author: Thompson, C. J.

text:
    Thomas, to the use of Heebner, versus Moore.
    1. In a question of partnership, evidence that the connection between alleged partners had been formed fraudulently and for the purpose of covering the property of one from his creditors, is not admissible.
    2. B. sold part of a coal-lease with the personal property to M., who constituted 0. his attorney; orders drawn for goods by B. on a firm, ‘‘ B. & Co.,” in favor of the plaintiffs, accepted by 0., and goods furnished accordingly, were evidence of partnership between B. and M.
    3. B. when alone kept blank assignments which were filled up by him to the plaintiff, a storekeeper, for the amount due laborers of B., and the laborers received goods to the amount from the plaintiff. There being evidence of partnership between B. and M., such assignments dated afterwards were evidence in a suit against the firm.
    March 8th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Schuylkill county: No. 239, to January Term 1871.
    This case was commenced before a justice of the peace, by John Thomas, for the use of H. R. Heebner and brother, against John H. Bracken and William D. Moore. Judgment was rendered by the justice for the plaintiff: the defendant Moore appealed to the Court of Common Pleas. The declaration was in the common counts: the pleas were non assumpsit and payment with leave.
    The claim was for labor by Thomas at the Charter Oak colliery, in which he alleged that Moore was a partner with Bracken. The question in the case was whether Moore was a partner.'
    The trial was December 20th 1870, before Ryon, P. J.
    The plaintiff gave evidence by C. Marsh that he was clerk for Bracken at the colliery; that Thomas worked there; that Heebner and Brother kept a store, and when the workmen wanted an order for goods, they filled out assignments of their wages to Heebner, and gave to the men; witness said that the assignments which were shown to him, were such assignments as were given to Thomas for his labor in September and October 1867: his instructions were from Bracken. Oscar E. Moore, brother of defendant, was frequently about colliery, defendant himself not before November 1867. Oscar received and sold coal. There was a firm of J. H. Bracken & Co.: it transacted business in Philadelphia. Witness had no knowledge of who composed the firm except from the books; found there only the names of J. H. Bracken and Oscar E. Moore. W. D. Moore was frequently about the colliery in the spring and summer of 1867.
    Plaintiff then gave in evidence an assignment, dated Eebruary 11th 1867, from Bracken to Moore, the defendant, of one-third of his interest in lease for ten years, of the colliery, the whole of the lease having been vested in him, and “ a third of all the personal property appertenant to and connected with and used in working said colliery,” and an assignment dated November 1st 1867, to W. D. Moore, of his remaining two-thirds.
    Erancis Bannar testified that in August, September and October 1867, he had a negotiation with Moore for rolls for the colliery. Oscar also conversed with witness about them.
    The plaintiff then called Moore, the defendant, and proposed to prove by him: 1. That on Eebruary 11th 1867, John H. Bracken was in failing circumstances and insolvent; that at the instance of Oscar E. Moore the witness was induced to take a transfer of one-third interest in the said colliery; that William D. Moore never paid any money for the transfer of said colliery, but that the arrangement between said Bracken and Oscar -and William D. Moore, was that William D. Moore should cover up a one-third interest, and give to said Oscar E. Moore a power of attorney to manage the interest in said colliery assigned to said William D. Moore; that the profits of the colliery were to be covered by the said William D. Moore, till at a later period when William D. Moore was to take a transfer of the whole colliery; that during the time between the transfer of the one-third and the remaining two-thirds of the said colliery, said William D. Moore, through Oscar E. Moore, as his attorney, and pursuant to the aforesaid arrangement, took the management of said colliery along with John H. Bracken; that at the date of the assignment of the one-third interest there were large sums of money due by John H. Bracxen for labor and materials, which remained a lien on said one-third interest, notwithstanding such sale; that said William D. Moore well knew this fact, and that he made no other provision for the payment of the same, except that they were to be paid by the future workings of said colliery.
    The defendant objected to the offer.
    “ By the court: We admit any evidence tending to show a joint working of the colliery by Bracken and William D. Moore from February 1867, or at the time the debt in suit was contracted; but we exclude so much of the offer as relates to the covering up the property for the purpose of defrauding the creditors of Bracken.”
    The court sealed a bill of exceptions to this ruling.
    Plaintiff proposed to ask:—
    2. Did you not know, when you purchased a one-third interest in that lease, that you thereby assumed to perform the covenants to be done, kept and performed by the original lessee, so long as you held such interest ?
    3. Where he, Moore, got the money from with which he made the advancement of $10,000 ?
    Both offers were rejected,' and several bills of exception sealed.
    Moore testified that in March 1867, he gave a power of attorney to Oscar F. Moore to act for him at the colliery; and after-wards left him in charge of it, to look after his interest; his brother was to do for him whatever he thought necessary for the good of the colliery. Defendant had the books of the colliery, and left them with Marsh; he was carrying on then no business in Pennsylvania; he resided in Washington.
    Gf. W. Pomeroy testified that he sold oil to John Bracken in August and September, and to John Bracken & Co. in October 1867. W. D. Moore paid him for a bill of oil in the fall of 1867.
    4. 5. Plaintiff offered to prove the timé the oil was sold to J. H. Bracken & Co.; also, what Oscar F. Moore said as to W. D. Moore’s interest in the colliery, on occasions when witness was negotiating with Oscar about the oil.
    The offers were rejected by the court, and bills of exceptions sealed.
    6. Plaintiff offered drafts drawn by J. H. Bracken on J. H. Bracken & Oo., in Philadelphia, given to plaintiff for goods furnished upon orders in September and October 1867, and accepted in handwriting of Oscar F. Moore.
    The offer was rejected, and a bill of exceptions sealed.
    7. Plaintiff called James Bussell and proposed to prove by him, that after the assignment of the whole interest, Bracken continued to manage the business as before.
    The offer was rejected, and a bill of exceptions sealed.
    8. The plaintiff offered seven orders or assignments on which the suit was brought, dated in September and October 1867. They were all of similar kind; the first was as follows:—
    “ No. 30. — For a valuable consideration, I do hereby transfer assign unto H. R. & Gr. W. Heebner, or order, the sum of six ($6) dollars and--cents, it being the amount of wages due me for work done for J. H. Bracken in the month of September 1867, and authorize them to recover and receive the same for their own use.
    Witness my hand the 6th day of September 1867.
    (Signed) his
    Witness to signature, John ¡x! Thomas.
    (Signed) Chas. Marsh. mark.”
    The offer was rejected, and a bill of exceptions sealed.
    The plaintiff having dosed, the court directed the jury to find a verdict for defendant; and the jury so found.
    The plaintiff took out a writ of error and assigned for error:—
    1-7. The rejecting the offers of evidence as contained in the several bills of exception of the same numbers respectively as the specifications.
    •9. That the court erred in not submitting the fact as to whether or not the colliery was carried on jointly by Bracken and William D. Moore to the jury, and directing a verdict for the defendant.

      F. (?. Farquhar and F. W. Hughes (with whom was L. Bartholomew,) for plaintiff in error.
    However slight the evidence, every question of fact, if pertinent, must be left to the jury: Dougherty v. Stephenson, 8 Harris 210; McIldowny v. Williams, 4 Casey 492; Strohl v. Levan, 3 Wright 177.

      J. W. Byon and B. W. Cummings, for defendant in error.
    The doctrine of a scintilla evidence being submitted to the jury is exploded: Howard Express Co. v. Wile, 14 P. F. Smith 201. Partners are not the same as part owners of goods: Story on Part., § 211.
    March 13th 1872,
   The opinion of the court was delivered, by

Thompson, C. J.

1. The ruling of the learned judge as presented by the first bill of exceptions and first assignment of error, was all right. The plaintiff claimed against the defendants as partners. This was not to be established by showing fraud and concealment as between them, but by such evidence only as should tend to show a community of interest in the business carried on ostensibly, or, if not, impliedly, by sharing in the profits and losses. Whether the partners were fair or fraudulent in their intentions and acts, it matters not to the plaintiff, unless he could show this as the state of the facts. The court discriminated properly as to what part of this offer was admissible and what should be rejected. This error is not sustained.

2 and 8. The ruling upon the second bill of exceptions, like the first, was all right. It mattered not what the defendant Moore’s knowledge of his rights under the assigned lease were as to his landlords. Whatever might have been his knowledge on that subject, it did not make him a partner, unless the lease, together with his acts under it, made him so. Neither this nor the third exception is sustained.

4 and 5. These assignments of error on their face make no case against the ruling of the court after the offer of testimony. Like counts in a narr. they should be self-sustaining — should in themselves primá facie disclose a case of error. This they do not do. In what was the plaintiff injured by the rejection of evidence as to the precise date of a transaction, not connected with the matters in controversy, but to show facts from which it might possibly be inferred that the defendants were partners and had been for months before. Buying goods and materials jointly during the alleged period of the partnership, was some evidence of the fact. The precise date was of no consequence. Indeed, all that was material on the point embraced by the proposed testimony was actually admitted, and was before the jury. What the declarations of Oscar F. Moore were, that were refused by the court, does not appear in the bill of exceptions. How can we say there is error in what does not appear ? The proposed declarations should have been spread on the face of the exception. These errors are not sustained.

