed. Sheibley was then called, for the purpose of proving that these declarations had been made by Dr. Milliken, while soliciting subscriptions from defendant and himself, but the court rejected the offer. The learned judge, in submitting to the jury the testimony as to the alleged verbal conditions or agreement, remarked that there was a direct conflict on this subject between the two witnesses; that it was impossible that both could be correct, and that it was their duty to “look into the testimony and see whether there is any evidence, or circumstances, or facts which corroborate one or the other, and if there is, then the witness who stands corroborated should be believed.”

It is thus quite apparent that any testimony tending to corroborate the, defendant, on this branch of his case, was all important ; and we think the court erred in excluding from the consideration of the jury the testimony referred to in the fifth assignment of error. While it did not relate to anything that occurred on the day the subscription was made, it would'have tended to show that the very terms and conditions on which defendant alleged he did subscribe were previously proposed to him by Dr. Milliken. If this were so, it would strengthen the probability of a renewal and' acceptance of the proposition at the time the subscription was made. The facts and circumstances proposed to be proved were sufficiently near, in point of time, and not too remotely connected with the fact of subscription, to be regarded as part of the res gestee, tending to shed light on the transaction. It is impossible to say what weight the jury would have attached to the testimony of Sheibley; but, whether much or little, we think, as the case stood, the defendant was entitled to the benefit of it. Its tendency, doubtless, would have been to corroborate him, and at the same time weaken the force of Dr. Milliken’s testimony, by whom alone he was contradicted.

We deem it unnecessary to notice the other assignments of error, further than to say that they are not sustained.

Judgment reversed, and a venire facias de novo awarded.


text:
    Koch versus Dunkel.
    1. Where land is described in a deed of conveyance by courses and distances and also by calls for adjoinders, the latter, where there is a discrepancy and there are no monuments on the land, must govern.
    2. If there is any ambiguity in a deed as to the quantity of land conveyed “thereby, arising from a conflict between the calls and the courses and distances, articles of agreement in pursuance of which the deed was executed may be admitted in evidence, to show the intent of the parties.
    May 18th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey and Sterrett, JJ. Paxson and Woodward, JJ., absent.

