text:
    McGowan versus Budlong, to use, &c.
    1. McGowan contracted to buy petroleum from Budlong and assigned the contract to a bank as security for an existing debt; afterwards, and before the pretroleum was to be delivered, McGowan, without notice of the assignment, bought from Abbott a note owing him by Budlong, which was considered worthless, and for which McGowan was to pay nothing if he could not use it as a set-off against Budlong ; he afterwards paid Abbott half the amount of the note and refused to deliver the petroleum to the bank. In a suit for the use of the bank against McGowan, Held, that under the plea of set-off the note-was evidence for McGowan.
    2. If McGowan procured the note as an experiment and to be returned in case of failing to get it in as a set-off, it would not be evidence.
    3. That the note was worthless did not prevent its use as a set-off.
    4. The question of the consideration for the transfer of the note could not be raised in this suit, Budlong being liable on it at all events,
    5. Rider v. Johnson, 8 Harris 19Ó; Loudon v. Tiffany, 5 W. & S. 367, recognised.
    November 23d 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1875, No. 35.
    This was an action of assumpsit, brought January 8th 1874, by Jenks Budlong, to the use of The First National Bank of Mead-ville, against Thompson McGowan.
    The plaintiff declared that, on the 28th day of July 1873, he contracted in writing to sell to the defendant 1000 barrels of crude petroleum, to be delivered “in an accredited pipe company’s receipt at any time at the said Thompson’s option, on ten days’ notice, between,” &c., to the plaintiff, &c., and in consideration the defendant promised to pay $2.30 per barrel; that the plaintiff tendered to defendant an accredited pipe company’s receipt for 1000 barrels of petroleum, and demanded from defendant $2.30 per barrel, but the defendant refused to pay the same, &c.
    The defendant pleaded non-assumpsit and payment with leave, &e.; and set-off.
    The case was tried November 30th 1874, before Lowrie, P. J.
    The plaintiff gave in evidence the contract as set out in the declaration. Across the face of the contract was written, “ Accepted, Thompson McGowan.”
    For the plaintiff, O. A. Derrickson, president of the bank, testified, that the bank became owner of the contract October 23d 1873. “ Took it as security for a debt. On December 31st, called
    on McGowan ; stated that he had contract from Budlong as security for indebtedness ; showed him contract; looked at it; said he would take oil, but could not pay for it, as Mr. Abbott had attached difference in his hands. I had secured 1000 barrels oil in form of pipe line receipt. I tendered it to McGowan; he refused it. Got pipe line receipt from Mitchell for purpose of tender.”
    J. F. Lake testified: “ Present at tender December 31st. McGowan refused to recognise Derrickson in transaction, or to look at papers, or have any conversation about it with him. Price of oil $1.17.”
    Defendant testified (a note of $3000 being shown him): “ Owner of note; took it December 22d 1873. Endorsed by Abbott, signed by Budlong. At the time I took note, had no notice of any assignment of contract by Budlong. Never had any notice till on 31st; asked Budlong; he said hé still held the contract; I got the note on making some settlement, and got it then. We had a running account and made a settlement. I gave him my note for it. He did not owe me. I have since paid Abbott on it $1500. He regarded it as worthless and agreed not to claim mine if I did not get this set-off. The $1500 was paid this year (1874) on a settlement in another matter.”
    The defendant then offered in evidence Budlong’s note to Abbott, viz.:—
    “ $3000. March 20th 1873.
    Four months after date I promise to pay to the order of Wm. H. Abbott, three thousand dollars, at--■, value received.
    Jbnks Budlong.”
    Endorsed, “Wm. H. Abbott.”
    The plaintiff objected to the offer, it was rejected by the court and a bill of exceptions sealed for the defendant.
    The verdict was for plaintiff for $1192.15.

      The defendant took a writ of error and assigned for error, the rejection of his offer of evidence.

      JR. Sherman, for plaintiff in error.
    McGowan had a right to purchase Abbott’s note to use as a set-off against Budlong, and whether he was in fact the owner of the note was for the jury: Rider v. Johnson, 8 Harris 190; Bevan v. Insurance Co., 9 W. & S. 187. McGowan could recover on the note whether he had paid anything for it or not: Byles on Bills 120, 121. The bank not having given McGowan notice of the assignment, held it subject to the defence of the note : Northampton Bank v. Balliet, 8 W. & S. 311; and having paid nothing for it, the bank had no equity against McGowan: Kountz v. Kirkpatrick, 22 P. F. Smith 376. The burden was on the bank to show that it had given notice: Loudon v. Tiffany, 5 W. & S. 367.

      J. B. Brawley, for defendant in error.
    Set-off can be allowed only to the boná fide owner of the claim : Waterman on Set-off, sect. 33; Adams v. McGrew, 2 Ala. (N. S.) 675 ; McDade v. Mead, 18 Id. 214; Strouse v. Eagle Ins. Co., 5 Ohio (N. S.) 59; Rider v. Johnson, 8 Harris 192.
   Mr. Justice Paxson

delivered the opinion of the court, January 6th 1876.

There is but one specification of error in this case, and that refers to the rejection by the court below of the defendant’s offer of the promissory note of Jenks Budlong for $3000, to the order of William H. Abbott, and by him endorsed. The defendant had pleaded set-off, and the offer was in support of said plea. This record does not show that the equitable plaintiff below paid value for the assignment of Budlong’s contract, nor that the defendant had notice of the transfer. Hence there was nothing to prevent the latter from making use of the note in question as a set-off if he had legally acquired title thereto : Rider v. Johnson, 8 Harris 190 ; Loudon v. Tiffany, 5 W. & S. 367. Upon the question of title the defendant says in his testimony: “ I bought the note from Abbott, December 22d 1873. I got it in making some settlement, and got it then. We had a running account and made a settlement; I gave him my note for it; he did not owe me; I have since paid Abbott on it $1500; he regarded it as worthless, and agreed not to claim mine if I did not get this set-off. The $1500 was paid this year (1874) on a settlement in another matter.” Upon this evidence the court below excluded the note, which was error. It is true, if the defendant had obtained the note as a mere experiment, with an agreement to return it in case he failed to get it in as a set-off, its rejection would have been proper. But the evidence does not go to this extent. .It discloses no agreement to return the note. That Abbott regarded Budlong’s note as worthless, and agreed not to claim on McGowan’s note, given therefor in case the set-off was not allowed, is not material; Abbott had a right to give the note to McGowan, and the latter’s right to use it as a set-off against the maker does not depend upon the fact of its worthlessness. The question of the consideration of the transfer could not have been raised by Budlong bad McGowan sued him upon the note. Nor can such question be raised when the note is offered as a set-off. Budlong was liable upon it in either event. It was for the jury to say whether there was an actual transfer of the note to the defendants, or whether it was a mere experiment; and it was error to withdraw this question of fact from them.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Per Curiam.'

license: Public Domain

text:
    McFadden et al. versus Drake et al.

    1. A deed in 1846 was to a trustee to hold for the sole and separate use of a married woman, she alone to take the rents, &c., and after her death to the heirs of her body by her then husband, with power to the trustee to sell and convey in fee simple the premises in the deed as the wife, “ by writing under her hand and seal and duly acknowledged at any time, shall during her natural life direct and appoint.” The husband and wife, without the trustee, by deed duly executed and acknowledged, conveyed the premises: Held to be a valid appointment under the power in the trust deed.
    2. The grantee in the deed being the wife’? appointee could compel the trustee to convey the legal estate to him.
    3. Before such conveyance by the trustee, the wife’s appointee had an equitable title under which he could defend his possession in ejectment.
    November 23d 1875.
    Before Shahswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Qrawford county: Of October and November Term 1875, No. 89.
    This was an action of ejectment, commenced to the January Term 1874 of the court below, by James B. McFadden and others, children and heirs at law of Lodiski McFadden, deceased, against Abel Drake and others.
    Eleazer Rockwell, being tbe owner of the premises in dispute, by deed dated July 1st 1846, for the consideration of $200, conveyed them to George R. Wilson, “ for the uses and upon the trusts (thereinafter) mentioned,” viz.: In trust “for the sole and separate use'of Lodiski McFadden, the wife of John W. McFadden, of, &e., so that she alone, or such person as she shall appoint, shall take and receive the rents, &c., and' so as her said husband shall not in anywise intermeddle therewith; and from and after the decease of the said Lodiski McFadden, in trust, for the use of the heirs of the body of the said Lodiski McFadden, by the said John W. McFadden, begotten or to be begotton, for ever, with power to the said George R. Wilson to sell and convey in fee simple the whole or any part of the aforesaid premises and appertenances to any person or persons, and for such sum or sums of money as the said Lodiski McFadden, by writing under her hand and seal and duly acknowledged at any time, shall, during her natural life, direct and appoint.” * * *
    Wilson, the trustee, paid nothing, nor did he do anything under the deed.
    On the 8th of July 1864, McFadden and wife conveyed to John Ross part of the premises; Ross conveyed, September 7th 1864, to Burdick, and on the 10th of May 1866, McFadden and wife conveyed the remainder to Burdick. Both the deeds of McFadden and wife were in due form and properly acknowledged. Wilson, the trustee, took no part whatever in the conveyances.
    McFadden died in 1870, and his wife Lodiski, in 1872.
    Burdick’s title was in the defendants at the commencement of this suit.
    Under the foregoing facts the court, Lowrie, P. J., charged, that “the conveyances by McFadden and wife to Ross and Bur-dick are a valid appointment of the fee of the land under the trust for her.”
    The verdict was for the defendants.
    The plaintiffs took a writ of error, and assigned the charge of the court for error.

