author: Read, J.

text:
    Mathias versus The Superior Iron Company.
    An iron company made coupon bonds, amounting in all to $300,000, interest payable semi-annually at 8 per cent., and secured them by mortgage to trustees on their real estate; they issued $280,000 of the bonds, $20,000 remaining in their hands. They offered their property for sale by sealed proposals; the sale to be subject to the mortgage of $300,000, due May 1st 1889, payment of the bid in excess of the mortgage to be made ¿ cash, the remainder in 4 equal annual payments, no bid to be received for less than $566,000 ‘‘including the amount of the mortgage.” The defendant bid $605,000, and agreed “ to pay $300,000 of the company’s mortgage-bonds and interest, as and when the same mature,” and the balance as stipulated in the offer. His bid was accepted. The company sued defendant for six months’ interest on $20,000 of bonds i-emaining in their hands. Held, that he was liable for interest at 8 per cent., notwithstanding the bonds had not been issued by the company, $300,000 being part of the consideration, and being represented by all the bonds.
    November 11th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 59, to October and November Term 1870.
    This was an action of covenant commenced, November 5th 1870, by The Superior Iron Company against David Mathias.
    The affidavit of claim was, that “the said David Mathias is justly indebted to the company in the sum of eight hundred dollars, with interest thereon from the 1st day of November 1870 ; that the said sum of money consists of the semi-annual interest due and payable on the 1st day of November 1870, upon 36 certain bonds of the Superior Iron Company, numbered as follows, to wit, No., &c. (32) for five hundred dollars each; and No., &c. (4) for one thousand dollars each ; which said semi-annual interest as aforesaid the said D'avid Mathias, on the 27th day of November 1869, promised to pay by a writing of that date, signed and executed by the said David Mathias, a true copy of which said writing is hereto attached as part hereof; that the said 36 bonds, before enumerated, are part and parcel of the three hundred thousand dollars of the Superior Iron Company’s bonds, and the said eight hundred dollars, before mentioned, is part and parcel of the interest mentioned in the said writing of November 27th 1869, and which the said David Mathias therein promised to pay as and when the same matured; that the said interest or sum of eight hundred dollars is wholly due and unpaid, and that a demand has been made on the said David Mathias to pay the same.”
    The writing referred to in the affidavit was:—
    “Pittsburg, November 26th 1869.
    “ William P. Shinn, Esq.,
    Chairman of meeting of stockholders, Superior Iron Co.
    “ Sir: I offer six hundred and five thousand dollars for the entire property of the Superior Iron Company, as defined in your advertisement of November 17th 1869, payable as follows :—
    “ 1. I covenant for myself and assigns to pay three hundred thousand dollars of the company’s mortgage-bonds and interest, 8 per cent, thereon, as and when the same matures.
    “ 2. Seventy-six thousand two hundred and fifty dollars in cash on execution of the deed.
    “ 3. Two hundred and twenty-eight thousand seven hundred and fifty dollars, in four equal annual payments of fifty-seven thousand one hundred and eighty-seven dollars and fifty cents, with interest at 6 per cent., payable semi-annually, for which I will give my bond, secured by mortgage on the premises.”
    Endorsed: “ The Superior Iron Company having accepted the within bid, I hereby bind myself for the payments of the money, and the performance of the covenants therein mentioned and contained.
    “Witness my hand and seal this 27 th day of November 1869.” The affidavit of defence was:—
    “David Mathias, defendant, * * * admits that he purchased from said company, plaintiffs, certain real estate in Allegheny and Fayette counties, and that a deed for said property was made to him by said company, dated January 1st 1870, which deed he accepted; that said deed was made to him in pursuance of a certain contract of sale agreed upon by him and said company, plaintiffs, on which contract they now sue, and deponent denies that under said contract he is liable to pay the amount now claimed; that said contract had its origin as follows: In November 17th 1869 the said company, plaintiffs, acting by direction of its stockholders at a regular and lawful meeting for that purpose held, issued a printed circular offering for sale all its property. ?,i
    “ In answer to this circular deponent became a bidder for said property, and his bid was duly and formally accepted by said company, plaintiffs, and a sale to him of said property by them duly ratified at a stockholders’ meeting, and thereupon the deed before referred to. made to him. Deponent’s bid for said property was made in writing, and is as follows—
    (The same as attached to the plaintiffs’ affidavit.)
