author: Mr. Justice Trunkey

text:
    Wilgus versus Whitehead.
    1. A verbal agreement modifying a contract under seal, is valid when such agreement is for a new consideration and not within the Statute of Frauds.
    2. Where a tenant is in possession under the terms of a lease under seal, and his landlord, at the tenant’s request, agrees with him to change the time of the payment of the rent from the beginning to the end of the month, the landlord will be held to have waived the strict performance of the contract, and the tenant will not be bound to pay any month’s rent until the end thereof.
    February 12th 1879.
    Before Sharswood, C. J., MeRcur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1876, No. 270.
    Replevin by Edwin C. Wilgus against William. W. Whitehead. Defendant avowed for rent in arrear.
    On May 6th 1866, Whitehead demised to Wilgus, by a lease under seal, certain premises for one year, at a monthly rental of $20, payable in advance. The lease contained a provision “that if Wilgus should continue on the premises after the termination of th'e contract, then this contract is to continue in full force for another year, and so on from year to year until legal notice is given for a removal.”
    The plaintiff remained in possession of the premises and paid the rent as usual until March 1873, when, as plaintiff alleged, and evidence was offered on his behalf to show, he had asked defendant to make a change in the terms of the lease in regard to the time for the payment of the rent for the ensuing year, so that the same should be payable at the end of the month instead of in advance, and that defendant had assented to such change.
    On the 10th of April 1874, defendant distrained the plaintiff’s goods for the month’s rent falling due on the 6th of May, and removed the same, whence this suit. The plaintiff contended that there was no rent due at the time of this distraint.
    The court, Mitchell,'J., charged'the. jury:
    “ That the alleged parol agreement made in the month of March 1873, between the defendant and the wife of the plaintiff, she acting in behalf of her husband, by which the payment of the rent in advance was charged and made payable at the end of the month during which the same accrued, was not sufficient to alter the terms of a sealed lease, as there was no consideration for it, the tenant being already bound by his lease for another year upon the terms of the lease. The verdict, therefore, must be for the defendant.”
    The verdict was for defendant. The plaintiffs took this writ and assigned this charge for error.
    4. L. Hennershotz, for plaintiff in error.
    The relation of landlord and tenant existing between the parties under a sealed lease is a sufficient consideration for a parol agreement: Coe v. Hutton, 1 S. & R. 408; Whitehill v. Wilson, 3 P. & W. 412; Wilhelms. Caul, 2 W. & S. 26; Preston v. Einney, Id. 55; Lampleigh v. Brathwait, 1 Sm. Lead. Cas. 280; Babcock v. Wilson, 5 Shepley 372; Philpot v. Gruninger, 14 Wall. 577.
    A parol agreement to change the time of the payment of the rent under a sealed lease is not such an alteration of the instrument as to destroy its'character as a specialty: Jordan v. Cooper, 3 S. & R. 579; McCombs v. McKennan, 2 W. & S. 216; Lawall v. Rader, 2 Grant 426; Taylor v. Winters, 6 Phila. R. 126; Mc-Manus v. Cassidy, 16 P. E. Smith 263.
    A tenant holding over is not required to give three months’ notice of intention to quit: Cook v. Neilson, 10 Barr 41; Goldsmith v. Smith, 4 Phila. 31.

      David Tim and Id. D. McLoughlin, for defendant in error.—
    The agreement was for the benefit of the lessee alone, and was nudum factum: Taylor v. Winters, 6 Phila. R. 126.
   Mr. Justice Trunkey

delivered the opinion of the court, March 3d 1879. •

The lease was made on the 6th May 1866, for the term of one ye^r from that date, with a covenant that “this contract is to continue in full force for another year, and so on, from year to year, until legal notice is given for a removal.” Rent was to be paid monthly in advance. The lessee continued on the premises till May 1874, under said lease, as claimed by the lessor, but the lessee claims that the last year was under a parol contract. As the cause is presented it must be considered as if the parties, in March 1873, agreed to make a change in the lease for the coming year, in regard to time for payment of rent, so that it should be payable at the end of the month, instead of in advance. The learned judge instructed the jury that the alleged parol agreement was not sufficient -to alter the terms of a sealed lease, as there was no consideration for it, the tenant being already bound by said lease for another year. To that the plaintiff excepted, and the sole inquiry is, is the new agreement void for want of consideration ?

That the tenant, in March 1873, was bound for another year, commencing in the following May, is a proposition not wholly free from doubt. Perhaps it is well to leave it without now considering the effect of the judgment of the District Court in Cook v. Neilson, 10 Barr 41, that the tenant is not bound to give notice of his intention to quit, at the end of the current quarter, which was affirmed by equal division.

Yerbal agreements, made between the parties, before or at the time of the execution of a written contract, are considered as merged therein, and in general are inadmissible to vary its terms. But an oral agreement, subsequently made, on a new consideration, and before the breach of the contract, in cases falling within the general rules of the common law, and not within the Statute of Frauds, may have the effect to enlarge the time of performance specified in the contract, or may vary any other of its terms, or ' may waive and discharge it altogether, and thus make a new contract : Emerson v. Slater, 22 Howard 28; Munroe v. Perkins, 9 Pick. 298.

In an action upon a written contract to deliver specific articles at a'particular time and place, parol evidence is admissible to prove that, after the making of the original contract, the parties agreed that the articles should be delivered at a different time and place. At least such parol agreement will amount to a waiver of a tender at the time or place mentioned in the original contract: Robinson v. Bachelder, 4 N. H. 40. See McComb v. McKennan, 2 W. & S. 216; Keating v. Price, 1 Johns. Cas. 22. In these, and like cases, no consideration appears in the oral agreements, other than the mutual promise that the time or place of performance should be changed. The written contracts, thus altered, continued in force, and performance, or tender of performance, when and where orally agreed upon, was a good defence. The principle seems to be that the party entitled was held to a waiver of the performance, as required by the written contract, lest its enforcement would operate as a fraud upon the other.

The time for the performance of the condition of a sealed, as well as a simple contract, may be enlarged by parol. Indeed, the enlargement of time is nothing more than a waiver of strict performance : Dearborn v. Cross, 7 Cowen 48; Munroe v. Perkins, supra. In the latter case, the plaintiff, by an agreement under seal, had agreed to erect a building at a fixed price, which was not an adequate compensation, and having done part of the work, refused to proceed, but on an oral promise by the defendant that he should be paid for his labor and materials, and should not suffer, he went on and finished the building, and it was held that he was entitled to recover upon the parol promise in assumpsit. The court say, “ The parol promise, it is contended, was without consideration. This depends entirely on the question, whether the first contract was waived. The plaintiff having refused to perform that contract, as he might do, subjecting himself to such damages as the other parties might show they were entitled to recover, he afterward went on upon the faith of the new promise and finished the work. This was a sufficient consideration.”

We come to the conclusion that the alleged parol agreement between Wilgus and Whitehead, was not void for want of consideration. The tenant sought more favorable terms than the written lease, to which the landlord agreed. It is presumable that this contract was the inducement for his continuing upon the premises another year. It was made before the end of the term, and the fact of making it evidences that the landlord waived notice of the tenant’s intention to quit, at the end of the year, and dealt with him accordingly. Notice to quit need not be under seal, nor in writing. It may be waived; and the making a new contract is an act of waiver equivalent to its expression in very words. If the lease would have ended on the 6th of May then next, because of notice given, there could be no question of the validity of the parol contract. It was competent for the parties to contract as if the notice had been given, or as if for any cause the lease would end, and if they did so, it is bad faith for either to deny the validity of the new agreement.

Judgment reversed, and a venire facias de novo awarded


source: Caselaw Access Project

author: Per, Curiam.

license: Public Domain

text:
    Callan versus Lukens.
    1. To materially vary or contradict a written contract by evidence of a contemporaneous parol agreement, it must be alleged that the contract was executed on the faith of the parol agreement.
    2. There is no rule that a supplemental affidavit of defence is to be confined to an explanation of the original, and cannot set up a new and different defence; such a course, however, is suspicious and requires that the new defence should be closely scrutinized.
    February 12th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1878, No. 157.
    Covenant sur ground-rent deeds by Reuben Lukens, Jr., against Samuel Callan. The terre-tenant, one Calvert, filed an affidavit of defence, wherein he averred that on the 17th of August 1876, a building agreement was executed by plaintiff, defendant and deponent, wherein title to a property was vested in deponent, subject to certain ground-rents, which had been reserved in a prior conveyance to defendant; that under said agreement, deponent had erected certain houses for which he was to receive certain advances in accordance with said agreement; that deponent had receipted for the full amount due him, said receipt having been obtained by fraud and misrepresentation; that by reason thereof deponent was unable to finish said buildings, and lost by rents alone almost twice as much as would have paid the ground-rents. A rule for judgment for want of a sufficient affidavit of defence having been taken, the court ordered a supplemental affidavit to be filed, which was accordingly done, wherein it was averred that on the day the agreement ivas signed the deponent observed that the conditions'in regard to the payments were not properly stated, and demanded an additional clause should be inserted; that plaintiff alleged that it could not then be conveniently done, and as all the parties Avere present, if deponent would permit the papers to be executed, the payments should be arranged to his satisfaction. It was further averred that the walls of the building were not in the condition represented by plaintiff, and that at the instance of plaintiff, deponent had incurred additional expense in repairing them not contemplated by the agreement; and further that plaintiff had charged deponent $14 more for insurance than had been agreed upon.
    The court entered judgment for want of a sufficient affidavit of defence, Avhen the terre-tenant took this writ, alleging that this action was error.

