text:
    Tower & Ward versus O’Neil.
    1. O. in writing authorized T. to sell his land within a time named, for $70,000 for a commission of 2 per cent.; before the time expired O. requested T. to deliver up the paper; T. said he would give the price himself rather than let the time run out. This offer was not in execution of the power of sale.
    2. If the offer had been made in execution of the power O. was not bound to take it, and his refusal did not make him liable for commissions.
    3. The parties were principal and agent, and could not be changed into vendor and vendee without O.’s consent.
    4. T. was entitled only to compensation for his services.
    October 31st 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county : To October and November Term 1870, No. 115.
    This was an action of assumpsit, to March Term 1866, by G-. H. Tower and William Ward against James O’Neil. The action was founded on the following instrument:—
    “ I hereby authorize and empower Gr. II. Tower and William Ward to sell my coal property situated, &c., containing 240 acres, together with the following chattels, viz. * * * And agree to give said Ward & Tower ninety days from this date to accomplish said sale on the following terms, viz., for all the above-enumerated property the sum of $70,000, payable as follows, &c., * * * and agree to pay said Ward & Tower 2 per cent, commission, and all over and above the said $70,000 that the said Tower & Ward may sell the same for, to be their additional commission, &c.
    “James O’Neil.”
    “Pittsburg, August 23d 1864.”
    “I hereby agree to extend the time to Ward & Tower to sell the above-named property thirty days from this date.
    “ As witness my hand and seal, this 30th day of November, a. d. 1864. “James O’Neil.”
    The plaintiffs gave evidence by John Ward, a son of one of them, that after the agreement the plaintiffs advertised the property, wrote and spoke to a number of persons about it, and made efforts generally to effect a sale. The defendant came into plaintiffs’ office and wanted the agreement; said he could not think of selling until he got Mrs. Berry’s interest; as soon as he got that, he would put it into plaintiffs’ hands again, and give them the same terms, if not better. “ Father said he would not give up the article of agreement, but he would take it at the contract price' himself, rather than let the time run out. After pleading and talking for some time, he said as quick as he got Mrs. Berry’s interest he would put the property back in their hands for sale; then father told me to hand him the article, which I did. * * * O’Neil paid Tower & Ward $200 for their services, for which I wrote a receipt. * * * O’Neil paid them $100 each. Father did not want to take any money from him at all until he got the whole thing consummated, and he wanted the whole of it then. The $100 each was for services. O’Neil told father and Tower that they had a good deal of trouble with this thing, and he wanted to pay them as far as they went, and paid them $100 apiece. * * * They said if he would extend the time thirty days longer they would give him $3000 more than his contract price. This was the day they came to get the contract up.”
    The receipt was :—
    “Pittsburg, December 27th 1864.
    “Received of O. P. Berry & Co., by the hand of James O’Neil, two hundred dollars for services rendered.
    “Wm. Ward,
    “ G. H. Tower.”
    The court (Mellon, J.) charged:— * * *

    “ [It is claimed that the proposition of Mr. Ward, one of the plaintiffs, to take the property himself when (from defendant’s eagerness to possess himself of the contract), he suspected the defendant intended to revoke their power, amounted to a sale of the property under the power, or what was equivalent to a sale. But I am of the opinion that this proposition of Mr. Ward cannot be so regarded. First, because the instrument under consideration does not contemplate a sale to the plaintiffs or either of them. They were defendant’s agents, and although their taking the property on the terms prescribed may be regarded as no detriment to, the defendant, as he would not have fared better had they sold to a stranger, yet a percentage to them was provided which was inconsistent with a sale to themselves, and general policy would seem to deny, under such contract, the right of the agent to sell to himself.]
    “ But apart from this, it seems to me that Ward did not put himself in an attitude under the evidence to raise this question. He merely declared in effect that sooner than give up the contract he would take the property himself, or perhaps absolutely that he would take it himself, to which no response was definitely made by defendant. Therefore plaintiff Ward ought to have followed up his proposition by showing his readiness to pay. * * *
    “ You can find for the plaintiffs only under three aspects of the evidence :
    “ 1st. That the plaintiffs, before a revocation, had procured a purchaser who was prevented from consummating the bargain only by the revocation or some fault of the defendant. In that case your finding would be for the plaintiffs, the same amount in all respects as if the sale had been fully consummated.
    “ 2d. That defendant revoked the power, taking up the contract before the time limited. In that case your finding for plaintiffs would be a fair compensation for their services, including any expenditures by them properly incurred. But the defendant alleges payment for such services, and has produced a receipt purporting to be for $200 for such services.
    “You are, in the third place, to inquire whether that receipt was obtained, or payment made to plaintiffs fraudulently, and they were induced to accept this amount under the assurance that the power was not revoked, but to be restored, and that otherwise a much larger sum would have been demanded, and the plaintiffs entitled to it for their services, instead of $200 paid them. If you think they were thus imposed upon, and that they were entitled to a larger amount for their services, you will find the increase over the $200 in their favor, even if they had not procured a purchaser.”
    The verdict was for the defendant.
    The plaintiffs took a writ of error, and assigned for error the part of the charge in brackets.

      Bruce & Negley and Kuhn Cassidy, for plaintiffs in error.

      T. Marshall and R. Woods, for defendant in error.
    — Defendant had the right to revoke the power given to plaintiffs: Watson v. Bagaley, 2 Jones 164; Coffin v. Landis, 10 Wright 426; Story on Agency 605-615; Smyth v.. Craig, 3 W. & S. 14.
   The opinion of the court was delivered, January 3d 1871, by

Williams, J.

— The only question presented by the assignment of error in this case is, whether the proposition of William Ward, one of the plaintiffs, to take the property himself, which he and his co-plaintiff were authorized to sell, amounted to or was equivalent to a sale of it under the power ? The court below was of the opinion — and so instructed the jury — that the proposition could not be regarded as equivalent to a sale, because the instrument^iving the power to sell, does not contemplate a sale to the plaintiffs, or either of them — and public policy denies the right of an agent, under such a power, to sell to himself. The plaintiffs contend that, under the stipulations contained in the power of sale, this instruction was erroneous, and that the rule of law which forbids an agent to sell to himself, or several joint agents to sell to one of their own number, has no application in this case. The plaintiffs were authorized to sell the property for seventy thousand dollars, and for their services in making the sale the defendant agreed to pay them a commission of two per cent., and the additional commission of all they might sell the property for above the sum of seventy thousand dollars. As the price which the defendant was to receive for the property was fixed and limited by the stipulations contained in the power of sale, irrespective of the amount for which it might be sold, the plaintiffs insist that, without any violation of the policy of the law, either of them had the right to purchase the property on the same terms they were authorized to sell it to a stranger — and that the offer of one of them to take it on these terms was equivalent to a sale under the' power, and entitled them to the commission which the defendant agreed to allow them. But it seems to us that the question mainly discussed in the oral and printed argument, whether this case comes within the rule of law, which forbids an agent to sell to himself, does not properly arise under the evidence. The plaintiffs did not sell, nor did they undertake to sell the property to one of themselves. Ward’s offer to take the property, whatever may be its legal effect, was made to the defendant; and it was made, as the evidence shows, not in execution of the power of sale, but in answer to the defendant’s request to deliver it up. The offer was not pressed, and during the conference the plaintiffs said that if the defendant would extend the time (allowed for making the sale) thirty days longer they would give him three thousand dollars more than his contract price. The testimony of John Ward, the plaintiff’s son, is that “ after pleading and talking for some time, he (the defendant) said as quick as he got Mrs. Berry’s interest he would put the property back in their hands for sale; then father told me to hand him the article, which I did. * * * O’Neil told father and Tower that they had a good deal of trouble with this thing, and he wanted to pay them as far as they went, and paid them one hundred dollars apiece.” The plaintiffs gave the defendant a receipt for the two hundred dollars “ for services rendered.” It is clear that the offer, under the circumstances in which it was made, ca.nnot be regarded as equivalent to a sale of the property under the power. It was not so intended, or understood by the parties at the time it was made. There was no tender of the purchase-money, nor was anything done by the plaintiffs, or either of them, in pursuance of the offer, to put them in a position to treat it as equivalent to a sale under the power. On the contrary, they voluntarily surrendered the power of sale, and accepted the money tendered by the defendant as a compensation for the services they had rendered. But if the offer to take the property was made in execution of the power of sale, as contended by the plaintiffs, the defendant was under no obligation to accept it; and his refusal of it did not render him liable for the commissions he agreed to pay for selling the property. The relation between the parties, under the power of sale, was that of principal and agent, and it could not be changed into that of vendor and vendee without the consent of the defendant. Under no aspect of the case, then, were the plaintiffs entitled to recover anything beyond compensation for the services they rendered. The question as to the value of their services was fairly submitted to the jury with the instruction that if the plaintiffs were fraudulently induced to accept the amount tendered by the defendant under the assurance that the power was not revoked, but was to be restored, they should find such sum as they were entitled to receive over the amount paid them by the defendant. The court submitted the case to the jury with as favorable instructions for the plaintiffs as they had any right to ask, and if the jury did them any injustice by their verdict we have no power to correct it. Discovering no error in the record, we must affirm the judgment.