    Deponent says that the said mortgage mentioned in said circular and in his bid, as a mortgage of $300,000, was one issued by said company to secure the payment of certain bonds to be issued by said company for the purpose of raising money to be put into their business, but said company never did issue $800,000 in bonds under said mortgage, but only the sum of $280,000, and that if the remaining $20,000 of bonds were ever printed and executed, the same remained and still remain, and were at the time of said sale to deponent, unissued and in the hands of said company; and deponent denies that the said company are now or were when said contract was consummated, holders of said bonds for value, or that said bonds were anything other than said company’s promise to pay itself, never issued or negotiated, and not the basis of any liability or responsibility whatsoever.
    And deponent denies expressly that the property of said company, “as defined in their advertisement of November 17th 1869,” and as bid for by him under the terms of said advertisement, was subject to a mortgage of $300,000, or that under his' bid to pay $300,000, of the mortgage-bonds of said company, and interest “ as and when the same mature,” he is liable to pay anything but what said company were liable and are liable to pay under said mortgage, to wit, $280,000 of said bonds and interest thereon as aforesaid.
    And deponent denies that there existed or now exists any liability on the part of said company to pay either the principal or the interest of said $20,000 of said bonds, unissued and held by themselves, or consequently any liability on him, said deponent, assuming as he does by the terms of said sale the same relation to said mortgage and bonds issued thereunder as said company held previous to said sale, and deponent denies that it was within either the letter or spirit of the terms of sale set forth in the circular hereinbefore referred to, and deponent’s bid in answer to said circular, that he should pay to said company an amount equal to the amount of bonds which they had not issued, but still kept in their own hands, in addition to his cash payments and his assumption of said company’s liability under said mortgage-
    Deponent says further, that when he assumed the payment of outstanding bonds secured by said mortgage, he did so, on the supposition and with the understanding that the said company had realized the amount represented by said bonds, and that the same had entered into and enhanced the then value of their property to that extent; and that he did not promise or contract to pay interest on $300,000, and receive the benefit only of $280,000; and deponent denies that it is just or equitable or in accordance with his contract with said company, that they should demand that he do so without giving him the use, benefit and advantage of said $20,000, on which interest is now sued for.
    Deponent denies that any interest is now due on said bonds numbered, named and recited in plaintiffs’ affidavit of claim filed in this case, and denies that said bonds as recited were ever issued by the Superior Iron Company under the mortgage referred to, previous to January 1st 1870, or that the same have any legal existence whatsoever.
    And deponent avers that up to this time he has fully complied with all the requirements of his contract with the plaintiffs, and that he is not now indebted to them as they aver, or in any wise answerable in this suit.
    The only part of the circular necessary to explain the case, is the following: * * *
    “ The sale will be made subject to the mortgage of $300,000, due May 1st 1889, and bearing interest at eight per cent, per annum, payable semi-annually. Payment (of the amount bid in excess of the mortgage) to be made one-fourth in cash on delivery of the deed, and the remainder in four equal annual payments, with approved security, with interest at six per cent, per annum, payable semi-annually. The property is to be sold to the highest bidder, but no bid will be received for a less amount than $566,000, including the amount of the mortgage.” * * *
    The plaintiffs, on the 17th of December 1870, obtained a rule to show cause why judgment should not be entered against the defendant for want of a sufficient affidavit of defence, and assigned the following reasons:—
    1. Upon the facts disclosed in the affidavit of defence the plaintiffs are entitled to judgment.
    2. The plaintiffs’ affidavit of claim discloses a primé facie right on the part of plaintiffs to a judgment against defendant for the entire amount claimed, and the affidavit of defence, so far as it alleges matter relevant and competent to the issue, does not traverse said affidavit of claim.
    The court made the rule absolute, and the judgment was liquidated at $818.
    The defendant took a writ of error, and assigned for error, that the court erred in making the rule for judgment absolute and in entering judgment against the defendant for $818, for want of a sufficient affidavit of defence.