      Thomas J. Diehl, for plaintiff in error.
    The defendant was entitled to set up the claims disclosed in his affidavit of defence against that of plaintiff: Act 1705, 1 Sm. Laws 49, 1 Purd. Dig. 487; Carman v. Franklin Ins. Co., 6 W. & S. 155; Speers v. Sterrett, 5 Casey 192; Hunt v. Gilmore, 9 P. F. Smith 450; Ellmaker v. Franklin Ins. Co., 6 W. & S. 439 ; Fairman v. Fluck, 5 Watts 516; Mangle v. Stiles, 7 Casey 72. The ground-rent deeds were created Avith a reference to the building agreement, and Avere it not expressly mentioned to be so in the agreement, the evident intention of the parties Avould leave little room for uncertainty upon this subject.

      .Joseph M. Pile, for defendant in error.
    The province of a supplemental affidavit is to explain or define, when from the affidavit filed “ the defence is set up in terms so general that the court cannot determine from the facts whether a defence exists:” 1 Tr. & H. Pract. 381.
    The paper filed should, it is contended, have been stricken from the record. It supplied no defects and defined and explained nothing Avhich was defectively averred in the first affidavit.
   The judgment of the Supreme Court was entered March 17th 1879,

Per, Curiam.

We cannot agree with the learned counsel of the defendant in error, that a supplemental affidavit is confined to an explanation of the original and cannot set up a new and different defence. Such a course, however, is suspicious and requires that the new defence should be closely scrutinized. The original affidavit in the case before us was evidently drawn by the plaintiff in error, himself, or some unprofessional friend. The defence set up in it was plainly contradicted by the written agreement. The supplemental abandons this defence and sets up a new one founded upon a reform of the contract, but though it alleges an agreement at the time of executing the writing, it fails to allege that upon the faith of the new agreement the contract was signed. This is essential to the admission of parol evidence of an agreement to vary materially or contradict a written contract: Miller v. Henderson, 10 S. & R. 290; Boyd v. Bruce, 3 Phila. R. 206. No new agreement is, however, averred, but only a promise that the payments should be arranged to the satisfaction of affiant. How this shows any defence is not explained. The subsequent agreement alleged to have been made by the plaintiff below, to pay the expense of putting the walls in a proper-condition to build on was clearly without consideration. As to the $14 for insurance,, affiant says that plaintiff charged him with it, but not that he paid it, either on account or otherwise. Talcing the two affidavits together, we think they fail to made out any available defence in that clear and unambiguous manner which has always been required in such instruments.

Uidgment affirmed.


author: Mr. Justice Paxson

text:
    Evans versus Scott.
    1. D. and H., who were brothers, lived together in the same house, D. being married, and H. a bachelor. The lease of the house was in D.\s name; but II. paid the larger portion of the rent. All the furniture in the house belonged to H. except the carpets. They were bought by D. on credit, and when his note therefor matured, II. took it up, and the firm from which the carpets were bought, on the order of D., gave H. a bill for the carpets in his own name. In a feigned issue directed upon an execution issuing against D., IT. claimed the carpets. The court below instructed the jury “ that as matter of law under the evidence in the case, the title of H. to the carpets, though good as between bim and D., was fraudulent as against the creditors of D.1' Held, that this was error.
    2. The question should have been submitted to the j ury whether the change of possession was actual and bona fide, not pretended, deceptive and collusive, and whether such change of possession was ail that could be expected of the vendor, taking into view the character and situation of the property, and the relations of the parties.
    3. McKibbin v. Martin, 14 P. F. Smith 352, followed.
    February 13th 1879.
    Before Sharswood, C. J., Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ. Mercur, absent.

      Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1876, No. 103.
    Feigned issue to try the ownership of certain household goods and furniture levied upon by Alexander Scott, as the property of' David Evans, and claimed by Henry W. Evans.
    The facts are stated in the opinion of this court. The case was t?ded before Allison, P. J., March 21st 1876.

      E. F. Brightly, for plaintiff in error.
    The ease should have been left to the jury to determine whether there had been such a transfer of possession as the property was capable of: Sheldon v. Sharpless, 33 Leg. Int. 109; Seeds v. Kabler, 26 P. F. Smith 262; Benford v. Schell, 5 Id. 393; Chase v. Ralston, 6 Casey 539; Long v. Knapp, 4 P. F. Smith 514.

      B. Alexander, for defendant in error.
    There is nothing in the nature of the property in question to prevent actual delivery. It was decided in Steelwagon v. Jeffries, 8 Wright 407, that household goods in a private house were capable of actual delivery. And this case was cited and approved by Sharswood, J., in McKibben v. Martin, 14 P. F. Smith 352. The carpets could easily have been taken up and removed. There is nothing in the relation of the parties, or in the fact that the claimant lived in the same house with the defendant in the execution which dispenses with the necessity of actual delivery and change of possession: Hoffner v. Clark, 5 Whart. 544; Stiles v. Shumway, 16 Vt. 435; Steelwagon v. Jeffries, 8 Wright 407.
    In every case, if possible, the delivery must be actual, and a mere formal and constructive delivery will not defeat an execution, “ and when such' delivery does not attend the sale, it is fraudulent per se, and the court is bound to tell the jury so:” Barr v. Reitz, 3 P. F. Smith 256; Chase v. Ralston et al., 6 Casey 539; Mc-Kibbin v. Martin, 14 P. F. Smith 352.
   Mr. Justice Paxson

delivered the opinion of the court, March 3d 1879.

This was a feigned issue to test the ownership of certain household goods and furniture levied upon by the defendant in error, as the property of David Evans, and claimed by Henry W. Evans, the plaintiff in error, as belonging to him. There was no allegation of a fraud in fact, but the learned court below instructed the jury that as to a portion of the property levied upon, viz.: the carpets, there was a fraud in law, and directed a verdict for the defendant as to f

3 essential facts upon which the learned judge based his rulings are as follows: The plaintiff, Henry W. E.vans, and the defendant in the execution, David Evans, are brothers, and at the time of the levy lived together at the house No. 1917 Columbia avenue. David was married, Henry was a bachelor. The lease of the house was in David’s name, but Henry paid the larger portion of the rent. All of the furniture in the house belonged to Hem-y, except the carpets, and the jury so found. It appeared in regard to them that they were originally bought by David of Snyder &

Co., on a credit, and laid down on the floors of said house. When the bill matured he was unable to pay it and gave his note for the amount. When the note became due it was taken up by the plaintiff who paid Snyder & Co. part thereof in cash, part in an order, and gave his judgment-note for the balance, which was subsequently paid by him. At the same time Snyder & Co. delivered to the plaintiff, on the order of David Evans, a bill of sale of said carpets in plaintiff’s own name.

The learned judge charged the jury “that as a matter of law under the evidence in this case, the title of Henry W. Evans to the carpets, though good as between him and David Evans, was fraudulent as against the creditors of David Evans.” This instruction was assigned for error.

There was a time when this ruling might not have been error. It could have been sustained under the earlier cases of Clow v. Woods, 5 S. & R. 275 ; Babb v. Clemson, 10 Id. 419 ; Hoffner v. Clark, 5 Whart. 545; Brawn v. Keller, 7 Wright 104; Steelwagon v. Jeffries, 8 Id. 407.

But there is a line of authorities which to some extent has modi^ fled the doctrine of those cases, See McVicker v. May, 3 Barr 224 ; Forsyth v. Matthews, 2 Harris 100; Hughes v. Robinson, 12 Id. 9 ; Dunlap v. Bournonville, 2 Casey 72; Billingsley v. White, 9 P. F. Smith 464. I need not discuss these cases. They were carefully reviewed by the present chief justice in McKibbin v. Martin, 14 P. F. Smith 352, who, while he approved them somewhat regretfully, nevertheless conceded their binding forces: In McKibbin v. Martin there had been a sale of the lease, good-will, fixtures and furniture of a large hotel by the McKibbins to their father, who at the time lived with them at the hotel. The vendors remained in the hotel after the sale and superintended the business for which they received a salary from their father. It was held that “where there has been a sufficient delivery, actual or constructive, and the vendee is in possession, the fact that the vendor is employed about the establishment in a capacity holding out no indicia of ownership, is not such a concurrent ownership as the law condemns, and the question is for the jury.” JjWe think the case in hand is ruled by McKibbin v. Martin, and the line of cases of which it forms a part. The house in which the carpets were put down was in the joint occupancy of the two brothers. It was the home of each, and each contributed to the payment of the rent. Was there a sufficient change of possession ? It is manifest there could have been no actual change of possession unless one of the brothers, had left his home and gone to reside elsewhere. Was it necessary that one should turn the other out of doors ? It was said in McVicker v. May, 3 Barr 324, that it was not necessary for a son to turn his father out under such circumstances. There are many instances in which from the necessity of the case there can only be a constructive delivery of possession. In such cases the jury must decide whether there is fraud in fact, under proper instructions from the court. We think the learned judge fell into error when he instructed the jury that this transaction was a legal fraud. The question should have been submitted to them whether the change of possession was actual and bona fide — not pretended, deceptive and collusive; and whether such change of possession was all that could reasonably be expected of the vendor, taking into view the character and situation of the property, and the relations of the parties.,/