Judgment affirmed.


source: Caselaw Access Project

author: Shaeswood, J.

license: Public Domain

text:
    Lee versus Burke & Glass.
    1. In a claim, under the Act of April 16th 1845 (Mechanics’ Lien), it is not necessary'to set out the nature or kind of work and the kind and amount of materials as under Act of June 16th 1836.
    2. When the mechanic contracts, not with owner but the contractor, the kind of work and materials must be set out.
    3. The contractor cannot bind the building for more than the materials and work at a fair market price.
    4. Where the plea in a scire facias on a Mechanics’ Lien was “no lien,” no question as to the sufficiency of the lien could arise on the trial of issues of fact.
    5. The plea “ no lien” is not a demurrer.
    6. Forms and rules of plea,ding should'be observed and enforced in proceedings on Mechanics’ Liens.

      7. Russell v. Bell, 8 Wright 47, Lybrandt v. Eberle, 12 Casey 347, Howell v. Philadelphia, 2 Wright 471, Lewis v. Morgan, 11 S. & R. 234, recognised.
    October 31st 1870.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 19, to October and November Term 1869.
    This was a scire facias on a mechanic’s lien, issued June 18th 1868, by William Burke and David Glass, partners, &e. against Francis L. Lee, owner, and Duncan & Waughter, contractors. The defendant Lee pleaded “No lien, payment, set-off with leave.”
    The case was tried November 17th Y868, before Stowe, J.
    The claim filed was for $296.30, against a building in Pittsburg, “being a debt contracted for materials furnished by the said claimant, within six months- last past, and work done in and about the erection and construction of the said building, of which the said Francis L. Lee was and is the owner or reputed owner, and Duncan & Waughter the architects, builders and contractors thereof, at whose instance and request the said materials were furnished and work was done, for painting house aforesaid. * * * And the said claimant hereto annexes a bill of particulars, of the amount of $296.30, said debt showing the nature, kind and amount of materials furnished and work done, and the time when the same were furnished and done.”
    “ Francis L. Lee, owner; Duncan & Waughter, contractors.
    To Burke & Glass, Dr.
    To painting house in Pitt township. Work commenced October 8th 1867, completed March 24th 1868.
    Materials furnished,.....$144.30
    Labor and work done,.....152.00
    Total,......$296.30”
    L. Duncan, one of the contractors, testified as to the work and its character.
    The plaintiffs proposed to ask witness what was the amount of work done by them, the material furnished, and the value of the same, both as to labor and material.
    Defendants objected upon the ground that the lien filed does not set forth the kind and amount of material furnished, as is required by Act of Assembly.
    The court admitted the evidence, and sealed a bill of exceptions. The plaintiff gave evidence of the work done by them to the building under their contract with the contractors, also of glazing and of extra work done by the direction of Lee.
    Amongst other things the court charged:—

      “We are asked to instruct you that the lien is defective in not being sufficiently specific as to the work done and materials furnished. We hold that the lien is sufficient for the painting, and materials furnished for painting, but not for glass or glazing, as that is not included in the lien filed, as we interpret it.”
    The verdict was for the plaintiff for $201.43.
    The defendant, Lee, took out a writ of error, and assigned for error the admission of plaintiffs’ offer of evidence, and the parts of the charge given above.

      T. C. Lazear (with whom were J. M. Kennedy and J. Hopkins), for plaintiff in error.
    — The Act of June 16th 1836, Pamph. L. 696, Purd. 708, must be strictly complied with : McCoy’s Appeal, 1 Wright 125; Noll v. Swineford, 6 Id. 191. The bill must state the nature or kind of the work: Rehrer v. Zeigler, 3 W. & S. 258; Witman v. Walker, 9 Id. 186; Barclay’s Appeal, 1 Harris 496; Lauman’s Appeal, 8 Barr 473; Singerly v. Cawley, 2 Casey 248; Russell v. Bell, 8 Wright 52. There is no date of the furnishing of the materials: Lehman v. Thomas, 5 W. & S. 262.

      W. D. Moore (with whom were Moreland & Kerr), for defendants in error.
    — A substantial compliance with the act is all that is required: Driesbach v. Keller, 2 Barr 77. Where there is a contract items are not essential: Young v. Lyman, 9 Barr 449; O’Brien v. Logan, Id. 97; Richabaugh v. Dugan, 7 Barr 394; Shaw v. Barnes, 5 Id. 18; Donahoo v. Scott, 2 Jones 48; Jones v. Shawhan, 4 W. & S. 257.
   The opinion of the court was delivered, January 3d 1871, by

Shaeswood, J.

— The Act of Assembly of April 16th 1845, § 5, Pamph. L. 538, was intended to provide for the case of a special contract, made by a mechanic with the owner for the erection in whole or in part of a building. It was passed to change the law as declared in Hoatz v. Patterson, 5 W. & S. 537, and Haley v. Prosser, 8 W. & S. 133, in which it was held that one who by special contract undertakes to do the work or furnish the materials for a building, was not entitled to file a lien. Under this act it was decided in Young v. Lyman, 9 Barr 449, which has been followed in subsequent cases, that when a claim is filed on such a special contract under the Act of 1845, the mechanic is not required to set out, in such claim, the nature or kind of the work done, and the kind and amount of materials furnished, as provided in other cases by the 12th section of the Act of June 16th 1836, Pamph. L. 688. The reason for requiring these particulars to be furnished does not exist in the case of a special contract for a round sum of money. Oessante ratione cessat etipsa lex. But it is entirely different when the contract of the mechanic, though it may be for a round sum, is not with the owner but with a contractor under him. The contractor cannot bind the building, by any such special contract, for more than the materials furnished and the work done on the credit of the building, at their fair market prices. Hence, in such a ease, it is very important that the owner should be informed by the claim filed as to the particulars of the demand, that he may be enabled to make the necessary inquiries to satisfy himself of its justice as a lien on his property. This was the purpose of the Act of 1836. The decision, therefore, in Young v. Lyman does not apply to the case of a sub-contractor. All this was set at rest by the detérmination of this court in Russell v. Bell, 8 Wright 47.

The claim on this record was not that of a mechanic contracting with the owner, but with the contractor — in other words, of a sub-contractor. It was against Francis L. Lee, owner, and Duncan & Waughtér, contractors, and the body of the claim states that the materials were furnished and the work was done at the instance and request of the contractors. To the scire facias issued on this claim the defendant, Francis L. Lee, the owner, pleaded “ no lien, payment and set-off with leave.” It was the issues of fact raised by these pleas that the jury were called and impannelled to try. No question as to the sufficiency of the claim upon its face could properly arise upon the trial. That would be an issue of law. There might arise a question of variance, between the evidence offered, and the claim, as filed and recited in the scire facias — but not whether that claim was regular and sufficient. The short plea “no lien” cannot be considered as a demurrer, either general or special. It was not so in form, and if it was intended to be so in fact it did not raise an issue triable by the jury. The court should have entered a separate judgment upon it, if it had been a demurrer. The plaintiffs below had a right to accept the issue tendered of “no lien,” as an issue of fact; because it might well be that for some cause dehors the record there was no lien; as, that the claim had not been in fact filed within six months after the work done or materials furnished — that the work was not done or the materials furnished on the credit of the building — that the plaintiffs had bound themselves to file no claim, or that the building was not such a one as was within the Acts of Assembly; and there maybe other defences coming under the same category. But, as to defects on the face of the claim filed, they are not raised by such a plea. It is time that some regard to forms and rules of pleading should be observed and enforced in proceedings upon mechanic’s claims. No lawyer ever thought of going to trial before a jury upon a special demurrer to the declaration, or of objecting to evidence offered, on the ground that the count was defective. It was said by Mr. Justice Burnside, in delivering the opinion of tbe court in Shaw v. Barnes, 5 Barr 18 : “ Here there was a trial on the merits. As this court has settled in Lehman v. Thomas, 5 W. & S. 262, that the court may .strike from the record an irregular mechanic’s claim on petition and answer or demurrer, I will get over technical objections rather than disturb the merits of a case.” That was really the ground upon which that judgment went, as an attentive examination of the ease will satisfy the student. In Lybrandt v. Eberly, 12 Casey 847, the court say: “ We know not how any issue to the jury can be raised on the formal deficiencies of the claim filed — such as the want of dates, for these are mere questions of law. Such objections in accurate practice ought to be raised by demurrer, or by moving to strike off the lien, and we ought to come to this as soon as we can.” And again, in Howell v. City of Philadelphia, 2 Wright 471: “ The objection to the lien for want of dates might have been formidable on demurrer or a motion to strike off, but after pleading to the scire facias it must be considered as waived.”

It is unnecessary, therefore, to consider the objections to the validity of the claim filed in this case. As was said by this court in Lewis v. Morgan, 11 S. & R. 234, when such objections were raised under the plea of payment, the points, on which the defendants required the direction of the court, were not involved by the pleadings, and an error with respect to them in the charge cannot be assigned as a ground for reversing the judgment.” So, also, it could form no objection to the evidence offered, that the claim was defective, if it did not vary from it.