      J. W. Smith and W. JR. Bole, for plaintiffs in error.
    This is a special trust, for the benefit of a married woman, and is not within the Statute of Uses: Steacy v. Rice, 3 Casey 75; Koenig’s Appeal, 7 P. F. Smith 352; Dodson v. Ball, 10 Id. 492; Megargee v. Naglee, 14 Id. 216. A feme covert is, in respect to her separate estate, to be deemed a feme sole only to the extent of the power clearly given by the instrument by which the estate is settled, and has no right of disposition beyond it: Lancaster v. Dolan, 1 Rawle 231; Stahl v. Cronse, 1 Barr 111; Thomas v. Folwell, 2 Whart. 11; Wallace v. Coston, 9 Watts 137. The execution of a power must he in the form prescribed by the instrument creating it: Sugden on Powers 250, 319, in note; Dorrance v. Scott, 3 Whart. 309.

      Douglass and McQoy, for defendants in error.
    These deeds, under the power in the trust deed, passed the fee simple to the grantors: Steacy v. Rice, 3 Casey 75; Koenig’s Appeal, 7 P. F. Smith 352; Dodson v. Ball, 10 Id. 492; Megargee v. Nagle, 14 Id. 216. The rule in equity is to regard whatever ought to be done as being done. And this is to be adopted as a universal maxim : Slifer v. Beates, 9 S. & R. 178. The power is well executed by the two deeds executed by Mrs. McFadden and her husband : Lancaster v. Dolan, 1 Rawle 231. And this is so, although no reference be made to the power in the conveyance: Lancaster v. Dolan, supra ; Drusadow v. Wilde, 13 P. F. Smith 170; Allison v. Kurtz, 2 Watts 185; Coryell v. Dunton, 7 Barr 530; Hoover v. Samaritan Society, 4 Whart. 445; Zane v. Kennedy, 23 P. F. Smith 182.
   Judgment was entered in the Supreme Court, November 26th 1875,

Per Curiam.'

It is true that the power to sell was given by the deed to the trustee, George R.-Wilson. He had, however, no discretion, but was bound to make such sale and conveyance to any person or persons, and for such sum or sums of money, as the wife, by writing under her hand and seal and duly acknowledged at any time during her natural life, should direct and appoint. The words “direct and appoint” preclude the construction contended for by the plaintiff in error. The deed of the husband and wife — under her hand and seal and duly acknowledged — was a valid appointment under the power, in strict conformity to its provisions. It follows that her appointee, the grantee in the deed,' could have compelled, by a bill in equity, the trustee to convey to him the legal estate, and it follows also, that the defendants had a perfectly good equitable title, under which in Pennsylvania they could defend their possession.

Judgment affirmed.


author: Mr. Justice Shakswood

text:
    Mentz versus Lancaster Fire Insurance Co.
    1. General agents of an insurance company have no power to waive any express condition in the policy.
    2. Plaintiff insured in defendants’ company, one condition being that if additional insurance were effected, it should be endorsed on the policy ; the plaintiff effected additional insurance in another company with their agents, who were also agents of the defendants ; on inquiry by plaintiff, who gave his policy to the agent, he said that the endorsement, of the second insurance had been made on the first policy; the .endorsement had not in fact been made. In an action against the defendants for a loss, Held, that the declarations of their agent estopped them from objecting to the want of endorsement, and the plaintiff could recover.
    November 24th 1875.
    -Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1875, No. 157.
    This was an action of assumpsit, brought April 6th 1874, by J. M. Mentz against The Lancaster Fire Insurance Company.

      The action was to recover for loss by fire of the plaintiffs stock of dry goods, insured by the defendants, in a storehouse in Titus-ville. The defence was that the plaintiff had, contrary to the stipulations in the policy, effected an additional insurance on his goods in the Armenia Insurance Company, without the consent of the defendants endorsed on his policy.
    The casé was tried, May 4th 1875, before Lowrie, P. J.
    It was admitted that Murray & Clow were agents in Titusville both of the defendants and The Armenia Insurance Company.
    The plaintiff gave in evidence policy No. 300 of the defendants, insuring his stock of store-goods in his storehouse in Titusville; the policy was dated July 8th 1873, and on the same day countersigned, “ Murray & Clow, agents.”
    One of the conditions of the policy was:—
    “ That if the insured, or any persons or parties interested, shall have existing, during the existence of this policy, any other contract or agreement for insurance (whether valid or not) against loss or damage by fire on the property hereby insured, or any part thereof, not consented to by this company in writing, and mentioned in or endorsed upon this policy, then this insurance shall be of no effect; and if consent be endorsed thereon, the insured shall not be entitled to demand or recover of this company any greater portion of loss or damage sustained than the amount hereby insured shall bear to the whole amount of such contracts or agreements for insurance (whether valid or not), or made before or after the date of this policy.”
    He gave in evidence also an insurance for $400, effected for him in The Armenia Insurance Company, by policy No. 545, dated October 13th 1873, on the same goods and in the same storehouse. He gave evidence also of the burning of the goods, the amount of loss, &c.
    He then offered to prove that the agent effecting the policy for The Armenia company had knowledge that an insurance for $600 had been before effected in the Lancaster company, he having been' the agent in effecting the same. And further, that at the time of effecting the second policy the witness called the attention of the agent to the fact that the notice of the second ought to be endorsed on the first policy, and notice .thereof given to the Lancaster company, and that when the agent returned the policy to the witness the agent told him that the proper endorsement had been made on the Lancaster policy, he having both policies in his possession, and the witness relied on this because he could not read English; neither could Mentz read English. This for the purpose of excusing the want of such notice and endorsement.
    The offer was objected to, because the policy requires that the fact'ought to be assented to by the first company and endorsed.
    The court rejected the offer and sealed a bill of exceptions.

      The plaintiff having closed his case, defendants moved for a non-suit. The motion was allowed, and judgment of nonsuit entered.
    The plaintiff' took a writ of error, and assigned for error the rejection of his offer of evidence, and entering a judgment of non-suit.

      S. O. Johns (with whom was S. S. Smith), for the plaintiff in error.
    Murray & Clow were general agents of the defendants, and could do all acts connected with their particular business: Story on Agency, sects. 17, 126; Pickard v. Sears, 6 Ad. & E. 469. The principal is bound even by misrepresentation and con-' cealment of the agent in the course of the business: Story on Agency, sects. 127, 139; 1 Story’s Eq. Jur., sect. 387. A party who enables another to commit a fraud is answerable for the consequences: Blight v. Schenck, 10 Barr 293 ; Shaw v. Levy, 17 S. & R. 101; Bank of Kentucky v. Schuylkill Bank, 1 Parsons R. 182; Garrard v. Haddan, 17 P. F. Smith 82; Hutchinson v. McClure, 8 Harris 67; Story on Agency, sect. 451. Notice to the agent is notice to the principal: People’s Ins. Co. v. Spencer, 3 P. F. Smith 353.

      J. B. Brawley, for defendant in error.
    Where the policy requires written notice of additional insurance and neglects to give it he cannot recover on the policy : Simpson v. The Pennsylvania Fire Insurance Co., 2 Wright 250; Insurance Co. v. Slockblower, 2 Casey 199; Forbes v. The Agawam Mutual Ins. Co., 9 Cush. 470; Worcester Bank v. The Hartford Fire Ins. Co., 11 Id. 265; Conway Tool Co. v. The Hudson River Ins. Co., 12 Id. 144; Pendar v. Am. Mut. Ins. Co., Id. 469; Mitchell v. The Lycoming Mutual Ins. Co., 1 P. F. Smith 409; Mellen v. Hamilton Fire Ins. Co., 17 N. Y. 609.
   Mr. Justice Shakswood

delivered the opinion of court, January 6th 1876.

It was admitted on the trial of the cause below that Murray & Clow were the agents at Titusville of the defendants in error and of The Armenia Fire Insurance Company. There was no evidence tending to show that their powers were special. It must be assumed then that they were authorized to act as the general agents of the companies in all matters relating to the effecting of insurance on their behalf. It may be conceded that as such general agents they would have no power to waive any express condition in the policy. But the question was not of their power to do this, but whether their declaration of a fact, namely, that the condition had been actually complied with, would not estop the company from controverting that fact. The evidence offered and rejected was that the agent had told the assured that the proper endorsement had been made on the policy. Now, such a declaration made by a duly authorized agent or officer would clearly operate as an estoppel. It lulled the party to sleep by the assurance that the conditions of the policy had been complied with and that his indemnity was secured.' In point of fact, these local agents are held out as acting for the companies they represent in all respects except as to the actual issuing of the policies. The companies will assuredly lose all public confidence if they shelter themselves behind the special character of the powers of such agents, when parties have relied upon their declarations.

The case of The Worcester Bank v. The Hartford Fire Insurance Co., 11 Cush. 265, is not in point. There the party insuring was told by the agent that it would make no difference that the second insurance was not endorsed on the policy; that he would make a memorandum of the fact upon his book, which would answer every purpose. The question there was whether the agent could waive performance of the condition, which is a very different question from that presented on this record.