Judgment reversed, and a venire facias de novo awarded. -


author: Mr. Justice Woodward

text:
    Brown’s Appeal.
    1. The scope of the statutory powers of the Orphans’ Court does not warrant and its forms are not adapted to an inquiry into independent transactions in which third parties who are neither creditors nor distributees are concerned. Yet where the adjustment of a decedent’s estate involved at the. same time the adjustment of the affairs of a partnership of which .the decedent and the accountant were both members, and this adjustment was acquiesced in by the surviving partners, and nothing remained to be paid or collected, it is too late for the accountant, sixteen years after he invoked the aid of the Orphans’ Court in his own behalf, to allege that the court did not possess jurisdiction.
    2. A liquidating partner is not entitled to compensation for his personal services in settling up the partnership business.
    3. Where there was no satisfactory evidence of fraud to take the case out of the general rule, that in the absence of express stipulation no interest is chargeable on the accounts of partners between themselves, it was right to correct the accounts of a liquidating partner, by surcharging him with the amount of interest he had included in those accounts.
    4. If the survivors of a partnership carry on the concern and enter into new transactions with the partnership funds, they do so at their peril, and the representatives of a deceased partner may eleet to call on them for the capital with a share of the profits or with interest. If no profits were made, or even if a loss is incurred, they must be charged with interest on the funds they use, and they must bear the whole loss.
    February 13th 1879.
    Before Sharswood, C. J., Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ. Mercur, J., absent.
    Appeal from the Orphans’ Court of Philadelphia county: Of July Term 1876, No. 67.

      Appeal of John H. Brown, administrator de bonis non, cum testamento annexo,-of James W. Brown, deceased, from the decree of the court, confirming the report of the auditor and ordering the accountant, John H. Brown, to pay to Mrs. Ellen H. Brown the sum of $8482.74, and to her trustee the sum of $15,470.
    The essential facts, together with the substance of the rulings of the auditor, John P. O’Neill, Esq., will be found stated in the opinion of this court. The opinion of the court in confirming the report of the auditor, was delivered by Hanna, J. The assignments of error were to the various items of surcharge, as set forth in the opinion of this court, and that “ the court erred in assuming to take jurisdiction to settle partnership accounts, when one only, of four surviving partners, was before them.”

      Anthony A. Hirst, William 'M. Smith and William A. Porter, for appellant.
    There are other partners, likewise interested in the suit, who are not in court, and it is sought, notwithstanding that fact, to settle the accounts between them and the decedent in an administration account in the Orphans’ Court, in a proceeding in •which they have not participated, and with which they have nothing whatever to do. We cannot take an account of the partnership concerns as between the’ partners themselves in the Orphans’ Court, and, until an account of the partnership concerns is taken, it is impossible to tell whether one partner is really debtor or creditor to the other partners. The accounts of these partners remain unadjusted, and yet it is in effect here decreed that one partner shall recover from another money received on partnership account, and which may actually belong to one or more of the other partners who are not now in court or parties to this proceeding.
    The court therefore erred in assuming to take jurisdiction, because, even if there were no other parties actually interested in or affected by the result, the only proper remedy was by a partnership bill in equity: Story on Partnership 367, 557; Collyer on Partnership, Perkins ed., 298.
    It is not disputed that interest cannot bo charged as between partners, in the absence of an agreement to that effect, or where, from lapse of time and neglect to charge interest, an agreement not to charge may be presumed, but we contend that the rule has no application to such a case as this, where the liability was carefully and purposely concealed by one partner from his co-partners for many years, and where, from the nature of his position in the firm and assignment of duties to him in the business, complete opportunity was afforded him to effect the concealment. Time, as well as negligence, must be computed only from the date of discovery of the fraud, if there be any in the transaction. The surviving partners were interested to the extent of sixty-seven and a half per cent, of the whole, and they were therefore entitled to the widest latitude in extending, modifying and discharging the contracts and liabilities of the firm for the purpose of saving themselves as well as the estate of the deceased partner, provided they continued in good faith to devote themselves to the primary object of winding up the business. They were not only entitled to close up the affairs of the firm, but^ as survivors, they had all the rights, duties, powers and authorities of the partnership : Evans v. Evans, 9 Paige 178. They were entitled to receive the debts, sell the goods, pay the obligations of the firm, fulfil outstanding contracts, and are not liable for losses, if such are made in good faith and without abuse or misapplication of the funds or property of the partnership: Phillips v. Phillips, 3 Hare 281.
    The argument of the appellees is founded on the theory that there was a new partnership formed in February 3860. There is no evidence to sustain such a theory.

      Montelius Abbott, Samuel O. Perkins and David Webster, for appellees.
    The appellant is both an administrator and a surviving partner of the decedent. The inventory filed embraced the interest of the decedent in the firm dissolved by his death, the successor of prior firms. For the disposition of that interest the appellant is accountable as administrator. By Act of 16th of June 1836, §19, the Orphans’ Court having jurisdiction “ in all cases” * * * “ wherein” * * * “administrators may be possessed of, or are in any way accountable for any real or personal estate of a decedent,” that jurisdiction cannot certainly be ousted by the nature of the evidence to be investigated, so long as the question and its decision are strictly within legitimate inquiry.
    The Orphans’ Court in its sphere being “ essentially a court of chancery,” the ordinary principle of chancery applies that the jurisdiction having rightfully attached, it “ will dispose of every subject embraced within the circle of contestShollenberger’s Appeal, 9 Harris 340 ; Bull’s Appeal, 12 Id. 288; Black’s Exr’s v. Black, 10 Casey 357. This is not an attempt to surcharge Mr. Brown, but to make him pay that which he had discharged without authority. The jurisdiction of the Orphans’ Court is undoubted : Gilbert’s Appeal, 28 P. F. Smith 266; Bice’s Appeal, 29 Id. 168; Dundas’s Appeal, 23 Id. 474; Kelly’s Appeal, 4 Harris 59.
    The appellant, as administrator, was not permitted to charge the estate, which he attempted to do, with the loss of the business continued after the decedent’s death, and he was charged with interest on decedent’s share of the dissolved firm’s assets allowed by him to be used to the disadvantage of the estate. Whiteside v. Whiteside, 8 Harris 473 ; Ashford v. Ewing, 1 Casey 213 ; Kittera’s Estate, 5 Harris 416; Dundas’s Appeal, 23 P. F. Smith 479; Bice’s Appeal, 29 Id. 182; Lisenbigler v. Gourley, 6 Id. 172, all sustain the jurisdiction, while Gilbert’s Appeal, 28 P. F. Smith 266, presents its actual exercise in a like case, where an administrator was also a surviving partner.
    The surviving partner continuing the estate at risk, detaining its funds, mixing the same with his own, or using them, or continuing the business, does so at his own peril, and is liable to be charged with interest: Taylor v. Young’s Adm’r, 2 Bush 432; Mumford v. Murray, 6 Johns. Ch. 14; Booth v. Parks, 12 Eng. Ch. 228; 1 Molloy 465; Washburn v. Goodman, 17 Pick. 519; Millard v. Ramsdell, Harr. Ch. 372; Callaghan v. Hall, 1 S. & R. 241; Jos. Parker’s Estate, 14 P. F. Smith 311; Norris’s Appeal, 21 Id. 106; Gilbert’s Appeal, 28 Id. 266 ; Laughlin v. Lorenz, 12 Wright 275 ; Lind, on Part. *890.
   Mr. Justice Woodward

delivered the opinion of the court, May 5th 1879.

In his third assignment, the accountant• alleges that “the court erred in assuming to take jurisdiction of partnership accounts, when one only of four surviving partners was before them.” It was agreed at the argument, on the part of the appellees, that if the adjustment of the decedent’s estate required the adjustment, at the same time, of the aifairs of the partnership of which the decedent and the appellant had been members, the Orphans’ Court was not the proper tribuual to ascertain the responsibilities of the appellant as a partner, or the rights of the estate of the decedent in the assets of the firm. The opinions expressed and acquiesced in by counsel were undoubtedly accurate. The scope of the statutory powers of the Orphans’ Court does not warrant, and its forms are not adapted to, an inquiry into independent transactions in which third parties, who are neither creditors nor distributees, are concerned.