Judgment affirmed.


author: Sharswood, J.

text:
    The Youghiogheny Iron and Coal Co. versus Smith.
    1. If an agent make a contract in his own name without disclosing his principal, the principal even if unknown to the contractor is bound and liable for damages on a breach.
    2. By contracting in his own name, the agent only adds his personal obligation, to that of his principal.
    3. Iron was delivered under a contract, the vendor was notified that it was inferior and requested to take it away, he neglected to do so. The vendee could dispose of it or use it, and the vendor was entitled only to its actual market value.
    4. The measure of damages to the vendee to whom an inferior article was delivered and retained by him, was the difference between the value of the article and what a good article could be obtained for.
    October 31st 1870.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to tbe District Court of Allegheny county: No. 54, to October and November Term 1869.
    This was an action of assumpsit to April Term 1868, by William Smith against The Youghiogheny Iron and Coal Company, for failure to deliver iron under the contract hereafter mentioned. The plaintiff’s evidence was, that in June 1867 the defendants made two contracts to deliver to him good, gray, soft Youghiogheny iron: one contract was for 100 tons, the other for 400 tons, the president of the company, Mr. Wickersham, promising to haul it at once. The plaintiff gave his notes for the iron at four, five and six months. A third contract was made in August with Mr. Wickersham for 500 tons more of the same kind of iron as the former, to he delivered as fast as the plaintiff should require it; three notes were given for this iron at four, five and six months. The iron was not delivered in season, and in consequence the notes had to he renewed, Mr. Wickersham promising to pay the discount, amounting to $500.14; the iron delivered on the last contract was of very inferior quality; the plaintiff had to go into the market to obtain other iron “to supply its place, and sustained “a severe loss.” The iron was shown to Wickersham ; he said the iron was not good; “ the company would make it all right, Mr. Smith should not lose by it;” he told .the plaintiff to lay the inferior iron by; he took a few loads back. The notes were at Wickersham’s request made to him instead of the company ; they had been paid by the plaintiff.
    The defendant gave evidence that the company’s iron was sent to Wickersham to sell on commission which was paid him in addition to his salary; orders were never received at the furnace; its product was sent to him and he sold it; he was financial agent of the company; he collected the money for iron sold, and applied it to the liabilities of the company.
    The defendant’s points and their answers were:—
    1. “ The plaintiff, having brought an action of assumpsit, and having neither alleged nor proved a warranty, cannot recover in this action without returning, or offering to return the iron ; and if the jury believe from the evidence that the plaintiff, notwithstanding his dissatisfaction with the quality of the iron, finally concluded to retain and use the same, he is precluded in law from subsequently recovering damages for an alleged defect in quality.”
    2. “ The evidence of R. H. Smith, one of the plaintiff’s witnesses, that Wickersham, the president of the company, told the plaintiff to put the defective iron aside, and that the company would act so that the plaintiff would suffer no damage, will not enable the plaintiff to maintain this action, unless the jury are satisfied from the evidence that the plaintiff closed with the proposition, and actually put the objectionable iron aside for the defendants ; but if the jury believe that the plaintiff did not accept or rely upon the said proposition, but, from fear of the company’s solvency, or for any reason that seemed good to him, elected to retain and use the iron, he cannot now complain and recover damages, hut the verdict should be for the defendant.”
    Answer to 1st and 2d points: “ If you believe from the evidence that Wickersham agreed, in consideration that the plaintiff would give him his negotiable notes in advance, to deliver to him 500 tons of ‘ good, gray, soft Youghiogheny iron,’ as fast as it could be manufactured at the furnace, and if the plaintiff then gave his notes, which were discounted immediately, and the proceeds received by the defendant; and .if, when the iron came to be manufactured and delivered, it was found not to be ‘ good, gray, soft Youghiogheny iron,’ but a white iron, made of cinders, and of a very inferior quality —so much so that it could not be used by the plaintiff in carrying on the kind of business for which it was purchased; and if he frequently notified defendant of these facts, and requested him to take the iron away; and if the defendant did not do so, but requested the plaintiff to let it remain on his premises, and promised that he would make it all right with him, so that he should lose nothing by it; and if the iron was left there under these promises, and the defendant neglected either to take it away, or to supply its place with such iron as he had contracted to deliver, for an unreasonable time; and if the plaintiff was compelled to go into the market and buy iron in its place, to enable him to carry on his works — then, when the plaintiff, as in this case, has paid in advance, he may, in order to secure himself as far as he can, use the metal for such purpose as he may think proper, and bring suit against the defendant for the difference between what this white iron was worth in the market, and what he was obliged to pay for iron to supply its place.”
    4. “If the jury believe, from all the evidence in the case, that the contract was made with Wickersham as an individual, and that the plaintiff, at the time of the contract, looked only to Mr. Wickersham as the party with whom plaintiff dealt, plaintiff cannot maintain an action 'against defendant, but his remedy is against Wickersham alone.”
    Answer: “ We may as well first dispose of the question 2*aised by defendant’s 4th point, as to whether this action can be maintained against the defendant. There is no conflicting testimony on this question. Taking all the testimony to be true, the jury will be warranted in coming to the conclusion that Mr. Wickei’sham had power to make this contract for the company — and that it was binding on it — and therefore as far as this question is concerned, the plaintiff is entitled to the verdict.”
    The court (Hampton, P. J.) further instructed the jury:—
    “ You may find for the plaintiff the difference between the true market value of the 300 tons of white iron and the true market value of the same amount of ‘good, gray, soft iron,’ if the plaintiff was obliged to pay that much to supply the place of the other, with interest.”
    The verdict was for the plaintiff for $3209.
    The defendants took a writ of error and assigned for error the answers to their points and the part of the charge given above.

      G. Shiras, Jr., for plaintiffs in error.
    — A vendee of personal property, not having alleged a warranty or wilful deceit, and having accepted and converted to his own use the thing sold, is precluded from claiming damages for alleged inferiority of quality : Chandelor v. Lopus, 1 Smith’s L. C. 238 ; Fisher v. Launda, 1 Campbell 190; Grimaldi v. White, 4 Esp. 95; Milner v. Tucker, 1 C. & P. 15; Reed v. Randall, 29 N. Y. 358; Heilbruner v. Wayte, 1 P. F. Smith 261; Eagan v. Call, 10 Casey 236; Carson v. Baillie, 7 Harris 375; Wetherill v. Neilson, 8 Id. 448; Weimer v. Clement, 1 Wright 148; “Law of Sales,” July 1868, of the Law Review 636; 1 Smith’s L. C. 289, note; Kirk v. Nice, 2 Watts 367.

      A. M. Brown, for defendant in error.
    — The article was not that contracted for: Borrekins v. Bevan, 3 Rawle 42, and, if taken under objection, a reduction in price might be required: Buffing-ton v. Quantin, 5 Harris 310; Bailey v. Green, 3 Harris 118; Parkinson v. Lee, 2 East 144; Frankenfield v. Freyman, 1 Harris 56; Fraley v. Bispham, 10 Barr 320; Lord v. Grow, 3 Wright 88; Everett v. Gray, 1 Mass. R. 101; Freeman v. Clute, 3 Barb. 424. The measure of damages in this case was the actual injury sustained in consequence of the defendant’s default — compensation for the actual loss: Sedgwick on Damages 210; Peters v. Whitney, 23 Barb. N. Y. 24; Davis v. Talcott, 14 Barb. 611; Singer v. Farnsworth, 2 Ind. 597; Sedgwick on Damages, 202 and note 1, 203; Masterton v. Mayor of Brooklyn, 7 Hill 62; Bank of Montgomery v. Reese, 2 Casey 143; Adams’ Express Co. v. Egbert, 12 Casey 360; Morris v. Parham 4 Phila. R. 62; Smethurst v. Woolston, 5 W. & S., 106; Forsyth v. Palmer, 2 Harris 97.
   ■ The opinion of the court was delivered, January 3d 1871, by

Sharswood, J.

— It will not be necessary to discuss the several errors assigned separately, as the principles involved in them may be stated and disposed of more briefly in a different order.

It may certainly be now regarded as a point settled, beyond all p jssible controversy, that if an agent, duly authorized, makes a contract in his own name, without disclosing his principal, and even when such principal is entirely unknown to the other contracting party, he is nevertheless bound, and damages may be recovered of him in an action for its breach. By contracting in big- own name, tbe agent only adds bis personal obligation to that of tbe person' who employs him : 2 Kent’s Com. 631 and note. The learned judge below was, therefore, perfectly right in treating the question presented to him, of the liability of the defendants on the contract of Wickersham, as one merely of power, and in submitting to the jury as • the only question whether he was duly authorized to make the contract in question for the sale of their iron. That the notes for the price were drawn to Wickersham’s order, and that a bill for the damages was afterwards rendered by the plaintiff to him, and in his name alone, were facts altogether immaterial; nor would it help the plaintiffs in error on another trial, if they should prove by Wickersham that the company had nothing to do with the contract or with the promissory notes, if the fact remains, as established by this verdict, that Wickersham was their agent, with full power to make the contract for the breach of which the action was brought.

As to the question whether when a manufacturer undertakes to make and deliver an article of a designated quality, and in fact delivers one of an inferior kind, the vendee is bound to return it, and cannot keep it and resort to an action for damages, which has been so elaborately argued on both sides, it does not arise on this record, and we are not called upon to decide it. The learned judge below, in the manner in which he submitted the case to the jury, substantially ruled that point in favor of the plaintiffs in error, and they have, therefore, no reason to find fault with the charge. He put the case to them exclusively upon the fact of a special agreement between the parties, and it is not alleged or pretended that there was not evidence in the cause to justify such submission. If the jury believed that the vendee notified the agent of the vendors of the bad quality of the iron, delivered and requested him to take it away — if the agent did not do so, but requested the vendee to let it remain on his premises, and promised that he would make it all right with him, so that he should lose nothing by it — surely these facts dispensed with any return of the iron, and made the vendors responsible for the damage sustained by their breach of contract in delivering an article of an inferior quality to that which they had contracted to deliver. After such a tender and refusal, it was not the duty of the vendee to keep the iron on hand, especially as it was a cum- ■ brous article, to wait the good pleasure of the vendors, but he could dispose of or use it, and all that the vendors could in ¡reason ask would be a credit for its actual market value.