      Error to the Court of Common Pleas of Cumberland county: Of May Term 1879, No. 186.
    Covenant by Louis H. Koeh against J. Dunkel, upon a covenant of general warranty contained in a deed from defendant to plaintiff, to recover damages for a failure of title as to a certain quantity of the land thereby conveyed.
    By agreement the cause was submitted to the court, Herman, P. J., without a jury, who found the following facts :
    “ Jacob Dunkel, the defendant, being the owner, in fee-simple, of a farm containing sixty-two acres and six perches of improved land, situate a short distance west of Carlisle, in North and South Middleton townships, sold and conveyed to John Cameron, on the 23d of November 1867, by deed of that date, duly executed and delivered, a small strip of land off from the northern side of this farm, containing three acres and thirty-eight perches. Cameron immediately, upon the date of his purchase and deed to him of this strip of land, went into possession of it, a line fence, cutting it off from the body of the farm, was at once put up by him and Dunkel, and the same year he (Cameron) built a house on it, and-he and his tenants have been in the actual possession and occupancy of it ever since. Dunkel, after this sale and conveyance to Cameron, continued in the ownership and occupancy of the remaining fifty-eight acres and one.hundred and twenty-eight perches of his farm, farming and having it farmed, until the 21st of May 1878, and on that day he articled with Koch, the plaintiff, for the sale of this land to him, for the gross price of $9000. The article of agreement entered into between them on that day describes the land sold as, “ a farm containing sixty acres more or less, situate in North Middleton township, Cumberland county, and now in the occupancy of said Dunkel, bounded on north by S. Williams, on east by W. J. Shearer, south by--Brandon, and on west by George Bosler,” and stipulates, that Koch shall “pay for the same, $9000, on the execution of the deed, the said Dunkel to deliver possession to said Koch between the tenth and twelfth days of June 1878, at which time the deed will be executed and delivered.” The land thus sold to Koch, was the land that Dunkel was then in the occupancy of, the farm which actually contained fifty-eight acres and one hundred and twenty-eight perches, and was that part of sixty-two acres and six perches which remained to Dunkel after the sale and conveyance of the three acres and thirty-eight perches to Cameron. In pursuance of this sale to Koch, a deed was drawn up by Mr. Corn-man, who acted, in doing so, as counsel for both Dunkel and Koch, and this deed was executed, and delivered by' Dunkel and wife to Koch on the 11th of June 1878, and at the same time, possession was given to Koch of these fifty-eight acres and one hundred twenty-eight perches of land, and thereupon Koch paid to Dunkel the sum of $9000, the full amount of the purchase-money, previously agreed upon, and Dunkel receipted therefor in the deed. Although Koch really purchased no more than the fifty-eight acres and one hundred and twenty-eight acres of land which Dunkel was in the occupancy of on the 21st of May 1878, and agreed to pay for no more, was put into the possession of no more and paid for no more, yet the courses and distances in the description of the land, set forth in the deed, takes in and embraces the three acres and thirty-eight perches of land which had previously been conveyed to Cameron, but the-calls for the adjoiners call for Cameron as an adjoiner on the northern side at the place where the Cameron land lies. The description in the deed further describes the land conveyed as containing sixty-two acres and sixteen perches, strict measure. The deed contains a covenant of general warranty, and the usual words, “grant, bargain and sell.”
    This action was upon the covenants in the deed, to recover for the deficiency of three acres and thirty-eight perches.
    The defendant offered in evidence the articles of agreement of May 21st 1878, which were objected to on the ground that the agreement was merged in the subsequent deed. The court overruled the objection. The court also decided that the plaintiff could not recover. Exceptions were filed to this decision, which the court dismissed, when plaintiff took this writ, and alleged that the court erred in admitting in evidence the articles of agreement, and in deciding in favor of defendant.

      W. Triekett, J. T. Oornman and W. F. Sadler, for plaintiff in error.
    The call for an adjoinder, unless there are some monuments on the ground which make visible and plain the limits of the lands claimed by contiguous owners, is no more certain 'than a call for courses and distances: Falls Village Water Co. v. Tibbets, 31 Conn. 169; Belden v. Seymour, 8 Id. 32; Armstrong v. Boyd, 3 P. & W. 460; Blasdell v. Bissell, 6 Barr 259; Jones v. Holstein, 47 Barb. 312; Yates v. Van De Bogert, 56 N. Y. 531; Bond v. Fay, 8 Allen 213; Marsh v. Marshall, 19 N. Y. 307; Clark v. Wethey, 19 Wend. 320; Brolasky v. McCain, 11 P. F. Smith 163. Articles of agreement are merged in the deed. If the latter grants more or less land than the articles mention, or for a different price, or with different collateral covenants, the conclusive presumption of law is that the parties changed their purpose between the execution of the articles and that of the deed: Williams v. Morgan, 15 Ad. & E. 786; Gregory v. Griffin, 1 Barr 208; Jones v. Wood, 4 Harris 38; Creigh v. Beelin, 1 W. & S. 88; Miller v. Smith, 9 Casey 386; Moser v. Miller, 7 Wright 157.

      S. Hepburn, Jr., W. J. Shearer and S. Hepburn, for defendant in error.
    It was competent to show by the agreement that there was a mistake in the deed, and what the intention of the parties was: Gregory v. Griffin, supra; Creigh v. Beelin, supra; Gump’s Appeal, 15 P. F. Smith 479.
    June 2d 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

This was an action brought by the plaintiff, Louis H. Koch, against the defendant, Jacob Dunkel, on a covenant of general warranty in a deed, for land, executed and delivered by the latter to the former, on the 11th of June 1878. This indenture purported to convey, by certain metes and bounds, sixty-two acres and seventeen perches of land for the consideration of a round sum of nine thousand dollars. This money was fully paid at, or immediately before, the delivery of the deed, and Koch was thereupon put into possession of the premises. It was afterwards discovered, if it were not known before, that there was a deficiency in the land thus sold of some three acres and thirty-eight perches; and it is for the value of this deficiency that the present suit is brought.