But this case stands on a peculiar footing. James W. Brown died in February 1860. From the year 1832 to the year 1841, he had been in partnership with his cousin, John H. Brown, the appellant, and James Brown, in Pittsburgh, under the firm name of John II. Brown & Co. On the 1st of January 1841, a new agreement was entered into between John H. Brown and James W. Brown, by which it was stipulated that they should enter into the dry goods jobbing business in Philadelphia for five years; that John H. Brown should be the resident partner; that James W. Brown should supervise the business of the house in Pittsburgh; and that William R. Brown should have the rights of a partner in the Pittsburgh house, subject to the decision of John H. and James W. Brown, “ the emoluments of the said service to be paid exclusively by the said James W. Brown.” James W. and William R. Brown were brothers. The new firm began business in Philadelphia, and James W. Brown remained in Pittsburgh, to control and close up the business of the old partnership there. He had possession of the books, and had charge of the correspondence and of the settlement with the debtors and creditors of the house. The parties continued to act under the agreement of 1841 until James W. Brown died. John H. Brown became his administrator eum testamento annexo, and settled his first account on the 13th of February 1861, which in due course was confirmed by the Orphans’ Court. In it the accountant charged himself with the interest of the decedent in the assets and credits of the firm of John II. Brown & Co., valued at $20,000, and took credit for the amount, not then realized, of $17,253.93. A second account, filed the 19th of May 1865, was referred to an auditor on the 29th of June in the same year. The settlement of the estate was delayed by various causes, and the final report was not filed until the 22d of May 1876. It was confirmed by the Orphans’ Court on the 29th day of the same month.

Meanwhile, the accountant was employed in settling the accounts of the partnership, and ascertaining the relation borne to it by the decedent’s estate. Other persons had been members of the firm, but the accountant was permitted and undertook to act as managing and liquidating partner. The auditor has reported: “ In the earlier stages of the audit of this second account, it was represented by John H. Brown, when asked by Mrs. Brown about James W. Brown’s interest in John H. Brown & Co., that it had been impossible to make any settlement or statement that would be reliable, but they were now in a position to pay all liabilities, and were about to settle and examine their books as soon as possible.” He has reported also: “ John H. Brown presented to the auditor a settlement of John H. Brown & Co., to show that James W. Brown had nothing in that firm.” This settlement consisted of four accounts stated, the first and second of which were called “ Balances of firms Nos. 1 and 2, the first ending January 1st 1857, and the second ending January 1st 1860,” and the third and fourth of which were entitled “James W. Brown in account with John H. Brown & Co.” Three of the statements were presented to the auditor ón the 9th of June 1870, and exhibited an indebtedness by the decedent’s estate to the firm of $9280.38, as of the 1st of May 1869. The fourth was presented almost two years and a half later, on the 25th of November 1872, and in that the amount of the indebtedness was alleged to have been on the 1st of May 1869, $15,964.25. On the part of the appellees, errors were charged in a variety of items in the accounts which had entered' into the settlement. The auditor found the allegations of error well founded, and the statements were corrected by adding to and withdrawing from the proper entries the several specific sums thus found to have been improvidently included, and with those sums the appellant was surcharged.

John H. Brown brought the decedent’s interest in the firm into the Orphans’ Court by making it an item of debit and an item of credit in the first account. He assumed to settle the accounts of the partnership. He was engaged in the performance of this • duty from the date of the death of James W. Brown until November 1872, -when his final statement was presented. This was a period of almost thirteen years. The other surviving partners acquiesced in all the action which he took throughout. The settlement of the partnership, as such, was effected. So by word and act he himself declared. Nothing remained to be paid, to -be collected, or to be compromised. Whatever the interests of the other surviving partners may have been, they were intrusted to the liquidating partner, and, with the settlement of the other interests involved, are to be regarded as adjusted. The issues before the auditor grew out of a statement of accounts between the accountant, as the surviving, active and managing member of a firm the affairs of which were closed, on the one hand, and the estate of the decedent on the other. More than nineteen years have gone by since James W. Brown died. This litigation began fourteen years ago. Scarcely any case, involving rights of property only, can be conceived that would work out results more oppressive and disastrous than the results that would follow the setting aside of these entire proceedings on the ground that the Orphans’ Court did not possess the jurisdiction which the appellant as long ago as 1861 invoked in his own behalf.

A reference to the points in controversy before the auditor and in the Orphans’ Court remains to be made. This will be done with as little of detail and elaboration as possible.

1. One of the items entering into the accounts which produced the balance due from the decedent, was an entry in the books of the firm of $1537.50 in favor of the appellant for his personal services in settling up the business. This the auditor struck out. That a liquidating partner is not entitled to compensation for such services is a well-established rule: Sharswood, J., in Gyger’s Appeal, 12 P. F. Smith 73 : referring to Beatty v. Wray, 7 Harris 516, and Brown v. McFarland, 5 Wright 129.

2. In 1865, a charge was made against the decedent on the firm books of $3000. The ground on which the appellant rested this action was, that on the 27th of October 1847, William R. Brown drew for this sum on James W. Brown; that the draft was paid out of the funds of John H. Brown & Co., William R. Brown receiving the money for his private use; and that the amount was charged in the cash book “on memorandum” in red ink, by the direction of James W. Brown, to Bailey, Brown & Co., a firm of which John H. Brown was, and James W. Brown Was not, a member. In support of the charge against the decedent, the appellant relied on the the testimony of Mr. Waterman, the bookkeeper, and William R. Brown. In some respects, the statements of both witnesses were vague. Mr. Brown said that he drew on John II• Brown & Co. for something like $3000 in the year 1847, or near that time; that he did not recollect what the purpose of the draft was; and that he drew under authority of some kind which he could not remember. Mr. Waterman testified: “I must have seen the draft. It was William R. Brown’s draft, drawn on James W. Brown individually. I don’t remember to whose order it was made payable. I do not recollect how it was presented.” He said afterwards: “ That item was never entered in the accounts- presented by Bailey, Brown & Co.; that item was not charged against them in the ledger; it is included in the balance charged.” At the argument here the counsel for the appellees insisted that the item “included in the balance charged” was this item of $3000; that the “balance” ivas a sum of $1481.17, charged in June 1848, when for the first time an account was opened with Bailey, Brown & Co., and included all the red-ink charges against them on the cash book, and that thenceforward red-ink entries against them ceased. In support of this assertion, the counsel referred to the books of John H. Brown & Co., which were in evidence. Under the evidence before him, the auditor found that the charge of this item was unjust. The witnesses were before him. The original charge had been made in 1847. The charge against the decedent was made in 1865, and the appellees were entitled to the benefit of the presumption arising from the lapse of time. And William R. Brown, as well as John H. Brown, was a member of the firm of Bailey, Brown & Co. A review of the evidence has produced no such conviction of mistake on the part of the auditor as to require that his decision should be reversed.

3. An entry appeared in the journal kept in the Philadelphia house, as of the 30th of June 1865, charging James W. Brown with the sum of $9523.24, due from him “on books at Pittsburgh, say, January 1st 1841,” together with net interest from that date to the 1st of October 1865, a period of twenty-four years and nine months, amounting to $13,337.46. Admitting that in the peculiar circumstances surrounding the firm between 1859 and 1865, losses and the shrinkage in values made the charge of the principal sum justifiable, the appellees resisted the demand for interest. It appears that James W. Brown remitted to Philadelphia in 1841 assets amounting in value to $29,000, with instructions to the bookkeeper to credit them in the proportion of two-thirds to John H. Brown and one-third to himself, and that he participated in the profits those assets subsequently produced. The auditor found that there was no satisfactory evidence of fraud to take this case out of the general rule that, in the absence of express stipulation, no interest is chargeable on the accounts of partners between themselves. Indeed, it has not been alleged that James W. Brown was guilty of intentional bad faith. While the appellant’s counsel urged with great ability all the considerations tending to show that the acts of the decedent in charging the item of $3000 to Bailey, Brown & Co., and in overdrawing his Pittsburgh account and obtaining an undue credit in Philadelphia, were fraudulent in fact, they stated that they were authorized by their client “to declare that he does not believe that at the time he committed these acts, James W. Brown had any fraudulent intent and purpose in his mind.” Mr. Burke, an expert witness, testified that he had been over all these books, and nowhere, except in this instance, did he discover that interest had been charged on partners’ accounts. The auditor found the fact accordingly. It is to be kept in mind that the appellant could have had access to all the Pittsburgh books during the whole lapse of these twenty-four years. By the partnership articles of 1841, while James W. Brown was to supervise the business of the Pittsburgh house, it was expressly provided that “such control” should “undergo the approbation of the said John H. Brown.” The fact is not to be lost sight of also that the final report of the auditor was in the decedent’s favor for a large amount. Upon the facts, and under the authorities referred to and relied on in the report and by the Orphans’ Court, it cannot be said that the auditor was wrong in correcting the accounts stated by the appellant, and in surcharging him with the amount of interest he had included in those accounts.

4. In the appellant’s statements, he credited forty per cent, of the interest account to the estate of the decedent. The appellees claimed that they had a right to fiftytper cent., and this claim the auditor allowed. Sixty per cent, of the “interest account” was left undivided on the books. It was apparently conceded that all the partners had not the right to participate in this fund, but it was asserted that Mr. Grarretson was entitled to take twenty per cent, of it. The rights of Garretson in the partnership, however, were settled by the second of the statements furnished to the auditor in June 1870, and all share of the interest fund was withheld. The report found: “ It is not clear that any one was interested in the interest account but James W. and John II. Brown. In all the interest accounts settled prior to 1857, the interest was always equally divided between them, fifty per cent, to each, notwithstanding that Mr. Garretson was interested in the business as early as 1845.” There is no apparent reason why the ruling of the auditor should be disturbed.