Judgment reversed and procedendo awarded.


author: Mr. Justice Sharswood

text:
    Mentz versus Armenia Fire Insurance Co.
    1. By a condition in a policy of insurance, in case of dispute touching the amount of the loss sustained, such dispute was to be submitted to arbitrators, one to be chosen by each party, with power to select a third in case of disagreement, their decision to be final; and no action, &c., should be maintained on the policy unless the loss, in case of such dispute, should have been first thus ascertained. Held, that this did not oust the jurisdiction of the courts.
    2. Such condition is an agreement to refer to arbitrators to be chosen at a future time, and is revocable; the party may be subject to an action of damages for the revocation.
    3. íhis condition being special is not without effect, but the company, to avail themselves of it, must show that they admitted the validity of the policy and their liability under it, and that the only question was the extent of the loss.
    4. When the dispute is of the character of an account involving the examination of books, the value of a large number of things and the extent of the damage, parties may agree that it shall be determined by men, as appraisers.
    November 24th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1875, No. 158.
    This action was assumpsit, brought April 6th 1874, by J. M. Mentz against The Armenia Fire Insurance Company, to recover for a loss from fire sustained by the plaintiff on a stock of store goods in Titusville, insured by the defendants.

      The policy was issued October 13th 1873, and according to its provisions was countersigned by Murray & Clow, the general agents of the company at that place ; the amount insured was $400. The plaintiff’s same stock of goods was, at the time he effected this insurance, insured in The Lancaster Fire Insurance Company for $600.
    One condition contained in the policy was, that where there was an insurance with another company, it should be endorsed in writing on the Armenia company’s policy.
    Another condition was :—
    “ VIII. In case any difference or dispute shall arise between the assured and this company touching the amount of any loss or damage sustained by him, such difference shall be submitted to the judgment of arbitrators, one to he appointed by each party, with power to select a third in case of disagreement, whose decision thereupon shall be final and conclusive; and no action, suit or proceedings at law or in equity shall be maintained on this policy, unless the amount of loss or damage in case of difference or dispute shall be first thus ascertained.”
    The case was tried May 4th 1875, before Lowrie, P. J. The plaintiff gave his policy in evidence;' also the fire by which the goods insured were destroyed. He then offered to prove that although notice of the other insurance was not endorsed on the policy, the agents of the plaintiffs, who were also agents of the other company, said at the time he effected the insurance that the endorsement had been made ; the offer was objected to and rejected by the court.
    He gave evidence of the amount of the loss sustained by the fire, the circumstances of the fire, &c., and rested.
    The defendants moved for a nonsuit, “ because section 8 requires the parties to the policy to submit to a reference,” &c.
    The plaintiff objected to the motion, because no reference was offered or asked for.
    By direction of the court judgment of nonsuit was entered.
    This was assigned for error, on the removal of the record to the Supreme Court, by the plaintiff by writ of error.

      H. O. Johns, for plaintiff in error.
    A general covenant or agreement providing for settling disputes by arbitration without naming the arbitrators, does not take away the jurisdiction of the courts : Gray v. Wilson, 4 Watts 41; Lauman v. Young, 7 Casey 310 ; Snodgrass v. Gavit, 4 Id. 224; Ins. Co. v. Morse, 20 Wall. 445.

      J. B. Brawley, for defendant in' error, from whom the reporter received no paper-book.
   Mr. Justice Sharswood

delivered the opinion of the court, January 6 th 1876.

There can be no doubt that if this case stood upon a general arbitration clause in the policy alone, it would fall within the principle settled by this court, conformably to all the previous English authorities, in Gray v. Wilson, 4 Watts 41 ; Snodgrass v. Gavit, 4 Casey 224, and Lauman v. Young, 7 Id. 310; that it is not in the power of the parties to a contract to oust the courts of their jurisdiction.

The cases in which the certificate or approbation of any particular person — as the engineer of a railroad company — to the amount of a claim, is made a condition precedent to an action, rest upon entirely different principles. He is not created a judge or arbitrator of law and facts, but simply an appraiser of work done : Monongahela Nav. Co. v. Fenton, 4 W. & S. 205; Lauman v. Young, 7 Casey 306. In all these cases there is an actual reference, founded upon consideration, and therefore irrevocable. That which is before us, is a mere agreement to refer to arbitrators to be chosen at a future time.

Such an agreement, like any other agreement of reference, is revocable, though the party may subject himself to an action of damages for the revocation. It is not in the power of parties thus to oust the courts of their general jurisdiction, any more than they have to add to a personal covenant, that they are not to be responsible for a breach of it: Furnivall v. Coombes, 5 Mann. & G. 736. The Supreme Court of the United States have recognised the soundness of this general principle in Insurance Co. v. Morse, 20 Wallace 445, in which they held that an agreement by a foreign insurance company, in conformity with a state statute, that if sued in a state court they would not remove the suit into the Federal court, was invalid.

The contention, however, here is, that the special provision added in this policy to the arbitration clause, distinguishes this case from those cited. It declares that “no action, suit, or proceedings at law or in equity, shall be maintained on this policy, unless the amount of loss or dispute as aforesaid shall have been first thus ascertained.”

If, however, it was not in the power of the parties to oust the courts of their general jurisdiction, by such an agreement, that clause does not help them. Had a general arbitration clause been valid, it would have been a condition precedent to an action of itself; the provision in question is but the expression of that which was implied.

We are not to be understood as holding that this provision of the policy, which is special, not general, is entirely without effect. By its terms it was confined to “any difference or dispute that should arise between the insured and the company, touching the amount of any loss or damage.” But then it was incumbent on the defendants below, in order to avail themselves of it, to show that a dispute had arisen touching the amount of the loss. In other words, they must show that they admitted the validity of the policy, and their liability under it, and that the only question was as to the extent of the loss.

An examination of the case of Scott v. Avery, 5 House of Lords Cases 827, so much relied on by the defendants in error, will show that a majority of the opinions there went upon the ground that -it was a special, not a general arbitration, which was intended. The power to oust the courts of their general jurisdiction was expressly repudiated. Nothing of the kind appeared on the trial here; on the contrary, it rather seemed, from an offer of evidence made by the plaintiff, objected to by the defendants, and rejected, that one ground of defence was, that there had been a breach of one of the conditions .of the policy, by the non-endorsement of another insurance, which avoided the contract altogether.

Parties may agree that when the dispute is of the character of an account involving the examination of books, and the value of a large number of things, and the' extent of the damage, it shall be determined by three men as appraisers in effect — a much more appropriate tribunal for such a controversy than a jury.

Judgment reversed and procedendo awarded.


author: Mr. Justice Mbrcur

text:
    Malone’s Appeal. Neal & Wampler’s Appeal.
    1. Upon confirmation of an inquisition finding a party an habitual drunkard, it is the duty of the court to make an order for the payment of the expenses of the inquisition.
    2. The real estate of an habitual drunkard was sold by order of the court, he having no personal estate with which' to pay the costs of the inquisition: Held, that these costs could not be paid to the prejudice of a prior lien creditor. -
    3. All costs that are connected with the sale and leading to it should be paid from the proceeds; all precedent to it are not to be allowed.
    4. A mechanics’ lien was filed against “a double dwelling-house.” The structure was divided from the bottom to the top by a studding partition with no doors between; with two front and back doors, double chimney in the centre of the building; the cellar walls, roof, outside boarding, &c., continuous. Held to be two houses, on which the lien should be apportioned, under the Act of June 16th 1836, sect. 13.
    5. In distributing proceeds of real estate an auditor cannot go behind the record of a judgment to inquire into its validity.
    6. Borland’s Appeal, 16 P. F. Smith 470, referred to.
    November —1875.
    Before Aonew, O. J., Sharswood, Merour,'Gordon, Paxson and Woodward, JJ.
    Appeals from the Court of Common Pleas No. 1 of Allegheny county : Of October and November Term 1875, No. 259 and 274.