The rule laid down by the learned judge for the measure of damages was undoubtedly right and perfectly accurate. If the jury found from the evidence the facts submitted to them, the plaintiff was entitled to recover the difference between what the inferior article was worth in the market and what he was obliged to pay for good iron to supply its place. And as the iron contracted for was to have been delivered before the maturity of the notes given for it, it certainly cannot be questioned that if these notes were renewed at the request of Wickersham, with whom, according to the theory of the plaintiffs in error, the vendee was dealing as the agent of an undisclosed and unknown principal, and he specially promised to pay the discount upon their renewal, the plaintiff would have an undoubted right also to recover the money so paid with interest.

Thus the defendant’s points were all substantially answered in the charge, and in a manner of which he has no just cause to complain.

Judgment affirmed.


author: Thompson, C. J.

text:
    Gray & Bell versus Scott and Wife.
    1. The end of a railroad track was over a passage way in a yard from a rolling-mill through which wheelbarrows, trucks, &c., frequently passed from the mill. A car was negligently pushed over the end of the track and killed a boy playing in the passage. He had been frequently warned not to be in the passage on.account of danger from the trucks, &c. His not heeding the warning was not contributory negligence with respect to the car.
    2. He was not guilty of contributory negligence with respect to the cars uuless there had been some reason to expect danger, and there was a duty of care on his part in relation to it.
    November 1st 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 40, to October and November Term 1870.
    This was an action on the case, commenced May 26th 1869, by George Scott and Sélina his wife against George Gray and Isabella Bell, partners, &c. The suit was brought to recover damages for the death of the plaintiffs’ son by the negligence of the defendants.
    The defendants had been employed in delivering coal to the rolling-mill of J. Painter & Co. On the side of the mill is a private railroad track belonging to Painter, which the defendants were bound to keep in repair. The end of the track was over a passage-way from the mill into the yard, and there was at the end of the track a piece of board one inch thick for a “ butting block originally there had been a piece of scantling two or three inches thick. The coal was drawn in mule-ears from the mines to the private track, and then pushed along it by hand. On the 22d of March 1869 Winfield Scott, the son of plaintiffs, about thirteen years old, and employed in the mill, was playing marbles with other boys in the passage under the end of the track, when the hands of the defendants, in pushing up a loaded car, toppled an empty car which was standing on the track, over the end; it fell upon the lad and killed him. This was the cause of action in this case.
    The plaintiffs proved these facts with others bearing on the question.
    On the part of the defendants Jacob Painter testified: “Am of firm of Painter & Sons; have frequently ordered those boys away from the place where this boy was killed; have caught them and shook them and made them go away; that morning drove the boys away, told them that the place was dangerous; did not expect danger from whence it came, but from wheelbarrows, iron, trucks, &c., in the mill; platform on our own property; have ordered this particular boy away; often told boys that passageway was dangerous; never thought of danger from cars; if we had been notified of this, would have had it secured; the danger I thought of was from passing and repassing with iron, &c.; Gray & Bell had control of platforms; they had to keep them in repair.”
    Byron Painter testified to about the same facts.
    The defendants’ 6th point was:—
    “ If the jury believe the testimony of Jacob Painter and Byron Painter, owners of the rolling-mill where the accident occurred; that they and their superintendent had repeatedly ordered and driven the plaintiffs’ son with other boys away from the place ■where he was killed, at the same time warning them of the general dangerous character of the passage-way or “gangway,” and, notwithstanding such repeated warnings, the boy persisted in frequenting that particular place for the purpose of amusement, then he was guilty of such negligence on his part as to prevent the plaintiffs’ recovery.”
    The court (Kirkpatrick, J.) refused the point.
    The verdict was for the plaintiffs for $718.09.
    The answer to the point was assigned for error, on the removal of the case to the Supreme Court by the defendants.

      C. S. Fetterman, for plaintiffs in error.
    — The plaintiffs cannot recover if they or the lads were guilty of negligence: Shearman & R. on Negligence 28 and 51 note 2, 55 note 2 ; Oakland Railroad Co. v. Fielding, 12 Wright 320 ; Balfourd v. Boud, 30 Jur. 124; Burke v. Broadway Railroad, 49 Barb. 529.

      A. Kerr, for defendants in error,
    cited Reeves v. Del. Lack. & W. Railroad, 6 Casey 454; Brown v. Lynn, 7 Id. 510; Penna. Railroad v. Kelly, Id. 372; Rauch v. Lloyd, Id. 358.
   The opinion of the court was delivered, November 14th 1870, by

Thompson, C. J.

— We think it would have been manifest error had the learned judge affirmed the defendants’ 6th point. To have done so, would have been to impute negligence to the plaintiff’s son, in not regarding a warning of danger from a cause entirely different from that by which he lost his life. The Painters warned the boys, the deceased and others, off the gangway, because it was a passage for laborers and workmen to pass through with iron, trucks, wheelbarrows, &e.; it was on account of this kind of use of the passage-way that they considered it dangerous. Jacob Painter says he “ did not expect danger from whence it came, but from wheelbarrows,” &e.; “never thought of danger from cars.” The cars were overhead, and there was no possible danger from them where the boy was killed, unless they were pitched off the tramway and fell on somebody below. This was not anticipated by the Painters or anybody else. There could be no danger from this source unless from inevitable accident, recklessness or carelessness. That there was negligence on part of the defendants below in not sufficiently securing their tramway so as to stop the headway of their cars, was scarcely denied, and that this was the occasion of the cars going overboard and killing the boy, is undeniable. But because he was under the tramway in the passage below, it is thought he was guilty of contributory negligence. He could not be guilty of negligence as to the defendants, without there was some reason to expect danger, and a duty of care on his part in relation to it. There was ordinarily none. He had a right, therefore, to suppose everything secure and safely managed on the tramway, and because it was not, he was killed. Precisely the same argument could have been used if the boy had been killed in that place.by the negligent use of fire-arms discharged a hundred yards off. If he had a moment’s leisure to amuse himself in the interim of his labor, and did so where he had no reason to expect danger, the fact that he did so was of itself no evidence of negligence on his part. We think that the plea of contributory negligence was not made out by the testimony referred to in the point, and the court did right in refusing it.

Judgment affirmed.


author: Read, J.

text:
    Hoeveler versus Mugele et al.

    1. In an action on a bond for purchase-money of land, evidence for defendant, that the land was to be the basis of an oil and mining company, that the sum secured was to be paid when realized from the sale of stock or if the stock could not be sold from the products of the land, was admissible.
    2. The jury found for the plaintiff, “the lien, &c., of the judgment to be confined to the proceeds of sale of the stock and products of the land,” &c. Held to bo proper.
    3. Aycinena v. Feries, 6 W. & S. 243, Irwin v. Shoemaker, 8 Id. 75, recognised.
    November 1st 1870.
    Before Thompson, C. J., Read, Agnew, Shabswood and Williams, JJ.
    Error to the. Court of Common Pleas of Allegheny county: No. 100, to October and November Term 1870.
    On the 23d of February 1867, Augustus Hoeveler brought an action of debt against Charles P. Mugele, Adam Becker, Raymond Schaffer, William Euler and Ludwig Schmidt. The plaintiff having died, Elizabeth Hoeveler, his administratrix, was substituted.
    The cause of action was the following instrument, signed under seal by all the defendants, and dated November 7th 1865.

      “ On or before the first day of May next (1866), we jointly and severally promise to pay to Augustus Hoeveler, of the county of Allegheny, or his assigns, the sum of two thousand two hundred and eighty-five dollars and- seventy-two cents, together with interest from this date, it being in full payment for the purchase of six hundred acres of land, on the east side of Cheat river, below Rowleshurg, in Preston county, West Virginia, this day conveyed to us by him; for the true payment of which we bind ourselves,” &c.
    On the trial, before Mellon, J., the plaintiff read the note in evidence and rested.
    The defendants then offered to prove that at the time the note was executed, it was understood between all the parties that the land, for a part of the purchase-money of which the note was given, was to be conveyed by defendants, together with other lands held by them, to an oil company about to be formed, and that plaintiff would depend for payment of his note upon the sale of shares in the oil company, and failing that, upon the sale of timber and mineral products of the company’s lands. The plaintiff objected to the testimony; it was admitted and a bill of exceptions sealed.
    The testimony was in accordance with the offer. It is stated in detail in the opinion of Mr. Justice Read.

      The verdict was for plaintiff for $2771.07: “ The lien and execution of any judgment upon this verdict, to be restricted and confined to the proceeds of sales of shares and products of the lands of the Pittsburg Lumber, Oil and Mining Company, situate in Preston county, West Virginia, and in default of payment thereof out of such proceeds and products, then to the said lands of said company,” subject to the opinion of the court on the question of law reserved. May 22d 1869, the plaintiff’s, counsel moved the court to strike out all that part of the verdict6 which follows the amount found by the jury, and to enter judgment on the verdict so amended. September 28th 1869, the motion to amend the verdict dismissed, and judgment on the verdict in favor of the plaintiff on the points of law reserved.
    The plaintiff took a writ of error, and assigned for error: — ■
    1. Refusing the plaintiff’s motion to amend the verdict, and enter judgment on the same as amended;
    2. Directing judgment to be entered on the verdict.
    3. Admitting the defendants’ offer of testimony to contradict the written contract sued on.