6. We think the orders drawn by J. H. Bracken, on J. H. Bracken & Co. in Philadelphia, and accepted by Oscar F. Moore, and the goods furnished thereon in accordance with the acceptance, were evidence on the question of partnership. Oscar F. Moore was William D. Moore’s agent and attorney in fact in Pennsylvania, as testified to by the latter, and took charge of the interests of the latter about the colliery and at.Philadelphia, from and after the assignment to him (William D. Moore) in February 1867. It was also in evidence that William D. Moore lived in Washington City, and had no other known interests in this Commonwealth, excepting in the Charter Oak Colliery. Now whatever the agent did within the scope of his authority was in law the act of his principal, and if the effect was to establish a partnership, it was evidence. This exception is sustained.

7. The seventh offer was properly rejected in the state of the facts of the case trying.

8. It will be apparent when we come to speak of the 9th and 10th assignments of error, that the learned court erred in rejecting this offer. It consisted of a number of assignments by the legal plaintiff to Heebner & Brother. The validity of the claims assigned was not in dispute. The only question being whether Bracken & Moore, as partners, were liable for them, or J. H. Bracken individually. In our view of the case they should have been admitted and submitted to the jury upon the question of partnership.

9 and 10. We think these errors are sustained. It seems to us theye was evidence, not a scintilla merely, but of substance, in the cause of a partnership between Bracken & Moore from and after the assignment of the one-third interest in the colliery in February 1867, together with the one-third of the personal property necessary to the operation of the colliery, until the purchase of the whole by Moore. Certainly the most reasonable inference as regards the personal property would be, that it was bought to be used in connection with the colliery for the benefit of the purchaser of an interest in title. It was so used, and an agent was appointed to see to the interests of its owner; and it was of course used in connection with the owner of the remaining two-thirds interest. Without any explanation of this, the inference would arise that there was a partnership. It would be a natural presumption certainly, and we think a legal presumption as well. Then there was evidence of negotiations and declarations about rolls for the colliery by Moore, and about the purchase and payment for oil, by the attorney in fact of the latter. The appointment of an agent by Moore to take charge of his interests about the colliery, and proof to the effect that he had no other interests in Pennsylvania, and the draft of orders by J. H. Bracken on J. II. Bracken & Co. in Philadelphia ; all these were circumstances proper to be submitted to the jury on the question of partnership, but were withheld as altogether insufficient to raise a legal inference of partnership. The learned judge mistook his province in so holding and directing a verdict for defendants. The jury should have been called upon in face of all the evidence in the case, to say how that was.

For these reasons the judgment is reversed, and venire de novo awarded.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Hosie and Longstreet versus Gray.
    1. A coal-lease mortgage, payable in instalments, provided that if any instalment be overdue, &c., the whole should be collectable and a scire facias might issue as if all “ had been due for a year and a day,” held, that a scire facias might issue although there was no provision for issuing a scire facias in the Act of April 5th 1853, authorizing mortgages of coal-leases.
    2. The scire facias issued September 3d 1867, the Act of April 3d 1868 gave the same remedies on coal-lease mortgages as on others, and validated such proceedings previously commenced. Held, that this validated the proceeding if otherwise invalid.
    3. The Act of 1853 required a coal-lease mortgage to be recorded within five days after execution; it was not recorded till after that time. Held, the mortgage was binding as between mortgagor and mortgagee.
    4. In a scire facias on a mortgage, payable by instalments, the praecipe described it as making all due upon default in one instalment: this was omitted in the writ. Held, that if error, it was clerical and amendable by the praecipe.
    5. In suit on a mortgage given for the purchase-money of an interest in a coal-lease, Held, that evidence of a parol award in relation to the purchase was inadmissible by defendant unless he had offered to perform the award and demanded performance by mortgagee.
    6. As inducement to purchase the lease, the mortgagee agreed to advance $20,000, and become a silent partner. Held, in a suit on the mortgage, that the rejection of evidence that the mortgagee refused to make the advance, there being no specific injury incurred on account of the refusal shown, did the defendant no harm, as at most he could have been allowed but nominal damages.
    March 8th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of ScTmyhiU county: No. 290, to January Term 1871.
    This was a scire facias on a coal-lease mortgage, issued September 3d 1867, at the suit of Alexander Gray, Sr., and Alexander Gray, Jr., for the use of Alexander Gray, Sr., against John Hosie and Samuel P. Longstreet.
    The praecipe (which set out the mortgage ipsissimis verbis) described a coal-lease mortgage from the defendants to the plaintiffs, dated June22d 1865, recorded in Coal Lease Mortgage Book, &c., on a coal-lease from the Catawissa Railroad Company to the plaintiffs and defendants, dated March 4th 1865, for 15 years, the right of the plaintiffs to which, on the day of the date of the mortgage, the plaintiffs had sold to the defendants for $62,050, payable in instalments, the first on the 22d of June 1866, and on the same days in each successive year until paid, the mortgage being given to secure the purchase-money, with the proviso, “ that whenever and so often as there shall occur any failure to pay any instalment of principal for a period of thirty days after the same falls due, as hereinbefore mentioned, and provided the whole amount of principal secured hereby with all interest that may have accrued thereon, shall thereupon for purposes of suit become due and collectable, and that a scire facias may thereupon forthwith issue upon this mortgage, to have the same force and effect as though the whole amount of said principal and interest had been due for a year and a day,” the defendants having paid the instalment due June 22d 1866, and that it was assigned to Alexander Gray, Sr.
    The writ of scire facias did not contain the proviso above stated.
    The defendants pleaded accord and satisfaction, and payment with leave, &c.
    After the case was called for trial, December 27th 1870, before Ryon, P. J., the defendants by leave of the court, filed a special plea, viz.:—
    “ * * * That the writ of scire facias issued in this case is not upon any mortgage of lands, tenements and hereditaments, but upon a certain coal-lease mortgage, of mining rights claimed and owned by. the same defendants, and which said coal-lease mortgage is recorded only in a certain special Mortgage Book in Schuylkill county aforesaid, known as and called by the provisions of a certain Act of Assembly entitled An act to authorize mortgages of coál-leases in Schuykill county, approved the 5th day of April, A. D. 1853, ‘ Coal-Lease Mortgage Book.’ That the said mortgage was made, and recorded only pursuant to the provisions of said act, and not otherwise, and that no provision is made or given by said act for any proceedings by writ of scire facias thereon, and that such coal-lease mortgage book is not a record upon which, by law, any writ of scire facias may issue, and this the defendants say they are ready to verify.”
    The plaintiff demurred to the plea.
    December 28th 1870, the court gave judgment for the plaintiffs on the demurrer and overruled the plea.
    The plaintiff' gave in evidence a lease dated March 4th 1864, from the Catawissa Railroad Company to the plaintiffs and defendants for the coal-lease and appertenances mentioned in the mortgage described in the praecipe : it was stipulated in the lease that the lessees should not sell or transfer the lease to any person without the written consent of the lessees; it was recorded June 29th 1865.
    Assignment: plaintiffs to defendant mentioned in mortgage in the praecipe, with the written consent of the railroad company attached.
    The plaintiffs offered the mortgage recorded June 29th 1865.
    The defendants objected; because being a coal-lease mortgage no lease was recorded with the mortgage; and no scire facias would lie on a mortgage thus recorded ; because the mortgage does not conform to the scire'facias; does not show that any default had occurred ; and because the mortgage was not recorded within five days as required by Act of April 3d 1853.
    The court admitted the evidence and sealed a bill of exceptions.
    The plaintiffs asked leave to amend the writ to make it conform to the praecipe; the court allowed the amendment against the objection of the defendants and sealed a bill of exceptions.
    The defendants then offered to prove that a part of the consideration for the present and another mortgage given by defendants to plaintiffs was the stipulation by Alexander Gray, Sr., that if the defendants would purchase the interests of plaintiffs in the coal-leases described in said mortgages, he‘would advance or loan to the defendants the sum of $20,000 to enable them to develop the property described in the leases; that the property was unproductive at the time and required further large expenditures to make it productive; that it was a part of the contract of purchase by the defendants of the interest of plaintiffs in said coal-leases; that the said Alexander Gray, Sr., should advance or loan said $20,000, and look exclusively to the profits arising from the future working of the colliery to be created under said leases; that after the sale and execution of the mortgages, the said Alexander Gray, Sr., refused to loan or advance said $20,000, as he had agreed, or any part thereof; that in consequence of such refusal, the defendants were subjected to great delays and losses. That after this suit was brought, but before any suit brought on the other mortgage, the plaintiffs and defendants agreed to submit all matters in variance between them and also sundry propositions made by the plaintiffs to defendants, and counter propositions made by defendants to plaintiffs having reference to a mode of settling and discharging said mortgages to M. P. Hutchinson, Esq. That the respective parties made a full submission as aforesaid to said Hutchinson, with the stipulation that his decision should be final and conclusive; that thereupon the said Hutchinson made an award, which was communicated to said plaintiffs, who thereupon declared their concurrence and satisfaction with said decision; that it was a part of said award that the said plaintiffs should enter satisfaction upon said mortgages. The remainder of said decision was that the said defendants should accept Alexander Gray, Sr. (who was then the sole owner of the mortgages), as a silent partner for one-fourth interest in the profits of the colliery created under said coal-leases, and then worked by the said defendants, upon the said Alexander Gray, Sr., paying to said Hosie and Longstreet the sum of $15,000; that the said Gray, after having agreed to abide by said award of the referee aforesaid, refused to pay said $15,000 or any part thereof, and refused to become interested in said profits as aforesaid, but in violation of the terms of said submission and said award, brought suit upon the other mortgage, and has ever since been pressing it and this suit to trial; that this award of the referee was made in November 1867, and that all that was decided or passed upon by the referee was strictly within the terms of submission and the matters referred to him.
    The first part of the offer is to show that there were matters in controversy, and to show a consideration for the submission to the referee.
    The latter part is to show that the mortgage in suit has been discharged pursuant to said submission and the award of the referee.
    The plaintiffs objected to the offer.
    It was rejected by the court and a bill of exceptions sealed.
    In rejecting the evidence the court gave the following opinion:
    “ The first part of this offer is made to show a controversy between the parties as a consideration for the agreement of submission. It is not material to show a consideration. An agreement to submit all questions is good without a consideration, but is the award as proposed to be proved a binding award ? It does not ascertain the rights of the parties under the mortgage, nor pretend to adjust the rights of the plaintiff growing out of the mortgage. It appears the plaintiff made one proposition to the defendants, and the defendants made one to the plaintiff. These propositions were not based upon the mortgage as a claim, but looked to the future working of the colliery, upon joint account of the plaintiffs and defendants. The award was not to ascertain the rights of the parties as' to the mortgage, and other questions growing out of that and their other dealings, but was that the plaintiff should become a partner, satisfy his mortgages and pay defendants fifteen thousand dollars. This does not seem to us an award in any legal sense. It is a contract and to be binding must have the consent of the parties. The fact that the plaintiff said he was satisfied with the award does not make an acceptance of the defendants’ offer, nor does it become an offer by plaintiff to defendants. It is in effect a recommendation of the referee to the parties that thpy settle upon certain terms which he proposed, and these terms do not appear to have been carried out by either party. It is quite clear that such an award is not good at common law for two reasons. One we have already suggested that the award does not make a final account or settlement between the parties, but proposes terms in the nature of a contract which requires the parties to consent to the terms of the award.
    “ And the other reason is that the award is uncertain, as to the time the plaintiff is entitled to participate in the profits, and the time for the payment of the fifteen thousand dollars, and therefore is void for uncertainty.
    “ Whether this is a sufficient equity to prevent the plaintiff from recovering upon the mortgage, even though the award is not valid as an award, is a question of some difficulty, but we incline to the conclusion, that as the award is not such an award as can be enforced, the parties remain unaffected by it.”
    There were other offers of evidence by the defendants which were overruled by the court below, and exceptions to the decisions sealed.
    The opinion of the Supreme Court makes it unnecessary to state them.
    The court charged that the plaintiffs were entitled to recover.
    The jury found for the plaintiffs $63,022.11.
    The defendants took out a writ of error. They assigned for error:—
    Overruling their special plea on the demurrer.
    The admission of the mortgage.
    The rejection of the defendant’s offer of evidence.
    Allowing the plaintiffs to amend the scire facias. ■
    Charging that the plaintiffs were entitled to recover.
    The Act of April 3d 1868, Pamph. L. 57, provides that mortgagees of coal-leases shall have the same remedies as other mortgagees, and such proceedings theretofore instituted should be valid.