      In the distribution of the proceeds of the sale of the real estate of William Clinton, an habitual drunkard.
    The report of George F. Gilmore, Esq., the auditor, showed the following facts:—
    On the 20th of May 1878, two mechanics’ liens, amounting together to $987.18, in; favor of Neal & Wampler; on the 10th of June, a mechanics’ lien for $62.48, in favor of G. W. Fisher; and on the 10th of September a mechanics’ lien for $50, in favor of A. T. Frick, were entered against Clinton.
    The description of the property in each case was: “ All that certain double two-story frame building, situate, &c.; said building is a double dwelling-house, two stories high, with a cellar under the same, and has a front 32 feet on, &c., and a depth of 32 feet, containing eight rooms and an attic.”
    There were two judgments against Clinton, entered respectively April 16th and May 5th 1873, amounting .together to $131.45.
    On the 9th of May 1873, M. L. Malone obtained a judgment against Clinton on warrant of attorney, dated May 8th 1873, for $5055.88; a rule had been granted by the court to open this judgment for want of consideration ; the rule was pending when the auditor made his report. There was also another judgment of Malone-against Clinton, entered May 9th 1873, for $341.95.
    There were a number of other judgments entered from May 13th 1873 to August 28th 1873; not necessary to particularize.
    On the 31st of October 1873, an inquest found that Clinton was an habitual drunkard, and had been so for a year prior to the finding.
    The real estate of Clinton was sold by his committee by order of the Court of Common Pleas, and the proceeds of sale, $3350, referred to Mr. Gilmore as auditor for distribution.
    Besides the judgments and mechanics’ liens, before referred to, the following claims were made on the fund:—
    Expenses in procuring and making the sale, . . $118.25
    Expense of the inquest, commissioner’s fee, . . 50.00
    Counsel fee of T. S. Parker, for conducting the proceedings in relation to the inquest ■ and as counsel generally for the committee, .... 410.00
    Business tax of Clinton, ..... 52.80
    And fees of jury of inquest, ..... 103.00
    (Both paid by his wife, which she claimed should be refunded to her.)
    Her claim as for exemption under an execution, . 300.00
    Committee’s compensation, ■. .... 150.00
    The auditor heard very much testimony on the question whether the structure against which the mechanics’ liens were entered constituted two buildings, and whether the liens, therefore, should be apportioned to each, under the Act of June 16th 1836, sect. 13, Pamph. L. 699, 2 Br. Purd. 1033, pi. 43, which provides: that when the claim shall'be a joint claim against two or more buildings, the claimant shall at the time he files his claim designate the amount which he claims to be due on each, otherwise he shall be postponed to subsequent lien creditors.
    He said:—
    “ On this question quite a number of witnesses have been called In describing the houses these witnesses do not differ materially as to the facts. The testimony of Valentine N. Elliott, a contractor and builder, if condensed somewhat, may be thus stated, and answers substantially for all the last-named witnesses (who considered the structure two houses): 'they are two distinct houses, as distinct as any two houses in a row ; completely divided by a studding partition, lathed and plastered on both sides from lower floor to top of attic, with no connecting doors between them. There is a separate front door for each house at opposite corners, and back doors the same. There are two separate sets of cellar stairs. The cellars are divided by the foundation for the double chimney in the centre of both, and by substantial boarding. The front yards are divided by a paling fence clear to front fence. They are separately occupied now. Architecturally speaking, and in common language, a double house has a hall in the middle and rooms on each side. The cellar walls are continuous, and the roof and outside boarding are continuous, and the sills also, as a matter of economy, as others build together on adjoining lots.’
    * * * " The witnesses on the other side testify as to the continuous sills, and boarding, and roofing, and casing; and that by cutting doors through one family could use it all as one house. *
    * * Mr. Wampler and Mr. Fisher both say they engaged to furnish materials for and do work on a building or house. Mr. Soles and Mr. Bradley, both long-time builders, say it is one house. In all other material facts all the witnesses agree in the description, substantially.
    “ The auditor is of the opinion that the testimony shows clearly that the structure in dispute constitutes two houses ; as distinctly so as any two or more houses in a row in Pittsburg or elsewhere.
    * * * If this fact of two houses, instead of one, is correctly found, then it follows that the liens must be postponed to the liens of other creditors ; because theirs was not apportioned.” * * *
    In stating the distribution as awarded by him,
    He allowed the claim of the commissioner holding the inquest; jury fees paid by Mrs. Clinton and claim for putting up hand-bills and subpoenaing witnesses, in all $172.00
    Taxes paid by Mrs. Clinton ; her exemption claim $300 and Mr. Parker’s counsel fee $410, in all . . . 762.80
    Expenses in relation to procuring and executing the order of sale and committee’s compensation $150, in all . 278.25
    After deducting the foregoing sums and the expenses of the audit, there remained for distribution . . 2010.45

      The auditor awarded the payment of the judgments of April 16th and May 5th 1873 to their holders ; also, to Malone his smaller judgment, which, according to his report, left the sum of $1537.05 for further distribution.
    Referring to the judgments posterior to Malone’s, he says:—
    “ It will be found that these seven last stated judgments will take all the balance of the fund, after allowing the prothonotary his fees for recording, &o., even if the large judgment to Malone is entirely swept away. The auditor sees no other mode of dealing with the balance of the fund, except in this alternative way, while the rule and contest are still pending in reference to said Malone judgment. If that judgment in whole or part is allowed to stand, it will come in first for payment; that is, before the seven last judgments, and according to the order a.nd date of the liens.”
    Malone excepted to the report of the auditor:—
    1. Allowing- from the fund for distribution the expenses of the inquest as to Clinton being an habitual drunkard, &c.
    2. Allowing Mrs. Clinton $300 “ exemption.”
    3. Allowing the amount paid by her for taxes $52.80.
    4. Not appropriating the whole fund, less expenses of sale and of the audit, to Malone’s judgment.
    The mechanics’ lien creditors excepted to the report.
    Not allowing their liens and deciding that the structure against which the liens were entered was two buildings.
    After argument of the exceptions, the Court of Common Pleas disallowed-the $300 “ exemption” and the taxes, $52.80, awarded to Mrs. Clinton, and with these modifications confirmed the report of the auditor.
    Neal & Wampler and Malone appealed to the Supreme Court.
    Neal & Wampler assigned for error: the confirmation of the auditor’s report; not allowing the claims of the mechanics’ lien creditors, and deciding that the structure was one building; deciding that Malone’s judgment was a valid lien and applying any of the proceeds of the sale to it.
    Malone assigned for error :—
    1. Decreeing payment of the claims of the commissioner holding the inquest; to Mrs. Clinton for amount paid the jurors holding the inquest; counsel fee to committee; cost of serving subpoenas, &c.
    2. Allowing out of the fund the expenses of the inquest as to Clinton’s habitual drunkenness.
    3. Not appropriating the whole fund, less expenses of sale and costs of audit, to Malone’s judgments.

      J. Barton, for Neal & Wampler, appellants.
    Malone’s judgment having been obtained on a warrant after the time when the inquest found he had been incompetent, was not valid: Hope v. Everhart, 20 P. F. Smith 231.

      F. O. Lazear, for Malone, appellant.
    The liens against Clinton’s real estate were to be preferred to expenses, except those in effecting the sale : Wade’s Appeal, 5 Casey 329 ; Ramsey’s Appeal, 4 Watts 74; Bryan v. Eberhart, 4 Phila. R. 228 ; Johnston’s Estate, 9 Casey 513. The validity of the Malone judgment could not have been inquired into by the auditor, and the appellants cannot, therefore, question it: Borland’s Appeal, 16 P. F. Smith 470; Horner v. Hower, 3 Wright 126 ; Dyott’s Estate, 2 W. & S. 557. As to that part of the decree which postpones the liens of the mechanics and material-men to the liens of the judgment-creditors, he cited Thomas v. James, 7 W. & S. 381; Chambers v. Yarnall, 3 Harris 265 ; Goepp v. Gartiser, 11 Casey 133.

      T. S. Parker, for appellees, claiming to be allowed the expenses, &c.
   Mr. Justice Mbrcur

delivered the opinion of the court in each appeal, January 6th 1876.

Malone’s Appeal.

This is an appeal from a decree of the court distributing the fund raised by a sale of the real estate of William Clinton, an habitual drunkard. The sale was made by his committee on leave of the court. The appellant claims the money should be applied to a judgment in his favor on the land sold. After the entry of this judgment, Clinton was by inquisition duly found to be an habitual drunkard. It does not appear that the court then made any order in regard to the payment of the costs attending the inquisition, as is made its duty by the second section of the Act of 16th April 1849, Purd. Dig. 981, pi. 13. Those costs appear to be unpaid. There now appearing to be no personal estate out of which they can be paid, the auditor reported and the court decreed that they be paid out of the proceeds of the real estate. The fund is insufficient to pay the judgment of the appellant. If these costs are thus paid, it takes that amount from the appellant, which he would otherwise receive on his judgment.

All the assignments involve the correctness of giving a preference to the payment of these costs.

The 21st section of the Act of 24th February 1834, Purd. Dig. 421, pi. 85, relating to the debts of a decedent, creates preferences in favor of funeral expenses, medicine and medical attendance, servants’ wages, &e., yet it never has been held to postpone record liens, although for want of personalty such debts may be paid out of the proceeds of real estate. So the preferred wages of miners, laborers and mechanics are not entitled to a preference over prior liens of record in the distribution of the proceeds of real estate: Wade’s Appeal, 5 Casey 328; Johnston’s Estate, 9 Casey 511.

With fully equal reason, it must be held that the costs attending •the inquisition shall not he paid out of the real estate of the lunatic to the prejudice of a prior judgment-creditor. In the absence of any order or decree of the court charging these costs on the estate of the lunatic, I am unable to see how they have the forcé of a lien. But surely they cannot now occupy any better position than if the court had, on the confirmation of the proceedings, made an order of record that they be paid out of the estate. If they had then become a recorded lien, they would not thereby have acquired a preference over the prior judgment lien of the appellant. It is urged, however, that the expenses incurred in conducting the proceedings in lunacy should be paid out of the estate in the hands of the committee. • Weir v. Myers, 10 Casey 377, is cited in support of this view. The correctness of that case is conceded whenever the facts admit of its application. No question arose there in regard to a prior lien on real estate. Nor does it appear that the fund then in the hands of the committee for distribution arose from the sale of real estate. The question now is not whether the costs of the proceedings shall be paid by the committee out of the assets in his hands, but whether he can take from a prior judgment-creditor the fruit of his vested lien ? We are clearly of the opinion that he cannot thus divert the property which in equity belongs to another. The second and third assignments are sustained.

The first assignment appears to blend costs and expenses connected with the sale with the other costs and expenses made on the inquisition and with the charge for professional services of counsel for more than a year. The data given is insufficient to enable us to separate them on correct principles. Such as are reasonably connected with, or necessarily leading to the sale, should be paid out of the proceeds ; all preceding items should be disallowed.

A question has arisen involving the validity of the judgment in favor of the appellant. To settle this, an issue is now pending. It cannot, therefore, at present be determined how much of the judgment will ultimately be sustained. Such sum as the judgment appears to be entitled to under the principles we have indicated must be retained by the court, to abide the result of the pending issue.

Decree reversed, and record remitted to the court below, with instructions to decree distribution conformably with this decision.

Neal & "Wampler’s Appeal.

The second, third and fourth assignments will be considered together. They charge the improper rejection of certain mechanics’ claims, in the distribution of a fund raised by a sale of real estate. The sale was made by the committee of an habitual drunkard. The mechanics’ claims had been filed against a “ double dwelling-house,” &c. The objection taken was that the structure against which the lien had beén filed was not a “ double house,” but was two distinct houses, and the claim was not apportioned.