      J. I'. Slagle and 21. Burgwin, for plaintiff in error.

      A. M. Brown, for defendants in error.
    — To refuse performance of a promise made to obtain a written instrument is a fraud which cannot be taken advantage of: Campbell v. McClenaehan, 6 S. & R. 171; Morrison v. Morrison, 6 W. & S. 516; Miller v. Henderson, 10 S. & R. 290. Oral evidence may be given of what occurred at the execution of a contract: Reariek v. Rearick, 3 Harris 66 ; Renshaw v. Gans, 7 Barr'117; Chalfant v. Williams, 11 Casey 212; Bank v. Fordyce, 9 Barr 275; Rearich v. Swine-hart, 1 Jones 233 ; Barnhart v. Riddle, 5 Casey 92; Musselman v. Stoner, 7 Id. 265; Boyd v. Breece, 3 Philada. R. 206; Parke v. Chadwick, 8 W; & S. 98.
   The opinion of the court was delivered, January 3d 1871, by

Read, J.

— This was an action to recover the sum of $2285.72 with interest, upon a bond executed by the defendants, promising to pay that amount to the decedent, it being in full payment for the purchase of 600 acres of land, on the east side of Cheat river, below Rowlesburg, in Preston county, West Virginia, this day conveyed to us by him. It is dated the 7th November 1865, and the defence shows it was a part of a plan to organize an oil company, and the defendants offered parol evidence of what occurred between the parties at and immediately before the execution of the instrument. This was objected to by the plaintiffs, but the learned judge admitted the testimony, and sealed a bill of exceptions. •

The evidence thus admitted showed that Augustus Hoeveler, being the owner of 600 acres of land on the east side of Cheat river, in Preston county, West Virginia, proposed to the defendants the organization of the “ Pittsburg Lumber, Oil and Mining Co.,” with said land and other lands of the defendants as a basis, and for that purpose, and preliminary to said organization, to convey his land to defendants for said company, at the nominal consideration of $6000, payable as follows, viz.: $3714.28 in stock, and the residue, $2285.72, in cash, when realized by sale of stock to outside parties ; and in case the stock could not be sold, then Hoeveler was to look to the products of the land, to wit, timber, lumber, &c., to be obtained from the land, and in the meantime the defendants were to give their note for said sum of $2285.72 as a voucher for amounts to be paid, and because there were no officers of the company to issue such obligation. The defendants also agreed to take stock for their lands, and all the parties were to share in the profits, according to their pro rata interest in their adventure. The company was organized and chartered, mills erected, and other things done in furtherance of the common object; but they were unable to sell sufficient stock to pay the Hoeveler note, and evidence was given tending to prove that the failure was attributable to the default of Mr. Hoeveler.

This evidence was clearly admissible, and to have excluded it would have been permitting the commission of a fraud upon the defendants.

The jury found a verdict for the plaintiff, with this restriction : “the lien and execution of any judgment upon this verdict, to be restricted and confined to the proceeds of sales of shares and products of the lands, of the Pittsburg Lumber, Oil and Mining Co., situate in Preston county, West Virginia, and, in default of payments thereof out of such proceeds and products, then to the said lands of said company,” following the memorable examples of Aycinena v. Peries, 6 W. & S. 243; Irwin v. Shoemaker, 8 Id. 75.

This verdict was perfectly right, and in entering judgment upon it the court committed no error.

Judgment affirmed.


author: Williams, J.

text:
    The Lucesco Oil Co. versus Brewer et al.

    1. If the part of a contract to be performed by one party consists of several distinct items and the price to be paid by the other is apportioned to each item or is left to be implied by law, ordinarily it is a severable contract.
    2. If the consideration is single and entire, the contract is entire, although it may consist of several distinct and independent items.
    3. The consideration to be paid, not the thing to be performed determines the class to which the contract belongs.
    4. The contract in this case was held to be severable.
    November 1st 1870.
    Before Thompson, O. J., Bead, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1869, No. 123.
    This was action of debt, commenced October 28th 1868, by George Brewer and others, trading as Brewer, Burke & Co., to the use of Bobert H. Palmer, their assignee, against The Lucesco Oil Company. The claim filed by plaintiffs was for $64,790.26.
    On the trial, June 28th 1869, before Stowe, J., the plaintiffs gave in evidence an agreement between them and defendants, dated September 29th 1866, as follows:—

      “ That the said Brewer, Burke & Co. hereby covenant and agree, to and with the said Lucesco Oil Company, that they will from time to time, as it shall be required, advance to the said company, cash to an amount not exceeding $75,000, for the purchase of crude oil, barrels, materials, and to pay for labor, &c., for the vigorous prosecution of the, work of refining crude oil and its products, at the works of the Lucesco Oil Company, at Lucesco. That they will undertake to sell all the refined oil and other products manufactured by the said company, under the direction and subject to the approval of the directors and secretary of the said company, or either of them, and guaranty the payment of all such sales, net proceeds of same to be credited to the company on account ; that they will render a just and true account of all sales as made, closed or completed, and also an account current and interest account, on or about the first day of each and every month thereafter during the continuance of this agreement, and that they shall and will at all times endeavor to procure the best price that can be obtained for oil. * * * In consideration of the advancements to be made under this agreement, and services rendered in making sales and guarantying the same, the Lucesco Oil Company agree to execute and deliver forthwith to said Brewer, Burke & Co. a mortgage on all their real estate situate in Westmoreland county, &c., for $75,000, conditioned to pay whatever sums of money shall have been advanced by said Brewer, Burke & Co., together with six per cent, interest thereon from the date of advances made. * * * And the said company will pay them a commission of two and a half per cent, on all net sales of the products of the works, it being distinctly understood that the commission of two and a half per cent, on net proceeds of sale includes compensation for guarantying and all charges for brokerage on sales, no matter how effected. This agreement is to be in full force until the first day of October 1867, with privilege to the Lucesco Oil Company to continue the arrangement for another year from that date should they elect so to do. * * *
    “ It is the distinct understanding and intent of this agreement, that the Lucesco Oil Company shall give to Brewer, Burke & Co. the exclusive sale of all the refined oil, and any and all other products manufactured by them during the term of this agreement.” They gave in evidence, bond from defendants to plaintiffs, dated September 29th 1866, in the penalty of $75,000, viz.:—
    * * * “Whereas, by agreement bearing even date herewith, made and entered into by and between Messrs. Brewer, Burke & Co. and the Lucesco Oil Company, the parties above named, the said Brewer, Burke & Co. agreed to advance the said Lucesco Oil Company the sum of $75,000, for certain purposes, and accompanied by certain conditions, all of which are more particularly described and set forth in said agreement.”
    “ The condition was that the said Lucesco Oil Company, &c., shall pay, &c., unto the said Brewer, Burke & Co., &c., all such sums of money as shall be due and owing said Brewer, Burke & Co. on final settlement of the accounts between said parties, according to the terms, stipulations and covenants as set forth in the contract aforesaid, whenever the same shall become due and payable according to the terms thereof,” &c.
    Also the books of defendants, showing balances of advances, under the contract, by plaintiffs; the last being September 30th 1867, for $71,271.90.
    The defendants gave evidence of notice of renewal of the contract, dated August 31st 1867; also evidence of irregularity in return of sales by the plaintiffs, and of obtaining money; that the works were stopped in January and September 1867, because the plaintiffs neglected' to furnish funds or oil to go on with; that they refused money when asked for it.
    The defendants proposed to ask J. O’Hara, one of their directors, who was on the- stand—
    “ Do you know the amount of loss to the company by their running on with the assurance that the tanks would be kept full, when they were not so kept filled by plaintiffs ?”
    The plaintiffs objected to the question.
    The court rejected it, saying: “ As we understand this offer, it is to set off damages arising out of a collateral agreement between the parties.”
    A bill of exceptions was sealed for defendants.
    There was other evidence on both sides.

      The defendants submitted the following points, all of which were refused :— '
    1. If the jury believe that the defendants availed themselves of the privilege of renewing the contract for one year from September 29th 1867, and did so notify the plaintiffs, and that the plaintiffs refused to furnish the money under the renewed contract, until the expiration of the time of renewal, then they are not entitled to recover.
    2. The reasonable and fair construction of the contract in this case is, that plaintiffs were to keep the defendants continually supplied with an advancement of money to the amount of $75,000, if so required by defendants, to enable them successfully to carry on the business of purchasing and manufacturing oil, and that if defendants so elected, the contract should continue in force for one year from September 29th 1867; and if the jury believe that plaintiffs failed to pay the money as required, to furnish accounts of sale as required, and finally refused, on demand made, to continue the arrangement until the expiration of the extended contract, they are not entitled to recover.
    3. The contract declared on in this case is entire, and the plaintiffs are bound to show complete performance or dispensation therewith by the party entitled to performance, without doing which they cannot recover.
    4. According to the terms of the written contracts set forth in plaintiffs’ narr., they are not entitled to recover, because it is an entire contract, the general rule being that an entire contract cannot be apportioned.
    5. Time is of essence of the contract, and if the jury believe the amount of money, viz., $75,000, was not furnished from time to time as required under the contract, and that they failed to make returns of sales, as they were bound to do under the contract, they are not entitled to recover.
    6. If the jury believe that the defendants depended on the furnishing of the money by plaintiffs for the purchase of crude oil, and if it was necessary for them to be supplied with the amount of money plaintiffs were bound to furnish under the contract to enable them to take advantage of the oil market, and by the neglect or refusal of the plaintiffs so to furnish the amount of money the plaintiffs were to do, the jury are not limited in their finding to any special damage suffered by such refusal, but may find such damages as they see proper, under all the circumstances in evidence before them.
    7. If the plaintiffs, from inability or for any other reason, failed to furnish money as required, and abruptly ceased to comply with their part of the contract, then they cannot recover.
    8. The covenant to renew the contract being peculiar to one party, to wit, the defendants, and they having given notice-of their determination to continue the contract for a year longer, the plaintiffs were bound to furnish the sum specified, viz., $75,000, for that time, and any failure on their part so to do within the year is a violation of the contract on their part, and they cannot recover.
    Judge Stowe said also in his charge: — ■
    “This is not what is known as an entire contract, and therefore plaintiff can re.cover the balance of the advancements, less whatever damages defendants have sustained by the failure of plaintiffs to comply with their contract, if any.’' * * *
    The verdict was for the plaintiffs for $70,286.63.
    The defendants removed the case to the Supreme Court; their assignments of errors were the rejection of their offer of evidence and the answers to the points.