5. Two items made up the fifth surcharge: 1st. A claim included in the last of the appellant’s statements presented on the 25th of November 1872, being the share of the estate of the loss suffered in conducting the business from the date of the decedent’s death to the end of the year 1860, amounting to $4676.35; and 2d. A demand on behalf of the estate for its proportion of the interest on the value of the assets taken and used in the business subsequently to February 1860. Passing on these two items, the report declared: “ After careful consideration of all the evidence, your auditor finds that there was a new business entered upon by the survivors in February 1860; but in his opinion it can make no difference whether there was a formally created new partnership and new business, or whether there was such a continuance of the old business that John H. Brown, occupying the position he did, must be held to his legal responsibility. Certain it is that the capital and assets of the old firm were carried into and used by J. H. B. & Co., No. 8, new risks incurred, old risks changed, and losses made by the continuance.” The legal rule is fixed on this subject. If the survivors of a partnership carry on the concern, and enter into new transactions with the partnership funds, they do so at their peril, and the representatives of the deceased may elect to call on them for the capital, with a share of the profits, or with interest. If no profits are made, or even if a loss is incurred, they must be charged with interest on the funds they use, and the whole loss will be theirs: 1 Parsons Cont. 202; Waring v. Cram, 1 Parsons Eq. Cont. 516; Parsons on Part. 443; and Beatty v. Wray, 7 Harris 516. In the last case, GrlBSON, J., in commenting on Brown v. De Tastet, 1 Jacob 284, where a surviving partner was allowed for management, said: “ Surely that case was not thoroughly considered. To involve the property of another in the chances of commerce, without his consent, cannot found a right; and Lord Eldon was gratuitous^ liberal when he allowed the delinquent survivor his expenses,, who, if he might charge when the business had been prosperous, might charge when it had been ruinous. * * * In regard to that point, the English chancellors seem to have been guided by the hardships of the particular case, rather than by any fixed principle. In other respects, their decisions in cases of subsequent trading, have been remarkably stringent. The representatives of the dead partner have not only been allowed to elect between interest and the profits, but an inquiry has been directed to ascertain which would be most advantageous.” A new firm was formed in January 1861, to which the appellant transferred his interest in the assets of the old partnership, and the interest of the decedent of course went with it. It was in the discussion of the two items of this surcharge, and in the final argument before the auditor, that the question of jurisdiction was for the first time raised. Twelve years had then passed. The other surviving partners had never intervened or complained. The subjects of controversy embraced no interests requiring an inquiry into the adjustment of the credits and assets of the partnership. They were merely questions between the appellant and James W. Brown’s estate, and needed only the application of a process of addition and subtraction to final statements of accounts presented by the appellant himself. The auditor on these grounds held the objection to the jurisdiction to be unfounded; and upon the facts established, under rules of law applicable to such facts, he properly and justly surcharged the accountant with both the items that constituted this portion of the demand of the appellees.

Decree affirmed at appellant’s costs, and appeal dismissed.


text:
    Sparks’s Appeal.
    Testator by his will provided, “ I hereby give, devise and bequeath to my son S. and to his heirs and assigns for ever, upon his attaining the age of twenty-one years, all my Shot Tower property, consisting of shot tower, buildings and lots of ground connected therewith * * * with all the appurtenances, machinery, fixtures and personal property therein and thereto belonging.” At the date of the testator’s death there was in the Shot Tower property a large quantity of manufactured shot. There was also a quantity of materials used in the manufacture of shot. It was the manifest design of the testator that his son should continue the business when he reached his majority. Held, that the son was entitled to the unmanufactured materials on the property at the date of testator’s death, but that the provisions of the will could not be made to embrace the manufactured stock.
    February 13th 1879.
    Before Sharswood, C. J., Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ. Mercur, J., absent.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1877, No. 120.
    Thomas Sparks by his last will, dated October 8th 1872, and codicil thereto, dated December 18th 1873, appointed the Pennsylvania Company for Insurances on Lives and Granting Annuities, his executors, and left his property to his wife and children, among which latter was his only son, Thomas Weston Sparks. The executors having filed their first account, it showed a balance of about $350,000. George Junkin, Esq., was, by consent, appointed auditor to report distribution.
    Thomas Sparks, the testator, owned, at the time of making his will, a shot tower and certain real estate adjacent thereto, situate near Second and Carpenter streets, in Philadelphia. This shot tower had been built in 1808, and owned by the testator’s uncle, also named Thomas Sparks, who carried on the business of making shot there until his decease, when by his will he devised it to his nephew, the testator, who continued the same business until his death, on October 17th 1874.
    At the time of making his will, October 8th 1872, the testator’s only son, Thomas Weston Sparks, was eighteen years, three months and seventeen days old. By the 4th item of his will, Thomas Sparks devised as follows :
    “Item Fourth. I hereby give, devise, and bequeath to my son, Thomas Weston Sparks, and to his heirs and assigns, for ever, upon his attaining the age of twenty-one years, all my Shot Tower property, consisting of shot tower, buildings and lots of ground connected therewith, situate on the south side of Carpenter street (late Johns), between Front and Second, in the late district of Southwark (now the Second ward), in the city of Philadelphia, with all the appurtenances, machinery, fixtures and personal property therein and thereto belonging. But in case my said son should die before attaining the age of twenty-one years, then I order and direct that the same shall become and form part of my residuary estate. And it is my will, and I do hereby order and direct that during the minority of my said son, said Shot Tower property and appurtenances shall be rented as advantageously as may be by my executor, and the income thereof shall go into and form part of my said residuary estate. And my executors shall pay all taxes, water-rent and other charges whatsoever, and keep the same in good repair, and perpetually insured at the expense of my estate. And during the minority of my said son, or after his decease, should it occur before his attaining the age of twenty-one years, I authorize and empower my said executor, if deemed expedient, to sell and dispose of the said Shot Tower property, either at public or private sale, and to grant and convey the sainé to the purchaser or purchasers thereof, in fee-simple or otherwise, without said purchaser or purchasers being bound to see to the proper application of the purchase-money. And in case of a sale, I order and direct my executor to invest the proceeds of such sale in such securities, yielding an income as may be deemed best by my executors, such income to go to, and form part of my said residuary estate. And when, and as soon as my said son attains the age of twenty-one years, should such sale be made during his minority, then I order and direct that such securities or investments of the proceeds of sale shall be assigned, and I do hereby give and bequeath the same to my said son, Thomas Weston Sparks, for his own use for ever. But should he die during his minority, then such securities to become and form part of my residuary estate, as hereinbefore mentioned.”
    By the only codicil to his will, after ratifying aad confirming his will in all other respects, the testator devised, inter alia, as follows :
    “ Second. Whereas, by item fourth of said will, I have devised and bequeathed to my son, Thomas Weston Sparks, all my Shot Tower property as in said item mentioned; and whereas, since that time I have purchased a lot of ground, known as the Old Swedes’ Burial-ground, immediately adjoining, on the north, the Shot Tower property, and which I desire to form part thereof; now I hereby give, devise and bequeath, to my said son, and to his heirs and assigns for ever, all that my recent purchase known as the Old Swedes’ Burial-ground.”
    In 1871, a year prior to the date of the will, the testator’s son, Thomas Weston Sparks, then about seventeen years old, had left school and gone into his father’s office to learn the business, and his father contemplated taking him into partnership. He remained in his father’s office until the latter’s death, a period of over three years, when he wanted but nine months of his majority.
    There was always, at the shot tower, in addition to the machinery and fixtures, which formed part thereof, a stock of lead in bars, in actual process of manufacture, and in the shape of manufactured shot and bullets. There was, also, at the office of the testator, in Walnut street, some manufactured stock unsold. The total value of the stock manufactured and unmanufactured at the factory was $21,235.96 ; that at the store was worth $5608.29 additional.
    The questions arising upon the will were whether, under the will, the son, Thomas Weston Sparks, was entitled to the stock at the factory* as well as in the store, or to either; or whether this stock all passed into the testator’s residuary estate.
    The auditor was of opinion that the testator did not give to his son the stock, manufactured and unmanufactured, and other material on hand at his death, but only the Shot Tower property and all its equipment, whether strictly attached to the freehold or consisting of items of personal property used in and belonging to the property for its use as a shot tower.
    This report was excepted to by Thomas Weston Sparks, on the ground that under his father’s will he was entitled to some $26,000 more than, was awarded to him by the auditor.
    The Orphans’ Court overruled the exceptions and confirmed the report, saying : “We think that the testator intended to give his son only the real estate, machinery and utensils necessary to carry on the business of the shot tower, and not the manufactured and unmanufactured materials which happen to be there at the time of his decease.”
    From this decree Thomas Weston Sparks took this appeal.

      George W. Biddle and Eli if. Price, for appellant.
    Where one word particularizing one limited description of property, is followed in a will by general words, the first word used will not cut down the general words to property of the same character as that comprised in the simple word : Swinfen v. S win fen, 29 Beav. 209; Arnold v. Arnold, 2 Myl. & K. 373.
    The words “personal property therein and thereto belonging,” include the lead unmanufactured and in process of manufacture, and the shot actually manufactured in the testator’s shot tower, at the time of his death.
    The words are “ personal property therein and thereto belonging.” The meaning of these words is “personal property therein and personal property thereto belonging.” The word “ and” is here used cumulatively.
    The intent of the testator as gathered from his whole will, coupled with his intention to put his son into the business, demonstrates that he intended, by the fourth item of his will to, pass the whole of the' Shot Tower property and stock thereof to his son, Thomas Weston Sparks, as a going concern.