Disregarding, for the present, the technicalities of this case, the explanation of the transaction is about as follows: In November 1867, Dunkel conveyed to John Cameron a strip, off the northern side of his farm, of three acres and thirty-eight perches, the same as the deficiency above stated. Cameron immediately went into possession, fenced it off, erected buildings upon it, and has occupied it ever since. Furthermore, in May 1878, Dunkel and Koch entered into articles of agreement, in pursuance of which the deed above recited was made, and in said articles the land was described as a farm of sixty acres, more or less, for which Koch agreed, on delivery of the deed, to pay nine thousand dollars. From this it is quite evident that both the courses and distances and contents of the land, as stated in the deed, were a mistake, arising, no doubt, from the copying, by the scrivener, of the original deed to Dunkel, instead of his following, as he ought to have done, the terms of the agreement. The facts above stated render this conclusion inevitable, for as Cameron was in possession and had been in possession at the time when, and many years before, Koch bought, he surely did not suppose he was purchasing Cameron’s land, and as the articles of agreement called for but sixty acres, more or less, the obvious intention of the parties was to sell and buy the farm then in Dunkel’s possession — nothing more and nothing less. This conclusion is still further fortified by the fact that the price to be paid was a gross sum, and not a certain sum per acre. Clearly, then, on the equity of the transaction, the learned judge, to whom the case was submitted, decided rightly.

But the plaintiff contends that the previous agreement was merged in the deed, and so was not competent evidence. For the present this may be conceded. In that event, the case depends upon the deed alone, without regard to the intent of the parties, except as expressed in that instrument. But the deed calls for. certain adjoinders, among which is John Cameron, and it is not. contended but that the plaintiff got all the land within these calls: but, on all authority, in the absence of original marks found upon the ground, these calls must govern, rather than the courses and distances. Adhering, then, strictly to the deed, and there is nothing upon which the plaintiff can rest but the mere discrepancy, in quantity. But as to this, in Large v. Penn, 6 S. & R. 488, it was held, that where a deed described land by natural boundaries, 'and also by quantity, there was no implied covenant that the quantity of land conveyed should equal the quantity mentioned in the deed. There, as here, after mentioning the boundaries, the deed set' forth the quantity, but it was said this was introduced, not by way of covenant, but description; and so we say here, for there is nothing in the deed before us which indicates that the quantity was introduced for any other purpose than that of description. This whole question is, however, definitely settled by the case of Kreiter v. Bomberger, 1 Norris 59, in which our brother, Mr. Justice Sharswood, áaid, in speaking of a contract for land, like the present, fully executed, “ We are of opinion that in this class the transaction cannot be ripped up without actual proof of fraud or mutual mistake.” Yet, in this case, the actual contents of the lot sold were nearly one-fourth less than the quantity called for by the deed. What then remains ? If it be said, the John Cameron lot was formerly part of the Dunkel tract, and that the call on the north may be as well answered by other land of Cameron, then we ask, how is this to be proved ? Certainly not by the deed. The call is for land of John Cameron as found on the ground when that instrument was executed, and from it we learn nothing as to how his title was acquired. His south line was well marked; the call is for that 'line, for to say that when a call is to adjacent land, it means into that land, is a perversion of terms. There would seem, therefore, to be no help for the plaintiff but a resort to oral testimony, or written testimony, extra the deed, if he would explain the circumstances surrounding the transaction, or exhibit the intent of the parties at the time when the deed was made. Yet this is just what he objects to; he finds fault with the court in admitting, on part of the defendant, the articles of agreement, though, of all other evidence, this is the most safe and the best calculated to show the intent of the parties in case of fraud or mistake, or to explain any ambiguity in the deed. For the purposes mentioned, even oral testimony would be admissible; much more the previous writings leading to the execution of the deed. As is said in Story’s Eq., vol. 1, sect. 160, There is less difficulty in reforming written instruments, where the mistake is mainly or wholly made out by other preliminary instruments, or memorandums of agreement. The danger of public mischief or private inconvenience is far less in such cases than it is when parol evidence is admitted. If, then, there was any ambiguity in the deed, arising from a conflict between the calls and the courses and distances, or any allegation of mutual mistake, the agreement was properly admitted. We conclude, therefore, that the learned judge, to whom this case was submitted, in all things well and properly decided it.