      R. B. Roberts (with whom was R. Robb), for plaintiff in error.
    An entire contract is one, the consideration of which is entire on both sides: Story on Contracts 13. One party cannot recover unless he shows performance of his part of an entire contract : Shaw v. Turnpike Co., 2 Penna. R. 454; Martin v. Schoenberger, 8 W. & S. 367; Hall v. Rupley, 10 Barr 231; Danville Bridge Co. v. Pomroy, 3 Harris 151; Eckel v. Murphy, Id. 488; Keeler v. Schmertz, 10 Wright 135; Crossgrove v. Himmelrich, 4 P. F. Smith 203. Evidence as to damage was pertinent: Fessler v. Love, 7 Wright 313.

      T. MacConnell (with whom was S. Schoyer, Jr.), for defendants in error.
   The opinion of the court was delivered, January 3d 1871, by

Williams, J.

— The defence set up by the plaintiffs in error, the defendants below, on the trial of this case, was based on the hypothesis that the contract between the parties is entire, and that no recovery could be had thereon, because the plaintiffs below had not in all respects fully performed their part of the agreement. All the points submitted by the defendants — with the exception of the 6th relative to the measure of damages — and the refusal of which by the court is assigned as error, were predicated of an entire contract. If then the contract was severable, and not entire, the court rightly refused to give the instructions prayed for. The criterion for determining whether a contract is entire or separable is thus stated by Mr. Parsons in his work on the Law of Contracts: “If the part to be performed by one party consists of several and distinct items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such a contract will generally be held to be severable. * * * But if the consideration to be paid is single and entire, the contract must he held to be entire, although the subject of the contract may consist of several distinct and wholly independent items2 Pars. Oont. 29-31. This rule of classification is based on a distinction so simple that it may be easily understood and readily applied. It is the consideration to be paid, and not the subject or thing to be performed, that determines the class to which a contract belongs. Its entirety or separableness depends not upon the singleness of its subject, or the multiplicity of the items composing it, but upon the entireness of the consideration, or its express or implied apportionment to the several items constituting its subject. If the consideration is single the contract is entire, whatever the number or variety of the items embraced in its subject; but if the consideration is apportioned, expressly or impliédly, to each of these items, the contract is severable. Judged by this criterion, there is no difficulty in determining to which class the contract in this case belongs. It is manifest from an inspection of its provisions that singleness or entirety of consideration cannot be predicated of it. It consists of several and distinct items, and the consideration to be paid therefor is several, and apportioned to each item; the whole is dependent upon the amount of the advances made, and of the net proceeds of the oil and other products manufactured by the company. The contract therefore was not. entire but severable; and the court rightly instructed the jury that the plaintiffs might recover the balance of the advancements, less whatever damages the company had sustained by the failure of the plaintiffs, if any, to comply with their contract. Nor was there any error in the refusal of the court to charge as requested in the defendant’s 6th point. If the plaintiffs neglected or refused to furnish the amount of money they agreed to advance, the company had the right to set off the special damages it had sustained by such neglect or refusal. But the court was asked to instruct the jury that they were not limited in their finding to any special damage suffered by such refusal, but might find such damages as they saw proper under all the circumstances in evidence before them. If the court had given this instruction, it would have Been manifest error, for it would have left the jury without any rule or measure for their guidance in assessing the damages.

The refusal of the court to allow the defendant’s witness to answer the question proposed to him, was properly overruled for the reason given by the learned judge — that it was an offer to set off damages arising out of a collateral agreement between the. defendant and one of the plaintiffs.

Judgment affirmed.


text:
    McCabe versus Burns and Stevenson.
    1. B. & S. projected an oil company and induced M. to subscribe to the stock. The land on which it was based was afterwards conveyed to the company by the vendor of B. & S. M. sued them to recover the money paid for his subscription, on the ground of their fraudulent misrepresentations. It was not necessary that M. should first tender a reconveyance of the land.
    2. The company was not incorporated. No estate passed by the conveyr. anee and M. had no interest legal or equitable in the land.
    3. B. & S. had given M. a receipt for his subscription, but no stock had been issued to him; he was not bound to tender the stock nor the receipt which was the evidence of his payment.
    4. There was evidence that B. & S. acted in concert and made false statements in procuring the subscriptions of M. and others. Evidence of the acts and declarations of B. & S. or either of them, either in the presence or absence of M., if tending to throw light on the transaction or corroborate testimony already in,Was admissible.
    November 1st 1870.
    Before Thompson, C. J., Bead, Agnew, Shaeswood and Williams, JJ.
    Error to the District Court of Allegheny county: Of October and November Term 1869, No. 135.
    This was an action of assumpsit brought, July 18th 1867, by William P. McCabe against John Burns and Samuel Stevenson, to recover $250 paid by the plaintiff as part of the subscription price of a share of stock in an oil company, paid under fraudulent misrepresentations.
    The case was tried, July 7th 1869, before Kirkpatrick, J.
    The plaintiff gave in evidence this receipt:—
    “ Middletown, January 26th 1866.
    “Beceived of William P. McCabe $250, the first instalment on one share of stock in the Middletown Oil Company. The company lands are located on the Little Beaver creek, St. Clair township, Columbiana county, state of Ohio, consisting of 8 acres and 20 perches, in fee simple.
    “John Buens; Samuel Stevenson.”
    lie then gave in evidence a deed dated March 1st 1866 from Daniel Smith to the Middletown Oil Company for certain premises containing 8 acres 20 perches in Columbiana county, Ohio, the consideration stated in the deed being $26,000.
    The plaintiff testified that Burns asked him to enter into “something” which he and Stevenson had for “his friends and neighbors,” which would treble their money as soon as they got possession, that plaintiff should stand on the “ground floor,” as he and Stevenson did; they were not making a cent. He described to plaintiff where the land which was the subject of the project, was. He said they were to pay $26,000 for it. Plaintiff would not agree to go in unless he could get his money out before spring. Burns said he would guaranty his money to him in thirty or sixty days. At the date of the receipt at a meeting for the purpose of getting subscribers to the stock, Burns told Stevenson to take plaintiff’s money, he paid $250 to Stevenson who gave him a receipt. The plaintiff took one share of stock at $500 and gave his note for $250; Burns took the note. At this meeting Burns and Stevenson both being present, the same representations were made as to the price they were to pay for the land. There was evidence that Burns and Stevenson had paid a much smaller sum for the land; that the property was not located where it had been represented that it was; that the Middletown Oil Company was not in existence, and of other facts tending to sustain the plaintiff’s case.
    During the trial the plaintiff made the following offers of evidence:—
    A. To prove “ that the money subscribed and paid on the same night and terms as that by the plaintiff, was afterwards refunded by the defendants to several of the subscribers, to wit, Robert Gracey, William Lee et al., on the ground that defendants had not properly or correctly represented the location of the land, or given the parties the correct amount of purchase-money thereof.’
    B. To prove “ that one of the defendants, John Burns, promised to pay him, the witness on the stand, the money back that he subscribed and paid on January 27th 1866, on the same terms as the plaintiff; and the reason that the defendant made said promise was because he had misrepresented the value and location of the property, and that if he, the witness, would keep quiet and not tell or alarm the other subscribers, he would give him his money back.”
    C. To prove “ that at the time John Burns, one of the defendants, was trying to induce persons to subscribe to the stock of the company mentioned, he represented to witness on the stand and others, that the property was located on Little Beaver creek, near the Sugar Tree Derrick, just below the mouth of Island Run, and that they, defendants, had agreed to pay Daniel Smith for the property the sum of $26,000, or $3200 an acre. That he was
    only an agent for the company in buying the property, and made nothing by it. This, with the evidence already in, and to be followed by other evidence, to show that in point of fact defendant had agreed to pay a less sum for the property, and that it' was not located at the place represented.”
    D. “ To file of record, for the use of defendants upon the payment of any sum for which a verdict may be recovered against them in this case, a quit-claim deed from the plaintiff, William P. McCabe, to the defendants, John Burns and Samuel Stevenson, dated June 8th 1869, duly executed, acknowledged and stamped. This filed of record not because the plaintiff has any legal or equitable title to the land therein described, but so that defendants, in case of a recovery against them, may take any supposed title the plaintiff may have therein, on payment of such recovery. This deed is asked to be filed, subject to delivery as the court may direct.”
    E. “ To prove, that about August 1866, after the parties who held stock or interests in the property mentioned, and known as The Middletown Oil Lands, discovered that the representations made by defendants at the time they advanced the money, were untrue, they abandoned the premises, and the defendants removed the engine and machinery from the premises, and sold them to James Rees to pay a debt they had contracted with him.”
    All these offers were objected to by the defendants, rejected by the court, and several hills of exception sealed.
    The plaintiff having closed his case, the defendants moved for a nonsuit, on the ground that he could not maintain the suit without having tendered a reconveyance of the land conveyed by Smith. The nonsuit was ordered. The court afterwards discharged a rule to take it off.
    The plaintiff took a writ of error and assigned for error the rejection of his offers of evidence, and entering the judgment of nonsuit.

