author: Sharswood, J. Agnew, J.,

text:
    Weber versus Reinhard and Eisenhard, Supervisors, &c.
    1. An act (April 14th 1868) provided that in addition to taxes then collectible, owners of ore-beds in Saucon township should pay to the supervisors 1J cents for every ton of ore mined and carried away with teams over the roads in the township, to be paid at the end of each six months and in default of payment to be collected as debts of like amount. Held, that the act is constitutional.
    2. The court cannot pronounce a tax unconstitutional on the mere ground of injustice and inequality.
    3. The owner of the land had leased it for a term of years: Held, that he and not the lessee was liable for the tax.
    4. Durach’s Appeal, 12 P. F. Smith 491; Hammett v. Philadelphia, 15 P. Smith 146; Washington Avenue, 19 P. F. Smith 352, followed.
    March — 1878.
    Before Read, C. J., A&new, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Lehigh county: No. 71, to July Term 1871.
    This case was commenced March 5th 1870, before a justice of the peace, at the suit of James Reinhard and Benjamin Eisenhard, supervisors of Upper Saucon township, against Charles B. Weber, for the recovery of taxes imposed by the Act of April 14th 1868 (Pamph L. 1127).
    The act provides: “ That in addition to the taxes collectible under existing laws, the owner or owners of ore-beds, situated in Upper Saucon township, Lehigh county, shall from and after the passage of this act, pay to the supervisors of the roads in said township one and a half cent for each and every ton of ore mined and carried away with teams over the public road,in said township, which said payments shall be made at the end of every six months after the passage of this act; and in default of payment the same to be collected as debts of like amount are collectible by law; Provided, That the said supervisors shall appropriate to the same purpose, and render an account in the same manner for the funds coming in their hands under this act, as they are required by law with respect to other funds coming to their hands by virtue of their office.”
    The plaintiff’s claim was for iron-ore carted from the ore-beds .of defendant over the 'public roads in said township, to wit: $37.02 for ore so removed up to October 14th 1868, arid $38.08 for the same from October 14th 1868 to October 14th 1869, with interest, together amounting to $78.82. The justice entered judgment for the plaintiffs for $78.82, and the defendant appealed to the Court of Common Pleas.
    The plaintiffs then filed an affidavit of claim, referring to the above-given Act of Assembly and averring that “the defendant is the owner of an ore-bed situated in said township; that since the passage of said act there has been mined and carried away with teams over the public roads in said township, from the ore-bed of said defendant, the following quantities of iron ore during the times following, to wit: From April 14th 1868, to October 14th 1868, inclusive, 2468 tons 13 cwt.; from October 14th 1868 to October 14th 1869, inclusive, 2539 tons 13 cwt.;, that the tax on the first-mentioned quantity (2468 tons 13 cwt.) at 1§- cents per ton, is $37.02, and upon the last-mentioned quantity (2539 tons 13 cwt.) is $38.08 ; that the tax due as aforesaid, after the same became due and before the bringing of this suit, was duly demanded by said plaintiff of said defendant, but that the said defendant has neglected and refused to pay the same or any part thereof; that the sums aforesaid, with interest from the time when they respectively became due as aforesaid, to date (May 14th 1870), to wit, seventy-nine eighty-five hundredth dollars (79.85), is now due and owing in manner aforesaid by said defendant to said plaintiff.”
    The defendants put in the following affidavit of defence: * * *
    “ An act was passed by the legislature of Pennsylvania, and approved April 14th 1868, entitled ‘ An act authorizing the supervisors of Upper Saueon township, Lehigh county, to collect an additional road tax on ore beds,’ enacting that the owners of ore beds in said township shall pay to the supervisors therein one and a half cent, for each and every tone of ore mined and carried away with teams over the public roads in said township. Said defendant is the owner of an iron ore-bed in said Upper Saueon township, which he has let to the Bethlehem Iron Company by article of agreement dated August 18th, A. D. 1864, and said ore-bed has been ever since and is now, worked by said company, under said lease or article of agreement; said iron company mine and cart away all the ore raised from the ore-bed on said farm, and the said defendant does not mine or cart away any of the ore, nor does he keep or own any teams or wagons or horses for the purpose of carting ore from said ore-beds. The farm owned by said defendant in which said ore-bed is situated, and said ore-bed are already separately assessed and taxed as follows: Said farm is valued for the purpose of taxation at §4825, and said ore-bed at §3000. The taxes due and to be paid are as follows: Road tax on farm §19.30, on ore-bed §12; school tax on farm §14.47, on ore-bed §9; county tax on farm §24.12, on ore-bed §15. According to the terms of said agreement with the said The Bethlehem Iron Company, said defendant has no control whatever over said ore-bed, but the same has been leased to the said iron company for a period of twenty years, and the term of said lease has not yet expired; that at and before the time of bringing of this suit, said ore-bed was and is now under the sole control, management and ownership of the said Bethlehem Iron Company, who dig, mine and cart away all the ore that is taken away therefrom.
    “ And further, said Act of Assembly, by virtue of which said tax is assessed, is null and void, because it is in violation of the Constitution of the United States and of the state of Pennsylvania.”
    The court (Longaker, P. J.) directed judgment to be entered against the defendants, for want of a sufficient affidavit of defence, for the amount of the plaintiffs’ claim with costs.
    This was assigned for error by the defendant on the removal of ;he record to the Supreme Court by writ of error.

      P. J. More and Woodward, for plaintiff in error. —
    This imposition is an excise rather than a tax. There is no provision for assessment, and no provision for appeal from an assessment however arbitrary. If an excise, it cannot be enforced; if a tax it is so unequal and unjust, and its mode of enforcement so uncertain the courts will refuse to carry it out: Philadelphia Association v. Wood, 3 Wright 73; Durach’s Appeal, 12 P. F. Smith 491.

      P. Albright, for defendants in error.
    In taxing, things may be classified, and if the tax is on all of a class it may be composed of one or many : Durach’s Appeal, supra. He cited also Sharpless v. Philadelphia, 9 Harris 147 ; Speer v. School Directors, 14 Wright 150; Pittsburg and C. R. R. v. Commonwealth, 16 P. F. Smith 73.
   The opinion of the court was delivered, March 24th 1873, by

Sharswood, J.

Hammett v. Philadelphia, 15 P. F. Smith 146, was twice argued, each time before a full bench, and was a well-considered case. The principle of it has since been reaffirmed in Washington Avenue, 19 P. F. Smith 352. It did not question the constitutional right of the legislature to confer upon muni-cipal corporations the power of taxing properties benefited by local improvements for the cost of making or maintaining them, but placed upon it the just and salutary restriction that it should be limited to the special benefits conferred by the improvements, and not extend beyond them; that the legislature could not authorize a tax to be levied on particular property in a designated locality for a general purpose, to which the whole community ought equally to contribute. Such a tax was in effect only a mode of taking private property for public use without making compensation. An examination of the facts will evince that the judgments in those cases have this extent — no more. The opinion in Hammett’s case had been published immediately after the first argument, though not reported until after the second. It was cited, and was the main reliance of the appellant in Durach’s Appeal, 12 P. F. Smith 491, which settled, however, the principle which seems to us to be decisive of the main question raised on this record, to wit, the constitutionality of the tax imposed upon the owners of ore-beds in Upper Saucon township, Lehigh county, by the Act of Assembly of April 14th 1868 (Pamph. L. 1127). It was there held that while the legislature cannot, under the name of taxation, take private property for public use without compensation, and that therefore a special tax on individuals or particular properties would be unconstitutional, yet in the exercise of the power of taxation, persons and things may be legitimately classified — some kinds may be assessed and others not — and that even special exemptions are not unconstitutional. , There is n'o provision in the Constitution that taxation shall be equal. Sound policy requires that it should be so as far as possible. But perfect equality is not possible. Indeed, if this were necessary there could be no taxation, except such as would include every person and every thing, which would manifestly be impracticable and unjust.

It is gravely contended, however, that this court has the power to set aside unjust, unequal and improper legislation relating to taxation, and Philadelphia Association v. Wood, 3 Wright 73, is relied on as establishing this position. There are many things contained in the opinion in that case entirely aside from the point decided, and therefore mere obiter dieta. All that was determined was that an Act of Assembly which required all agencies for foreign insurance, trust and annuity companies in the city of Philadelphia to pay two per cent, of their gross premiums to an association for the relief of disabled firemen, was not taxation at all; it was taking the property of A. and giving it to B., whether for a charitable or any other mere private purpose it mattered not. No doubt after money raised by taxation has reached the public treasury it may be appropriated by the legislature to charities or individuals. It was admitted, indeed, that the tax in that case would be clearly constitutional, if it had been levied for and paid into the public treasury, and the idea that the court could pronounce a tax unconstitutional on the mere ground of injustice or inequality was expressly repudiated.

It has been urged, however, grounded upon an opinion expressed by Chief Justice Lowrio, in the case last cited, that it is not competent for the legislature to provide for the collection of taxes by action in the courts ; that it would turn the courts into tax collectors. But all personal actions are processes for the collection of money, and the courts are no more collectors of taxes in the one case than they are collectors of private claims in the other. It is the sheriff who is the collector when it is adjudged that the tax or debt is due, and surely there is nothing incongruous in that. He is the best and most efficient of all collectors, and never objects to the performance of that function, for he is well paid for it. All that the courts are required to do is to decide w'hether the debt or tax is payable by the defendant, and what the amount of it is. That is a purely judicial transaction. This mode of enforcing the payment of taxes may be unusual, but what provision of the Bill of Rights or of the constitution of government does it infringe? As well might it be maintained that fines, forfeitures and penalties could not thus be enforced, and of examples of these the statute-book is full. So municipal liens for taxes and assessments have been collected by actions of scire facias in the courts, and no one has ever thought that it wras unconstitutional. No doubt the legislature might provide a summary process in all cases of public claims. But what right has the citizen to complain if instead of this he is secured a trial by jury to ascertain his liability before he can be compelled to pay ? He would have better ground to complain if it had been denied to him.