The judgment is affirmed.


author: Mr. Justice Trunkey

text:
    McClure versus Peoples’ Freight Railway Co.
    1. In a subscription to the stock of a railroad company, the covenant was to pay money on call. In a suit therefor, the defendant offered to prove an oral agreement that he might pay in labor and materials, without offering to show that he attempted to ascertain when and where he could do so, or making a tender thereof. Held, that the offer was not admissible.
    2. Three existing companies were consolidated. The subscription was made, after the agreement for consolidation but before it was filed in the office of the secretary of the Commonwealth : Held, that the filing of the agreement in the office of the secretary was not necessary to validate the subscription.
    May 14th. 1879.
    Before Sharswood, C. J., Mercur, Gordon, Trtjnkey and Sterrett, JJ. Paxson and Woodward, JJ., absent.
    Error to the Court-of Common Pleas of Perry county: Of May Term 1879, No. 148.
    Debt by the Peoples’ Freight Railway Company against William McClure, to recover the amount of certain instalments of a subscription to the stock of said company.
    The plaintiff corporation was formed from the consolidation of three railroads. The agreement to consolidate was effected between the companies about the. 17th of November 1878, but was not filed in the office of the Secretary of the Commonwealth until December 13th 1873. The defendant subscribed for his stock after the consolidation, but before the agreement therefor was filed with the secretary.
    At the trial, before Junkin, P. J., the defendant made the following offers:
    To prove by himself and others present when said subscription was obtained, that agents of plaintiff came to him with the subscription book, and said to defendant that he had horses and plenty of hands about him; that if he would subscribe, there would be plenty of opportunity for him to furnish materials and labor to pay all his subscription in that way, and that he need not pay any money on his subscription; that defendant then subscribed, upon those terms and under those conditions; that without such terms and conditions he would not have subscribed at all; that no opportunity was offered him to pay his said subscription according to the said conditions of his contract, nor has he been called upon to furnish either labor or materials for said road.
    Also; to prove that if the road had been constructed as plaintiff proposed, it would have passed within two miles of his residence, and the opportunity would then have been offered to pay his subscription in kind; that the work was commenced about four miles' below him and progressed in an easterly direction, so as to carry the grading of the road further from him and not toward him; that the whole line of one route was given out by contract to one Bivins, the first and nearest ten miles of the road on the very day the articles of consolidation were filed, and the remainder of the route in November 1874; so that the plaintiff rendered it impossible to receive payment according to the conditional contract; that neither president, secretary nor any acting director lived -within the county of Perry, to whom tender could be made. And this for the purpose of showing that defendant was excused from making the tender, even if the tender had otherwise been necessary.
    Both of these offers the court rejected.
    The defendant also submitted the following points, which the court refused:
    1. The alleged subscription of defendant having been obtained before the articles of’ consolidation were filed in the office of the Secretary of the Commonwealth, and therefore before the corporation plaintiff had any legal existence, the same is void for want of parties, and tho verdict should be for the defendant.
    2. The alleged subscription having been obtained before the corporation plaintiff had any legal existence, and before it had obtained any rights, property or franchises, by virtue of the filing of the articles of consolidation, according to the requirement of the Act of Assembly relating thereto, the same is void for want of considation, and the verdict should be for the defendant.
    The verdict was for plaintiff for $200. After judgment defendant took this writ, his first and second assignments being the foregoing offers of evidence respectively, and his third and fourth, the refusal of the above points.