      J. Barton and B. Woods (with whom were White & Slagle), for plaintiff in error,
    referred to Pearsoll v. Chapin, 8 Wright 9; Simons v. Vulcan Oil Co., 11 P. F. Smith 202; Markley v. Swartzlander, 8 W. & S. 172; Hall v. Holmes, 4 Barr 251.

      J. H. Bailey and T. M. Marshall, for defendants in error,
    referred to Pearsoll v. Chapin, supra ; McElhenny’s Appeal, 11 P. F. Smith 188.
   The opinion of the court was delivered, January 3d 1871, by

Williams, J.

— This case does not come within the rule laid down in Pearsoll y. Chapin, 8 Wright 9, which decides that where a sale of land has been induced by the false and fraudulent representations of the vendor, the vendee must first tender a reconveyance before he can recover back the price paid. Here the plaintiff’s subscription, on which the money sought to be recovered was paid, was not' for land, but for stock in a company to he organized, of which the defendants were the promoters. The land purchased by the defendants was not conveyed to the plaintiff, and the other subscribers for stock, but to the Middletown Oil Co.; and if, as the evidence shows, the company was never incorporated, no estate passed by the conveyance, and the legal title still remains in the grantor. It is clear, then, that the plaintiff, under his contract of subscription, had no such legal or equitable interest in the land as made it his duty to tender a reconveyance or release before he can recover back the money which he paid on account of his subscription, if it was procured, as-alleged, by the false and fraudulent representations of the defendants. Nor was the plaintiff bound to make a tender of the stock for which he subscribed before he can recover back the money which he paid on his subscription, even if the rule laid down in Pearsoll v. Chapin is applicable to the sale of personal property, for no stock was ever issued to him. All that he received from the defendants was their receipt for the money which he paid, and he was not bound to surrender the evidence of its payment before he could recover the money back, if it had been fraudulently obtained. The court, therefore, erred in applying the rule to the\ contract of subscription in this case, and as there was abundant evidence to go to the jury, tending to show that the subscription was procured by the false and -fraudulent representations of the defendants, the question should have been submitted to them with proper instructions.

The evidence proposed to be given by the plaintiffs, under their second and third offers, markéd “B” and “ C,” should have been received. At the time these Sffers were made and rejected by the court, the plaintiff had given evidence tending to show that the defendants acted in concert in procuring, from the plaintiff and others, subscriptions for stock in the company they proposed to organize, and that both had made false representations in regard to the location of the land, and the price for which it could be obtained, and the consideration actually paid for it. Under this state of the evidence, it was competent for the plaintiff to show the acts and declarations of either of the defendants, whether done or made in the presence or absence óf the plaintiff, or of each other, if they tended to corroborate' the'testimony already received, or to shed any light on the character of the transaction. We think that the evidence offered by the- plaintiff was both relevant to the issue and corroborative of the testimony already given.

Our only doubt in regard to. the fifth offer, marked “E,” arises from the fact that it does not clearly appear, from the language of the offer, that the plaintiff was one of the parties referred to as having abandoned the property,'after-they discovered that the representations made by the defendants, at the time they ad-' vanced the money, were untrue. If the plaintiff was one of the parties intended by the offer, the evidence ought to have been received, for it tended to show- a rescission of the contract on his part, and the defendants’ acquiescence therein by taking possession of the personal property on the premises and disposing of it as their own. But if the plaintiff was not one of the parties referred to, the offer was properly overruled. It is so doubtful whether the offei’, as made] included .the plaintiff, that we cannot say that the court erred in' ovérruling it.

We see no error in the rejection of the other offers of evidence of which the plaintiff has any reason to complain.

But for the errors in overruling the offers of evidence particularly noticed, and in refusing to set aside the judgment of non-suit, the judgment must he reversed and the record remitted for a new trial.

Judgment reversed, and a procedendo awarded.


author: Thompson, C. J. Williams, J.

text:
    Hultz versus Gibbs.
    1. When a husband without reasonable cause forces his wife to withdraw from him, without any means of support, the law implies that he has given her credit to supply herself with such, necessaries as are suitable for her.
    2. In order to recover for necessaries furnished a wife under such circumstances, the party claiming must make out a case negativing a captious voluntary abandonment by the wife and show that she has been turned out or forced to leave the husband’s residence.
    3. A rule of court provided that if a plaintiff should file “ the items of his claim and statement of facts necessary to support it” * * * such facts as should not be denied by an affidavit of defence should be taken as admitted. It seems, that in a claim for necessaries furnished a deserted wife, the plaintiff should state such facts as would bring him within the rule authorizing him to furnish the necessaries.
    4. A plaintiff filed a claim against a husband, specifying the items, for boarding his wife; the defendant’s affidavit was that he was “not indebted to plaintiff in any sum whatever,” that if he boarded his wife it was without his consent; that “ she had voluntarily left his house without cause as the plaintiff knew and affiant here denies the affidavit of claim.” Meld, sufficient to prevent the claim being read in evidence.
    November 1st 1870.
    Before Thompson, C. J., Read, Agnew, Si-iarswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 189, to October and November Term 1869.,
    This was an action of assumpsit to September Term 1868 by James Gibbs against Zedick Hultz.
    The plaintiff filed with his precipe an affidavit of his claim, viz.: “ that .Zedick Hultz, the above defendant, is justly indebted to him in the sum of four hundred and sixty-five dollars for the boarding of his (said Hultz’s) wife at the rate or price of $5 per week, all of which is due and unpaid.” A copy of the account stating the items was attached.
    The defendant filed an affidavit as follows :—
    “ Zedick Hultz, defendant, being duly sworn, says that he is ■ not indebted to plaintiff in any sum whatever. That if he boarded the wife of affiant, it was without the consent or desire of affiant, and after she had voluntarily left the house of affiant without just cause, as plaintiff knew; and affiant here denies the affidavit of claim of plaintiff.”

      The 5th rule of the Court of Common Pleas of Allegheny county is : — “ If the plaintiff shall file with his precipe a specification of the items of his claim, and statement of facts necessary to support it, verified by affidavit, such item of the claim and material averments of the fact as are not directly traversed or denied by the affidavit of defence shall be taken as admitted.”
    The plaintiff, on the trial before Sterrett, P. J., offered his account and statement of facts as contained in his affidavit of claim. It was objected to by the. defendant because it was denied by affidavit of defence.
    The court admitted the evidence and sealed a bill of exceptions, Judge Sterrett saying: “Under the 5th rule of court, the items of claim and material averments of facts, not directly traversed or denied, are taken as admitted. The defendant does not directly traverse or deny the items of plaintiff’s claim — does not deny that his wife boarded with plaintiff, or object that the price per week paid is too much. He seems rather to put his defence on the ground that the boarding was furnished without his consent or desire, and after, his wife had voluntarily left him without just cause, as the plaintiff knew. This may be shown by the defendant as a matter of defence.”
    The verdict wa.s for the plaintiff for $465, and the defendant took out a writ of error.
    The foregoing remarks of Judge Sterrett were treated as the charge; no charge was filed in the case.
    All the assignments related to errors alleged to the “ charge,” but involving only the question of the admissibility of the evidence contained in the bill of exceptions.

      T. M. Marshall, for plaintiff in error,
    referred to Act of June 16th 1836, § 21, Pamph. L. 792, Purd. 162, pl. 141; Wilkins v. Anderson, 1 Jones 405; Mylin’s Appeal, 7 Watts 65.

      J. R. Large (with whom were Jones Pearson), for defendant in error,
    referred to Brown v. Street, 6 W. & S. 221.
   The opinion of the court was delivered, November 14th 1870, by

Thompson, C. J.

— When a husband turns his wife out of doors without any reasonable or just cause, or forces her to withdraw from him, without any means for her support, the law implies that he has given her credit, to supply herself with such necessaries as are suitable and proper for her to have; namely: clothing, boarding, lodging, and the like. Her condition would be deplorable, indeed, if this were not so, because of her inability to contract for such things, and to obtain them, if she happens to have no separate estate. When, therefore, necessaries are furnished to a wife so situated on the credit of the husband, the party claiming to be paid for them must bring himself, in order to recover for them, within the rule stated. He must make out a case which shall negative all idea of a captious, voluntary abandonment of the husband’s domicil, and show that she has either been turned out, or forced to leave his residence: Walker v. Simpson, 7 W. & S. 85, and the authorities therein referred to.