It is also maintained, and in this contention it must be admitted that there is much plausibility, that there are difficulties in carrying this Act of Assembly into execution, by reason of the want of any provision for the ascertainment and assessment of the amount payable by each owner of an ore-bed. It would have been better if the legislature had provided that the owner should make a return of the number of tons hauled over the public roads, and in default of his doing so, authorized the supervisors to assess the amount. But can we set aside an Act of Assembly, because its machinery is lame and imperfect? Our duty is to execute the legislative will in the way prescribed, when that way is constitutional, though a much better way might have been devised. We are bound to give the - act a reasonable construction, ut res magis valedt quam pereat. When the owner refuses or neglects to pay the tax, the legislature has imposed upon the township the burden of proving by evidence, satisfactory to a jury, all that is required to fix liability upon the owner of the ore-bed. This may be unwieldy, but it is surely not unjust to the tax-payer. He can save himself from the costs of a suit, by a tender, in time, of the amount actually due. It is not a case where a valuation of property is required. It is a fixed rate upon the number of tons, and that the owner may be presumed to know, or to have the means of ascertaining, whether he is a landlord, or himself.the actual occupant. It is not, indeed, expressly provided that the supervisors shall ascertain and assess the amount. But they must do so in order to maintain their suit, and recover a judgment; and they must do more; they must prove it by competent evidence. In this case, as appears by the affidavit of claim filed, there was a demand of a certain sum, and the plaintiff in error did not deny in his affidavit that the amount was correct.

Nor can it be doubted that the plaintiff in errof is liable for the tax. He admits himself to be the pwner of the ore-bed, and in the sense of tax laws of this Commonwealth, the owner of lands is always the landlord, and not the tenant, when they are occupied under a lease. See Act of April 6th, 1802, sect. 8, 3 Smith 516 ; Act of April 3d 1804, sect. 6, 4 Smith 203 ; Act of April 15th 1834, sect. 46, Pamph. L. 518; Caldwell v. Moore, 1 Jones 58.

'It is unnecessary to consider the contention, that the imposition of this tax impairs the obligation of the contract between the landlord and tenant, for it is too clear for argument, that a tax upon the subject-matter of a contract, by whichever party it is made payable, can never produce that effect. Judgment affirmed.

Read, C. J., and Williams, J., concurred in this opinion, except as it relates to the extension of Hammett v. The City, beyond the case itself.

Agnew, J.,

dissenting. — With my views of the Act of Assembly in this case, I cannot assent to the judgment just given. The point I make upon this act is, that, when no specific tax is laid, but a rate only, the citizen is not charged with the tax, until the subject of taxation is assessed and the tax is laid upon him. Here is an act which imposes upon the owners of ore-beds in a single township, a tax, at' a rate of a cent and a half a ton, payable every ,six months, for every ton of ore mined and hauled away from their banks, over the public roads of the township, without providing for any assessment or mode of ascertaining the tax before payment, or for any redress or appeal from an unjust and exorbitant demand by the colleector, and which, in default of payment of an unadjusted and unknown sum, subjects the citizen to the penalty of a suit and costs to enforce collection. The fundamental error in the opinion just read, is, in my judgment, the confounding of a rate fixed by the act, with the tax itself. It confounds the measure of a duty with the duty. The law furnishes a rate, but the rate is only the measure of the tax, when applied to the subject of taxation. As to each citizen, his tax is not laid until the subject is ascertained, and the rate applied to it. To escape from this dilemma, the opinion falls into a second error, by assuming in the next place, that the remedy for non-payment is itself an assessment. The words of the act are, and in default of payment, the same to be oolleeted as debts of like amount are collected by law.” Here the law provides for collection, not assessment, in default of payment, and assumes that a debt or duty exists, which has not been laid on the tax-payer. I concede that a tax may be assessed by a judicial proceeding, though it be an onerous mode of assessment. But the vice of this law is that it establishes no mode of assessment, judicial or otherwise, but first commands payment of an unascertained sum, and then in default of payment, commands collection by a suit, and the infliction of costs. It is the most elementary principle of law, that there can be no remedy for a breach of duty, until the duty is ascertained. Under this act, no tax is individuated, and no duty imposed before collection. The Act of 1844, in relation to state taxes, will serve to illustrate this subject. ■ That act directed moneys at interest to be taxed, and fixed the rate at three mills. Warrants of assessment were issued, and the citizen was required to make a return of the subjects of taxation to the assessor, and if he failed or refused, the act. then directed the assessor to ascertain the subjects, and assess the tax from the best light he could obtain. Thus a tax was laid on the citizen, and the duty of payment attached. The proceeding to levy the United States income tax was similar. It is evident, that neither the three mills rate, nor the five per cent, rate was a tax, and without a proceeding to assess upon each individual his specific tax, that no tax was laid upon him, and no duty rested upon him to pay it. Had the State, or the United States, after fixing the rate only, ordered payment, and in default of payment, commanded the collector to distrain for the tax, or to bring a suit to recover it, every one could perceive the outrage on the rights of the citizen. No tax had been laid upon him, and payment would be impossible Were any one in reply to the hardship, to say to him, well, gather up your bonds, notes and other securities, make a calculation, and assess yourself, every one would perceive its absurdity; yet that is precisely the present case. A rate is given, a command to pay, and then a suit and costs ordered for non-payment, notwithstanding not a citizen has been assessed, and not a tax ascertained. I say, that this act has not provided due process of law to ascertain the citizen’s duty, and, therefore, that the infliction of the penalties of a suit and costs, to collect what has not been laid on the citizen by lawful process, is in violation of the Bill of Rights, which provides that no one can be deprived of his property, unless by the judgment of his peers, or the law of the land. The words “ or the law of the land,” have been decided to mean the same thing as “due process of law.” Fettar v. Wilt, 10 Wright 457; Craig v. Kline, 15 P. F. Smith 413.

It is too clear for argument, that the tax of an individual is the result of the rate applied to the subjects of taxation which belong to him, and consequently, that he is not taxed until the rate is applied to his property by some legal mode of adjustment. Then it is equally clear, that until his tax is legally adjusted, no duty of payment can arise, and consequently no proceeding to collect the alleged tax is justifiable, until the tax is so adjusted and laid. The order to collect, whether by distress or by suit, before the tax is legally laid, is therefore without due process of law. Had the act directed an assessment even by a magistrate, the duty of payment would have existed, and then payment could be enforced by suit, though it be onerous to do so. But here the law visits the citizen with the duty of payment first, and assessment afterward, if a suit to collect in default of payment can be called an assessment.

It is said, the citizen may avoid suit by a tender. But a tender implies a tax to be tendered. No sum has been laid on the citizen which he is bound to pay, or the collector is bound to receive. The tender is impossible. If he tender what he believes to be just, the collector may deem it ínsufíicient. And again, the law has made no provision, either for a return or for an account to be kept. Then it is said, the court will supply a proceeding to remedy the defect in the law. I grant, that in judicial proceedings, a court through its general powers, may supply defects of legislation. But taxation is not a judicial proceeding, and the courts have no power to supply an assessment. The case is not in the power of the court until suit is brought to collect the tax; but then it is too late, for the suit cannot be lawfully maintained until the duty has been imposed on the citizen by the assessment. If there be no mode of assessment, the law-making power only can supply it. Look at this law how you will, it is as clear as the noonday, that it has provided only a rate and no mode of laying the tax on the individual tax-payer; that it first orders payment, and in default of payment, inflicts the penalty of a suit with costs, for not performing an unimposed duty. Imagine a collector calling on a mine-owner for his tax, without duplicate, assessment or known tax. “How much is it?” says the citizen. “I don’t know,” says the collector. “ How, then, can I pay ?” “ That’s your business,” says the collector. “No, it is not; the law did not require me to make a return, or keep an account, or assess myself.” “ Well, I want your tax,” says the man in authority. “ Here are five dollars.” “ No, I want thirty dollars,” rejoins the officer. “I can’t pay that.” “Well, I’ll collect the tax by suit, and compel you to pay the costs.” This is called taxation. , I call it arbitrary exaction, without due process of law. It is evident, this act is the product of that vicious practice prevailing among legislators to object to no local bill a member from the district chooses to champion as his local measure, a custom in violation of the oath of office, and of the duty of the representative to the people of the state. I would say to those wbo procured this act, in the language of this court in Philadelphia Association v. Wood, 3 Wright 73 : “ Considering, then, that this imposition is so extraordinary in its character, of such doubtful constitutional validity, so dangerous in its tendencies as a precedent, and so unusual in the form of its enforcement, we most respectfully decline, for the judiciary department of the government, the enforcement,” &c.


source: Caselaw Access Project

author: Agnew, J.