      Hampton Dalzell, for plaintiff in error.
    Or. Shiras, Jr., for defendants in error.
   The opinion of the court was delivered, November 20th 1871, by

Read, J.

The decision of this case depends upon the construction to be placed upon a bid made byrthe defendant for the entire property of the plaintiffs as defined in their advertisement, and which was accepted by the plaintiffs on the 27th November 1869, and a deed made for the same, by the said company to the said defendant, dated the 1st day of January 1870, which deed he accepted and placed of record.

The offer or bid was six hundred and five thousand dollars ($605,000)this is clear and explicit; it was for so much money, the times of payment of which are regulated by the subsequent terms of the bid: “ I covenant for myself and assigns to pay three hundred thousand dollars of the company’s mortgage-bonds and interest, 8 per cent, thereon, as and when the same matures”— that is, the principal on the 1st May 1887, and the interest semiannually. This fixes the time of payment of $300,000 of the bid for $605,000.

“ 2. Seventy-six thousand two hundred and fifty dollars ($76,250) in cash on the execution of the deed.

“ 3. Two hundred and twenty-eight thousand seven hundred and fifty dollars ($228,750) in four equal annual payments of fifty-seven thousand one hundred and eighty-seven dollars and fifty cents ($57,187.50) with interest at 6 per cent., payable semiannually, for which I will give my bond secured by mortgage on the premises.”

The cash and postponed payments make $305,000, and with the $300,000 mortgage, bonds having seventeen years and four months to run, make up the full purchase-money of $605,000.

The effect, therefore, of the bid thus made and accepted, was to spread the payment of the $305,000 over four years, and extend the time of payment of the $300,000 seventeen years and four months. But it is alleged that of the mortgage-bonds only $280,000 were actually issued, and that $20,000 were still in the hands of the company, and therefore not contemplated by the defendant, who did not know the fact, although he had from the 27th November 1869 to the 1st January 1870, to make himself fully acquainted with the whole subject of his purchase, independent of any former connection with the company.

If the amount of unissued bonds had been $100,000, would it have been possible to say that $605,000 meant $505,000, and that this was the only amount the defendant contemplated paying, when he bid $100,000 more which was accepted by the plaintiffs ?

The language is plain, and the intent to give the full and complete consideration-money of $605,000 is equally plain — and the defence set up failing entirely,

The judgment is affirmed.


source: Caselaw Access Project

author: Agnew, J.