      F. ír. Farquhar and F. W. Hughes, for plaintiffs in error.
    The scire facias should set out everything necessary for a recovery with the accuracy of a declaration: Kean v. Franklin, 5 S. & R. 147; Umberger v. Zearing, 8 Id. 163; Arrison v. Commonwealth, 1 Watts 374. They cited also Act of April 5th 1853, Pamph. L. 195, which authorizes recording of coal-leases in Schuylkill county in a 11 Coal-Lease Mortgage-Book” within five days after their execution, and requires that a copy of the lease shall be filed in the recorder’s office in one year.

      J. W. Ryan and L. Hakes (with whom was 6r. B. Nicholson), for defendants in error.
    November 4th 1872,
   The opinion of the court was delivered, by

Williams, J.

There was no error in sustaining the demurrer to the special plea. It was expressly agreed by the parties to the mortgage, and made part thereof, that whenever and so often as there should occur any failure to pay any instalment of principal, for a period of thirty days after the same fell due, the whole amount of principal secured thereby, with all interest accrued thereon, should thereupon, for the purposes of suit, become forthwith due and collectable, and that a scire facias might thereupon forthwith issue, to have the same force and effect as though the W'hole amount of said principal and interest had been due for a year and a day. Even if the defendants were not estopped from denying the right of the plaintiffs to issue the writ, the Act of 3d April 1868, Pamph. L. 57, provides that in all cases of mortgages upon leasehold estates, the mortgagee shall have the same remedies for collection thereof which mortgagees of real estate have under the laws of this Commonwealth for the collection of such mortgages ; and all proceedings heretofore instituted for the recovery of moneys secured by mortgages upon leasehold estates, in the manner provided by law for the recovery of moneys secured by mortgage upon real estate be and the same are hereby declared valid. This act clearly embraces the mortgage in controversy, and there can be no doubt of the power of the legislature to provide the remedy, and to validate all proceedings by scire facias upon such mortgages pending at the date of its passage.

Nor was there any error in allowing the mortgage to be given in evidence. If it would not have been good and available as against subsequent purchasers, or execution-creditors, because it was not recorded until seven days after its execution," instead of being recorded within five days thereafter, as required by the Act of 5th of April 1853, Pamph. L. 295, it does not follow that it was void as between the mortgagors and mortgagees. An unrecorded mortgage is good between the parties, and. a scire facias may issue on it. If the writ was defective in not reciting the provision in the mortgage, that upon the failure of payment of any instalment of principal, the whole debt secured thereby should forthwith become due and collectable, and that a scire facias might thereupon forthwith issue, it was a clerical error, amendable by the prsecipe, which recited the provision in totidem verbis, and the court, therefore, properly allowed the amendment to be made on the trial. It did not change the cause of action, and it could not have operated as a surprise on the defendants.

The defendants’ offer to prove the award made by Dr. Hutchinson between the parties was properly rejected, for the reasons given by the learned judge in overruling it. Even if the matter submitted to him was a proper subject of reference at common law, the defendants did not offer to perform the award on their part, nor demand its performance by the plaintiffs. It is clear, then, that they could not set up the alleged award as a bar to the action on the mortgage.

Nor was there any substantial error in overruling the defendants’ offer to prove that A. Gray, Sr., proposed, as an inducement for the defendants to purchase the plaintiffs’ interest in the coal-leases at the amounts of the mortgage respectively, and as a part of the bargain, that he would advance or loan to them $20,000, to be repaid out of the profits; and that after the execution of the mortgages he refused to make any part of said loan or advance. If the defendants had to make up that amount, and more too, as alleged, to place the mines under the leases in a working condition, they did not offer to show that they had incurred any expense in raising the money, or that they had borrowed it on less favorable terms, and if not, the refusal of the plaintiffs to advance the money did them no harm. The allegation that in consequence of this refusal the defendants -were subject to great delays and losses, is too vague and indefinite to support the offer. If the defendants actually sustained delays and losses by the plaintiffs’ refusal to make the loan, they should have been specified; without any specification of their nature and extent, the court was justified in treating the allegation as a mere make-weight, and rejecting the offer, if insufficient in other respects. If it had been proved precisely as made, the jury would not have been warranted in giving more than nominal damages for the plaintiffs’ refusal to loan the money, and therefore its rejection did the defendants no suoh injury as calls for a reversal of the. judgment.

There is nothing in the other offers of evidence made by the defendants that requires discussion or notice. It is enough to say that the court was clearly right in rejecting them.

Nor was there any error in the charge of the court. As the defendants failed to show any defence to the mortgage, the plaintiffs were entitled to recover.

Judgmént affirmed.


author: Sharswood, J.

text:
    Funk versus Frankenfield.
    Eunk, who was surety on a note, was discharged by the holder refusing to pursue the principal upon notice. He afterwards wrote to holder, “ Have patience until about January 3d. I think you will receive your_ money again, “ I was at Esq.’s for money three times, but did not meet him; I will pay you as soon as the money is obtained. I will see you yet this week.” Suit had been brought at the date of last note. Held, 1. íhat the letters were only a conditional promise to pay on obtaining the money from the justice. 2. If it had been absolute, the consideration of forbearance had not been performed.
    March 8th and 9th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Writs of error to the Court of Common Pleas of Bucks county: Nos. 411 and 412, to January Term 1871.
    In the court below two actions were commenced on the 6th of January 1870, by William Frankenfield against E. H. Gangwer and IT. S. Funk on notes of which the following are copies :—
    “ $200. Springfield, Pa., July 25th 1867.
    Ninety days after date we or either of us promise to pay to Wm. Frankenfeld, or order, two hundred dollars, with interest (at 7 cent), without defalcation for value received.
    E. H. Gangwer,
    H. S. Funk.”
    “$400. Springfield, August 8th 1867.”
    Six months after date we or either of us, separately or jointly, promise to pay William Frankenfield, or order, the sum of four 7 cents
    hundred dollars, with legal- interest from date, without defalcation for value received. E. H. Gangwer,
    H. S. Funk.”
    Funk only was served; the return as to Gangwer was “Nihil.” Funk was surety for Gangwer in the notes.
    Both cases were tried together, February 16th 1871, before Chapman, P. J.
    Funk testified on the trial, that in the fall of 1868 and in the spring of 1869, he gave the plaintiff notice to collect the money due on the notes at once, and if he did not, defendant would not hold himself bound; that Gangwer had property, &c. Gangwer assigned his book accounts to Funk, who placed them in the hands of a/justice for collection.
    The plaintiff gave in evidence the following letters:—
    “ Springtown, Bucks co., December 21st 1869.
    ¥m. Erankfield, Esq.
    Dear Sir: Yours rec’d. Have patience until about Jan. 3d, and I think you will receive your money.
    Yours with respect,
    H. S. Funk.”