license: Public Domain

text:
    Worman et al. versus Kramer.
    1. A sale of goods in the hands of a bailee is good against an execution-creditor, if the vendor do not retake possession.
    2. Kramer bought an omnibus and horses from Berkenstock, whom he immediately employed as driver; the horses were kept at the stable of a third person. Held, that this was not per se fraud, if the stock was really kept by the bailee in an open and notorious manner, and this was for the jury.
    3. The court charged, “ a concurrent possession exists only where the person in actual possession has some interest in it as part owner.” Held to be error.
    4. Where the control and use of goods by vendor and vendee are so confused and mixed, as to leave the question of possession uncertain, the sale however honest, cannot be sustained.
    5. A constable levied on horses, &c., of a vendee for the debt of the vendor; he offered to return one horse as taken in mistake, and it was refused unless with the return of all. lie returned the horse to the stable whence he had taken it. Held, that this was evidence in mitigation of damages.
    6. The horse being offered back in a reasonable time in good plight, it was the duty of the vendee to receive him.
    March 19th 1873.
    Before Read, C. J., Agnew, Sharswood and Mercur, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lehigh county: No. 9†, to July Term 1872.
    This was an action of trespass d. b. a., brought A.ugust 17th 1870, by Robert D. Kramer against Abraham Worman, Walter J. Grim, George Steininger and Peter Dorney. The goods taken were an omnibus, horses, harness, &c., which were seized and sold by Worman, constable, as the property of one Harrison Berkenstock under executions against him at the suit of the other defendants.
    The plaintiff testified that he kept the “ Allen House” in Allentown in 1870, and that he bought an omnibus, a pair of horses and double set of horses from Berkenstock, and gave him his note for $500, payable in twelve months; he got them on Saturday in front of his house, where he took possession ; and on the following Monday he ran them from his hotel to the depot; he kept them at the stable of Keim & Einstein, he put them there the same day he bought them; that firm agreed with him to furnish hay for the horses and keep the omnibus at $1.50 per week. He hired Berkenstock to drive for him at $50 per month; the coach was brought directly from the coach-making shop to his house; he bought another horse from George Snyder afterwards which had never belonged to Berkenstock, but was driven to the omnibus; the three horses, omnibus and harness were levied on by Worman in June 1870. Berkenstock, shortly before the sale to plaintiff, told him that he, Berkenstock, had been running a coach for Levi Hottenstein at “ The Eagle;” that he had sold a coach to Hottenstein and agreed with him not to run an opposition, and wished plaintiff or his brother to run one in plaintiff’s or his brother’s name; plaintiff said he would not have anything to do with it in that way; plaintiff bought the concern out and out, and told Berkenstock to take it to Keim & Einstein’s stable. Berkenstock was to employ the boy to .assist him for the $50 per month, and plaintiff to board the boy. Berkenstock kept an account of the receipts; out of them he paid for the feed, &c., and kept the balance for his salary; plaintiff’s name was on the coach; the driver was forbidden to carry passengers to any other hotel than the plaintiff’s. Berkenstock had no interest in the coach or horses; Berkenstock continued in plaintiff’s employ after the constable’s sale, running a carriage from his hotel to the depot. Plaintiff never got any of the property after it was seized, he demanded it twice in writing.
    Berkenstock testified that in April 1870, he' owned four horses and two coaches; he sold two horses, coach and double set of harness to the plaintiff; he further testified, much as plaintiff did, as to his wishing plaintiff to run it for witness and his afterwards buying it; and as to his own and the boy’s wages, &c. Witness never told plaintiff that he was indebted; the coach was run only from “ The Allen House” and “The Fountain House;” witness paid for keeping the horses so long as there was anything from the earnings, and plaintiff paid the rest and the smith’s bills and revenue taxes.
    Worman testified that he was indemnified by the other defendants, plaintiffs in the executions.

      There was evidence also that the plaintiff paid the note which he had given to Berkenstofck for the property.
    The defendants gave evidence to show that the sale to the plaintiffs was colorable and fraudulent; that the possession had never been changed from Berkenstock or that he had at least a concurrent possession with the plaintiff.
    Woman, defendant, testified that after he had made the levy, he took the property to “The La Eayette House;” shortly after he got there, Walter Kramer, brother of the plaintiff, gave witness notice to bring back everything he had taken away. “ I told him I would return the brown mare (that purchased from Snyder); he said if I did not return all they would take none. I saw R. D. Kramer (plaintiff) a day or two afterwards, and he told me he would let me see for moving his property, then I told him I would be willing yet to give up the mare; he said if I would not return everything he would not take the mare ; after the sale I brought back to the place where I took them from, the brown mare, bobtail horse, and one set of double harness, and one set single harness, and then I saw Berkenstock and Kramer together at the Allen House porch; I gave them notice that I had returned the goods, naming them; they said they wouldn’t receive them; it was thirteen to fourteen days from time of levy until return of the goods.”
    The plaintiff in rebuttal testified that he had never removed any of the property levied on.
    The defendants submitted these points:—
    2. If the property mentioned in the first point was capable of immediate and manual delivery it is not sufficient for the plaintiff to take merely constructive possession, and his failure to take actual, visible and continued possession of the same is a fraud in law, and renders the alleged sale void as to the creditors of Berkenstock, and the plaintiff cannot recover as to said goods.
    3. As H. Berkenstock continued in visible possession of the property mentioned in the first point, the allegation that he was the servant of R. D. Kramer cannot avail the plaintiff, “ for this would be a secret trust, contrary to the visible ownership and possession ;” “ there cannot, in such case, be a concurrent possession ; it must be exclusive, or it would, by the policy of the law, be deemed colorable.”
    4. The allegation by the plaintiff that H. Berkenstock was his servant, and in that capacity had possession of the property mentioned in the first point, obliges the plaintiff to remove all doubt and color of fraud from the alleged transfer, and if he fail to do that, then he cannot recover for the same.
    6. If the jury believe, from the evidence, that the sale was made by Berkenstock for the purpose of hindering, delaying or defrauding his creditors, and that Kramer, the plaintiff, paid no money, but gave his note which was not legally negotiated, then Kramer was not such a purchaser under all the circumstances as the law would protect against Berkenstock’s execution-creditors; and the alleged subsequent payment of said note by Kramer will not entitle him to recover on this point.
    9. If the jury find that the mare was offered back to Kramer by the defendants, or any of them, as soon as they had ascertained the fact that she had been bought from G. Snyder by R. D. Kramer, and he refused to accept her, and that she was not sold under the constable’s levy, but was offered to Kramer again after the constable’s sale, in as good a condition as she was before the levy, and was again refused when so offered; that the mare was then taken to the stables of the Exchange Hotel, where she had been kept and boarded before the levy was made by the constable and left there subject to the plaintiff’s order, then he cannot recover any damages on account of the subsequent sale of her for feed.
    The court declined to answer the points, except as they were answered in the general charge.
    The court amongst other things charged :—
    “ The defendants allege that the sale was fraudulent in law as well as fraudulent in fact.
    “ A fraud in law arises where a sale takes place and there is no actual delivery of things sold to the vendee, but the vendor is permitted to retain the possession. A fraud in law is usually declared to be such by the court, when the evidence is of such a character as to require no fact in relation to the delivery to be found by the jury. In this case there are certain facts to be found by you before a fraud in law shall arise.
    “ Whenever an honest, boná, fide sale takes place, the vendor must give the vendee such a possession as the nature of the property sold will best admit of, and if the property be capable of it, the transfer of possession should be actual, open, notorious and visible.
    “ [If you find that Mr. Kramer was an actual purchaser without actual fraud, or fraud in fact, and that at the time he purchased he ordered the omnibus and the horses to the Exchange stables, with the directions to the keepers of those stables that the horses should be kept at his own charges,., and that in addition thereto, he had his name inscribed upon the coach, and that all the bills, which were incurred in the running of the coach, were contracted in the name of Mr. Kramer, and as his debt, and that the line was held out to the world generally as his property, then he did all that the law required of him to do as regards a transfer or a change of the possession.]
    “ If you find that there was such an open, visible and notorious transfer of the possession accompanying this alleged sale, then I say to you that the transaction is not a legal fraud; and the employment of Berkenstock as the driver of the line, under such circumstances, did not of itself render the sale a fraud in law. If, however, you find that Berkenstock was a part owner, and as áuch part owner that he held concurrent possession with Kramer, then the sale would be a fraud in law, because there would be no transfer of the entire possession to Kramer.
    “ [A concurrent possession exists only where the person in actual possession of the property has some interest in it as a part owner. As to whether there was such a part ownership in Berkenstock, is a question of fact to be found from all the evidence in the cause.]
    “ If then you find that there was a transfer of the possession, and no concurrent possession in Berkenstock as part owner, the plaintiff’s case thus far will be such as will entitle him to recover; but if you cannot find these propositions in his favor, then there will be an end to his case, and your verdict will be in favor of the defendants. Before, however, the plaintiff can recover, the case must be free from a fraud in fact.
    “ A fraud in fact arises where the parties to a transaction, by any scheme, device or contrivance, so use and hold property with intent to hinder, delay or defraud the creditors; and if this intent exist on the part of the vendor and is known to the vendee, a full and honest consideration will not protect the sale from taint of fraud in fact. What is meant by this rule as applied to this case is this: That if Berkenstock informed Mr. Kramer that he desired to make a sale of the property in dispute, for the reason that he was afraid that his creditors would seize it and sell it, then the sale would be a fraud. If such were the intent of Berkenstock and Kramer had a knowledge of it from any source, the payment of a full price will not protect the sale from a fraud in fact. Whether there was any such fraudulent intent is a fact to be found by you from all the testimony. The proof to establish a fraud should be clear and satisfactory, being' sufficiently strong to produce an honest conviction.
    “ A fraud in fact would also exist if it were understood, or if it were agreed upon between Berkenstock and Kramer, that the $500 note was not to be paid by the plaintiff, but that the property should still belong to Berkenstock. How this fact was you will say from all the testimony.
    “ [You will remember what is sworn to by Kramer and Berkenstock as to the honesty of the transaction: and although Berkenstock may have told other persons while he was driving the line that the line was his, Kramer can only be affected by it so far as he had knowledge of it, and it is for you to say that if he spoke of the team as his to others, whether he meant to say anything more than that he was the driver of the line.]