      John G. Johnson, for appellee.
    The words of the will are the “Shot Tower property;” within such a subject-matter, shot, balls and lead are not included. It was the personal property “ therein,” which possessed the characteristic of "an appurtenance, of being a “belonging” of the “shot tower and buildings” the testator wished his son to take. The personal property he intended was such as was an “ appurtenance of the realty.” Shot and lead were not embraced in this intent.
    Even were the words, “ personal property therein and thereto belonging,” first used broad enough to give to appellant all he claims, the context would render it impossible thus to construe them. The testator shows that what he meant to give to his son was something capable of being rented. It was also to be kept in “ repair and perpetually insured” and the executors were authorized to “sell” and to “grant and convey” the same to purchasers “in fee-simple or otherwise.” Surely those terms were not applied to “ shot and lead.”
    The father did not give to the son the business, but only the appliances with which he could carry on one for himself, at the old location. If it was the business he meant to give, why did he not bequeath the bills receivable and cash which he used in it, together with the furniture of his Walnut street store, and the shot and lead therein contained ? According to the season of the year in which he might happen to die, there might be $25,000 in shot and lead, and nothing in cash and bills receivable, or $25,000 in cash and bills receivable and nothing in' shot and lead. According to the temporary condition óf his business, the larger part of this shot and lead might be at the shot tower or in the store.
   Mr. Justice Woodward

delivered the opinion of the court, May 5th 1879.

This appeal has brought up a single question for determination. Thomas Sparks died on the 17th of October 1874. The fourth section of his will, which had been executed two years before, contained this provision: “I hereby give, devise and bequeath to my son, Thomas Weston Sparks, and to his heirs and assigns for ever, upon his attaining the age of twenty-one years, all my Shot Tower property, consisting of shot tower, buildings and lots of ground connected therewith, situate on the south side of Carpenter street, * * * with all the appurtenances, machinery, fixtures and personal property therein and thereunto belonging.” The second section of the codicil, executed on the 18th of December 1873, made a similar gift, devise and bequest to his son of the lot known as the Old Swedes’ Burial-ground, which the testator had purchased after making his will, adjoining the Shot Tower property, and which he desired should “ form part thereof.” The auditor found that at the date of the. testator’s death, there were stock and manufactured goods in the Shot Tower property of the value of $21,235.96. In this aggregate, drop-shot appraised at $13,213.55, and buckshot appraised at $2038.12 were included. The balance amounted to $5984.29. It was made up of various items, consisting of bar, pig and black lead, of “ sundry metals,” of bagging, of arsenic, of gas, pea and egg coal, of pine wood and of new and old kegs. At the audit, Thomas Weston Sparks, the appellant, claimed that under the terms of his father’s will, he was entitled to the value of ■the entire personal property, which had been inventoried as “ Stock in factory.” The claim was rejected by the auditor and his report was confirmed by the Orphans’ Court.

The will of Mr. Sparks was very carefuly drawn. Out of the thirty-eight items by which he disposed of his estate, the formula “I give and bequeath,” was adopted in thirty-four. These embraced all the bequests of personal property. In the second, a gift of real estate to his wife for life, and in the fourteenth, a gift of a house in Oermantown, to his sister-in-law, Mrs. Thomson, for life were made, and the words, “I give and devise” were used. The phrase, “I give, devise and bequeath,” was employed only in the gift to his son in the fourth item and in the residuary clause. The same phrase was used in the second section of the codicil, by which the Old Swedes’ Burial-ground was given to his son. Throughout, there was manifest method in the use of terms. As “the lot immediately adjoining on the north the Shot Tower property” was to form part of it, the testator assumed that, like the other' lots, it would become a depository for chattels belonging to or connected with the business, and he directed, therefore', that they with other such chattels should go to the devisee. It seems clear from a scrutiny of this elaborate instrument that its draughtsman employed no superfluous, ambiguous or senseless words.

What, then, was the purpose of the testator in adding to the devise of the Shot Tower property with its appurtenances, machinery and fixtures, a bequest to his son of “ the personal property therein and thereto belonging?” The devise would have carried the fixtures, furniture and tools. The bequest meant to embrace something beyond them, or it had no meaning at all. It is the duty of all courts to give due effect to all the provisions of a dead man’s will. No one of them is to be cast aside as jargon except where its absurdity is absolute. Mr. Sparks desired and designed that upon the happening of his own death, his son should be his successor in his business at the age of twenty-one. He had taken him from school at the age of seventeen, and had educated him in his office to this end. He knew — none could know so well — that the operations of the Shot Tower property would always require that large quantities of costly manufacturing materials should be kept at hand. If, at the moment of his death, these materials should go into the possession of his personal representatives, and form part of his residuary estate, the whole business would probably be crippled and deranged, and if the devisee should have no outside means, would possibly be destroyed. It was to guard against this obvious contingency that the testator made the bequest of the personal property to his son. Lead, bagging, arsenic, coal, wood and kegs had become by their purchase and deposit in the factory part of the factory itself. As means and materials for carrying on the business, they had acquired the value that attaches to articles of prime necessity. Apart from such a connection, some of them may have had the value of the open market, and some of them may have been useless and worthless. When Mr. Sparks died, “ the personal property” designed to be used in making shot had been appropriated to the purposes of the factory. It “belonged” to the Shot Tower property.

Nothing in the later provisions of the fourth section of the will is inconsistent with the view that has been taken of the intention of the testator. In the event of the death of the devisee in his minority, “ the same,” that is, the whole real and personal property devised and bequeathed, was to become part of the residuary estate. The “ Shot Tower property and appurtenances” were directed to be rented during the devisee’s minority, and the income was made part of the residue also. And power was given to the executors to sell “the said Shot Tower property” at their discretion; to invest the proceeds in such securities as they should deem best; to pass the income into the residue; to assign the securities to the appellant when he should reach the age of twenty-one years; and, if he should die before reaching that age, to add it 'to the residuary fund. In the direction to rent, and in the power given to sell, the testator had no personal property in contemplation. That had been pro-vided for. It was to go to his son if he lived till he should be twenty-one years old. It was to go into the residue if he should die in his minority. Whilst it would have passed neither to a lessee or a purchaser of the realty, its existence, availability and adaptation to the purposes of the business would have proved advantageous. It would have increased the rental value if a lease had been made, and enhanced the purchase price in the event of sale. The business was in fact carried on during the nine months of the appellant’s minority by the widow of the testator. When he attained his majority, the property passed into his hands, and the original design of his father was carried out.

But the appellant’s claim before the auditor embraced not only the articles that were to be worked up, but the drop-shot and buckshot which happened to be in the factory when the testator died. These were personal property upon the premises, certainly, but they were there only to await shipment to customers or transfer to the store. They were manufactured goods, articles of commerce, finished and prepared for sale. Whilst the testator was able to foresee that stock and materials for manufacture would be always in the factory, he could not anticipate what, if any, quantity of goods: completed for the market would be left there at any point of time after his will was made. Subject as it ivas to constant fluctuations in quantity, it.would seem impossible that this property could have been in the testator’s mind. Business conditions can be conceived under which it would accumulate in vast volume. And business conditions can be conceived under which the factory would be swept bare of every pound.

It is now adjudged and decreed that the decree of the Orphans’ Court be so amended and modified, that Thomas Weston Sparks shall be allowed and paid the sum of $5984.29, being the value of the manufacturing materials in and upon the Shot Tower property at the date of Thomas Sparks’s death; that with this modification the said decree be affirmed; and that the costs of this appeal be paid out of the fund for distribution.


author: Per Curiam.

text:
    Hunsecker et al. versus Thomas et al.
    Where after service on the mortgagor, and judgment obtained on the mortgage the mortgagor dies, it is not necessary to warn his personal representatives by scire facias before proceeding to execution.
    February 14th 1879.
    Before Sharswood, C. J., Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ. Merctjr, J., absent.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of July Term 1876, No. 51.
    Ejectment by Peter Hunsecker and others, heirs at law of William C. Hunsecker, deceased, against Charles J. Thomas and others, terre-tenants, for certain premises in the city of Philadelphia. Charles J. Thomas, on April 4th 1878, conveyed the land in dispute to William C. Hunsecker, taking from him a mortgage for a large part of the purchase-money. On January 3d 1874, Thomas issued a scire facias on this mortgage, and on January 26th 1874, judgment was obtained thereon. On March 21st 1874, William C. Hunsecker died, intestate. On March 25th 1874, Thomas issued an alias levari facias on the judgment obtained on his mortgage, without a previous scire facias to warn the personal representatives of the deceased.
    On April 4th 1874, his death was suggested on the record, and on April 6th, the property was sold at sheriff’s sale to Thomas for $500. At the trial, the foregoing facts having appeared, the plaintiffs asked the court to charge as follows :
    It being admitted by the defendants that William C. Hunsecker, under whom the plaintiffs claim, died on the 21st day of March 1874, and that the plaintiffs are his heirs, the sheriff’s sale under the writ of alias levari facias mentioned in the record, given ■ in evidence by the defendants, passed no title to the defendants, the said records not showing any notice of the issuing thereof to the plaintiffs or any of them, or any warning to the personal representatives of said William C. Hunsecker to show cause against the issuing of the same, and that the verdict must therefore be in favor of the plaintiffs.
    The court, Elcock, J., answered :
    “ I decline so to charge, but on the contrary direct you to find a verdict for the defendants/’ ■
    The plaintiffs took this writ and assigned this action for error.
    A. L. Hennershotz and F. Spencer Miller, for plaintiffs in error.
    —This case differs from Taylor v. Young, 21 P. F. Smith 81. In that case the judgment had been obtained on two returns of nihil; in this the writ of scire facias was served on defendant.