      “ Springtown, Pa.
    January 6th 1870.
    Wm. Frankenfield, Esq.
    'Sir: I wrote you I would see and intended to pay you about the 3d.
    I was at Freemansburg, at Bloss’s, Esq., for money already three times, but did not meet him. I was there yesterday. Will go again to-morrow.
    I will pay you as soon as the money is obtained. I will see you yet this week. Yours, H. S. Funk.”
    The court charged: * * *

      “ It is further alleged by defendant, that in the fall of 1868, or spring of 1869, Funk gave notice to Frankenfield to bring suit at once on the notes, against Gangwer, and if he did not do so, he would consider himself discharged. Gangwer says that in the spring of 1869, or in fall of 1868, he was worth $1600, and was able to pay the notes. Sometime after this, his property was swept away by fire, and there was not enough left to meet this responsibility. These suits were not brought till February Term 1870, so that the delay on Frankenfield’s part extended beyond the period when the fire occurred. Funk, the surety, contends that inasmuch as the plaintiff did not institute suits immediately, he is discharged. The law, as laid down by defendants’ counsel, is correct. When a surety gives notice to the creditor to institute suit, and declares if he does not, he will hold himself discharged, if the creditor allows time to elapse, during which the principal debtor fails, the creditor’s laches may be visited upon him. He holds the evidences of debt, and is bound to institute suit at once, if he gets notice, or take the consequences. Mere delay, however, will not absolve the surety. Funk testifies, that in the fall of 1868, he told Frankenfield to collect the money at once, or he would not be responsible. If this be true, he did all the law required him to do. Frankenfield denies the statement made by Funk, and says, instead of Funk giving him notice to proceed, he asked him to delay proceeding. Which will you believe ? According to Frankenfield, there was no such notice given as will absolve Funk. If you believe Funk, he did at this stage of the business all he was required to do. But even if you believe Funk, there is still a question arising as to the effect of the two letters addressed by him to Frankenfleld before the suits were instituted. And upon the solution of this question the case turns. What is the effect of the two letters to which I referred ? In the first letter, dated December 21st 1868, Funk writes to Frankenfield, ‘ Have patience till January, I think you will receive your money.’ The second letter is dated January 6th 1869, and therein Funk promises to pay the money as soon as it is obtained. It is an established rule of law, that forbearance to sue upon a promise, constitutes a consideration. Even supposing Funk at this time had been absolved from the payment of the notes, if he promised to pay in case Frankenfleld would forbear to sue Gangwer, he is bound. The forbearance for one day to sue, constitutes a consideration. When one man engages, if a creditor will forbear to sue a third person he will pay the debt, and the creditor does forbear, he will be hound. Did Frankenfleld forbear to sue ? These letters-must be scanned closely. If they referred to these notes, and there was a delay to bring suit in consequence of Funk’s request for more time, then I say there was a binding promise to pay, whatever Funk’s position was previously to his writing the letters.”
    The verdicts were for the plaintiff for f>221.66 and $311.21 respectively.
    On removal of the case to the Supreme Court, the defendant • assigned the charge of the court for error.
    Cr. Lear, for plaintiff in error.

      J. L. Dubois, for defendant in error.
    March 21st 1872,
   The opinion of the court was delivered, by

Sharswood, J.

Funk was the surety of Gangwer on the note in suit, and there was evidence from which the jury could have found that he was discharged from liability because of time given to the principal by a binding contract to that effect. So the learned judge below instructed the jury. But assuming this to be so, he held that if the two letters in evidence of December 21st 1869 and January 6th 1870, by Funk to Frankenfleld, referred to the note in question, and there was a delay to bring suit in consequence of Funk’s request for more time, they contained a binding promise to pay, whatever Funk’s position was previously to his writing the letters. In this we think there was error. Considering Funk as absolved from all responsibility, there is in the letters no absolute promise to pay the debt in consideration of forbearance. In the first, dated December 21st 1869, there is no promise at all.

“ Have patience until about January 3d, and I think you will receive your money.” It evidently means that, in his opinion, he would receive his money from Gangwer by that time. The second, January 6th 1870, states that he had been at Freemansburg, at Bloss’s, Esq., for money already three times, but did not meet him (either Gangwer or Esq. Bloss, or some one else, from whom money was expected). He then adds: “ 1 will pay you as soon as the money is obtained.” Admitting this to be an absolute promise to pay the money in a reasonable time, as soon as be, Punk, could obtain it, where was tbe forbearance to sue which was necessary to form the consideration of it ? This suit bad been then actually commenced. But it was not an absolute but only a conditional promise to pay, when be, Eunk, should obtain tbe money from Gangwer, or from bis book accounts, which had been assigned to bim for collection. Tbe justice to whom these books bad been intrusted to sue upon was probably Esquire Bloss, at Freemansburg, and the only fair construction which could be given to this letter is, that as soon as money should be collected from this source he would pay it to Frankenfield. No evidence was given that such money was ever obtained.

Judgment reversed, and venire facias de novo awarded.


text:
    Bush versus Stowell et al.