Sect. 13 of the Act of 16th June 1836, Purd. Dig. 1033, pi. 43, declares “ in every case in which one claim for materials shall be filed by the person against two or more buildings owned by the same person, the person filing such joint claim shall, at the same time, designate the amount which he claims to be due him on each of such buildings, otherwise such claim shall be postponed to other lien creditors.” Sect. 38 of the Act of 25th April 1850, Idem, pi. 42, extends the law to cases for work done; and for work done and materials furnished, as fully and in the same manner as previously authorized and allowed in cases of materials furnished. Hence, if the building against which the lien was filed, was composed of two distinct houses, the claimants had disregarded the clear mandates .of the statute, and their claims must be postponed to those of other lien creditors: Thomas v. James, 7 W. & S. 381; Chambers v. Yarnall et al., 3 Harris 265; Goepp v. Gartiser, 11 Casey 130.

The auditor found as a fact, that the structure was two distinct buildings. The court confirmed that finding. A reference to the evidence clearly justifies this conclusion. They are shown to be as distinct as any two houses in a row; completely divided by partitions from lower floor to top of attic; the cellars separated by double chimney and substantial partitions; no communicating doors between the two buildings; separate outside doors, both front and rear, for each; and the front yards separated by a fence extending from the division line between the buildings to the street fence. It is true they were contiguous parts of one block, yet they were separate houses and so occupied. But being a disputed question, it was for the auditor to find the fact: Munger v. Silsbee, 14 P. F. Smith 454. He found correctly.'

As the fifth assignment does not involve the question of payment or satisfaction of the- judgment after its rendition, there was no error in the auditor not going behind it: Borland’s Appeal, 16 P. F. Smith 470.

We have shown in an- opinion, just filed, in Malone’s Appeal, from the same decree, the validity of the judgment will he determined in another issue,,and the fund will await that result for a final decree. On the whole record, the appellants have no just ground for complaint.

Appeal dismissed, at the costs of the appellants.


author: Mr. Justice Woodward

text:
    Enlow versus Klein.
    1. Enlow agreed with Moritz to furnish him with a team of horses, wagons, &c., for country peddling; he to pay Enlow §5 per week, in two hundred payments; the team, &c., “ to belong to and to be managed by Enlow, until the last of the two hundred paymentsMoritz to keep up all repairs, and if a horse should die to replace him at his own expense ; Enlow “ to relinquish all his right, &c., to Moritz when the last payment is made of the two hundred.” Held to be a bailment.
    2. The agreement did not create a present interest in Moritz, so as to make the property subject in his hands to his execution creditors.
    3. Where by a contract the vendee receives a chattel to keep for a certain time, and to become the owner of it then, if he has paid the stipulated price, but if otherwise to pay for its use; the vendee receives it as bailee, and the property is not changed till the price is paid.

    4. Martin v. Mathiot, 14 S. & R. 214, distinguished.
    November — 1875.
    Before Agnew, C. J., Sharswood, Merchr, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1875, No. 260.
    This was a feigned issue, under the Sheriff’s Interpleader Act, made up between A. W. Enlow, plaintiff, and Charles Klein, to try the title to certain chattels levied on as the property of Casper Moritz, under an execution issued against him by Klein; Enlow, the plaintiff in the issue,, claiming that the property belonged to him.
    Enlow was the owner of the goods on the 27th of July 1871, and on that day entered into the following agreement with Moritz:—
    ■ * * * “ The said A. W. Enlow, for the consideration hereinafter mentioned, doth agree to and with the said Moritz, by these presents, that he, the said Enlow, will furnish the said Moritz with a team of horses or mules, necessary wagons, gears, &c., necessary for country peddling.
    “In consideration whereof, the said Moritz, &c., do covenant and agree to and with the said A. W. Enlow, by these presents, that he, the said Moritz, &c., shall and will pay to the said A. W. Enlow, weekly, the sum of five dollars, the first payment to commence on the 20th of July 1871, and to be divided into two hundred weekly payments, and the team and wagon and other fixings to belong to and be managed by the said A. W. Enlow until the last of the two hundred payments; furthermore, the said Moritz agrees to keep up all repairs, such as shoeing, mending harness, wagon, and in case a horse or mule dies to replace the same at his own expense. Furthermore, the said A. W. Enlow agrees to relinquish all his right, &c., to the said team and fixtures for peddling to the said Moritz when the last payment is made of the said two hundred, and for the performance of all and every covenants aforesaid each of the said parties bindeth himself to the other in the penal sum of one hundred dollars.”
    On the 10th of June 1873, Moritz confessed a judgment to Klein for $327.40; an execution was issued to September Term 1873, and the goods in controversy, being two mules and harness, in the possession of Moritz under the foregoing agreement, were levied on, and upon the claim of Enlow that they belonged to him this issue was framed.
    It was tried, November 17th 1874, before Stowe, J.
    The plaintiff testified that $3 of the $5 per week were to go as payment of the goods, and $2 per week for their use; Moritz had paid him $210 up to May 26th 1872, and nothing since.
    There was other evidence, on the question of payment in full by Moritz, and as to the ownership of the team, &c.
    The court directed the jury torender a verdict for plaintiff, “subject to opinion of court on question of law reserved, as to whether the article-of agreement in evidence between Enlow and Moritz was such as protected the property therein mentioned in the possession of Moritz from his. execution-creditor, the plaintiff in this case, viz.: whether said agreement was a mere bailment, or a contract of sale.”
    The verdict was accordingly for the plaintiff. Judgment was afterwards entered on the verdict on the point reserved for the plaintiff. This was assigned for error by the defendant, on the removal of the record to the Supreme Court by writ of error.

      Carnahan §• Miller, for plaintiff in error.
    This was a conditional sale to Moritz, and the goods were therefore liable to an execution against him: Rose v. Story, 1 Barr 190.

      F. M. Magee and T. M. Bayne, for defendant in error.
    Where there is a delivery of- chattels on a bailment for a proper purpose, the property of the bailor will be protected against the creditors of the bailee: Myers v. Harvey, 2 Penna. R. 478; Becker v. Smith, 9 P. F. Smith 469; Clark v. Jack, 7 Watts 375; Rowe v. Sharp, 1 P. F. Smith 26; Henry v. Patterson, 7 Id. 346.

       s. p. Crist v. Kleber, antea, p. 290. — Reporter.

   Mr. Justice Woodward

delivered the opinion of the court, January 6th 1876.

While the agreement between Enlow, the plaintiff below, and Casper L. Moritz was in some respects awkwardly expressed, it can scarcely be treated as obscure. Enlow was to “ furnish a team of horses or mules, wagons, gears, &c., necessary for country peddling,” for which Moritz was to pay five dollars weekly unt 1 two hundred such payments should be made. Meantime the property was to “ belong to and be managed by Enlow.” It was then agreed that upon the receipt of the last of the weekly payments, Enlow should relinquish to Moritz his title to the property. On the part of the defendant below, it is insisted that the contract between these parties was a conditional sale, and not a bailment. And it is claimed that the question here is distinguishable from that presented in Rowe v. Sharpe, 1 P. F. Smith 26, because there the original owner had leased the property in terms, while in this case the agreement was to “ furnish” only; and because there the contract embraced a provision for the re-taking of possession by the owner, and a stipulation for the surrender of the property by the lessee, neither of which is contained in this agreement. ■

In the construction of this contract, as of all others, the intention of the parties is to be gathered from all its provisions. The use of such a word as “furnish,” vague as it is in its signification, would leave the clause in which it occurs of ambiguous import if there were nothing beside to indicate the sense in which it was employed. It might imply a sale, a lease, a loan, a gift or a delivery of a chattel in payment of a debt, in accordance with its context and its subject-matter. As used here, it was the manifest intention of Enlow to place certain personal property belonging to him in the possession of Moritz, for the use of which weekly payments were to be made by the latter, and the ownership of which was to vest in him when, and only when, those weekly payments should have been made two hundred times. And it was the manifest intention of Moritz to receive the possession of the property on these precise conditions. The stipulation was expressed that until the payment of the last instalment, the team, wagon and fixtures were to “ belong to and be managed by Enlow,” and then, and not till then, his ownership was to be relinquished. No present interest was created in Moritz by this agreement so as to make the property subject in his hands to the claims of execution-creditors. This is not such a case as that of Martin v. Mathiot, 14 S. & R. 214, where possession was delivered to the vendee in pursuance of a sale actually made, with the condition added that the title to the chattels sold should remain in the vendor until the purchase-money should be paid. It is a case governed rather by the principle in accordance with which Rose v. Story, 1 Barr 190, was ruled, that “ where by a contract the vendee receives a chattel which he is to keep for a certain period, and if in that time he pays for it the stipulated price, he is to become the owner, but if he does not pay the price, he is to pay for its use, the vendee receives it as bailee, and the right of property is not changed until the price is paid.” This was the precise point decided in Clark v. Jack, 7 W. & S. 375, and the same principle has been recognised and enforced in the construction of contracts containing almost an infinite variety of phraseology, in a long line of authorities, embracing McCullough v. Porter, 4 W. & S. 177; Lehigh Co. v. Field, 8 Id. 232; Rowe v. Sharpe, supra ; Henry v. Patterson, 7 P. F. Smith 346, and Becker v. Smith; 9 Id. 469.

The failure in the agreement to give to Enlow express power to regain possession of the property, only left him to his adequate legal remedies; and a stipulation on the part of Moritz to .surrender such possession would have had the effect neither to help nor hinder Enlow in the assertion and enforcement of his rights.