      L. JR. Fletcher, for defendants in error.
    This case is ruled by Taylor v. Young, supra.

   The judgment of the Supreme Court was entered, March 17th 1879,

Per Curiam.

There is no difference upon which any reasonable distinction can be drawn between the facts of this case and Taylor v. Young, 21 P. F. Smith 81. Upon the authority of that case

Judgment affirmed.


author: Mr. Justice Sterrett

text:
    Hieskell versus Farmers’ and Mechanics’ National Bank.
    1. Bills of lading are symbols of property, and when properly endorsed, operate as a delivery of the property itself, investing the endorsers with a constructive custody, which serves all the purposes of an actual possession, and so continues until there is a valid and complete delivery of the property, under and in pursuance of the bill of lading, to the person entitled to receive the same.
    2. A. requested B., who was in business at Galveston, Texas, to purchase for him a thousand bales of cotton. O. agreed to advance -the money to B. to make the purchase, on condition that the latter endorsed the drafts and bills of lading to C., which was done. The cotton was shipped to A., at Philadelphia via New York. The drafts were sent to a bank in Philadelphia, with the bills of lading attached, which were endorsed, ‘‘Not to be delivered until the drafts were paid.” The cotton was re-shipped from New York, new bills of lading being issued in a new name, the originals remaining in the hands of the bank. The cotton was delivered by the carriers to A. in Philadelphia, who received an advance of $10,000 thereon from D. The hank brought an action of replevin against D. Held, that the delivery to A. was unauthorized and the bank could recover.
    3. It is not error for the court to refuse to submit points where they are irrelevant or there is not sufficient evidence to justify their submission.
    February 14th 1879.
    Before Sharswood, C. J., Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ. Mercur, J., absent.
    Error to the Court of Common Pleas, No. 8, of Philadelphia county: Of July Term 1876, No. 79.
    Replevin by the Farmers’ and Mechanics’ National Bank against Colson Hieskell and others for four hundred and twenty-six bales of cotton.
    C. and F. M. Hieskell, two of the defendants below, claimed .property in one hundred and fifty-nine bales qf cotton (part of those named in the writ) found in their possession, and retained the same under their bond. The Hieskells pleaded, 1st. That the property to the said one hundred and fifty-nine bales of cotton, so retained by them, was in them and not in the said bank; and 2d, That the property in the same one hundred and fifty-nine bales was in John F. Hellen, subject to a lien to them, the said Hieskells, for $10,000 loaned and advanced by them to said Hellen, on pledge and delivery of possession of said one hundred and fifty-nine bales by Hellen to them, and not in the said bank. Issue was joined thereon.
    J. M. Morey & Co., cotton buyers, at Galveston, Texas, in the early part of 1874 were requested by J. F. Hellen, of Philadelphia, to purchase for him one thousand bales of cotton, to be shipped to Philadelphia. Morey & Co., not being provided with funds to purchase the cotton, applied to Ball, Hutchings & Co., bankers, of Galveston, who agreed to advance the money to make the purchase, upon the express condition that they should be furnished with insurance certificates and drafts drawn on Hellen for the price of the cotton, together with the bills of lading, which bills, as well as the cotton, they were to hold until the drafts were not only accepted but paid. With the funds obtained upon the faith of this arrangement, Morey & Co. purchased the cotton in their own name, shipped the same, and drew on Hellen at thirty days’ sight for the amount. They then endorsed the drafts and bills of lading and gave them to Ball, Hutchings & Co., who transmitted them, duly endorsed, to the City National Bank of New York for collection, which forwarded them to the plaintiff. To both banks express instructions were sent to retain the bills of lading until the drafts were actually paid. To each draft was attached a bill of lading, on which was written, “ Hold bill of lading until draft is paid.” The drafts to which were thus attached the bills of lading were duly presented to Hellen on July 13th 1874, and were accepted by him. The cotton arrived in Philadelphia on July 15th 1874, and upon Hellen being notified to remove it from the wharf of the steamship company, he took it away and stored it in the warehouse of the Hieskells, and on the 17th of July 1874, obtained from them an advance of $10,000 thereon. Hellen failed a few days thereafter. The bank, on July 23d 1874, having learned of the delivery to Hellen, instituted this action. The delivery was made to Hellen without the knowledge of the bank or presentation of the bills. It appeared that in other transactions between these parties, where drafts and bills of lading had been sent with similar instructions as to retention, the cotton had been delivered by the steamship company to Hellen in the same manner without presentation of the original bills of lading.
    At the trial before Lynd J., the defendants submitted, inter alia, the following points:
    1. That if the jury shall be satisfied from the evidence that Hellen purchased the cotton on thirty days’ time, and that he made no engagement that the vendor or his assigns should retain the bill of lading until the maturity of the draft as security for its payment, then after the acceptance of the draft, Hellen became entitled to the possession of the cotton, and the bill of lading as an evidence of title inured to his use; and his sale or pledge of the cotton (which the carrier delivered to him before maturity of the acceptance) to any bona fide purchaser or pledgee for value, would pass the title to such purchaser or pledgee as against the plaintiff.
    2. That the carrier having delivered the cotton in question to Hellen, the purchaser, after the acceptance of the thirty-day draft, and the plaintiffs having omitted to give the carrier notice to detain the cotton, the delivery to Hellen was lawful, and passed the title-to him and his vendees or pledgees.
    The court declined to answer these points, but in the general charge, inter alia, said:
    “ As a point of law, the court submits to you, that in this case, the. question is not what Mr. Hellen wanted Morey & Co. to do, or what the terms of Mr. Hellen’s order upon them were; but it is what they were able to do. This was to be a sale, and if Mr.Hellen wanted to insist upon the benefits of a sale, and claim that it was a sale to him, he would have to take it subject to such terms as Morey & Co., who were acting for him, had to submit to in order to procure the money at Galveston. * * *
    [“Now, the allegations on the part of the plaintiff, as you know very well, are that Morey & Co., as soon as they received the order from Mr. Hellen, went to Ball, Hutchings & Co., and stated to them what the order was; stated to them that Mr. Hellen wanted them to buy in Galveston so many bales of cotton, on thirty days’ time, and that they, Morey & Co., wanted them, Ball, Hutchings & Co., to advance the money; that Ball, Hutchings & Co. replied, ‘we will advance you the money upon the terms of your furnishing us with a bill of lading and insurance certificate and a draft, and that we are to hold the bill of lading and cotton until payment of the draft.’ ’

    “Now, as the court remembers the statements of the witnesses, although what they said is for the jury always, and the weight that shall be given, and the credence which shall be attached to it, are also for the jury, yet, as the court remembers it, this is substantially what was stated by both parties, as to what took place: that Morey & Co. assented to these conditions, that they thus secured the money, or' rather secured an obligation or undertaking on the part of Ball, Hutchings & Co., that the money should be forthcoming to pay for the cotton, the instant the owner of the cotton needed it; that they went out then and bought the cotton and paid for it, with the money of Ball, Hutchings & Co., and then, in due time, as soon as the cotton could be shipped on board the vessel, or at least landed upon the wharf, so that it was within the power of the owners of the vessel to put it on board, and the bills of lading were made out, Morey & Co., in pursuance of the antecedent agreement, which is the foundation of everything, brought back these bills of lading made out in the name of Morey & Co., and then and there endorsed the bills of lading and delivered them and the drafts and insurance certificates to Ball, Hutchings & Co.
    “ Now, as the court has already said, in the view taken by the court of this question of law here, if you find the facts to be as the court has stated them, then your verdict ought to be for the plaintiff.”]
    The verdict was for the plaintiff for $13,017.83, and after judgment thereon, Hieskell took this writ and alleged, inter alia, that the court erred in refusing to answer the points submitted by defendants, and in the foregoing portion of the charge embraced in brackets.