      “ [I am asked to charge you that if the plaintiff gave his note, and it was not legally negotiated, then the plaintiff is not such a purchaser as will be protected. I cannot so instruct you. The negotiability or non-negotiability of the note has nothing to do with this case. The note, I believe, was negotiable; it was drawn payable to the order of Berkenstock.]
    “ It is alleged that the Snyder mare was to become Berkenstock’s as soon as he paid ,for her. I say to you, that if this mare, or any other property, was in the possession of Berkenstock, or held with the understanding or agreement that it was to become Berkenstock’s as soon as he would pay for it,'then this would be a fraud; and if Mr. Kramer owned part of the property only, and so mixed it with the property of Berkenstock that it was so promiscuously used that the ownership of the one could not be distinguished from the ownership of the other, and it was done with a fraudulent intent to hinder, delay or defraud creditors, then this alleged sale would be void, and the property would be liable for the executions of the defendants.
    “ Again — if this sale were made by Berkenstock to Kramer for the purpose of avoiding the penalty of the contract, which Berkenstock had contracted with Hottenstine, prohibiting him to run an opposition line of omnibus, and if Kramer knew of this purpose, intent or motive, before or at the time he made this purchase, then he acted with a full knowledge of the intended fraud, and aided in its commission; and if a fraud has been actually so committed, then no title to this property passed to Kramer. You will then generally inquire if a fraud in fact has been actually committed between Kramer and Berkenstock in any of the ways it is alleged by the defendants to have been committed; and if by clear and satisfactory proof you are convinced there has been committed actual fraud, or a fraud in fact, then in law Kramer could acquire no title to the property, not even if he paid full value for the same, but the title still remained in Berkenstock so far as the creditors are concerned, and for their debts it was liable to seizure and sale by execution; and in that event your verdict will be generally for the defendants. Your* verdict will also be for the defendants if you find there was no transfer of the possession to Kramer as indicated in the first part of the charge; or if Berkenstock retained a concurrent possession as part owner. If none of the defences as alleged by the defendants are sustained, then your verdict will be in favor of the plaintiff.
    “ The damages to which the plaintiff is entitled are the value of the property at the time of its seizure. You are at liberty to find, if you are so satisfied, that only a portion of the property belonged to plaintiff. [It is contended, as regards the mare purchased from Snyder, that title was never in Berkenstock, and as to this the plaintiff must certainly recover. This,- however, is a question of fact for you, and in the event you find for the plaintiff you will say whether it is for a whole, or only part.] That a portion of the property remained unsold, and was returned to the place from which it was taken at the time of seizure, is not a fact to be. received even in mitigation of damages. The plaintiff was not bound to receive back any of the property taken, and if he had done so then the fact would go in mitigation of damages. In assessing the damages, you will inquire as to the fair market value at the time of seizure, and when that is ascertained the plaintiff will be entitled to interest on that amount from the time of seizure to this date.”
    The verdict was for the plaintiff for $739.12.
    The defendants took out a writ of error and assigned for error the refusal to answer their points specifically and the parts of the charge in brackets.

      J. S. Biery and O. B. JErdman, for plaintiffs in error.
    Retained possession, without visible change, is fraudulent in law and void: Clow v. Woods, 5 S. & R. 275; Babb v. Clemson, 10 Id. 419; Carpenter v. Mayer, 5 Watts 485; Hamilton v. Russell, 1 Cranch 310; Milne v. Henry, 4 Wright 357; McKibbin v. Martin, 14 P. F. Smith 356. Legal fraud, where the facts are undisputed, or are ascertained, is for the court: Dornick v. Reichenback, 10 S. & R. 90 ; Dewart v. Clement, 12 Wright 414.
    But, as the law in Pennsylvania is so well settled on these two points, it is perhaps more pertinent to the case at bar, to determine, if possible, what indicia of fraud are requisite to warrant the court in pronouncing a case fraudulent in law. “ Retained possession, without visible change,” says Thompson] J., in Milne v. Henry, supra, “ is fraudulent. There must be an actual separation of the property from the possession of the vendor at the time of the sale, or within a reasonable time afterward, according to the nature of the property: Billingsley v. White, 9 P. F. Smith 466; Chase v. Ralston, 6 Casey 541; Brawn v. Keller, 7 Wright 106; Hugus v. Robinson, 12 Harris 13.

      E. Harvey and J. D. Stiles, for defendants in error.
    When there has been a sufficient delivery, actual or constructive, and the vendor is in possession, the fact that the vendee is employed about the establishment in a capacity holding out no indicia of ownership, is not such a concurrent ownership as the law condemns, and the question is for the jury : McKibbin v. Martin, 14 P. F. Smith 352; Dunlap v. Bournonville, 2 Casey 72; McVicker v. May, 3 Barr 224. Separation of the property from the vendor’s possession means only a change of his relation to it as owner, and consists in the surrender and transfer of his power and control over it to the vendee: Billingsley v. White and another, 9 P. F. Smith 464. There being evidence of a change of possession, the bona tides was for the jury: Craver v. Miller, 15 P. F. Smith 456. The possession of the servant is the possession of the master: Ward v. McCawley, 4 T. R. 490. It is not the place the property occupies that gives color of possession to the vendor; but the connection the place has with the vendor: Barr v. Reitz, 3 P. F. Smith 256. The action being trespass de bonis asportatis, our remedy was complete after the seizure and asportation of the property: Erisman v. Walter, 2 Casey 467; Waldron v. Haupt, 2 P. F. Smith 408; Berry v. Vantries, 12 S. & R. 93; Miller v. Baker, 1 Met. 27; Thomas v. Snyder, 11 Harris 515; Gibbs v. Chase, 10 Mass. R. 128; Hoofsmith v. Cope, 6 Wharton 53.
   The opinion of the court was delivered, May 17th 1873, by

Agnew, J.

This ease was tried below on the grounds of fraud in law and fraud in fact, and in the argument the facts bearing on each branch have been somewhat blended. Fraud in law in this case, had relation to a retained, or a concurrent possession, and not to the intent to hinder and delay creditors, which enters into the question of fraud in fact. It is only by separating the evidence bearing distinctly upon each ground, that we can judge properly of the correctness of the judge’s charge. Looking at his charge in this light, we do not discover any good reason to complain of it, except in two respects, which shall be noticed.

On the question of fraud in law, one fact of importance must not be overlooked, to wit, that the actual possession of the property appears to have been in the bailee of Kramer. The coach and horses were kept at Keim and Einstein’s livery stable, and on the day of the sale to Kramer he bargained with Einstein to keep the coach, and the horses at hay, at $1.50 per week. In Linton v. Butz, 7 Barr 89, it was held that a sale of personal property in the hands of a bailee is good against an execution-creditor, though there be no actual delivery, if the vendor do not retake the possession. We (jannot say, therefore, that there was error in that part of the clm-ge set out in the first assignment of error; read as it must be, with the sentences immediately preceding and succeeding, in which it was left to the jury to say whether there had' been an open, visible and notorious transfer of the possession. The mere employment of Berkenstock afterwards as a driver, would not, in itself, stamp the character of a legal fraud upon the sale, if the property was really kept by a third party, as bailee of Kramer, in an open and notorious manner. The facts were for the jury, as to how the coach and horses were kept, and for whom; and whether Berkenstock returned into such an immediate and visible possession, as deprived the transaction of that open and notorious character, which would fairly indicate to the public an actual transfer of the possession at the time of the sale, and following it.

The evidence in this case did raise a serious question as to the openness and the visible character of the possession. The intimate relations Berkenstock sustained to the property, after the sale, raised a question of fact, whether his possession was not, at least, concurrent with that of Kramer, and the defendants were, therefore, entitled to full and clear instructions on that point. In part of the case the learned judge fell into an error, by his qualification of the instruction, that a concurrent possession exists only where the person in actual possession of the property has some interest in' it as a part owner. There was no question as to a part ownership, either as tenants in common or as partners. The sale was out and out, and the question was only upon the possession. The defendants alleged that the possession of the coach and horses was, at least mixed or concurrent between Kramer and Berkenstock, and if so, it was insufficient to indicate an' open and complete transfer of the possession, and in this view they were entitled to an answer which would not mislead. The concurrent possession alleged, was such as that spoken of by Judge Strong in Brawn v. Keller, 7 Wright 104, where the control and use of the property by the vendor and vendee, were so confused and mixed, as to leave the question of possession uncertain. If that were the kind here, the defendants were entitled to an instruction that the transfer of possession was not such as to protect the sale, no matter how honest and fair. But when the judge defined a concurrent possession to be one only where there is a part ownership of the property, he narrowed the instruction to the prejudice of the defendants. There was no evidence of a tenancy, either 'joint or in common, and the jury were, therefore, led away from what was meant by a concurrent possession; that is to say, a mixed or uncertain possession, apparently as much in one as in the other.

We think he erred, also, in refusing to give the defendants any benefit from the offered return of the brown horse, bought by Kramer of Snyder. If, as the evidence tended to show, the constable, after he found he had made a mistake in levying on the horse, as the property of Berkenstock, offered to return him to Kramer, who refused to take him, and the former then returned him to the stable, whence he took him, with notice to, or the knowledge of Kramer, it went in mitigation of damages. It might not atone for the trespass, in the taking, but if the horse were offered back, in as good plight as when taken, and in a reasonable time, clearly it was the duty of Kramer to receive him, unless he could show a good reason for not doing so. Eor these reasons the judgment is reversed, and a venire facias de novo is awarded.


author: Sharswood, J.

text:
    Laubach versus Laubach.
    1. J. sold stock to T., and agreed that when T. should desire it, he would take it back and repay the price. Held, that upon tender of the stock T. might recover the price with interest.
    2. On a refusal by a vendee to accept goods sold him, the measure of 7 damages is the difference between the contract and the market price at the
    time of refusal.
    3. Where the contract is that the vendee may rescind the contract, the vendor to pay back the price, or the contract is rescinded by the vendee by reason of inherent vice, the measure of damages is the price paid and interest.
    4. Where there is a general objection to evidence and part is admissible, it is not error to overrule the objection, although part of the offer be inadmissible. In such case there must be a special objection to the inadmissible part.
    March 20th 1873.
    Before Read, C. J., Agnew, Sharswood, and Mercur, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lehigh county: No. 152, to July Term 1872.
    This was an action of assumpsit, brought April 22d 1870, by Thomas Laubach against Joseph Laubach.
    The plaintiff alleged that in August 1858 he bought from the defendant, his brother, 100 shares of the capital stock of the Brown Silver Mining Company for $5000, the defendant agreeing at the time, as part of the contract, to take it back if the plaintiff should desire it and repay the sum paid for it. . The plaintiff having tendered the stock and demanded the repayment, the defendant refused, and this suit was brought for the recovery of the money with interest.
    The plaintiff testified that in August 1858 he met the defendant at Catasauqua, in the Eagle hotel, kept by Frank Laubach, defendant’s son. The defendant, after he and his son had exhibited the promising prospects of the mine and solicited the plaintiff to purchase stock, said that if -plaintiff would take stock he would insure it to him, and if at any time plaintiff wanted his money back, defendant would take the stock and give him his note for it. Defendant said that they had $20,000 worth of stock for the Laubach family and their friends. Upon these assurances, the plaintiff took 100 shares of stock and paid the defendant $5000 for it. Subsequently three certificates of the stock, making in the aggregate 100 shares, were delivered to plaintiff.
    On March 5th 1870, the plaintiff signed transfers on the back of the certificates, and tendered them to the defendant, and said to him, “ Here is the stock you said you would take back any time I did not want it, and give me my money back;” defendant denied having promised him that he would take the stock and pay back the money.