license: Public Domain

text:
    Johnston et al. versus Jackson et al.
    1. The limitation offive years, under the Act of 1804, to action by the owner against the purchaser under a tax sale, begins to run from-the delivery of the deed; after which the owner can bring ejectment whether the land be vacant or not.
    2. Under the Act of 1804, lands were sold for taxes in 1808 and 1817; an intruder entered after the five years without color of title; Held, that in an ejectment by one claiming under the purchaser, it was not necessary for him to prove all the pre-requisites of that act.
    3. In ejectment by Jackson for 130 acres of land claimed by Johnston, who relied on the Statute of Limitations, and on a contract with Jackson for 40 acres, part of the 130, the court charged that the contract was an acknowledgment of Jackson’s prior title. Held to he correct.
    November lOtb 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Qambria county: No. 8, to October and November Term 1871.
    This was an action of ejectment by Anna Jackson and others, heirs of Thomas Jackson, deceased, against Charles Johnston and James Johnston, for 130 acres of land in Washington township.
    The premises claimed in the writ were part of three warrants and surveys, one of 422 acres in the name of William Kineer, one of 346 acres in the name of James Kineer, and one of 75 acres in the name of John Haines.
    The two Kineer tracts were assessed in Huntingdon county for taxes for the years 1802, 1804 and 1805. On the 6th of February 1811, the legislature passed an act authorizing the commissioners of Huntingdon county to collect taxes in Cambria and Clearfield counties. The William Kineer tract was sold for the taxes by the sheriff of Huntingdon county, to John Blair, on the 10th of January 1806, and the James Kineer tract sold by the treasurer of Huntingdon county for the taxes on the 13th of April 1817, to Nicholas Lefevre. These titles and that of the Haines tract all passed to Thomas Jackson, the ancestor of the plaintiffs, on and before the 3d of April 1843.
    The defendants gave evidence that James Johnston, the father of the defendants, went on the premises in 1837, and died there in 1855, and his family had continued to reside there ever since; that the father had cleared and fenced about 20 acres in 1839 or 1840, and he and his family had cleared a, little ever since, and that he used the timber as farmers generally use it. They also gave evidence as to the extent to which their father and they claimed and used the land; one witness, a surveyor, testifying that the quantity claimed by them was from 130 to 150 acres.
    They gave in evidence this paper:—
    “ Summit, August 17th 1854.
    “ I have this day sold to Charles Johnston a piece of ground on the Summit, Cambria county, Penna., bounded and described as follows: commencing at the turnpike, a corner of the land now owned by said Johnston, thence running along sajd land, &c., * * •* to the place of beginning; supposed to contain about 40 acres, of which there is about 20 acres cleared. In consideration the said Charles Johnston agrees to pay unto the said Thomas Jackson or his heirs twenty dollars for each and every acre, and when a deed is made or secured, the said Johnston to pay the balance when the survey is made.
    W. W. Jackson, Agent for Thomas Jackson.

      “ August 17th 1854, received of Charles Johnston, $450 on the above agreement.
    W. W. Jackson, Agent for Thomas Jackson.