      James JE. Gtowen and J. B. Townsend, for plaintiff in error,'—
    Ball, Hutchings & Co. did not take as purchasers or owners of the title to the cotton, but as pledgees to secure the payment of their advances. The right which Morey & Co. passed to them by the endorsement of the bill of lading was that of pledgees merely, and no greater right accrued to the bank. No assignee or endorsee of a bill of lading can have a higher right than the shipper to whose order it is issued. The bank, therefore, had no right to retain the bills of lading after the acceptance of the drafts : Bank v. Bank, 1 Otto 92.
    The carrier was the agent of the holder of the bill of lading for preserving the lien of the latter on the goods, and if he takes the responsibility of delivering the goods to a party whom he knows to be the buyer, without requiring the production of the bill of lading, especially where the course of previous dealing has led the carrier to infer that the holder of the bill of lading consents to the delivery to the buyer of the goods, the title to .the buyer' passes so far as to give protection to bona fide purchasers from him, and to protect the carrier: Ontario Bank v. New Jersey Steamboat Co., 59 N. J. 510.
    The court erred in refusing to answer defendant’s points, and in taking away from the jury the questions of the nature of the bank’s title, whether by way of pledge or otherwise; as to Morey & Co.’s power without Hellen’s assent to bargain for the retention of the bills of lading; whether the laches or omission of the bank had not contributed to cause the Hieskells to make their transaction with Hellen; all questions of usage of the port as to the deliveries of cotton by the carrier, and as to.the course of dealing which impliedly recognised formerly deliveries of cotton to Hellen; and the questions resulting from Hieskells being bona fide purchasers or pledgees for value, without notice; and therefore standing in a new and stronger position than Hellen.

      John Gf. Johnson and Richard L. Ashhurst, for defendant in error.
    The court ought not to submit á point to the jury when there is no evidence to sustain it: Inkett v. Coryell, 5 W. & S. 60. The court is not bound to answer any question which is not pertinent to the issue and does not arise fairly out of the evidence.
    The carrier’s unauthorized delivery of the cotton to Hellen did not enable him to pass a good title to the Hieskells as bona fide purchasers for value. There could be no delivery except in accordance with the bill of lading: Dows v. Milwaukee Bank, 1 Otto 618; Meyerstein v. Barber, L. R. 2 • C. P. 38; Stollenwerck v. Thatcher, 115 Mass. 224.
   Mr. Justice Sterrett

delivered the opinion of the court, May 5th 1879.

The bills of lading, taken by J. M. Morey & Oo. for delivery to their order, were symbols of property in the cotton, and when properly endorsed and delivered by them to Ball, Hutchings & Co. operated, in law, as a delivery of the cotton itself; thus investing the endorsees with a constructive custody which served all the purposes of an actual possession, and so continued until there was a valid and complete delivery of the property, under and in pursuance of the bills of lading, to a person entitled to receive the same. The special property and possession thus acquired by Ball, Hutchings & Co. were transferred by them to the National- City Bank of New York for collection of the drafts to which the bills of lading were attached, and by it, in turn, to the Farmers’ and Mechanics’ National Bank, defendant in error.

■ There was no dispute as to the material facts of the ease. It was clearly shown, inter alia, that the cotton was purchased by J. M. Morey & Co., of Galveston, Texas, for account and by direction of J. F. ITellen, of Philadelphia, and shipped via New York, from, the former to the latter port; that Morey & Co., not having been provided with funds, requested. Ball, Hutchings & Co. to advance money to buy the cotton, which they agreed to do, upon the express condition that they should be furnished with the insurance certificates and drafts drawn on Hellen for the price, together with the bills of lading, and that they should hold the latter, as well as the cotton, until the drafts were not only accepted, but paid ; that, with the funds thus advanced on the faith of this arrangement, Morey & Co. purchased and shipped the cotton in their own name, drew on Hellen at thirty days’ sight for the amount, and according to agreement, endorsed the drafts and bills of lading to Ball, Hutchings & Co., who transmitted them, duly endorsed, to the bank in New York, by which they were sent to the defendant in error; that both banks were instructed to retain the bills of lading until actual payment of the drafts, to each of which was attached a bill of lading with a slip of paper on which was written : “ Hold bill of lading until draft is paid;” that the drafts with the bills of lading thus attached were duly presented to and accepted by Hellen, who neither then nor afterwards demanded the bills of lading ; that in due time the cotton arrived at Philadelphia and was delivered by the Express Steamboat Co. to Hellen, without the knowledge of the bank or presentation of the bills of lading; that Hellen immediately stored the cotton with the plaintiff in error and received an advance thereon of $10,000; and as soon as the bank learned that the cotton had been delivered and stored the writ of replevin was issued.

The court, after calling attention of the jury to the testimony as to the terms on which Morey & Co. procured the money with which the cotton was purchased, and what was done in pursuance of their agreement with Ball, Hutchings & Co., instructed them that if they believed this testimony and found the facts as indicated by it, their verdict should be in favor of the plaintiff below, and they so found. As already stated, the material facts referred to by the court were not controverted, and the jury, under the instructions of the court, could have found no difficulty in rendering the verdict they did.

On the facts established by the verdict, the delivery to Hellen was unauthorized; and the possession, acquired by the misdelivery of the cotton, gave him no higher or better right than he had before, viz., the right to the bills of lading, and consequently to the cotton, upon payment of his acceptances, to which the bills were attached as already stated. Numerous authorities might be cited in support of these views, among which are the following: Dows et al. v. National Exchange Bank of Milwaukee, 1 Otto 618, in which a very able and exhaustive opinion was delivered by Mr. Justice Strong ; Stollenwerck v. Thatcher, 115 Mass. 224; Alderman v. Eastern Railroad Co., Id. 233; Meyerstein v. Barber, Law Rep. 2 C. P. 38; Turner v. The Trustees, &c., 6 Exch. Rep. 543 ; Jenkyns v. Brown, 14 Q. B. 496; Henry v. The Warehouse Co., 31 P. F. Smith 76; Benj. on Sales 381, 382 and note. Meyerstein v. Barber, supra, was a case in which advances had been made on cotton shipped from Madras to London, and bills of lading delivered to secure the lender. It is there said by Chief Justice Erie, “ If it were established that a bill of lading — one of the most frequent securities for advances amongst mercantile men — becomes exhausted and ceases to be a security when the ship has reached her destination, and the goods which it represents have been landed and warehoused, what a wide door would be opened for fraud. It is scarcely possible to exaggerate the evil consequences which would be likely to flow from such a doctrine. There is no authority for it.” In a concurring opinion, it is said: “ There can be no complete delivery of the goods under a bill of lading until they come -into the hands of some person who has a right to the possession under it.” Dows v. National Exchange Bank, supra, is in point, and rules the main questions in this case.

It follows from what has been said, supported by the authorities above cited, that Hellen had no interest or right of possession, which he could transfer to the plaintiff in error to the prejudice of' the bank, and therefore, the latter could maintain the replevin,' unless there was something in the case affecting the rights of the parties, which wTas improperly excluded from the consideration of the jury.

It is complained that the court declined to answer the points presented by the defendant below. If, as we think was the fact, there was no suflicient evidence to justify the submission of some of them, and the others were irrelevant, the learned judge very properly declined to answer them: Urket v. Coryell, 5 W. & S. 60; Covert v. Irwin, 3 S. & R. 283; Kline v. Johnston, 12 Harris 72. It frequently happens in the trial of a cause, that facts are elicited which, in the end, have no legitimate bearing on the case. It is entirely proper for the court to exclude the irrelevant facts from the consideration of the jury; and, if there is no dispute as to the relevant and material testimony, to instruct them as to its legal effect: Graff v. The Pittsburgh & Steubenville Railroad Co., 7 Casey 489; Johnston v. Gray, 16 S. & R. 361; Dows v. The National Ex. Bank, supra. In the present case, there was really no material fact in dispute. The testimony as to the inception of the transaction and previous course of dealing; how the bills of lading came to be taken in the name of J. M. Morey & Co., and by them endorsed to Ball, Hutchings & Co., and what occurred subsequently, was undisputed and consistent, but still it was submitted to the jury, with proper instructions as to its legal effect, in case they believed it to be true. They were told that the question was not what Hellen desired Morey & Co. to do, but what they had done ; that inasmuch as Hellen claimed the transaction was a sale of the cotton to him, and insisted upon his rights as a purchaser, he would have to take it subject to such terms as Morey & Co., who were acting for him, were able to make, in order to procure the money to pay for it. There was no error in this. Hellen had never advanced or paid a cent on the cotton, and if he claimed the benefit of the purchase, as made by him through his agents, he could not repudiate the arrangement made by them to secure and pay for the cotton.

There was no evidence of any laches on the part of the bank, by which the plaintiff in error was induced to receive the cotton and make the advances thereon. The testimony was undisputed that the bank was instructed to hold the bills of lading until the acceptances were paid; that it knew nothing of Hellen’s having obtained possession of the cotton by the unauthorized act of the steamboat company, until after it was stored with the plaintiff in error and the money had been advanced. Nor was there anything in the circumstances under which previous deliveries had been made to Hellen by the carrier, that was calculated to affect the bank. It was in no way a party to these unauthorized transactions, and so far as appeared was ignorant of his having thus obtained wrongful possession of the cotton on former occasions. In every case the bank had been instructed to retain the bill of lading until the accompanying draft was paid, and this instruction was always literally carried out. The bills of lading provided for the storage of the cotton by the carrier, in case it was not called for, and the bank might reasonably suppose that this had been or would be done.

We find nothing in any of the assignments of error that would justify a reversal of the judgment. It is unfortunate that the plaintiff in error should lose the amount he advanced in apparent good faith; but, similar results often happen when property is purchased from one who has no title or right to sell. The trouble in this ease was brought about by the unauthorized act of the carrier, in putting Hellen in possession of the cotton; but, for this, the defendant in error was in no way responsible.

Judgment affirmed.