      The plaintiff testified to other facts in support of his case, and gave other evidence in corroboration of his own. statements as to the contract and of the tender of the stock and demand of the money.
    Plaintiff also testified that Frank and William Laubach, sons of the defendant, were present when the contract was made, and were called by their father to bear witness to what he said, and also that they were present on other occasions when the father made similar statements.
    Frank Laubach testified in direct contradiction of the plaintiff, as to the interview and what was said to have occurred in his presence.
    On cross-examination he said:— “ Thomas offered, in the parlor, in presence of Adam, on my inducement, to take the stock; my father wasn’t in the habit of selling this stock; he never sold any stock; my father never sold any stock to Mrs. Strauss; nor to John Laubach; nor to John A. Laubach; nor to Adam Laubach; nor to Captain John Laubach; nor to Michael 0. Newhart; don’t know that he offered to sell to Samuel Straub; nor do I know whether he guarantied the stock to Mrs. Strauss; he never guarantied stock to anybody in my presence • * * * I didn’t direct my father to sell this stock to Mrs. Strauss; I sold it to her indirectly; I saw her before the sale was made, at Catasauqua, and induced her to take it: * * * my father was not my agent to sell stock for me; * * * I never heard my father say anything to Capt. John Laubach about the sale of this stock; nor did I ever hear that he guarantied the stock to him; nor that he guarantied it to any one else; I sold the stock to Mrs. Matchett; she never paid the whole of it; I sold it for her to my father; it was not sold on a guaranty ; it was three shares; Michael and Owen Newhart got stock from me; I sold it directly to them; I got the money; it did not pass through my father’s hands ; it was paid to me directly; my father knew nothing about my transactions with these people, except with plaintiff; Adam Laubach got forty shares from me directly; my father didn’t guaranty it to Adam ; am sure he didn’t; plaintiff was at my house in March 1870, when he tendered the stock back; he was there once after that.”
    William Laubach also testified in direct contradiction of plaintiff’s testimony.
    Joseph Laubach, defendant, testified in the same manner as his sons.
    He further testified: — “ I was not the owner of the 100 shares sold to Thomas ; had no interest in them at all; I got none of the proceeds of the sale, nor did I tell my brother, John Laubach, that if Thomas took stock I would take it back ; T never promised any man that I would take stock back; I had some conversation with my brother John, but I didn’t say that to him; I think it was in November 1869 that plaintiff for the first time came to me and said he wanted me to pay him for the. stock I guarantied to him. I said ‘ What stock ? ’ He said, ‘ The Brown Silver Mining stockI said I had never sold him any stock, and had never guarantied him any ; he came to me several times about it, and teased me about it; I told him if he didn’t like me as a brother he could shoot me and have me out of the way; I never made him any promise that I would take the stock back from him at any time.”
    On cross-examination, he said:—
    “ I sold some stock to Mrs. Strauss, with the consent of my son; her name was Laubach; I got the money for it and gave it to my son; I got two checks, payable to me; I made the contract with her to take the stock; I didn’t guaranty to take it back; I told her at any time she didn’t want it I would take it back and pay her the money with interest; I told her that at any time she was tired of it I would take back the stock and pay the money with six per cent, interest; I did take it back; I never sold Capt. John Laubach one share of stock; I didn’t sell íúm a share, nor make the same promise to him as I did to Mrs. Strauss; on my return from Easton, I stopped to see my sister, Mrs. Bachman; I offered to sell her stock, and told her if she would take it I would guaranty it, the same as I had done to Mrs. Strauss; I did not to my recollection ask Samuel Straub to buy stock; I didn’t tell him that we had $20,000 expressly for the Laubach family and their friends, and that he was one of their friends; I didn’t tell him that I had sold stock and had guarantied it; didn’t tell him I had sold stock at Catasauqua, and that I had guarantied it all or insured it, nor anything of the kind; I told Aaron Fretz that I had got all in except Adam, and I would have him in yet; I said I would try; didn’t sell stock to my brother John; didn’t guaranty it to him the same as I did to Mrs. Strauss; didn’t sell to Capt. John Laubach and guaranty it also; nor to John A. Laubach and guaranty it, nor to Adam Laubach and guaranty it, nor to -Michael and Owen Newhart and guaranty it; nor did I tell Owen Newhart, in the presence of Michael, that I would take the stock back if he didn’t like it; nor to Michael, and guaranty it in the presence of Owen; I didn’t say anything to Captain John Laubach, John Laubach, John A. Laubach, Adam Laubach and Michael and Owen Newhart, and Samuel Straub about selling stock to them; I offered Hannah Schadt stock, but I never said anything about $20,000 worth of stock for the Laubach family; I told her I would take the stock back at any time she was tired of it, and pay the money back; I went to see her, to know if she wanted stock; she had no money and took no stock; I told her it was paying one per cent., but I didn’t tell her she would get back all her money in two or three years; I told David Schadt it was a good thing, and told him he should get his sister to buy; I didn’t tell Thomas and Adam nor any of the Laubachs that there was $20,000 reserved expressly for the family.” * * *
    The plaintiff in rebuttal called Capt. John Laubach, and offered to prove by him “ that Joseph Laubach offered to sell him stock, and did sell it to him, and guarantied it, alleging at the time that it was a portion of the $20,000 worth of stock which he had expressly reserved for the Laubach family.”
    Objected to by the defendant’s counsel as not rebutting testimony ; that it is in relation to matters collateral to this suit; that it is irrelevant and cannot be offered to contradict the testimony of Joseph Laubach; that if it is evidence at all it is evidence in chief. “Plaintiff says-the testimony is offered for the purpose of rebutting the allegations of the defendant, that he was not engaged with the sale of the Brown Silver Mining Company, and for the purpose of contradicting Eranlc, Joseph and William Laubach.” The offer was admitted and a bill of exceptions sealed.
    Witness said: “ The defendant offered to sell me stock of this company in the beginning of August 1868; it was at his place at the Eagle'Hotel; he said he had $20,000 worth expressly for the Laubach family; I told him I couldn’t see the point yet; I had enough water-hauls; then he said, if you don’t like it I’ll pay your money back; then he told me the per cent.; one, two and three per cent, a month; he said, you shall just take it, and if you don’t like it you come to me and I will pay your money back, and if I haven’t the money I will give you my note; he said he had all the family in except Adam and John, and he would get them in yet; I gave this note as part payment of the stock; I gave defendant all the money, I gave him $5000 in all.”
    Plaintiff then called each of the other persons to whom the defendant denied in his testimony that he had sold stock, and proposed similar questions to each of them. They were admitted under exception and objection to testify.
    They testified substantially in accordance with the offer.
    The plaintiff offered in evidence the book, the pamphlets and circulars of the company and the notes and checks, testified to by the witnesses. They were objected to by the defendant, admitted by the court, and a bill of exceptions sealed.
    The court (Longaker, P. J.), amongst other things, charged:— * * * “ Before you proceed to weigh the strength or power of the evidence, it becomes the duty of the court to admonish you that if you find it to be a fact that the defendant was engaged in selling the stock to others, and that he guarantied to them and promised to redeem at par the stock thus sold, the fact so proven is not a circumstance from which you are at liberty to infer or find that the defendant made a like promise to the plaintiff. Because the defendant may have promised others to redeem the stock sold to them is no reason which will enable you to say that he promised the plaintiff to redeem the stock in suit.
    “ The plaintiff was permitted to prove that the defendant made the guaranties to others, in order to show that he was, engaged in the sale of this stock, and to meet that part of the defence in which it is said that the defendant was not engaged in the sale of this stock, but that his son Frank was the agent of Watson; and that he, and not his father, made this sale, and that the father had nothing to do with effecting a sale of this stock to plaintiff.” * * *
    “If under these instructions you cannot find a contract of guaranty in favor of the plaintiff, your verdict will be generally in favor of the defendant; [if, however, you do find in favor of the plaintiff, the amount of your verdict will be for $5000, with interest from March 5th 1870.]”
    The verdict was for the plaintiff for $5582.50. The defendant took a writ of error, and assigned for error:—
    I. That part of the charge in brackets.
    2-10. Admitting John Laubach and the other witnesses objected to.
    II. Admitting the pamphlets and circulars of the company, &c., in evidence.