      “ September 1st 1855, received of Charles Johnston, $120 on the within agreement.
    W. W. Jackson, Agent.”
    Thomas Jackson died in 1855.
    W. W. Jackson, his son, testified that he was in the habit of making contracts for his father, who had given him directions to sell all his “ mountain property” that he could ; that the money first endorsed on the agreement he paid his father; the other paid since his death had not been paid to the heirs.
    Jackson testified at some length as to transactions in relation to this land.
    The plaintiffs gave evidence that the land mentioned was part of the three surveys, the Kineer and Haines ; also evidence for the purpose of showing that Johnston went in under Jackson; that he had been employed by Jackson to see after his lands, take care of the timber, &c.
    There was evidence in contradiction of W. W. Jackson ; also, by the defendant, that the land had never been in Huntingdon county.
    The court (Taylor, P. J.) charged: * * *
    [“ It was objected, when the evidence of the plaintiffs was offered of the tax-sale of the Kineer tracts, that made prior to the Act of 1815, it was necessary to the validity of the tax-title for the party asserting or setting it up, to show a strict compliance with all the requirements or directory provisions of the Act of Assembly under which the assessment and sale were made. This is true when the tax-title is set up against the title of the warrants ; but the rule, it is equally well settled and understood, is only applicable in that case, and is not available when set up by an intruder, that is, by one claiming by improvement or the Statute of Limitations. And such is the attitude of defendants here. Their defence, so far as it asserts title in them, rests it upon their entry and possession, if we except the claim resting on the paper purporting to evidence a sale to Charles Johnston by Wm. W. Jackson, of about 40 acres, on the 17th August 1854, in relation to which it is sufficient, as it respects this question, to say that the setting of it up here is an acknowledgment of the prior title of Jackson; and it is distinctly proven that Johnston never claimed any land embraced in this paper before its date.] So that we repeat the plaintiffs have exhibited evidence of title which entitles them to your verdict, unless some sufficient defence has been shown.
    “ The defence is threefold: first, that as it respects the two Kineer tracts, the tax-sale was void, for the reason, as alleged, that these tracts were not, when assessed and sold, in'Hunting-don. county. * * * Third, that they are entitled to hold the 40 acres, or thereabouts, alleged to have been purchased by Charles Johnston from William W. Jackson the 17th of August 1854.
    “ Have the defendants established in point of fact the first proposition relied upon in defence — that the Kineer tracts, at the time of the assessment and sale of them for taxes, were in Somerset, and not in Huntingdon county ? If so, the assessment and sale were unauthorized and void, and vested no title in the purchaser. It has been urged that it is only an irregularity in the sale of which no one but the warrantee could avail himself; but we are constrained to think it more than a mere irregularity. Still the action of the officers of Huntingdon county in this respect is to be regarded as correct until the contrary be shown. * *
    “ If, on the other hand, the defendants have satisfied you that the Kineer tracts were not in Huntingdon county when assessed and sold, then the plaintiffs cannot, for that reason, recover that portion of the land unless it appears that Johnston entered under Jackson, in which case it would be entirely immaterial whether the Kineer tracts, from 1802 to 1805, or 1806, even lay in Huntingdon or Somerset county.
    “ It is alleged by the plaintiffs that Johnston did so enter and hold under Jackson, and as there is here this dependence and connection between those two questions we have introduced, and considered the evidence as to the manner in which Johnston entered and held, * * * have the defendants made out a defence by contract of August 17th 1854, under Charles Johnston?
    “ This paper is no evidence to establish a contract. It amounts to nothing unless it was satisfied, or money paid and accepted by Thomas Jackson. Whether this was so or not, depends upon the testimony of W. W. Jackson.
    [“ If Jackson is believed, the defendants are entitled to hold the land described in the contract contained in the paper according to the terms of it, that is, which the plaintiffs would be entitled to recover; the verdict as to this part would be conditional— in other words, with respect to this part of the land (if other defences fail), a verdict for the plaintiffs to be released as to this part, on the payment of the balance of the purchase-money, in such time as the jury may fix. If the jury do not believe W. W. Jackson (if the defence on the other points fail), your verdict will be a-general verdict for the plaintiff. Whether you believe W. W. Jackson or not, your verdict as to this question will be for the plaintiffs, in one ease — that is, if you believe him, a conditional verdict; — in the other; if you do not believe him, a verdict without any condition, or a general verdict.”] * * *
    The verdict was “ for the plaintiffs for the land described in the writ. That portion of it embodied and described as in the agreement of W. W. Jackson, agent of Thomas Jackson, dated August 17th 1854, to be released on payment of $230 in one year with interest from this date.”
    The defendants took a writ of error, and assigned for error the portions of the charge in brackets.

      S. M. Woodcock, for plaintiffs in error,
    cited: As to tax-title, Hole v. Rittenhouse, 7 Harris 305.

      JR. L. Johnston, for defendants in error,
    cited: As to tax-title, Foster v. McDivit, 9 Watts 341; Foust v. Ross, 1 W. & S. 501; Dikeman v. Parrish, 6 Barr 210; Shearer v. Woodburn, 10 Id. 512; Troutman v. May, 9 Casey 455; Crum v. Burke, 1 Id. 377.
   The opinion of the court was delivered, January 9th 1872, by

Agnew, J.