      Charles J. T. Mclntire and Charles A. Barnett, for plaintiff in error.
    We think the court erred in failing to distinguish between a contract for the payment or delivery of specific articles, and one in which the articles to be delivered are not specific and ascertained, but where kind and quantity depend upon the creditor’s election. The labor and materials here contracted for are not definite, they • depend upon the election of the obligee as to kind and quantity, and his designation as to time and place: Hamilton v. Calhoun, 2 Wright 139; Mussulman v. Stoner, 7 Casey 265; Lobdell v. Hopkins, 5 Cowen 516.

      Can a corporation formed by the consolidation of three separate companies, enforce payment of a subscription made after the agreement of consolidation, but before it was filed in the office of the Secretary of the Commonwealth ?

      W. A. Sponsler and J. JS. Junhin, for defendant in error.—
    The contract of subscription was to pay for the stock in instalments in cash. The offer was to contradict this, and show that it was payable in work. There was no fraud or mistake alleged. The written covenant calls for money, not labor or materials. But if it were so, no tender of these was made. The consolidation was not a new creation or grant of franchises, but simply providing for the exercise of that already in existence, and the subscription was therefore valid whether the consolidation agreement was filed in the office of the Secretary of the Commonwealth or not.
    May 26th 1879.
   Mr. Justice Trunkey

delivered the opinion of the court,

McClure’s covenant was to pay money on call. He proposed to prove an oral agreement that he might pay in materials and labor, without offering to show that ho attempted to ascertain when and where he could do so. When the call was made it was his business to pay according.to his contract, and, instead of that, he did nothing. Under the alleged oral agreement he may not have been bound to tender materials and labor, but the call was enough to put him on inquiry when and how they would be.received. The court was right in holding that if the offers set out in the first and second assignments were received, they would not amount to a defence. It is not admissible, to contradict or materially change a written contract, save for fraud, accident or mistake, of which no évidence was offered: Martin v. Berens, 17 P. F. Smith 459.

The third and fourth assignments raise the question whether the subscription, made after the agreement of consolidation and before it was filed in the office of the Secretary of the Commonwealth, is valid. It is claimed that this point is settled by Strasburg Railroad Co. v. Echternacht, 9 Harris 220, where the court say: A contract cannot be made by one person alone. It takes two to make a bargain. Before a promise becomes a binding obligation, it must not only be made to, but must be expressly or impliedly accepted by, the party for whose benefit it was meant. The paper before us is no more than a naked expression of the subscriber’s intention to purchase certain shares in the capital stock of a company which it -was expected would be incorporated by the legislature.” That legal proposition cannot be gainsaid, and the description of the paper, to wbich it was applied, is entirely accurate. Of course such a paper is worthless. Here is an actual subscription to the capital stock and a direct covenant to pay the Peoples’ Freight Railway Company $50, in instalments of $5 each, for each share of said stock. The deed recites that' the company is “ formed by consolidation together of The Sherman’s Yalley Railroad Company, the Bendersville Railroad Company, and the Bendersville Extension Railroad Company and the agreement for said consolidation had been executed on the 17th of .November 1873. Nothing remained to be done to authorize the company to act as a corporation, but to file the agreement in the office of the Secretary of the Commonwealth. That officer had no discretion to receive or reject; it was his duty to file the paper of record as soon as deposited. This consolidated company was not a new grant of corporate franchises, but another form for operating those which had been granted to the companies merged by their mutual agreement. To liken this to a case where there was no charter and could not be without legislation is a perversion. In this, the grant of rights and powers had been made; in that, they were to be procured. The corporate existence of this company depended solely upon the contracting parties; of that, upon future legislative grant.

It was to the capital stock of a company already formed by agreement of existing corporations, that the defendant subscribed. That agreement was filed in a few days thereafter, December 13th 1873, and then the company had legal existence and could act. It is not denied that the company accepted the subscription, made calls according to its terms, and that the first call was paid. The subscription was, at least, a valid proposition to the plaintiff which became irrevocable the instant of its acceptance. Whether, before the filing of the agreement for consolidation, the defendant could have recalled his subscription is not a point in the case.

Judgment affirmed.