      H. Green and O. M. Runic, for plaintiff in error. —
    The measure of damages was the difference between the contract price and the value of the chattels at the time of the breach: Story on Sales, sect. 348; Phillpot v. Evans, 5 M. & W. 475; Laird v. Pine, 7 Id. 478 ; Boorman v. Nash, 9 Barn. & Cress. 145; Andrews v. Hoover, 8 Watts 239; McCombs v. McKennan, 2 W. & S. 216; Thompson v. Algeo, 12 Metc. 428; Bowser v. Cessna, 12 P. F. Smith 148. If a witness be asked on cross-examination „ as to a collateral fact, his answer is conclusive against the party asking him: 1 Green. Ev., sect. 449; Elliott v. Boyles, 7 Casey 65; Hollingham v. Head, 4 Com. B. N. S. 338.

      R. Harvey and J. R. Stiles (with whom was O. R. Rrdman), for defendant in error.
    This was not a contract to sell shares of stock, but to pay back the money and interest; after refusal,the plaintiff could have sold it or held it subject to defendant’s order, and recovered the whole sum: 3 Parsons on Contracts 209; Bement v. Smith, 15 Wend. 493; Crookshank v. Burrell, 18 Johns. 58; Towers v. Osborne, 1 Strange 506; Thompson v. Algeo, 12 Metc. 443 ; Ballentibe v. Robinson, 10 Wright 180.
   The opinion of the court was delivered, March 27th 1873, by

Sharswood, J.

The first assignment of error is intended to raise the question, whether the instruction of the learned judge below to the jury, as to the measure of damages, was correct. There was no dispute as to the amount which the plaintiff had paid for the stock, nor that he had made a regular and formal tender of it back to the defendant, and demanded the return of the money, or a note, in conformity with the agreement. The plaintiff in error supposes that the same rule is applicable in this case as in the ordinary case of the refusal of a vendee, before any title to the property has passed to him, to accept goods which he had previously agreed to buy. The authorities which have been cited abundantly show that there the measure of damages is the difference between the contract and the market price at the time of the refusal or breach. But the mistake is in considering that this was a contract to purchase or repurchase. If the jury believed the testimony of the plaintiff, and that was left to them, and upon his credibility the whole controversy hinged, then it was an agreement by which, as one of the terms of the sale, the plaintiff was to be at liberty to rescind the contract, and the defendant undertook in that event to pay back the price or give his note for the amount. It is like the very common case of the purchase of a horse, where the buyer pays the price, but stipulates that after a reasonable trial, if he should not be satisfied with the animal he may return him and receive back the price paid. No one has ever supposed that this was to be construed as a contract to repurchase, or that upon the exercise by the vendee of the option •reserved, the title does not revest in the original vendor, and the right to the price in the vendee. This is the legal effect of the rescission of a contract, whether the rescission be by reason of an inherent vice, such as fraud, or by virtue of the terms of the contract itself: Smethurst v. Woolston, 5 W. & S. 106.

The nine following assignments all relate to one and the same question. The plaintiff had testified that the defendant stated to him as an inducement to the purchase, that he had reserved twenty thousand shares of the stock of the company in dispute, for the Laubach family, from which the inference was, that he was the agent of the company for the sale of the stock. When the defendant was put upon the stand as a witness for himself he denied that he had made this statement, and that he had ever said anything to certain persons named about selling stock to them. This was certainly relevant to the issue trying, and the'defendant might be contradicted in regard to it, for it bore directly upon the main question, whether he or his son Frank had made the sale to the plaintiff. It was true he was also asked whether he had guarantied the stock sold to these persons, as it was alleged he had done to the plaintiff. It may well be that this was entirely collateral and irrelevant, and his answer conclusive according to the familiar rule, that a witness cannot he contradicted as to collateral and irrelevant matter brought out upon cross-examination. It is, however, unnecessary to decide this, because the offer to contradict him in this respect by the testimony of the persons, who had been named to him, was made in connection with an offer to contradict him as to the other relevant matter that he had not spoken to them about the sale of the stock. The objection to the offer was a general one, and if any part of it was admissible the judge cannot be convicted of error in overruling such general objection. In such a case it is the duty of the party objecting to call the attention of the judge particularly to that part which is inadmissible by a special objection. This is but fairness to the judge. In the pressure upon his mind in the necessary hurry of a jury .trial, he cannot be required to scrutinize narrowly every part of an offer, and to distinguish in it the admissible from the inadmissible, though he may do so ; and especially is this true, when the objection goes merely to relevancy, the shades of difference as to which are often so slight. The learned judge below, in his charge, instructed the . jury that the fact that the defendant had guarantied and promised to redeem stock which he had sold to others, was not a circumstance from which they were at liberty to infer or find that he had made a like promise to the plaintiff. We think, therefore, that there was no error in the admission of this evidence, of which the defendant below, the plaintiff in error, has any right to complain.

As to the eleventh assignment, it is enough to say, that we have not been furnished with copies of the books and circulars of the company, so as to enable us to judge of their competency and relevancy. If the defendant was the agent of the company in making sale of the stock, of which there was some evidence, these books and circulars may well have been admissible if their contents were relevant. Indeed, this assignment does not seem to be pressed, as the counsel for the plaintiff in error did not notice or explain it, either in his printed or oral argument.

Judgment affirmed.


text:
    Kistler’s Appeal.
    1. A sheriff’s sale is made against the will of the defendant, and he has no control of the direction the title is to take, and if there be no fraud practised by the bidder, the defendant can obtain a title only by repurchase.
    2. Saeger’s property being to be sold by the sheriff, he consulted with German, Kistler and others, and it was understood that Kistler should purchase for his benefit. At the sale Kistler was absent, the property was struck down to German for the benefit of Saeger at its full value, and at Saeger’s request deed made to Kistler, who paid the money, he agreeing to hold it for Saeger that he might have a home. Saeger was insolvent and continued to be unable to refund the money. Held, not sufficient to make Kistler trustee ex maleficio for Saeger.
    3. Such agreement is within the Statute of Frauds and cannot be enforced.
    4. The evidence to establish a resulting trust, especially one ex maleficio, should be clear, explicit and unequivocal.

      March 20th 1873.
    Before Read, 0. J., Agnew, Sharswood and Mercur, JJ. Williams, J., at Nisi Prius.
    Appeal from the Court of Common Pleas of Lehigh county: In Equity, No. 148 J, to July Term 1872.
    On the 9th of July 1868, Joseph Saeger and Maria his wife filed a bill against Samuel J. Kistler. The bill set out:
    1, 2. Joseph Saeger on the 20th of December 1858, owned a house and lot in Allentown, and on that day the premises were sold by the sheriff under, an execution against Saeger for $1200 ; subject to a mortgage, &c.
    3, 4. Before the sale, the plaintiffs had agreed with a number of their creditors that the premises should be purchased at sheriff’s sale by Nathan German, one of the creditors, and that in pursuance of the agreement the property was struck off to German for $1200, “ subject to the said conditions.”
    5, 6. After the sheriff’s sale and upon the same day,. German agreed with Kistler, the defendant, that Kistler should be substituted as purchaser instead of German, on the condition that the title should be held by Kistler for the benefit of the plaintiff; Kistler was so substituted and agreed so to hold the title, that upon the payment by the plaintiffs of the yearly interest upon the purchase-money and of the principal sum $1200, he would convey the property to them.
    7. In accordance with those arrangements, the plaintiffs entered into possession of the property and made valuable improvements at a cost of $1035; paid the taxes on the property, interest on the purchase-money and on the mortgage, subject to which it was sold.
    8. The plaintiffs occupied the property until the 3d of April 1865, when they were notified by the defendant Kistler to deliver possession to him, “ and thereupon compelled them to quit and deleliver up possession as aforesaid.”
    9. Since April 3d 1865, the defendant had the sole use of the property; received rents to the amount of $1000, and has refused to account to them; and although plaintiffs were willing to pay him the purchase-money and do all required by the agreement between the defendant and German, the defendant refused to convey to them.
    The prayer was that the defendant should be decreed specifically to perform the agreement; to hold the property in trust for the plaintiffs and give them possession; they offering to perform their part of the agreement and pay the purchase-money and interest, &c.
    The defendant answered:—
    1. He admitted the allegations of this paragraph of the bill.
    2. He bought the property at sheriff’s sale December 20th 1858, and paid from his own money $1200, the purchase-money, and a deed was delivered to him by the sheriff January — 1859 ; he afterwards paid $990.40, the amount of the lien which remained on the property, with the interest which had accrued on it.
    3, 4, 6. He denied the allegations of these paragraphs.
    5. He denied the allegations of this paragraph, and averred, that prior to the sale he intended to purchase the property if not sold for more than it was worth, and to make arrangements satisfactory to himself for the occupancy of the property by the plaintiffs ; when defendant came to the sale, the property had been struck down to German, who on being informed of defendant’s intention, allowed his.name to be substituted as purchaser, and defendant was in consequence returned by the sheriff as purchaser; he never entered into any agreement with plaintiffs to convey the property to them; but his intention to purchase was merely from friendly feelings to the plaintiffs. After receiving the deed, he verbally agreed with the plaintiffs that they should occupy the property at a rent equal to $148.01, being interest on the cost to the defendant, taxes and repairs to be paid by plaintiffs, who were in possession at the time of the verbal agreement and so Remained until April 1st 1865; plaintiffs paid part of the -taxes and paid $546.53 on account of rent; they gave up possession in pursuance of the notice and without further action; they removed part of the improvements they had put upon the property, and about June 7th 1865, presented a claim of $1035 to defendant for taxes, improvements, &c.
    7. Plaintiffs did not enter into possession in accordance with any arrangement alleged in this paragraph, but they remained in possession under the verbal agreement above mentioned. Defendant had no knowledge of the improvements made by plaintiffs, but such as were made were for plaintiffs’ own benefit without the consent of defendant, some were useless and an injury. Plaintiffs paid no interest except what was paid as rent, and a large amount is still unpaid.
    8. No further compulsion than the notice to quit was used to cause the plaintiffs to leave the property. .
    9. Defendant has received rent since the plaintiffs left, but is not bound to account to plaintiffs for it. ■
    A replication was filed, and William H. Glace, Esq., appointed examiner and master.
    A large amount of testimony was heard before the examiner, which he returned to the court, and as master, he reported a decree that the plaintiffs’ bill be dismissed.
    On exceptions by the plaintiffs, the court (Longaker, P. J.) held that the evidence established a resulting trust, and the whole matter was again referred to the master, with instructions to state an account between the plaintiffs and defendant, &c., and to report a form of decree in accordance with the opinion of the court.