Judgment affirmed.


author: Mr. Justice Williams

text:
    Union Refining and Storing Co. versus Pentecost.
    1. The plaintiff, an auctioneer, was authorized by defendants to have plans of their lots prepared and to advertise a sale; they agreeing to pay expenses of printing, &c.; and on all sales under their advice and consent to pay one per cent, commissions. The plaintiff, advertised extensively and was allowed by the printers a discount from the “ card rateshe charged the plaintiff at the “ card rates.” Held, that he could recover no more than he had actually paid.
    2. Whether the plaintiff was allowed the discount under an arrangement with the printers, embracing all his advertising, or only under a special agreement for the advertisement of the defendants, the discount was no part of the expense of advertising.
    3. Independently of the special authority, the plaintiff being the agent of defendants, was bound to procure advertising on the best terms he could for the defendants.
    4. Settling the bill at a discount for his own benefit was in direct violation of his duty as agent and a gross fraud on the defendants.
    5. The declaration was in the common money counts; the defendants had paid for some advertising after suit. Held, that he could not recover for such payments.
    November — 1875.
    Before Agnew, O. J., Sharswood, Williams, Merctjr, Gordon, Paxson, and Woodward, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county : Of October and November Term 1875, No. 267.
    This was an action of assumpsit, brought December 2d 1874, by A. J. Pentecost against The Union Refining and Storing Company.
    ' The foundation of the claim of the plaintiff, who was an auctioneer, was the' following paper:—
    “ Pittsburgh, Sept. 17th 1874.
    “ A. J. Pentecost, Dear Sir:
    •“ You will please go on and have plans of part of our property on Herr’s Island, say about 43 lots, printed; also advertise sale for Sept. 28th. -We agree to pay expenses of printing and surveying, and on all sales made for us under the advice and consent of our committee, we agree to pay you a commission of one per cent.
    Yours truly,
    Union Refining and Storing Co.
    By Jos. Kirkpatrick, President.”

      The plaintiff’s affidavit of claim was for an indebtedness of $1272.79, for commissions on sale of real estate, expenses of printing and other expenses.
    The account accompanying the affidavit contained bills paid for advertising in nine newspapers, amounting to $1809,62, commissioners at one per cent ón sales, $20.52, also crying sales and other expenses; the whole bill amounted to $1402.79, on account of which $180 had been paid. The declaration was in the common money counts.
    The case was tried April 8th 1875, before Collier, J.
    The plaintiff testified in support of his claims.
    On cross-examination he said that on account of his large amount of advertising, discounts of 25 per cent, or more from the ordinary “ card rates ” of advertising were allowed him by the printer, and that he charged the defendants at what were the ordinary rates. Some of the bills were paid after the commencement of this suit.
    The following are points of the defendants: they were refused.
    2. Defendants are not obliged to pay to the plaintiff more than he actually paid himself for advertising. Any discount allowed to him on the bills for this expense is for the benefit of the defendants, and plaintiff cannot recover the amount of this discount from defendant.
    3. Plaintiff cannot recover in this action for any money paid by him for defendants since the bringing of the suit.
    The verdict was for the plaintiff for $1294.79.
    The defendants took a writ of error and assigned for error the refusal of their points.

      T. Q. Lazear, for plaintiffs in error.
    The plaintiff was defendants’ agent. In all cases where a person is either actually or constructively an agent for others, all profits and advantages made by him in the business beyond his ordinary compensation are for the benefit of his employers: Story on Agency, sec. 211; Paley on Agency 37; Campbell v. Penn Life Ins. Co., 2 Wharton 64 ; Bartholomew v. Leach, 7 Watts 472 ; Minnesota Central Railroad Co. v. Morgan, 52 Barb. 217. Even if this be sanctioned by usage, such a usage has been stigmatized as a usage of fraud and plunder: Story on Agency,, sec. 207; Diplock v. Blackburn, 3 Camp. 44; Reed v. Norris, 2 M. and Craig 361; 1 Story’s Eq. Jur., sec. 321; Prevost v. Gratz, 1 Peters’ C. C. Rep. 364. The principal would not be liable, although the debt was contracted in the agent’s own name: Story on Agency, sec. 446. To sustain the money counts, the plaintiff must prove that at the time he sued he had paid the money: 1 Chitty’s Pl. 383; 2 Greenl. on Ev., sect. 113.

      j’dodgers Oliver, for defendants in error.
    Mere gratuities to agents in the course of business do not belong to the principal: Ætna Ins. Co. v. Church, 21 Ohio 493. Under the authority to the plaintiff he might recover ordinary rates : Moore v. Remington, 34 Barb. 429 ; Miller v. Tate, 12 La. Ann. 160.
   Mr. Justice Williams

delivered the opinion of the court, January 6th 1876.

'It is difficult to-perceive on what principle of law or morals the plaintiff was allowed to recover the full amount off the bills for advertising the defendants’ property. They were made out at card rates and settled, as the evidence shows, at a discount of about 25 per cent. Whether the discount was allowed under a general arrangement, embracing all the advertising ordered by the plaintiff in the course of his business as auctioneer, or under a special agreement, including only the advertising done for the defendants, is wholly immaterial. In either case, it constituted no part of the expense of advertising, and the plaintiff had no right to treat it as so much money paid, and recover it of the defendants. All that he can justly claim under his contract with the defendants is the amount which he paid for advertising.

But apart from the contract, the plaintiff had no right to recover the amount of the bills. He was the defendants’ agent, and it was his duty to precure the advertising on the. best terms he could, for the benefit of the defendants. He could not contract for the advertising at card rates as the defendants’ agent, and settle the bills at a discount for his own benefit. Such a transaction would be in direct violation of his duty as agent, and a gross fraud on the defendants.

In no aspect of the case is the plaintiff entitled to recover more than he paid for the advertising; and it needs no argument to show that under the common counts all that he can recover is the amount actually paid at time suit was brought. It follows that the court below erred in refusing to charge as requested in defendants’ second and third points.

Judgment reversed and venire facias. de novo awarded.


author: Chief Justice A shew

text:
    Elkins, Bly & Co. versus McKean.
    1. In a suit against a refiner and vendor of petroleum for the death of plaintiff’s husband, alleged to have been caused by the explosion of the oil, the allegation' and evidence of plaintiff were that the oil exploded in a lamp in his hand whilst he was walking quietly ; the defendant’s allegation and evidence were that the death was caused by his tripping and falling with the lamp in his hand. In charging, the court said, “ Was the death occasioned by the explosion at the time and in the manner claimed by the plaintiff? In regard to this there can be no doubt whatever.” Held to be error; whether the death was caused by the explosion as alleged by the plaintiff was for the jury.
    2. The declaration averred that the defendants wilfullly sold the oil for lighting purposes, “ knowing that it was highly inflammable, explosive and unsafe,” &c. There was evidence that the oil had been sold by defendants, but none that the sale was with wilful knowledge of its dangerous character: Hdd to be error to submit the case to the jury.
    3. Statements as to the cause of the accident made by the deceased at and about the time of its occurrence, whilst he was covered with fire, were competent evidence as part of res gestos.