    1. In assumpsit on a note payable in instalments, an action may be maintained on each as it becomes due; the statute therefore began to run as soon as such instalment became due.
    2. A payment or acknowledgment by one of several joint debtors will not avoid the bar of the statute as to the others.
    3. In an action of assumpsit against four on a joint note payable by instalments, one of which had become due within six years, two pleaded the statute ; and there was an acknowledgment by one as to the whole; the verdict was for the plaintiff for the whole, “for §692 whereof and no more two of the defendants D. and II. are liable.” On error by the plaintiff, held, that no injury had been done him; the judgment on the verdict was affirmed.
    4. The instruction of the court should have been to find against all the defendants for the amount of the last instalment.
    March 11th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Tioga county: Of January Term 1871, No. 882.
    This was an action of assumpsit, brought May 22d 1865, by Alvah 0. Bush against Hezekiah Stowell, D. A. Stowell, Thomas P. Stowell and Hezekiah Stowell, Jr.
    The cause of action was the following note:—
    “$1556.95.
    For value received, we jointly and severally promise to pay A. C. Bush, or order, fifteen hundred and fifty-six dollars and ninety-five cents and interest, (viz.), one-fourth part of the principal and the interest on the whole sum, on the first of June next, and the balance in three equal yearly payments, on the first of June in each year with annual interest on the whole sum. November 20th 1855. Hezekiah Stowell,
    D. A. Stowell,
    Thos. P. Stowell,
    H. Stowell, Jr.”
    On which were the following endorsements:—
    “Received on the within note, June 4th 1856, fifty dollars.”
    “ $24.11. Receipt given Dee. 6th 1855, for error in calculating interest on old note, twenty-four dollars and eleven cents.”
    “ $200. Received on the within two hundred dollars, May 3d 1862.”
    Hezekiah Stowell did not appear. Thomas P. Stowell pleaded non assumpsit, &c.: the other defendants pleaded non assumpsit and the Statute of Limitations.
    There was evidence of a promise by D. A. Stowell in 1867, to pay the debt, and evidence also to the contrary.
    It appeared that the payment of $200 had been made by Hezekiah Stowell.
    The plaintiff asked the court to charge:—
    1. That the Statute of Limitations does not bar the right of the plaintiff to recover the amount of the principal and interest due upon the promissory note upon which suit is brought in this case.
    The defendants requested the court to charge:—
    1. That a partial payment on a promissory note by one of several joint and several debtors, not partners at the time, will not avoid the bar of the Statute of Limitations as respects the other parties.
    6. That an acknowledgment of the debt or promise to pay after suit brought, will not so revive the claim as to permit the plaintiff to recover on a claim barred by the Statute of Limitations when the action was commenced.
    7. In an action on a joint and several note, when all are sued jointly, a defence for one is a defence for all, and as no evidence of acknowledgment of the debt or promise to pay has been given in this case, that can operate to prevent the running of the Statute of Limitations in favor of H. Stowell, Jr., one of the defendants, the plaintiff can recover in this case only the last instalment of the note claimed on by the plaintiff, all the other instalments having been barred by the statute before suit brought.
    The court (Williams, J.) charged :—
    “ Plaintiff’s 1. We cannot affirm this point. We think the Statute of Limitations does bar the plaintiff’s right to recover so much of princinal and interest as fell due and was demandable more than six years before this suit was brought. Upon this subject we instruct that the note sued on, was payable by instalments annually. For each instalment, upon its maturity, the plaintiff had a right of action at law. The Statute of Limitations was intended to operate and does'Operate upon the right of action. Six years after the right of action accrues, the Statute of Limitations suspends-it. Six years, therefore, after the first instalment fell due the plaintiff’s right of action was barred as to that instalment. So is the law also, as to all the instalments.
    “ Three of these instalments had fallen due more than six years before suit was brought. The fourth instalment had not. As to the three instalments, the plaintiff’s right to recover in this case depends on the evidence given to prove a new promise to pay. As to the 4th instalment the plaintiff’s right to recover is clear and beyond question. * * *
    “We affirm defendants’ 1st point.
    “ The 6th point we understand as equivalent to the statement that a plaintiff must have a cause of action before suit brought. If the statute be pleaded, and a new promise is relied as a reply to the plea, the evidence must show a promise before suit brought. Declarations of the same sort, after suit brought, would not show a cause of action in the' plaintiff until they were made. They would not therefore alone sustain a suit previously brought.
    “The 7th point seems to contain two propositions: 1st. That there can be no recovery against any one in this case, unless against the whole number of defendants named, and for the same sum. We think this is correct so far as it relates to cases in which the defence is made upon the general issue, but not true, - as applicable to cases in which the defendants sever in their pleadings and set up distinct special defences. The defendants who plead the statute have a right to do so. Those who decline to do so, have as unquestionable a right to put their defence upon the general issue. The plaintiff is not to be injured by such diversity of purpose and pleading among defendants. Nor are part of the defendants to be precluded from availing themselves of the Statute of Limitations, because their co-defendants do not choose to set up the same defence. So much of this point, as relates to the position of H. Stowell, Jr., under the pleadings we think is correct.
    “ It follows then that the plaintiff has a right to recover the amount of the last instalment, at all events, and as to all the defendants. ' He has a right to recover the whole sum, as to Hezekiah Stowell, if the evidence relating to payment made by him be believed and it is not controverted.
    “ He has a right to recover the whole sum as to Thomas P. Stowell.
    “As to H. Stowell, Jr., no evidence of a new promise or acknowledgment has been given. As to him the statute is therefore a bar as to all but the last payment.
    “ D. A. Stowell is liable for the last instalment, at all events, and for the whole sum, if he made a promise to pay in 1864, as J. S. Bush testifies.
    “ Your verdict, therefore, will be for the plaintiff for the amount of note and interest against Hezekiah Stowell and Thomas P. Stowell.
    “ If you believe a new promise to have been made, it will be also against D. A. Stowell for the whole amount, otherwise D. A. Stowell and H. Stowell, Jr., will be liable only for the last instalment and interest thereon from its maturity to this date.”
    The jury returned this verdict:—
    “ That they find in favor of the plaintiff the sum of $2681.93— for the sum of $692.67 whereof, and no more, two of the defendants, viz., D. A. Stowell and Hezekiah Stowell, Jr., are liable.”
    The plaintiff took out a writ of error, and in several specifica-1 tions assigned for error the charge of the court in answer to the foregoing points of the parties.

      J. W. Maynard (with whom were F. F. Smith and M. Seymour), for plaintiff in error.
    Until all the instalments were due, the plaintiff had not a complete cause of action: Comyn on Contracts 79; Act of March 27th 1713, § 1; 1 Sm. L. 76; 2 Br. Purd. 930, pl. 18; Carlon v. Kenealy, 12 M. & W. 139; 2 Pars, on Notes 644. The payment made within six years avoids the bar as to all: Burr v. Burr, 2 Casey 284; Balliet v. Fink, 4 Id. 266; Huff v. Richardson, 7 Harris 388; Suter v. Sheeler, 10 Id. 308; Whitcomb v. Whiting, Douglas 629 ; Jackson v. Fail-bank, 2 H. Bl. 340. As to answer to defendants’ 6th point, they cited Levy v. Cadet, 17 S. & R. 126; 1 Selwyn’s N. P. 110; Danforth v. Culver, 11 Johns. R. 146; Lawrence v. Hopkins, 13 Id. 288. The latter part of the verdict was beyond the authority of the jury, and therefore surplusage: 7 Bac. Abr. 4, 16, 21; Taylor v. Willes, Cro. Car. 219; Inkersalls v. Samms, Id. 219; Oavene v. McMichael, 8 S. & R. 441; Eve v. Wright, Cro. Car. 76.

      F. Sherwood, for defendants in error.
    Coleman v. Fobes, 10 Harris 156.
    March 21st 1872,
   The opinion of the court was delivered, by

Sharswood, J.

Lord Coke announced the distinction between actions of debt and of covenant or assumpsit upon an agreement to pay a sum of money by instalments, which has been recognised and followed since: “If a man be bound in a bond or by contract to another to pay a hundred pounds at five several days, he shall not have an action of debt before the last day be passed.” “ But if a man be bound in a recognisance to pay a hundred pounds at five several days, presently after th,e first day of payment he shall have execution upon recognisance for that sum, and shall not tarry till the last be past, for that it is in the nature of several judgments.” “And so it is of a covenant or promise, after the first default an action of covenant or an action upon the case dpth lie, for they are several in their nature:” Co. Litt. 292 b. Lord Loughborough reviewed all the law on this subject in Rudder v. Price, 1 H. Bl. 547, in which it was held that an action of debt will not lie on a promissory note, payable by instalments, till the last day of payment be past. He shows that prior to the case of Cooke v. Whorwood, 2 Saund. 337, it was the uniform course where an action of assumpsit was brought before all the instalments were due, to allow a recovery in damages for those still to accrue and come due, upon the notion that after a judgment on the contract no further recovery could be had: Beckwith v. Nótt, Cro. Jac. 504; Peck v. Ambler, Dyer 113 and note; Milles v. Milles, Cro. Car. 241. But in Cooke v. Whorwood, which was assumpsit to perform an award to pay money in instalments, it was objected that all the days of payment were not past ;’but the Court of King’s Bench, Sir Matthew Hale being then Chief Justice, was clear that the action might be brought for such money only as was due at the time of bringing the action, and the plaintiff could recover damages accordingly; and when another sum of the money awarded should become due, the plaintiff might commence a new action for that also, and so toties quoties. The law must be now considered as settled in conformity to this doctrine: Tucker v. Randall, 2 Mass. 283; Greenleaf v. Kellogg, Id. 568; Cooley v. Rose, 3 Id. 221.

If then the plaintiff could have maintained a suit for the first instalment in this case immediately after it fell due, his cause of action then accrued, and the Statute of Limitations began to run. It is unnecessary to inquire what the law would have been if this had been an action of debt, and the plea actio non acerevit infra sex annos; for, as we have seen, an action of debt could not have been maintained on this promissory note until after all the instalments had fallen due. But being assumpsit, there would seem to be no question that, as to the first instalment, the action was barred: Burnham v. Brown, 23 Me. 400; 2 Pars, on Cont. 373.

Nor is it any longer open to question that a payment on account or an acknowledgment by one of two or more joint debtors will not take the ease out of the statute as to the others: Coleman v. Fobes, 10 Harris 156; Levy v. Cadet, 17 S. & R. 126; Searight v. Craighead, 1 Penna. Rep. 135; Houser v. Irvine, 3 W. & S. 345; Schoneman v. Fegley, 7 Barr 433.

What then is the effect of this rule when applied in a joint action against several joint debtors? Certainly not that it shall sever the judgment, which in a joint action ex contractu would be an anomaly. In such a proceeding if evidence is offered of an acknowledgment or payment by one only of the defendants, it is strictly inadmissible, unless indeed offered to be followed by a similar acknowledgment or payment by the others, which would be sufficient to take the case out of the statute as to all. It follows that in this case the jury should have been instructed to find for the plaintiff as against all the defendants only the amount of the second instalment and interest. Whether the plaintiff could maintain an action against those not affected by the bar of the statute in consequence of their acknowledgment or payment for the first instalment, need not now be discussed, nor on what principle contribution between the joint debtors is to be regulated. Sufficient for the day is the evil thereof. Upon a writ of error by the defendants, the verdict and general judgment entered on the verdict could not have been sustained. It is in effect several judgments in a joint action. We must assume that the defendants acquiesce, as they do not complain. But what injury has been done to the plaintiff in error ? He has in his joint action, by the verdict and judgment below, all the benefits which he could possibly have attained had he brought several actions against each defendant. It would evidently be an injury to him to reverse this judgment, and send the case back for another trial, which must result in a verdict and judgment against all for the less sum, leaving the plaintiff to pursue his separate remedies against those as to whom the bar of the statute is saved.

Judgment affirmed.