      The master again reported, presenting a form of decree as directed by the court.
    Exceptions were filed by the defendant to the second report.
    After argument the exceptions were overruled and the court decreed: “ That the defendant execute and deliver to the plaintiffs a good and sufficient deed in fee simple for the house and lot in controversy, within fifteen days after the plaintiffs shall have paid to the prothonotary of the Common Pleas of Lehigh county the sum of $3918.87, with interest from April 1st 1872, subject to the order of the defendant, and that the plaintiffs notify the defendant of said payment, and that the defendant pay the costs.”
    The facts of the case are so fully set out in the opinion of the Supreme Court that no other statement of them is required.
    The defendant appealed to the Supreme Court, and assigned the decree for error.
    <7. M. Runic and Thompson, for appellant.
    The ease is within the Act of April 22d 1856, sect. 4, Pamph. L. 533, 1 Br. Purd. 724, pl. 3, and is ruled by Barnet v. Dougherty, 8 Casey 371. If there be nothing more than the violation of a parol agreement, equity will not decree a purchaser to be a trustee: Williard v. Williard, 6 P. F. Smith 119; Kellum v. Smith, 9 Casey 164; Jackman v. Ringland, 4 W. & S. 149. A parol agreement to purchase land and convey on payment of advances is void: Myers v. Byerly, 9 Wright 368. A purchaser at sheriff’s sale can be held trustee only on the ground of fraud: Haines v. O’Conner, 10 Watts 313; Merritt v. Brown, 6 C. E. Green 402; Sample v. Coulson, 9 W. & S. 62; Brown on Fraud, sect. 94.

      IE. J. More and Woodward, for appellees.
    Wherever a person obtains a title from another through a confidence reposed in him, which he could not have obtained except by such confidence, if he abuse such confidence he is converted into a trustee ex maleficio: Hoge v. Hoge, 1 Watts 163; Sheriff v. Neal, 6 Id. 534; McCullough v. Cowher, 5 W. & S. 427; Miller v. Pearce, 6 Id. 97 ; Morey v. Herrick, 6 Harris 123; Plumer v. Reed, 2 Wright 46 ; Church v. Church, 1 Casey 278; Beegle v. Wentz, 5 P. F. Smith 369; Lingenfelter v. Richey, 8 Id. 485; Seichrist’s Appeal, 16 Id. 237.
    Where one procures a conveyance to be made to him, upon the promise and assurance that he will hold it in trust for another, and refuses to carry out such promise, it is a fraud; and because of the fraud the vendee is a trustee ex maleficio: Hill on Trustees 224, 225; Thompson v. White, 1 Dallas 424; Gilbert v. Hoffman, 2 Watts 66; McCullough v. Cowher, 5 W. & S. 430; Jackson v. Summerville, 1 Harris 359.
   The opinion of the court was delivered, May 17th 1873, by

Agnew, J.

The finding of the master, who had also been the examiner in this case, was against the plaintiffs upon every material fact alleged in their bill, and his clear conclusion was that there was no trust on part of the defendant, on any ground. Exceptions being taken to these findings of fact, the court below, rejecting the report, found the facts for themselves. The opinion of the judge evinces a mind favorably impressed by the evidence in behalf of the plaintiffs. His statement may be regarded, therefore, as exhibiting the entire strength of their case. It is as follows: — “ That in December 1858 the real estate in question was to be sold at sheriff’s sale; that Joseph Saeger, a deaf mute, one of the defendants in the execution, and now one of the plaintiffs to this.bill, was desirous, prior to the sale, to secure the purchase of it, so that it might eventually enure to the benefit of his wife; and in order to effectuate his desire, he called on Mr. German, Christian Pretz and Samuel J. Kistler, and that as the result of his conferences, it was understood that the defendant would so purchase, and that Mrs. John Saeger, an aunt of the plaintiff to this bill, would also assist by furnishing some money. German attended the sale, fully believing that an arrangement existed by which Kistler was to buy; but not finding Kistler at the sheriff’s sale, he bought for the benefit of the plaintiffs, and so informed A. L. Buhe, who was also bidding on the property. German became the purchaser, and signed the conditions of sale ; but before the down-money was paid, at the instance of Joseph Saeger, Kistler was substituted, by an agreement between him and German, at the sheriff’s office, by which Kistler should take and hold the property for the plaintiffs, so that they should have a home ; that if Kistler had not agreed to hold for the plaintiffs’ use, German would not have allowed him to succeed to his purchase ; that the property brought its market value at the sheriff’s sale, and has since greatly appreciated; and that after Kistler received the deed, Joseph Saegar and wife continued in the possession of the property and made important repairs and alterations; that the property was assessed in the name of Maria Saeger, and continued to be assessed in her name until 1864, and that the taxes were paid by the plaintiffs, and that interest on the amount of the purchase-money paid by Kistler, and the interest on the liens were paid by the plaintiffs until the year 1862, which in some receipts is called rent, and the others, interest; that about January 1864 the plaintiff, Joseph Saeger, was notified by Kistler to leave the premises, there having been served a landlord’s notice to quit. The plaintiff surrendered the possession, and subsequently made several demands, by presentation of bills to the defendant, as a compensation for repairs made. “ These facts (says the judge) clearly establish a resulting trust, and the defendant, Samuel J. Kistler, will be treated as a trustee ex maleficio of the plaintiffs.” We cannot assent to this conclusion. These facts establish only a judicial sale in invitum as to Saeger, struck down to German, who paid no money, and that Kistler stepped into his place, paid the bid, and took the deed upon a parol agreement to hold the property for the benefit of the plaintiffs, so that they might have a home. • It is wholly unlike those cases where one receives a conveyance without consideration or purchase, in confidence that he will hold it for another. A sheriff’s sale is made against the will of the defendant, and he has no'control over the direction the title is to take. If no fraud at the sale be practised by the bidder, the defendant in the writ can obtain a restoration of his title only by a contract of repurchase. That such an agreement to repurchase or to redeem, as is found by the judge, is within the Statute of Frauds and Perjuries, and could not be enforced even before the passage of the Act of 22d April 1856, is attested by abundant authority. The case of Fox v. Heffner, 1 W. & S. 372, is a counterpart of this in every respect, if, indeed, it is not stronger, as Morris, who took the place of Patterson at the sheriff’s sale, repeatedly acknowledged the right of Heffner to redeem his land on payment of the money. “ The plaintiff below (said Judge Sergeant) claims the land under a parol agreement between him and Morris* one of the defendants, made at the time when the sheriff’s deed conveyed the land to Morris.” After stating that such an agreement is within the Statute of Frauds and Perjuries of 1772, he says : “It is now-settled by repeated decisions of this court that if one buys the defendant’s property at sheriff’s sale, and verbally agrees to hold it in trust for the defendant, with a right of redemption in the defendant within a limited period, it is a contract resting in parol merely, and not transferring any title in the land. In Kisler v. Kisler, 2 Watts 327, and Robertson v. Robertson, 9 Watts 42, it was determined that unless there is in the transaction more than is-implied from the mere violation of a parol agreement, equity will not decree the purchaser to be a trustee. In Haines v. O’Conner, 10 Watts 320, these cases are recognised, and it is laid down that a purchaser at sheriff’s sale, who has paid his own money, can be held a trustee ex maleficio only on account of the existence of fraud, and when that is the case, he is a trustee for the creditors and the debtor also, unless the debtor be particeps criminis. In the case before us there is no evidence of any collusion or act of fraud on the part of Morris, in the purchase of the property which could make him a trustee ex maleficio, and the fraud which may be alleged to exist in the mere violation of an. agreement is no more than that which attends every violation of an agreement.” This language is so applicable to the case of Kistler, I have transcribed it in lieu of my own. Here Kistler was not present at the sheriff’s sale, and committed no act of fraud, but merely took German’s place at tbe instance of Saeger, and paid his own money upon an agreement to suffer Saeger to redeem. The following cases are to the same effect: Leshey v. Gardner, 3 W. & S. 314; Jackman v. Ringland, 4 Id. 149; Sample v. Coulson, 9 Id. 62. The case is made still stronger against the plaintiffs by the Act of 22d April 1856, the fourth section of which provides that “all declarations or creations of trust or confidences of any lands, tenements or hereditaments, and all grants and assignments thereof, shall be manifested by writing, signed by the party holding the title thereof, or by his last will in writing, or be void.” This case is ruled by Barnet v. Dougherty, 8 Casey 371, and Kellum v. Smith, 9 Id. 158. Both in the court below and here, it has been said the trust arose ex maleficio, though nothing of the kind is found in the evidence; yet, as this has led to an inquiry into the conduct of German, who bid off the property at the sale, it will be proper to refer to this aspect of the case. But how can that question arise? The bill is filed against Kistler alone, and is founded wholly on his agreement to hold the property for the plaintiffs. No averment is made of fraud in the purchase at sheriff’s sale, by German or Kistler, or that the property was bought at an undervalue. Neither the judge below, nor the solicitors of the plaintiffs, in -their statements of the case, place it on the ground of fraud in the sale. The facts as proved disclose no fraud. German was under no promise to buy for Saeger, and did not go to the sale for that purpose. He went as a lien-creditor, to protect his own interests, but finding neither Kistler, nor Saeger, nor his friends there, he bid himself, with the intention of securing the property for Saeger, an intention communicated to Saeger immediately after the sale, and fairly carried out. Ruhe, a bidder also, asked him when bidding, .whether he wanted the property for himself. He replied, he wanted it for Joseph Saeger. “Then,” said Ruhe, “I won’t bid any more.” This is German’s own account of the matter. Elisha Forrest testifies that before the property was knocked down, Ger- ' man said he was bidding, and wanted to buy the property for the benefit of Joseph Saeger. This was all he said. No unfairness is imputed to German, and none is alleged against the sale, or is found by the master or the court. The evidence shows, and the court found as one of the facts, that the property brought its market value at the sheriff’s sale. There is nothing in the case, therefore, which would authorize us to shift the position the plaintiffs have assumed in their bill, and to treat this as a trust ex maleficio, arising out of German’s conduct. Clearly no fraud was intended ; his purpose was fair; and no injury was done either to creditors or to the defendant. Whatever supposed benefit he might have derived from the sale, he suffered to pass over to Kistler without consideration and for Saeger’s benefit. The evidence to establish a resulting trust, especially one arising ex maleficio, which is an imputation of fraud, should be clear, explicit and unequivocal : McGinity v. McGinity, 13 P. F. Smith 38 ; Nixon’s Appeal, Id. 279; Lingenfelter v. Richey, 12 Id. 123.