    4. The fact that the oil had passed through a number of intervening vendors before it was procured by the deceased, would not prevent a recovery against the defendants, if their guilty knowledge and the identity of the oil were established.
    5. The responsibility of the manufacturers would attach from their putting the oil on the market and holding out that it might be safely used as illuminating oil.
    November — 1875.
    Before Agnbw, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1875, No. 65.
    This was an action on the case to April Term 1878 of the court below, brought by Elizabeth McKean against George W. Elkins and others, trading as Elkins, Bly & Co.
    There were three counts in the declaration:—
    1. That defendants were manufacturers and vendors of carbon oil for illuminating purposes; that James A. McKean, the husband of plaintiff, purchased a quantity of oil to be used in a lamp ; that defendants, knowingly, wilfully and of their mere negligence, manufactured and sold, for illuminating purposes, oil that was highly inflammable, explosive, unsafe and dangerous, knowing it to be such; that James A. McKean purchased the same, and whilst using it in a lamp in a proper and prudent manner, the oil exploded and caught fire, the burning oil was scattered over Mc-Kean and so burned him that he died.
    2. That the defendants being such manufacturers and vendors of oil, did knowingly, fraudulently and maliciously put upon the market, &c., certain carbon oil, representing it to be of a safe and reliable quality of the fire test of 110°, well knowing that the oil so sold by them for illuminating purposes was in fact highly inflammable, explosive and dangerous; that McKean, relying upon these representations, purchased from vendees of the defendants a quantity of the oil, and whilst using it in a lamp, the oil took fire and exploded the lamp, he was burned and died from the burns
    3. That the defendants being manufacturers of such carbon oil, put upon the market oil, and sold a certain carbon oil marked as 110° fire test; that it was the duty of the defendants, their agents and servants, to take reasonable and proper oare that the oil should be safe and not inflammable or explosive, or give notice that it was thus dangerous, yet they knowingly, carelessly, and negligently sold the oil, knowing it to be unsafe and dangerous; that McKean, in the course of trade, purchased the oil from those to whom the defendants sold it, not knowing that it was dangerous, and in using it he was burned, and died.
    The plea was, “Not Guilty.”
    The case was tried December 1st 1874, before Kirkpatrick, J.
    The plaintiff testified that her husband, on Tuesday the 11th of February 1873, went into his cellar to turn off the water, having a lighted lamp in his hand; it was an opaque white glass lamp with a blue rim; after he had been in the cellar about ten minutes, witness heard cries for help and went to the cellar; she saw him on fire, his clothes burned; he was in the cellar about midway between where the water was to be turned off and the stairs ; the lamp was still burning; he died the next day. The eil had been purchased by McKean on the preceding Saturday.
    It was proposed to ask the witness what her husband said as to the cause of the accident at or within a few moments of the time when she found him covered with flames in the cellar and apparently dying, as a part of the res gestae and with a view to show that the burning and death were caused by the explosion of the oil in the lamp carried by the deceased, and to establish its defective and dangerous character.
    Defendants objected to the offer as irrelevant and incompetent for the purpose set forth in the offer. The evidence was admitted and a bill of exceptions sealed for the defendants.
    Witness proceeded: “ I asked him how it happened; I asked him if he had tripped on anythimg. This was in the cellar, when I went down. He said he had not; that he was walking along the cellar calmly and peaceably and'he heard a noise, and before he could realize what it was, the whole top flew off the lamp and the oil came down all over him.
    The coroner of Allegheny county testified that he was present at a test made of illuminating oil, which he procured for the purpose after the accident occurred, at the store of Steele & Hart; it was furnished by Mr. Steele himself from a tin can; it was put into a “ pop-bottle; ” there was a boy in the store at the time. He testified also that the lamp was, at the coroner’s inquest, proved to be that which McKean had, and in which the oil exploded ; that it was a white lamp with a blue streak around it.
    The fire marshal of Pittsburg accompanied the coroner to procure the oil for the test; he testified as the coroner had done.
    Robert Fedder, the boy spoken of by the coroner as being in Steele & Hart’s store, testified that in February 1873, McKean bought oil at that store; the witness sold it to him; he filled a lamp, such as is described above, and such an one as he also saw at the coroner’s inquest; he got it from a can in the store, used for holding oil; Steele & Hart had bought the store from Caskey, and the oil that was in the can was bought from them, with the rest of the store; when the coroner and the fire marshal got the oil for a sample from Mr. Steele, it was taken from the can, which was the only can they had in the store; there had been no oil put into the can from the time he had filled McKean’s lamp, up to the time the oil had been given to the coroner; it was the same oil that was in the can when Steele & Hart took the store; there was one oil barrel in the store, but it had no oil in it; the barrel came from Caskey’s; the brand “Elkins, Bly & Co.,” and “110° fire test,” was on the barrel; the oil that was in that barrel was put into the can, and no other oil had been put into the can for about two or three weeks before he filled the lamp. Steele & Hart had no oil in the store but that which they bought from Caskey; they bought Caskey out about the 16th of January.
    Samuel Steele, of the firm of Steele & Hart, testified: that the firm purchased W. J. Caskey’s store on the 16th of January 1878, and amongst other things about thirty gallons of oil in a large tin can; they had purchased from Caskey no oil in barrels; none except that in the can; shortly after McKean’s death, witness gave to the coroner oil out of the tin can; there was but one tin can ; he gave him a “ pop-bottle” full; witness had purchased a barrel of oil from Arbuckle & Co,, on Monday the 10th of February, the day before McKean was burned; the oil he gave to the coroner was from this barrel, and not from that which he had got from Caskey; that which was got from Arbuckle & Co. was put into the tin can; witness knew nothing of the oil the firm got from Caskey, except that it was in the tin can ; the can was empty when Arbuckle’s oil was put into it; witness put the oil they got from Arbuckle & Co. into the empty barrel, and returned to Elkins, Bly & Co.; the oil given to the coroner was Elkins, Bly & Co.’s Riverside oil; witness did not know anything of the oil that had been in the can previously to that which he put in from the barrel bought from Arbuckle & Co. Neither this witness nor his partner, Hart, who was examined, could tell the brand on the oil barrel which they got from Caskey; that barrel was empty when they got it.
    J. M. Torrence, salesman for Arbuckle & Co., testified: On or about January 11th 187-3, that firm sold oil to Caskey; it was the Riverside brand, manufactured by Elkins, Bly & Co.; the brand on the barrel was “ Elkins, Bly & Co.;” the name of the oil would be carbon oil; it was called Riverside oil; .that was the name of the refinery. The fire test at that time for Pennsylvania was 110°, and it was marked on the barrels ; no oil was sold to Caskey after January. Steele & Hart bought a barrel February 10th. Witness took the inventory of Caskey’s goods at the time of his sale to Steele & IJart; he then saw a barrel there in the cellar, but did not examine if there was oil in it; he saw the tin can from which they retailed upstairs ; the oil purchased by Arbuckle & Co. and sold to Caskey and Steele & Hart, was purchased from Elkins, Bly & Co.; Arbuckle & Co. never drew the bungs; they sold the oil as they received it in perfect confidence, relying on the manufacturers. All the recollection of the witness was from the entry in the book, and he inferred that it was the Riverside brand, because they kept no other. “ They may have bought that barrel of oil from somebody else, but our books show a sale of a barrel of oil. I don’t claim to have any personal knowledge of the sales at all.” Witness did not know that the Arbuckles bought from Elkins, Bly & Co., except by the books ; Arbuckles bought directly from the manufacturers. Oil the Arbuckles would sell in January, and that they would sell in February would not come from the same lot. The way they purchased oil from Elkins, Bly & Co., was to buy a lot and take it away as they needed it; all their oil was bought from Elkins, Bly & Co.
    ' W. J. Caskey testified : that in January 1873, he sold his store to Steele & Hart; amongst other things about one-third of a barrel of oil in a tin can; the -oil was purchased from Arbuckle & Co.; he did not recollect the brand of the oil; on the day after the death of McKean he was at Steele & Hart’s store, and saw some oil taken out of the can ; the oil was tested in the way'they usually tested it, by drawing a match on it; it ignited; he had often done that before and it put the match out; witness could not tell whether that was the same oil he had sold to Steele & Hart; witness had been getting oil from different places ; the last few barrels he had got from Arbuckles ; he bought most of his oil from Arbuckles; he had frequently tested the oil he got from Arbuckles by a match, and it put it out; what he got from Arbuckles always stood the test.
    Plaintiff proposed to show by J. R. Neald, United States Inspector of Steamboats, the tests applied (and their results) to the oil obtained from Coroner West and Fire Marshal Butler, which they obtained from Steele & Hart, alleged to be part of the same .sold by them to deceased, and manufactured and sold by Elkins, Bly & Co., defendants, to the said Steele & Hart, and this to prove that the oil manufactured and sold by them, by which deceased .came to his death, was defective and dangerous.
    The defendants objected to the offer.
    Because the plaintiff has proved in chief that' the oil subjected to test was not the same oil which was in the lamp alleged by her to have exploded and caused the injuries complained of.
    The objection was overruled and a bill of exceptions sealed for defendants.
    •The plaintiff gave other testimony in support of her case, not bearing on the question whether the oil in McKean’s lamp had been manufactured and sold by defendants as safe illuminating oil.
    For defendants, Emma Bear testified, that at the time McKean was burned, his wife came up out of the cellar, saying her husband had tripped over a piece of wood and fallen.
    The defendants gave evidence also for the purpose of showing that the oil by which McKean was injured was not'oil sold by defendants as safe illuminating oil, and that the oil tested for the coroner’s inquest was not the oil from which McKean had procured that used in his lamp.
    The court charged:—
    * * * [“The first question will be, Was the death of James B. McKean occasioned by the explosion at the time and in the manner claimed by plaintiff? In regard'to this there can be no doubt whatever.]
    “ The next question will be, Was the identical oil which caused his death manufactured and sold by defendants as claimed by plaintiff? If it was not, there can be no recovery and your verdict must be-for the defendants; the burden of showing to your satisfaction that it was the identical oil, rests upon the plaintiff; she having alleged it, the burden of proof is upon her. If you should get beyond this question, the next one which presents itself, and possibly the most important question in the ease is, Did the defendants wilfully and maliciously put it upon the market, knowing it, as she alleges in her declaration, to be unsafe, explosive, dangerous, and unfit for illuminating purposes; because if they did not, under these allegations contained in this declaration or statement of her cause of action, there can be no recovery, and your verdict must be for the defendants. Here again, too, we must remind you the burden of proof is upon the plaintiff, and the necessity of satisfying you in this important particular is a labor which the law wisely imposes upon her, and from which she cannot escape. If she has not so satisfied you, as I have already intimated, there can be no recovery, and your verdict must be for the defendants.”* * *
    The following are points of defendants ; they were all refused :
    2. “ If the jury find that the oil in controversy was sold in large quantity to Arbuckle & Oo. by the defendants, Elkins, Bly & Oo., by Arbuckle & Oo. to W. J. Caskey, by W. J. Caskey to Steele & Hart, and by Steele & Hart to the deceased, the plaintiff cannot recover in this action.”
    3. “ There is no evidence in this case which would justify the jury in finding that defendants knowingly and wilfully sold the oil, and that it was highly inflammable, unsafe and dangerous.”
    6. “ Under the pleadings and evidence, the plaintiffs are not entitled to recover.”
    The verdict was for the plaintiff for $3500.

      The defendants took a writ of error ; they assigned for error:
    1. Admitting evidence of the declarations of the deceased.
    2. Admitting evidence of the tests applied by the coroner’s inquest.
    3. The part of the charge in brackets.
    4-6. The answers to defendants’ points.

      Duff if Leggat and Marshall ¿f Patterson, for plaintiffs in error.
    The action for McKean’s death could be sustained only against those who sold the oil to him. If it had not been for the intervention of. a third party, the defendants’ negligence would have produced no injury to McKean ; the defendants therefore are not liable: Wharton on Negligence, sects. 134, 439, 440; Loser v. Clute, 51 N. Y. Rep. 494 ; Pennsylvania Railroad Co. v. Kerr, 12 P. F. Smith 353; Carter v. Town, 103 Mass. 507.