Thompson, C. J. — As applicable to the case in hand, I dissent.


text:
    The First National Bank of Wellsborough versus Bache.
    1. Bache employed Spicer to take timber from Bache’s land, to allow Bache one cent per foot, he to have a lien on the timber for the payment; Spicer took the timber, sold it, and received a note for it in his own name ; it was collected by a bank; Bache gave the bank notice that the proceeds were his, and not to pay to Spicer, and indemnified it. The bank paid Spicer. Held, that Bache could recover the amount with interest.
    2. The lumber being Bache’s, the fund was his, and could be followed through any transmutations so long as it could be identified.
    3. Where notice with indemnity is given to a bank not to pay money to a depositor, the payment is at the bank’s risk.
    4. Farmers’ and Mechanics’ Bank v. King, 7 P. F. Smith 202, adopted.
    March 11th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.

      Error to the Court of Common Pleas of Tioga county: No. 407, to January Term 1871.
    This was an action of assumpsit, brought August 28th 1869, by John N. Bache against The First National Bank of Wellsborough.
    The case was referred to Samuel F. Wilson, Esq., under Act of February 28d 1870 (Pamph. L. 219), authorizing the reference of civil cases to a single referee, to be tried as before a court and jury-
    The facts of the case will be found in the report of the referee, viz.:—
    “ On the 20th day of June, A. D. 1868, an agreement was entered into between John N. Bache, the plaintiff, and Foster Spicer, by which the latter was to get out and raft into Pine Creek a raft of hemlock square-timber from the lands of John N. Bache and allow said Bache one cent per cubic foot therefor, and Bache to have a lien on the timber until paid.
    “ That in pursuance of this agreement Spicer got out and rafted, &c., * * * a quantity of timber’, the property of Bache, the hauling to be paid for by John N. Bache.
    “Without any authority from John N. Bache, Spicer on or about the 3d day of November 1868, ran said raft and shingles to Williamsport, and sold the raft, &c., in bulk to Elias Deemer & Co., as his own property, for the sum of $200, and received therefor Elias Deemer & Co.’s check on Lumberman’s National Bank at Williamsport for $50, dated November 4th 1868, and Elias Deemer & Co.’s note for $150, same date, payable to F M. Spicer or order 15 days after date at same bank. The note was endorsed by F. M. Spicer and placed by him in the First National Bank of Wellsborough, the defendant, for collection, before said note fell due; it was collected at maturity and placed to the credit in said bank of F. M. Sp[cer.
    “Before the said note was paid and after the the money was received by the First National Bank of Wellsborough, John N. Bache, the plaintiff, notified the said bank that the note was his property, and forbade the cashier of said bank to pay the said note or the money received on it to Spicer; but afterwards consented that $50 thereof might be paid to Spicer, which was done. That on the 30th day of November 1868, whilst $99.25 of the money received on said note remained to the credit of said Spicer on the books of said bank, said bank took indemnity from John N. Bache in the sum of $100, and costs that might accrue to secure the bank against Spicer’s claim to said money, and also at or near the same time took indemnity'for the same from Spicer, as security against John N. Bache’s claim, and paid said money, $99.25, to Spicer and refused to pay the same or any part thereof to John N. Bache.
    “The value of the timber at Williamsport, at the time and place of sale by Spicer, was * * * $338. Of this sum Bache would have been entitled to $182 as his share. * * *
    “ The same being reduced on the above basis to the price sold for, viz. $200, Bache’s share would be $107.68.”
    The plaintiff’s points were:—
    1. Equity will follow a fund through any number of transmutations, and preserve it for the owner, so long as it can be identified, no matter in whose name the legal right stands.
    2. When an agent or trustee mingles his principal’s money with his own by taking a note for the amount of both, and deposits the same in a bank for collection, the principal may claim from the admixture the sum which belonged to him.
    3. If the principal has asserted his right to the money before the bank has paid it over to the agent or trustee, and given notice to the bank not to pay it over, the right of the agent or trustee ceases, and the bank becomes liable.
    The plaintiff’s 5th point was :—
    If a third party takes possession of and sells the property of another, although not an agent at the time, the owner of the property may adopt the sale, not reclaim the property, and follow the fund through any number of transmutations, provided it-can be identified, or if mixed with the property of the seller, he may claim from the admixture which belongs to the seller.
    The defendant’s points were:—
    1. If the referee finds as a matter of fact that Foster M. Spicer had no authority from the plaintiff to sell the shingles claimed by him, and that the said Spicer avowedly sold the timber and shingles in a lump, for himself, and as his own property, the plaintiff could not, by virtue of his interest in said shingles, ratify the lumping sale so made by Spicer, so as to acquire an unascertained interest in the specific property received by Spicer -for such sale.
    2. If Foster M. Spicer and the plaintiff each had, as between themselves, an unliquidated and disputed interest in the note drawn payable to said Spicer’s order, and by him deposited in his own name with the defendant for collection, and the referee cannot determine by calculation, but must determine the interest of each from the opinions of witnesses as to the proportionate value each had in the property sold by said Spicer in the lump, the plaintiff cannot recover in this action, but must be remitted to his action against Spicer.
    3. The plaintiff is not entitled to recover interest.
    As his conclusions of law the referee reported: — * * *

      “ The plaintiff’s 5th point is affirmed with the qualification of the last clause, that the owner may claim from the admixture of money, a sum equal to that for which the property sold.

      “ The points presented by the defendant are ruled in the negative.

      ■ “ The referee’s further and final conclusion of law as applicable to the foregoing facts as stated in this case is that the plaintiff is entitled to recover in this suit ninety-nine dollars and twenty-five cents, the amount of money credited to Foster M. Spicer on the books of the defendant, realized from the note of Elias Deerner & Co., bearing date November 4th 1868, together with interest on the same from November 30th 1868. I therefore find in favor of, John N. Bache, the plaintiff, and give judgment in his favor for the sum of one hundred and twelve dollars and forty-eight cents and costs against the First National Bank of Wellsborough, the defendant.
    “ February 22d 1871.”
    ■ .On removal'of the record to the Supreme Court, the' defendant .assigned for error the rulings of law by the referee.

      M. F. Flliott (with whom was J. H. Bosard), for plaintiff in error.

      R. Shet'wood, for defendant in error.
    May 13th 1872,
   The opinion of the court was delivered, by

Thompson, C. J.

The referee having found on competent testimony that the timber from which the money in dispute was derived was the property of the plaintiff below, the law was clear that after notice of this fact to the bank, and indemnity, if it paid it over to the depositor, it would be at its own risk. As the property itself was a trust for the benefit of its owner, so necessarily became the fund, and it could be followed through any number of transmutations by the owner while ever it could be -identified. The bank would, of course, be entirely justified in paying to a depositor money standing to his credit, if not notified that it belonged to another, and with notice not to pay it on his check. But where such notice is given, the bank will pay to the depositor at its own risk: Farmers’ & Mechanics’ Bank v. King, 7 P. F. Smith 202. This cáse fully sustains the rulings of the referee on the law of this case.

Judgment affirmed..


author: Per Curiam.

text:
    Everitt's Appeal.
    1. National Bank stock is assessable for county purposes under the Acts of-April 12tli 1867, and April 2d 1868.
    2. The 'Act of . Congress of February 10th 1868, forbidding taxation of National Bank stock at a higher rate than other moneyed capital in the hands of individuals, has no reference to property exempted from all taxation.

      S. Such stock is to be appraised at its current value in the market where the bank is located.
    4. The remedy of the owner for excessive valuation is by appeal to the auditor-general.
    March 12th 1872.
    Before Thompson, C..J-, Sharswood and Williams, JJ. Aqnew, J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Luzerne county: No. 295, to January Term 1872 : In Equity.
    This bill was filed in the court below, May 1st 1871, by M. E. Everitt against B. F. Louder, Gf. W. Bailey, C. F. Hill and John Steele.
    The bill set out that the plaintiff, on the 5th March 1870, was the owner of 157 shares of the capital stock of the Second National Bank of Wilke’sbarre, in Luzerne county; incorporated under the Act of Congress, approved 3d June 1864, entitled: “ An Act to provide a National Currency,” and its supplements; the par value of said stock is $15,700.
    The defendants, Bailey, Louder and Hill, are the commissioners of the county of Luzerne, and the defendant, John Steele, is the collector of county taxes.
    On or about March 15th 1870, A. H. Ketcham, assessor for the purposes of state taxation, under and by virtue of the Act of Assembly entitled “An Act to increase the revenue of the Commonwealth by taxation of the shares or stock of the National Banks,” approved 12th April 1867, valued his stock at $18,212, which assessment plaintiff believed was without authority of law, was also at a greater rate than was assessed and imposed upon other moneyed capital in the hands of individual citizens of this state.
    The commissioners, on this assessment, had levied a county tax of 8 mills on the dollar, there being some other classes of moneyed capital exempt from county tax under the laws of this Commonwealth, and on or about May 1870, placed in the hands of the defendant, John Steele, a duplicate with a warrant attached for the collection of this tax; and Steele threatened if the tax be not paid to enforce the collection of the same by a sale of the stock.
    Under the 4th section of the Act of Assembly, approved 31st 1870, entitled “ An Act providing for the taxation of bank shares,” the Second National Bank of Wilkesbarre, before the 20th January 1871, paid into the state treasury a tax of one per centum on the par value of all the shares of that bank, which payment was applied, by the auditor-general, without consultation with , the' said bank or with plaintiff to the tax of 1871; and the auditor-general subsequently demanded and received from the bank a tax of 3 mills for the year 1870.
    The prayer was, that the defendants be restrained from the collection of the'tax.