Nor is there anything in the conduct of Joseph Saeger which invoices equity in his behalf. He admits that he was insolvent at the time of the sale, and unable to refund the money, and has so continued. Mrs. John Saeger, who was to have assisted him, soon after the sale, refused to do so, and Kistler was obliged to give his own bond, with surety, to pay off her mortgage. Joseph Saeger occupied the property for years, and failed to pay all his rent. When notified by Kistler, as landlord, to quit possession, he did so, and then presented to him a large bill for repairs, materials and taxes, and finally did not file this bill for more than three years after he had surrendered possession, and more than nine years after the sheriff’s sale.

Upon a full review of the case, we can discover no equity to support the plaintiffs’ bill. The decree of the Court of Common Pleas is therefore reversed, and the bill of the plaintiffs is dismissed, and they are ordered to pay the costs.


author: Read, C. J.

text:
    Ritter et al. versus Singmaster et al.

    1. An endorsed note was discounted by a bank for the drawer, at maturity he took it up by a similar note on which the endorsements were forged, and destroyed the original note; he took up the second note by another note with forged endorsements. Held, that taking the last two notes in renewal did not extinguish the original note.
    2. The record of the protesting notary being proved to contain a true copy of the first note, was admissible in evidence.
    3. The bank who discounted the first note was entitled to recover, on proof of its destruction and the genuineness of the signatures.
    March 21st 1873.
    Before Read, C. J., Agnew, Sharswood and Mercür, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lehigh county: Of January Term 1873, No. 192.
    This was an action of assumpsit, commenced January 24th' 1871, by James Singmaster and others, trading as the Millerstown Savings Bank, against John M. Ritter and Peter Marck.
    The plaintiffs filed a declaration, averring that Erwin Burkhalter, on the 20th of September 1870, made a promissory-note for $1000, payable to the order of the defendants, at the Millerstown Savings Bank, in ninety days, and the defendants endorsed it to the plaintiffs ; that the note was not paid at maturity, and that the defendants were notified, &c.
    They afterwards filed another declaration, averring: In the first count that Burkhalter, on the 8th of April 1870, made a promissory note to the defendants, promising to pay $1000 at the Allentown National Bank in ninety days, and the defendants endorsed it to the plaintiff, but it was unpaid at maturity, and the defendants ' were notified, &c.
    The second count was upon another note for $800, by the same drawer to the defendants, dated July 2d 1870, payable in ninety days at the Millerstown Savings Bank, endorsed by the defendants to the plaintiffs, and remaining unpaid, and they notified of the non-payment, &c.
    The third count was on a note by the same drawer to the defendants, dated July 8th 1870, for $1000, payable at the Millers-town Savings Bank in sixty days, endorsed to the plaintiffs, remaining unpaid, and the defendants notified, &c.
    The case was tried November 14th 1872, before Longaker, P. J. On the trial the plaintiffs withdrew their claim upon all the notes, but that dated April 8th 1870, payable at the Allentown Bank. The evidence was that this note was discounted at the plaintiff’s bank for Burkhalter, and that at maturity it was unpaid and protested, the endorsers being notified.
    On the 26th of July 1870, Burkhalter brought to the bank another note, dated July 8th, for $1000, drawn by himself, payable to the defendants in sixty days, with the defendants’ names endorsed. This note was taken by the plaintiffs as a renewal of that of April 8th, which was then given up to Burkhalter; it was unpaid and protested, notice being sent to the endorsers. Burkhalter in November brought to the bank another note for $1000, dated September 9th 1870, payable to the defendants in ninety days, with their names endorsed on it. This note was received by the plaintiffs in renewal of the note of ’July 8th, which was then delivered to Burkhalter; being unpaid, it was protested, the defendants being notified.
    Burkhalter testified that the endorsements on the notes of July 8th and September 9th were forgeries, and that he had destroyed the note of April 8th.
    The plaintiffs then called Samuel Colver, the notary public, who produced his record and' testified that a copy of note in the record was a true copy of the note of April 8th. The court then, under objection by the defendants and exception, admitted the notary’s record of the protest of that note in evidence.
    Numerous points, not necessary to note, were submitted by each party.
    The court amongst other things charged: * * * ,
    “The plaintiffs have shown by testimony which is not disputed, that this note was delivered after protest to Erwin Burkhalter, the maker, by the bank receiving another note from him of same amount, and signed by Burkhalter, and purporting to be endorsed by the defendants. This second $1000 note is now admitted by the plaintiffs to be a forgery as regards the names of the defendants, and this fact is not disputed; when this second note fell due, a third note of $1000 signed by Erwin Burkhalter, with the names of the defendants forged as- endorsers, was received by the bank, and the second note was delivered to Erwin Burkhalter. As a »matter of law I say to you that the receiving of notes whose endorsements were forged, will not amount to a payment of a genuine note or extinguish the right of action against, the defendants as endorsers upon the first note, if that first note dated April 8th 1870, drawn by Burkhalter and endorsed by the defendants, bears their genuine signatures. ■

      “ The only question therefore for your consideration as a matter of fact is, as to the signatures of the defendants, are these signatures genuine? If you find the signatures genuine, then the plaintiffs will be entitled to recover whatever remains due and unpaid on this note.” * * *
    The verdict was for the plaintiffs for $1049.08.
    The defendants took out a writ of error and assigned sixteen errors; amongst others the admitting the notary’s record in evidence and the charge of the court.

      O. J. Hrdman and J. D. Stiles, for plaintiffs in error:
    As to the extinguishment of the original note by taking the forged notes, cited, Chitty on Bills 173; Hill v. Bostick, 10 Yerger 410; Letcher v. Bank, 1 Dana (Ky.) Rep. 84.

      W. H. Lowden and P. Harvey, for defendants in error:
    As to the same point, cited Eagle Bank v. Smith, 5 Conn. 71; Packford v. Maxwell, 6 Tenn. R. 52; 2 Parsons on Notes 595; Ramsdale v. Horton, 3 Barr 330; Watson v. McLaven, 19 Wendell 587.
   The opinion of the court was delivered, May 17th 1873, by

Read, C. J.

The plaintiffs, who are partners, trading under the name of The Millerstown Savings Bank, are engaged in the banking business in the Borough of Millerstown, in Lehigh county. On the 9th of April 1870, they discounted a note drawn by Erwin Burk-halter and endorsed by the defendants, dated the 8th of the same month, for $1000, payable ninety days after date at the Allentown National Bank. At maturity this note not being paid was protested for non-payment, of which the endorsers had notice. About seventeen days afterwards said Burkhalter brought to the plaintiffs his promissory note, dated 8th July 1870, payable sixty days after date, for a similar amount, to the order of the defendants, and purporting to be endorsed by them, and which was given to the said plaintiffs as a renewal of the note of 8th April 1870. On the 9th September 1870, this note became due, and not having been paid, was protested for non-payment, of which the endorsers had legal notice.

On the 3d November 1870, the said Burkhalter brought his promissory note dated 9th September 1870, to the plaintiffs for similar amount, payable ninety days after date, drawn by himself and purporting to be regularly endorsed by the defendants, which - note was again given to the plaintiffs by the said Burkhalter as a further renewal of the antecedent and original debt. On the 11th December 1870, this note was protested for non-payment, of which the defendants had legal notice.

On the 24th January 1871, suit was brought by the plaintiffs on this last note, and on another note for $800 against the defendants. In an affidavit filed by the defendants, the endorsements on these notes were sworn to be forgeries. It was also proved on the trial that the endorsements on the second note for $1000 were forgeries. A nonpros, was suffered on the counts in the narr. on this last note of $800, and an additional narr. filed, counting on the first and second notes for $1000.

The first note discounted by the plaintiffs was a genuine one, endorsed by the defendants, protested for non-payment, and due notice of it given to the endorsers, who became bound to pay. The note given on renewal was a forgery and worthless, and the third note given in renewal was also a forgery and enabled the forger to get possession of the first note and the second note, and he destroyed both of them. This note, upon which this suit is brought, — was therefore never paid by these spurious and fraudulent and forged notes which were mere nullities — given in renewal of the first note.

The learned judge was therefore right in saying to the jury: “ The receiving of notes whose endorsements were forged will not amount to a payment of a genuine note, or extinguish the right of action against the defendants as endorsers upon the first note, if the first note dated April 8th 1870, drawn by Burkhalter and endorsed by the defendants, bears their genuine signatures.”

An exact copy of the first note was proved by the notary who protested it for non-payment and gave legal notice to the defendants, and the record of the notary was also admitted in evidence. This is the real point in the case, and there is nothing in the numerous errors assigned by the defendants.

Judgment affirmed.