      W. O. Crawford, A. L. Pearson and W. D. Moore, for defendant in error.
    The persons who manage dangerous agencies by which others may be injured are responsible for negligence : Wharton on Negligence 781, 786; although there maybe intervening agents: Norton v. Sewall, 106 Mass. 507; Thomas v. Winchester, 2 Selden 397 ; Dixon v. Bell, 5 M. & S. 198; Carter v. Town, 98 Mass. 567; Oil Creek & A. R. Railway v. Keighron, 24 P. F. Smith 316; Barney v. Bustenbinder, 7 Lansing 210. If one sells a dangerous and explosive fluid without giving notice of its character to a person ignorant of such character, he is liable: Wellington v. Downer Ker Oil Co., 104 Mass. 64. As to remote and proximate cause they cited Morrison v. Davis, 8 Harris 175 ; Lockhart v. Lichtenthaler, 10 Wright 164; Scott v. Hunter, Id. 195; Fleming v. Beck, 12 Id. 313; Pittsburg v. Grier, 10 Id. 54; McGrew v. Stone, 3 P. F. Smith 441; Pennsylvania Railroad Co. v. Kerr, 12 Id. 367.
   Chief Justice A shew

delivered the opinion of the court, January 6 th 1876.

This was an action by the widow of James McKean against Elkins, Bly and Co., manufacturers of refined petroleum or carbon oil. McKean died of burns received, either from the explosion of a lamp carried in his hand, or from a fall breaking the lamp and setting the oil on fire. The action was founded on the allegation that the defendants wilfully made and sold the oil for lighting purposes, knowing that it was highly inflammable, explosive and unsafe, and therefore unfit for use as a light. The case went to the jury distinctly on this proposition, the judge having charged in these words: “ If you should get beyond this question (to wit, the identification of the oil as made by the defendants), the next one which presents itself, and probably the most important question in the ease, is, Did the defendants wilfully and maliciously put it upon the market knowing it to .be, as she alleges in her declaration, unsafe, explosive, dangerous and unfit for illuminating purposes ? because if the}*- did not, under these allegations contained in this declaration or statement of her cause of action, there can be no recovery, and your verdict must be for the defendants.” According to this instruction no question of mere negligence, in putting the oil upon the market, arose or was presented to, the jury ; but their verdict of necessity must be founded upon the evidence of a wilful sale of such unfit oil, with a full knowledge of its inflammable and explosive character. Upon this precise statement the fifth and sixth assignments of error arise, that the court refused to say there was no evidence which would justify the jury in finding that the defendants knowingly and wilfully sold the oil, and that it was highly inflammable, unsafe and dangerous; and also that under the pleadings and evidence the plaintiff was not entitled to recover. Upon a careful review of the whole evidence there appears to be .none to justify the submission of the fact of the wilful sale by the defendants of ■ such an explosive and unfit oil for burning purposes with such a wilful and malicious knowledge as that set forth in the instruction. Indeed there is no evidence what the precise business of Elkins, Bly & Co. was — • what they manufactured, or what they sold; or that the oil in question coming from their house was sold as illuminating oil. That they made and sold illuminating oil appears from the barrels bearing their name, and the fire test, 110°, marked upon them, and from the testimony of J. M. Torrence; but that their business was confined to this branch alone does not appear. The contrary may well be inferred from the nature of the business of distilling crude petroleum in which various products are given off, used for different purposes. That the oil in the can'out of which Steele & Hart filled McKean’s lamp came from the manufactory of the defendants, may also be inferred from the evidence; but that this particular oil was sold by them as illuminating oil appears nowhere. The only testimony tending to identify the purchase of this oil, as from the defendants, is that of J. M. Torrence, the salesman of Arbuckle & Co., who sold the oil to Caskey. But Torrence does not undertake in the slightest degree to identify the sale of this particular oil, or to state for what purpose it was sold by the defendants, or to prove facts which would show that if it was the same oil, it was not delivered through accident, but must have been an intentional sale for lighting purposes of a product known by them to be below the proper fire test. The sum of his testimony is that Arbuckle & Co. were in the habit of buying large quantities at a time of oil in barrels, and having it delivered in small quantities to suit their sales, and that the books of Arbuckle & Co. show the sale of a barrel of oil to Caskey on the 11th or 12th of January 1873. But Caskey testifies that he frequently tried the oil bought of Arbuckle & Co., and found it always to bear the proper test. The only oil which did.not bear the test was that found in the can a day or two after McKean’s death, and whether this was the same oil with which McKean’s lamp was filled is left to depend upon the contradictory testimony of Steele and the boy Fedder, as to when the new barrel of oil was pumped into the can by Steele. And if it were the same, we are still met by the difficulty that there is no evidence that this particular oil was sold by Elkins, Bly & Co- for illuminating purposes. It may have been sold in a mistake, or may not have been, sold as bearing the fire test of 110°, but as one of their other products. Thus, upon the whole evidence, the turning fact of the case, viz.: a sale of this oil for illuminating purposes, with a guilty knowledge of its unfit and explosive character, is wanting in order to support the submission of the fact to the jury. This must reverse the judgment.

The judgment must be reversed also on the third assignment of error, though I am inclined to believe it was an error of inadvertence. “ The first question (said the judge) will be, was the death of James B. McKean occasioned by the explosion occurring at the time, and in the manner claimed by the plaintiff ? In regard to this there can be no doubt whatever.” But if the testimony of Mrs. Emma Bear be believed (and it was for the jury to determine this), McKean’s death was the result of his tripping over a piece of wood in the cellar, in consequence of which he must have fallen and broken his lamp : and was not the result of a mere explosion of the gas in the lamp. The fact of such an explosion stood at the very threshold of the case, and in the face of this contradictory evidence it was too strong an affirmation of the fact, to tell the jury there could be no doubt that McKean’s death was occasioned by the explosion at the time, and in the manner claimed by the plaintiff. There is no doubt that his death -was caused by the burning oil at the time and place claimed by the plaintiff, and this is probably all the learned judge meant. But we must take the record for our guide, and when he said there was no doubt that the death was caused by the explosion in- the manner claimed by the plaintiff, he asserted too strongly, in view of the contradictory evidence.

The other assignments of error are not sustained. What Mc-Kean said as to the cause of the accident when found enveloped in the flames of the oil, or within a few minutes afterwards, was clearly competent evidence as a part of the res gestee. This is so fully reasoned out and sustained in the following cases, that nothing can be said to make it plainer : Tompkins v. Saltmarsh, 14 S. & R. 275; Deardorff v. Hildebrand, 2 Rawle 226; Cattison v. Cattison, 10 Harris 275. The case of Fawcett v. Bigley, 9 P. F. Smith 411, was decided on a different principle. That was an attempt to make the narration of an agent of a past transaction evidence against his principal, and was not competent. It was especially so when the agent had an adverse interest to relieve himself by his statements of the consequences of his own negligence.

As to the second assignment of error, the reason given for excluding the evidence of the tests applied to the oil was unfounded. On the question of the identity of the oil in the can to which the tests were applied, the testimony of young Redder and Steele were in direct contradiction. If Fedder were believed, Steele did not pump the new barrel of oil into the can until after the oil had been taken out which was the subject of the tests. The case must of necessity have gone to the jury on the facts.

Nor can the fourth assignment of error to the refusal to affirm the defendants’ second point be sustained. The substance of that point is, that after the oil had passed from the defendants in large quantities to Arbuckle & Co., and from them in smaller quantities to Caskey, and from Caskey to Steele & Hart, who sold the lampful to McKean, there can be no recovery. The argument in support of this point is founded upon the alleged successive intervening liabilities of the persons through whose hands the oil had passed. But this proposition is unsound as a legal defence. The number of hands through which the oil had passed might furnish a strong argument on the question of indentity, and the guilty knowledge of Elkins, Bly & Co. as to this particular oil, but could not constitute a legal bar to recovery, if the identity of the oil and the guilty knowledge were made clear. Certainly one who knowingly makes and puts on the market for domestic and other use, such a death-dealing fluid, cannot claim exemption from liability for his terrible wrong, because he has sent it through many hands. The length of its passage may create a doubt of its identity, or that it was sent on its mission of destruction with a full purpose and knowledge of its dangerous qualities, hut the facts being established,' he cannot escape the consequences of his crime against society. The maxim, qui facit per alium facit per se, applies as clearly as other maxim, sic utere tuo ut alienum non Icedas. When the article is thrown into the current of trade on the faith of the affirmation of its manufacturers that it is a fit oil for light, and can be safely used in the family, or where it maybe required for illumination, they cannot follow it, or avert its injuries, or determine how much of the responsibility is due to others. This is made more manifest by the testimony of Mr. Torrence, the salesman. He said: “ We never draw the bungs. We sell the oil in perfect confidence, relying on the manufacturers. We sell it as we receive it.” And so it may pass onward to the last person who retails it in the same confidence. A manufacturer who sells his product as an illuminating oil bearing the high and safe fire test of 110°, when in fact he knows that its fire test will not exceed 64 or 65 degrees of Fahrenheit, and that this is a most explosive and unsafe oil for domestic use, can plead nothing in defence of this wilful, terrible wrong done to a confiding community. He bears within him a heart regardless of social duty, evidencing malice in its legal sense in a high degree. But while the circuit through which the oil has travelled may be insufficient as a legal bar, proof which sustains the fact of a guilty knowledge should be clear in proportion to the great wrong thus charged against one who may be innocent. We have already said that the evidence offered in support of the guilty knowledge in this case was insufficient to be submitted to the jury.

Judgment reversed, and a venire facias de novo awarded.

Williams, J., concurred in the reversal of this judgment on the third assignment of error, but would not concur on the fifth and sixth assignments.