      The defendants demurred, and the court (Dana, J.) dismissed the bill.
    The plaintiffs appealed to the Supreme Court, and assigned the dismissal of the bill for error.

      II. M. Hoyt (with whom was P. P. Barling and G. B. Nicholson), for appellant,
    cited Act of April 29th 1844, § 32, Pamph. L. 497, 2 Br. Purd. 1380, pl. 147; Act of May 15th 1841, § 4, Pamph. L. 394, 2 Br. Purd. 1359; Acts of Congress June 3d 1864 and May 12th 1868; Act of Assembly March 31st 1870, § 3, Pamph. L. 42, 1 Br. Purd. 143, pl. 96, imposes a tax on National Bank stock at 3 mills per annum on the assessed value for state purposes and for county, school, municipal and local purposes, the same rate as may be assessed on other moneyed capital in the hands of individuals. The assessment could not be higher than par.

      G. B. Bedford,, for appellee,
    cited Mintzer v. Montgomery Co., 4 P. F. Smith 139; Acts of April 12th 1867, Pamph. L. 74; April 2d 1868, 1 Br. Purd. 142, pl. 86 et seq.

    October 17th 1872.
   The judgment of the court was entered

Per Curiam.

The bill in this case was rightly dismissed. The assessment of the plaintiff’s stock was expressly authorized by the Acts of 12th'April 1867, Pamph. L. 74, and 2d April 1868, Pamph. L. 55. It is made the duty of the assessors, under these acts, to assess the value of the stock, but not to appraise it higher than its current value in the market where the hank is located. If the plaintiff was dissatisfied with the valuation of his stock, he should have appealed to the auditor-general, under the provisions of the Act of 2d April 1868, for such an abatement of its assessed value as might be just and proper. Having failed to appeal, he has no ground of complaint here.

The stock owned by tfie plaintiff was clearly liable to taxation under the Acts of 29th April 1844, Pamph. L. 497, and 31st March 1870, Pamph. L. 42. The latter act provides that it shall be taxable for state purposes, at the rate of three mills per annum on the assessed value thereof; and for county, school, municipal and local purposes, at the same rate as is or may hereafter be assessed and imposed upon other moneyed capital in the hands of individual citizens of this state. This provision is in strict conformity with the restriction imposed by the Act of Congress of the 10th of February 1868, U. S. Statutes at Large 34. The plaintiff does not allege in his bill that the tax levied by the commissioners on the assessed value of his stock, exceeded the rate assessed and imposed on other moneyed capital in the hands of individual citizens of this state; but that “the said commissioners, on this assessment, have levied a tax of eight mills on the dollar, there being some other classes of moneyed capital exempt from county tax under the laws of this state.” This allegation is wholly vague and indefinite; but if it were not objectionable on this account, it does not follow that the tax imposed on the plaintiff’s stock is illegal, or forbidden by the Act of Congress, because some other classes of moneyed capital are exempt from taxation by law of limited application. The restriction in the Act of Congress is, that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of the state where the bank is located. The act must have a reasonable construction; and it clearly does not mean that the stock of national banks shall not be liable to taxation at all, if' some other classes of moneyed capital are exempt from taxation. If the moneyed capital of individual citizens, with certain specified exceptions, is liable to taxation, then the stock, of national banks, in the hands of its holders, is also liable to taxation, if made so by the laws of the state where such banks are located. If the assessors had no right, under the Act of Congress, to assess the plaintiff’s stock above its par value for purposes of taxation, he should have appealed from the assessment. Not having done so, he must be deemed as having waived any objection to the valuation placed upon his stock by the assessors, and it is too late for him now to insist that the taxation of his stock is illegal because the tax was levied on an assessment made on the basis of its current value in the market, instead of its par value.

The payment by the bank of the tax of one per centum on the par value of all the shares of its stock, under the Act of 31st March 1870, which was applied by the auditor-general, with the consent of the bank, to the tax of 1871, did not relieve the plaintiff’s stock from taxation, under the act, for the year 1870. This is too plain for argument.

Decree affirmed at the costs of the appellant.


text:
    Soper et al. versus Guernsey.
    1. R. conveyed for $1 to J., and took from J. a mortgage for his support: under a judgment against J. the land was sold to H. — R. recovered against H. in ejectment on the mortgage. Under a sale on a judgment against H. his title became vested in G. In ejectment by G. against R.’s alienee, Held, that II. and G. were privies.
    2. In ejectment by G. against R.’s alienee, the record of the ejectment, R. against II., was persuasive evidence.
    3. Evidence by G. that J.’s title was in him made a primá facie case, and the defendants having given the mortgage in evidence, the burden was on them to show a breach by J.
    4. A condition in a conveyance may be enforced by ejectment, but a consideration, although a covenant, cannot.

      5. To such mortgages the principles as to an ordinary money mortgage do not apply.
    6. The legal effect of the mortgage from J. to R. was to revest the estate in R., on J.’s failure to perform the condition of support.
    7. A mortgagee cannot recover possession of the mortgaged premises before condition broken, where there is stipulation to the contrary, or where it appears to be the intention of the parties that the mortgagor should hold the possession until breach.
    March 12th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Tioga county: No. 66, to January Term 1872.
    This was an action of ejectment brought, October 23d 1868, by John W. Guernsey against Collins W. Soper, William Soper and Wilmot Soper for a tract of 65 acres of land.
    Both parties claimed under Ralph Bovier who owned the land on the 1st of December 1840, and on that day 'conveyed it to his son James Bovier in fee; the consideration mentioned in the deed was one dollar. On the same day James Bovier executed and delivered to Ralph Bovier a deed of the same premises in nature of a mortgage ; it recited that James had agreed to provide for his father for life all necessary meat, clothing, “and generally all such attention and articles as may be necessary for his sustenance, convenience and comfort,” &c.; also to keep a horse, &c., for him, and allow him to have part of the house, an acre of ground, &c., and to support Polly, the wife of the father during life, and Ulalia, his daughter, whilst she remained single. The consideration was as well “ the aforesaid covenants, promises and agreements as for the further consideration of natural love and affection, and for the better securing the faithful performance'of the said covenants, promises and agreements unto the said party of the second part, and to Polly and Ulalia Bovier.”
    The defeasance was: “ Provided always, nevertheless, that if the said party of the first part shall and does well, truly arid faithfully perform all and singular the aforesaid covenants, promises and agreements unto the said party of the second part, and unto the said Polly and Ulalia according to the true intent and meaning thereof, without fraud or delay, then this indenture and the estate hereby granted shall become void.” .. . ....
    The wife of Ralph Bovier died shortly after the execution of these deeds. ' He died March 20th 1866.
    The cause was tried, September 7th'1871, before Williams, J.
    The plaintiff gave in evidence the deed from Ralph Bovier to James Bovier; also, sheriff’s sale of the land under a judgment against James to Sidney L. Hibbard, and deed acknowledged September 22d 1847.
    Plaintiff also gave in evidence a judgment recovered against Ralph Bovier, January 11th 1856, sheriff’s sale under it of Ralph Bovier’s interest m the. premises, and sheriff’s deed, September 3d 1856, to Stephen F. Wilson; also, sheriff s sale of the premises under a judgment against Hibbard and deed to Wilson acknowledged September 17th 1858; also, deed dated January 22d 1868 from Wilson to the plaintiff.
    The plaintiff rested.
    The defendant gave in evidence the mortgage from James Bovier to Ralph Bovier.
    The defendants offered the record of an action of ejectment for the premises in question, in which Ralph-Bovier was plaintiff and Sidney L. Hibbard defendant, and recovery by Bovier, to be followed by evidence that the matter in controversy in that suit was the right of the plaintiff to recover under the deed, which he had given to James Bovier, December 1st 1840, arid the indenture of mortgage given by the said James Bovier to the said Ralph Bovier of the same date, and that under the recovery in this case the said Ralph Bovier took possession of the lands, and sold and conveyed it to A. Tozer and others, under'whom the defendants claim.
    The offer was rejected, and a bill of exceptions sealed.
    They offered a deed for premises dated November 22d 1854, with general warranty from Ralph Bovier to Albert Tozer and John Bovier for the same premises, to be followed by evidence of a deed from said Tozer and Bovier to the defendants, for the purpose of showing a legal transfer of the mortgage of James Bovier to Ralph Bovier, and from him to the present defendants, who respectively took possession under the same. And also to be followed by evidence of the recovery of Ralph Bovier of the same-land, in an action of ejectment against Sidney L. Hibbard, who held under the title of James Bovier. The offer of the record in this case is for the purpose of showing that Ralph Bovier was in possession, and entered under his rights as mortgagee.
    The offer was rejected by the court, and a bill of exceptions sealed.
    They offered to prove by Albert Tozer, that he and John Bovier had purchased by parol from Ralph Bovier the mortgage given by James. The plaintiff objected to the offer on the ground of Tozer’s incompetency from interest. The offer was rejected, and a bill of exceptions sealed.
    The defendants gave evidence that James had not supported his father in accordance with the covenants in the mortgage.
    They requested the court to charge :—
    1. That the plaintiff in this case has not shown such a title to the land in controversy as entitles him to recover.
    2. That the plaintiff having derived his title from James Bovier, stands in no better situation. And the said James Bovier having conveyed his title by indenture of mortgage to Ralph Bovier, December 1st 1840 ; and there being no evidence that the said James Bovier has performed the covenants in said mortgage, or those who hold under him, cannot now recover the land in ejectment.
    The court declined both points, and in answering the second point said:—

      “ The evidence shows the death of Ralph Bovier, for whose maintenance the mortgage was given, and no one defending is shown to be the holder of any right of action under it.”
    The verdict was for the plaintiff.
    The defendants took out a writ of error, and assigned for error the rejection of the defendants’ offers of evidence and the answers to their points.