When the plaintiff below filed the items of his claim, he ought I think to have set forth in his affidavit of claim enough to bring himself within the rule of law authorizing him to furnish the boarding to defendant’s wife and charge her husband with it, but this he did not do. He might easily have done it, as he knew the defendant had not employed him to furnish the boarding. But take it as the learned judge interpreted the rule of court, that this was matter of defence — did not the defendant set it up in his affidavit of defence most explicitly ? He denied his indebtedness “to the plaintiff in any sense whatever,” and added “that if he boarded the wife of the affiant, it was without the consent or desire of affiant, and after she had voluntarily left the house of affiant without just cause, as the plaintiff knew.” This was certainly a denial of material averments in the plaintiff’s affidavit of claim, because if true, there was no indebtedness by him on account of the boarding furnished which constituted the items of the plaintiff’s bill. This disclosed plainly the nature of the defence as required in the decisions referred to. But if, as thought, the items of the bill required to be traversed, the defendant did traverse them all by adding “ and the affiant here denies the affidavit of claim of plaintiff.” That affidavit, allowed by the rule of court, averred the truth of the plaintiff’s claim as set forth in his bill of items. The defendant denied it, generally and specially, and this was all that the rule required. to overturn the effect of the plaintiff’s claim as sustained by his affidavit and to exclude it from the jury. The learned judge took a different view of the matter and admitted the plaintiff’s claim and affidavit under objection, and we think in this he erred. When the defendant in his affidavit of defence sufficiently denies the plaintiff’s claim according to rule, which is a question of fact for the court, it excludes the plaintiff’s claim unless it be supported by testimony. This we think is certainly its operation. The mistake of the learned judge was not as to the operation of the rule of court, but in supposing that the defendant had not brought himself within the rule in his denial of the claim. As already said we think he did, and this threw out the plaintiff’s claim for want of proof in order to get it to the jury. It was only evidence at best on the ground of an implied admission because not denied. When denied there was no ground for its admission at all, and the parties fell back on their common law rights and requirement of proof. This we think plain. No doubt the defendant might have taken advantage of the error of allowing the plaintiff’s affidavit and claim to be read, by asking tbe court to charge tbe jury that- there was no testimony to support tbe plaintiff’s claim, if be bad sufficiently denied it, and excepted to tbe charge of tbe point if refused. But this mode did not preclude a resort to tbe mode adopted, which was much fairer to tbe plaintiff, for be was apprised by it of tbe objection to bis recovery in time to supply tbe defect by proof, if be bad any. It is enough, however, to say that tbe question of tbe effect of tbe defendant’s affidavit of. defence is sufficiently raised in tbe exception to tbe admission of tbe plaintiff’s claim to the jury, and for tbe error in this we are constrained to reverse this judgment.

It should have attracted tbe attention of tbe counsel on one side or tbe other that there was no charge filed in tbe case. Tbe matter of exception was to tbe question of evidence. It has caused us some trouble, which would have been avoided if tbe counsel bad taken tbe pains to be accurate in stating tbe matter as it-was. Both paper-books treat tbe note of tbe judge explanatory of bis ruling on tbe question of evidence, as bis charge. There is no charge on record. We commend tbe counsel to more care in future.

Judgment reversed, and venire de novo awarded.

Williams, J.

dissented on tbe ground that no error is assigned to tbe admission of tbe evidence and because the evidence was properly received under tbe rule of court.


author: Agnew, J.

text:
    Newell versus Haworth.
    The defendant owned a leasehold in Venango county and contracted with the plaintiff to furnish an engine, &c., he to receive an interest in the lease. The plaintiff furnished some of the machinery and afterwards had it repaired, the defendant refusing to assign him the interest, he refused to furnish any more; a lien was entered under the Act of April 8th 1868 (Mechanics' Lien in Venango) and the leasehold was sold. Held, that the plaintiff not standing in a relation to charge the leasehold, could recover for the machinery furnished.
    November 1st 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to tbe Court of Common.Pleas of Venango county: No. 153, to October and November Term 1870.
    This was an action of assumpsit, brought to April Term 1868, by Plumer. Haworth against H. Newell, for an engine, tools, &c., for sinking an oil-well in a leasehold which the defendant owned.
    Tbe case was tried November 8th 1869, before Trunkey, P. J.
    Tbe plaintiff gave evidence that in October 1868, be agreed with tbe defendant to furnish him an engine, tubing and casing and other apparatus for sinking an oil-well, in consideration of which be was to receive half tbe working interest, which was to be assigned to him in writing by the defendant; plaintiff put on the ground all the machinery that he was to furnish except the tubing and casing ; the engine worked well; the plaintiff demanded the assignment of the interest, and the defendant refused to make it, alleging that the engine did not work well; after the engine had been use in sinking the well 500 or 600 feet, the plaintiff offered to deliver the tubing and casing as soon as defendant would assign the interest; the defendant still declined, and complained about the engine. In order to satisfy the defendant the plaintiff had the engine repaired.
    The defendant gave evidence in answer to plaintiff’s case; also that for the repairs, the mechanics entered a lien for $57.05 on the leasehold and property, and they were sold March 8th 1869, to S. A. Barnes and James Newell, a son of defendant. The defendant knew that the property was advertised for several days before the sale and was present at it.
    The court charged amongst other things: — ■ .

      “ The tubing and casing were not actually delivered. Was the plaintiff prevented from delivering these by the utter refusal of the defendant to perform his part of the contract ? At the time of such refusal was plaintiff willing and offering to give these articles ? If' so the refusal by defendant excused further delivery and the plaintiff could treat the contract as rescinded.

      “ If you find that the plaintiff performed in all respects his part of the contract as to the articles delivered, and was prevented from further performance by the refusal of the defendant to receive the other articles, and perform his part, the plaintiff can recover the value of the goods delivered and work done up to the time of defendant’s refusal. But if you find the plaintiff did not perform he cannot recover anything under the pleadings. Nothing but the conduct of the defendant in an utter refusal to carry out and perform the contract will enable the plaintiff to recover on the pleadings in this case. If by reason of the failure of the plaintiff to furnish an engine according to contract the defendant refuses to make an assignment, there can be no recovery. If by reason of the tubing and casing not having been delivered he refuses to convey, the action fails. With these instructions the case is submitted to you.
    We are asked to charge you in reference to the sheriff’s sale of the property under proceedings upon the mechanics’ lien. [If the contract was made and the property delivered to the defendant, and he had the possession and was using it before and at the time the work was done and material furnished as set forth in the lien, then you will let the lien and sale under it have no effect upon your conclusion. In such case it was the defendant’s business to take care of his property against any pretended lien, especially when he knew of it several days before the sale and was present when sold.] If this lien was for material or labor furnished before the sale and delivery of the property, it would have been the business of the plaintiff to remove it.”
    The verdict was for the plaintiff for $850.
    The defendant removed the case to the Supreme Court, and assigned the part of the -charge in brackets for error.

      S. C. T. Dodd, for plaintiff in error.
    — The plaintiff could not rescind if he were in default: 2 Parsons on Contr. 191.

      E. L. Keenan and J. D. Hancock, for defendant in error.
    If one party breaks his part of a contract, the other may at his option rescind and recover for part performance: Moorehead v. Fry, 12 Harris 37; 2 Grreenlf. Ev. § 104; 2 Parsons on Contr. 191.
   The opinion of the court was delivered, January 3d 1871, by

Agnew, J.

— So far as we can discover upon the facts given to us in this rather meagre paper-book, we cannot say the court below committed any error. The action was for the price of certain articles furnished by the plaintiff under a special contract to be let into an interest in the lease of an oil-well property. The court very distinctly instructed the jury that the plaintiff could not recover except upon a rescission of the special agreement, as the consequence of the defendant’s refusal to comply with the contract. The only error assigned arises upon an alleged lien for repairs done at the instance of the plaintiff to the engine furnished by him under the contract, and upon which a sale of the engine, tools, &c., took place. The error alleged is, that the court instructed the jury that if the contract was made and the property delivered to the defendant, and he had the possession of, and was using it before and at the time the work was done or materials furnished as set forth in the lien, then the lien and sale under it can have no effect upon the conclusion of the jury. The conclusion meant was of course the conclusion of the jury upon the question of rescission under the prior instruction of the court. The court then added: “ In such case it was the defendant’s business to take care of his property against any pretended lien.” Now there was- no error in this, unless the plaintiff stood in a relation to the property to enable him to charge it with a lien or encumbrance for the repairs done to the engine. The plaintiff in error has not furnished us with the lease under which he held the oil-well, or with a copy of the lien filed. If, as nearly all these leases are, the lease in question was for a long term of years or perpetual, no interest in the lease was acquired by the plaintiff below, his contract being by parol, and made void by the Statute of Frauds as to the estate bargained for. So far as we know anything of the mechanics’ claim, it was filed against Haworth, the plaintiff, alone. It does not appear that he was set forth as contractor^ and Newell, the defendant, as owner. Now by the Act of 8th April 1868, applicable to Yeriango county only, under which this proceeding took place, the “ lien shall extend, as to said lot or leasehold, only to the interest of the tenant or tenants, lessee or lessees thereon.” The act further provides that the person entitled to a lien shall set forth in his statement of claim the names of the party claimant, and of the owner or reputed owner of the property, and the name of the person with whom the contract was made, and for whom the work was done or materials furnished. So far as we can discover, therefore, from the book before us, Haworth, against whom the lien was filed, was neither a lessee nor tenant of the property against which the lien was filed; nor a person described in the claim as a contractor on behalf of Newell, the owner or reputed owner. Under these circumstances the plaintiff in error cannot ask us to convict the judge of error.

Judgment affirmed.