      W. F. Flliotl and II. W. Fatriele (with whom was J. II.'Bosard and N. Sherwood), for plaintiffs in error.
    James Bovier’s estate was one upon condition: Hamilton v. Elliott, 5 S. & R. 375; Bear v. Whisler, 7 Watts 149; Chase v. Peck, 7 E. D. Smith 581 (21 N. Y.) Ejectment was the proper remedy for Ralph Bovier on failure of James to perform the conditions; not being a money mortgage, scire facias would not be the proper remedy: Knaub v. Esseck, 2 Watts 280. A conveyance by a mortgagee passes all his interest: Connor v. Whitmore, 52 Maine 186; 2 Washburne on Real Prop. 112, 114; Welch v. Priest, 8 Allen 165; Cutter v. Davenport, 1 Pick. 81; Youngman v. Elmira Railroad, 15 P. F. Smith 285.

      O. II. Seymour (with him J. B. Niles), for defendant in error.
    The mortgage was not a deed upon condition: Bear v. Whisler, 7 Watts 149; Cook v. Trimble, 9 Id. 15; Paschall v. Passmore, 3 Harris 307; Hamilton v. Overseers, 2 Jones 147; Garver v. McNulty, 3 Wright 485; Perry v. Scott, 1 P. F. Smith 124.
    A conveyance or assignment of the mortgage, without specifically assigning the debt or its equivalent, would be void. And any one holding such deed of assignment would be as against the mortgagor a trespasser: 2 Washburn on Real Property 114; Hill v. Edwards, 11 Min. 29; Merritt v. Barthole, 36 N. Y. 44; Craft v. Webster, 4 Rawle 242 to 259; Hodgdon v. Naglee, 5 W. & S. 217; 4 Kent’s Com. 186.
    May 13th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

The most important question arising on this record is that which is raised by the first assignment of error— the relevancy and effect of the former recovery in ejectment by Ralph Bovier against Sidney L. Hibbard. The plaintiff below claimed under Hibbard, and the defendants under Ralph Bovier, so that the parties to this suit stood beyond all question in the relation of privies to that action. The learned judge below sustained the objection made by the plaintiff to the admission in evidence of the record, which was that it showed a recovery upon a mortgage, which only gave the plaintiff Ralph Bovier a right to recover and hold the land in question during his life or until the covenants in the mortgage were performed: and the mortgagee and wife having died before the commencement of this suit, such evidence is no defence in this case.

It is not an uncommon arrangement for a father to make a conveyance of his farm to one of his sons in consideration of being supported, nursed and attended during his life. The wisdom of such a contract is very questionable, even where the most entire confidence is felt at the time in the affection of the child. The Son of Sirach pronounces emphatically against it: “ Give not thy son and wife,' thy brother and friend, power over thee while thou livest, and give not thy goods to another: lest it repent thee, and thou entreat for the same again. As long as thou livest and hast breath in thee, give not thyself over to any. For better it is that thy children should seek to thee than that thou shouldst stand to their courtesy. In all thy works keep to thyself the pre-eminence : leave not a stain in thine honor. At the time when thou shalt end thy days and finish thy life, distribute thine inheritance.” Ecclesiasticus, xxxiii. 19-23. The most striking illustration of the same thing is in the pathetic tragedy of Lear, where the fool confirms the opinion of the wise man of the Apocrypha: “ Would I had two coxcombs and two daughters. If I gave them all my living, I’d keep my coxcombs myself.” One of the evil consequences which seems almost invariably to attach itself to such arrangements is the distressing family discord and lawsuits which spring from them. Many of them have been brought to this court. It is not always easy to administer justice in such cases in conformity to law. The natural feeling of right prompts to the rule which would hold the child to the strict performance of his part of ihe contract, and give to the parent the right to recall the gift if he fails. Yet it is not always possible to apply such a rule. The deed may want the essential words to make a condition. A condition in a conveyance may be enforced by ejectment, but a consideration, even amounting to a covenant on the part of the vendor, cannot: Cook v. Trimble, 9 Watts 15; Garver v. McNulty, 3 Wright 473; Perry v. Scott, 1 P. F. Smith 119.

Ralph Bovier and wife, by deed dated December 1st 1840, for the nominal consideration of one dollar conveyed to their son James Bovier the premises in question. On the same day James Bovier by a deed reciting at large the covenants he had entered into for the support of his father and mother during their lives, and that these covenants were entered into for and in consideration of the conveyance of the land — for the better securing the faithful performance of the said covenants — reconveyed the premises to Ralph Bovier in fee. “Provided always nevertheless that if the said party of the first part shall and does well, truly and faithfully perform all and singular the aforesaid covenants, promises and agreements unto the said party of the second par*-- and unto the said Polly and Ulalia according to the true intent and meaning thereof without fraud or delay, then this indenture and the estate hereby granted shall become void and of none effect any thing hereinbefore contained to the contrary notwithstanding.”

This reconveyance has been termed a mortgage, but as Chief Justice Lewis remarked in Hibberd v. Bovier, 1 Grant 266, when it was before this court on a former occasion, “it is something more than a mortgage.” It will not do to apply to it the principles which are in force as to an ordinary mortgage for the payment of money. There when the object of the security is accomplished it is at an end. It never could have been the intention of the parties to these instruments that if James failed to perform his covenants which were the sole consideration of the grant to him, and the old man in consequence of his breach, by legal proceedings or otherwise, retook possession, that after his death, the title should revest in James. That would be no security that James would perform his covenants, but an inducement to him to break them. It would enable him to throw off all the trouble and responsibility of- his contract, and after the lapse of the few years that remained of the lives of his father and mother, get the farm literally for nothing. Nothing could have been an effectual security for the faithful performance of the covenants but the right of Ralph Bovier to revest the entire estate in him upon breach. This was evidently the intention of the parties, and it was the legal effect of the words of the instrument. In the case of an ordinary mortgage, a chancellor interferes and says that when the debt is paid or the object of the security accomplished, the mortgagee shall reconvey to the mortgagor. Equity between the parties requires this. But James Bovier, if he has broken his covenants to support his father during life, has no possible equity on his death to demand a reconveyance to him. It is true that it is settled that a mortgagee may maintain ejectment and recover possession of the mortgaged property before the condition is broken, but that is only when there is no stipulation to the contrary, or it does not appear otherwise to have been the intention of the parties that the mortgagor should hold possession until breach: Youngman v. Elmira Railroad Co., 15 P. F. Smith 285. In this case it was essential to the very purpose of the instrument that the mortgagor should retain the possession. He could not otherwise have fulfilled his covenants. Ralph Bovier could not have recovered in the former action of ejectment without a breach on the part of James, and such a recovery after breach as effectually revested the title in him as would a re-entry for condition broken. Admitting the recovery to have been on a legal and not an equitable title, and therefore not conclusive, the record was nevertheless admissible as persuasive evidence to the jury, as has been often decided: Shaeffer v. Kreitzer, 6 Binn. 430; Koons v. Hartman, 7 Watts 20; Levers v. Van Buskirk, 4 Barr 309; Beck’s Ex’rs. v. Grraybill, 4 Casey 66. This course of reasoning shows that the first and second assignments of error must be sustained.

The plaintiff below gave in evidence the deed Ralph Bovier and wife to James Bovier, title being admitted in Ralph Bovier, and then deduced title to himself from James Bovier. This was a good primd facie title, and the learned judge was right in refusing to charge the jury as requested in the defendants’ first point, as oomplained of in the third assignment. The defendants then gave in evidence as the foundation of their title the deed James Bovier to Ralph Bovier, and of course to make out their defence the onus was on them to show a breach of the covenants by James. There was no error in refusing to charge, therefore, as requested in the defendants’ second point, though the reason given by the learned judge was not the right one.

It is not necessary to decide the question of the competency of the witness Albert Tozer which is raised by the fifth error assigned; because the evidence offered to be given by him that John Bovier and himself purchased the mortgage of Ralph Bovier by parol and that they transferred their right and title to said mortgage to defendants, was immaterial and irrelevant. We have seen that if the covenants of James Bovier were broken, the recovery of Ralph Bovier, like a re-entry for condition broken, was of the absolute fee, and his conveyance in evidence November 22d 1854 passed his title to Albert Tozer and John Bovier, and their title was deduced by deed to two of the defendants. It was entirely unnecessary to resort to evidence of a parol sale of the mortgage as a mere personal security. All the title of Ralph Bovier, whatever it was, had passed by his deed.

Judgment reversed, and venire facias de novo awarded.