Parish v. Stevens, 3 S. & R. 298, decided that the limitation of five years, contained in the Act of 1804, began to run from the sale of unseated lands sold for unpaid taxes. This was overruled in Waln v. Shearman, 8 S. & R. 357, on account of the supposed hardship of requiring the former owner to bring his action of ejectment against a vacant possession, and it was therein held that the limitation ran only from the time actual possession had been taken by the purchaser at the tax-sale. But the Act of 29th March 1824 removed this difficulty, and it is now the settled law that the limitation of five years begins to run from- the time of the delivery of the deed to the purchaser under the tax-sale. After that moment the former owner can bring his action under the provisions of the Act of 1824, whether the possession be vacant or not: Robb v. Bowen, 9 Barr 71; Sheik v. McElroy, 8 Harris 25; Burd’s Ex’rs. v. Patterson, 10 Id. 219; Iddings v. Cairns, 2 Grant 88. This, therefore, is a full answer to the errors assigned to the charge of the court on the subject of the tax-titles. The first sale took place in 1806, and the second in 1817, while John Johnston, the father of the defendants, did not enter into the possession until the year 1837, and then he entered as an intruder, without color of title. Thus entering, after the five years were fully ended, and without color of title, the case does not fall within that class of cases which rule that the purchaser- at the tax-sale under the Act of 1804 must prove all the prerequisites to make the sale good under that act. The learned judge below was therefore right in saying that the plaintiffs had shown a good title under the tax-sales against the defendants, and could recover únless prevented by the other defences set up. He was right also in his instructions upon the alleged contract for the sale of the 40 acres.

Finding no error in the record,

The judgment is affirmed.


author: SHARSWOOD, J.

text:
    Jones’s Appeal.
    1. Timber-land was purchased by partners in lumbering, with partnership funds and for the purposes of their business; but the deeds conveyed the land to them without recognising the partnership. The legal title was in them as tenants in common.
    2. One partner died intestate; the other as surviving partner was declared bankrupt; the intestate’s interest was sold for the payment of his debts; the money was the proceeds of his estate, and would go to his creditors, who were all partnership creditors, and not to the surviving partner or his assignee in bankruptcy.
    3. Abbott’s Appeal, 14 Wright 234, distinguished.
    November —1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Orphans’ Court of Jefferson county: No. 184, to October and November Term 1870. In the distribution of the estate of Samuel Burns, deceased.
    Samuel Burns and William Burns were partners in lumbering, and owned several tracts of real estate which had been purchased with partnership funds and for partnership purposes, but had been conveyed to them jointly. Samuel died on the 29th of October 1866. William continued the business under the firm name until November 29th 1867, when he was declared a bankrupt as surviving partner of the firm, and Joseph B. Jones was appointed his assignee in bankruptcy. The administrator, &c., of Samuel was ordered to sell the interest of Samuel for the payment of his debts. The sale under this order produced the fund for distribution.
    The auditor, John McMurray, Esq., found as is above stated ; he also found that Samuel Burns had no individual debts; that the petition for the order of sale exhibited debts of the firm and also one debt of William Burns, and that the interest of William Burns in the property had been sold under an execution against him for his individual debt.
    The auditor reported that the fund should be paid to the assignee in bankruptcy as being the proceeds of the estate of the firm of S. & W. Burns. He, however, reported an alternative schedule, distributing the fund amongst the individual creditors of Samuel Burns.
    The Orphans’ Court, after exceptions, confirmed the alternative schedule of distribution. Jones, the assignee in bankruptcy, appealed to the Supreme Court and assigned the decree of distribution for error.

      Gordon & Brother and G. Shiras, Jr., for appellant,
    referred to Erwin’s Appeal, 3 Wright 535; N. Penna. Coal Co.’s Appeal, 9 Id. 181; Pierce v. Evans, 11 P. F. Smith 415; Pavitt’s Estate, 12 Id. 498.

      Hopkins & Lasear, for appellees.
    The order of sale was of the interest of Samuel Burns and the proceeds therefore were to go to his creditors: Deal v. Bogtie, 8 Harris 228; Reinheimer v. Hemingway, 11 Casey 432.
   The opinion of the court was delivered, May 13th 1872, by

SHARSWOOD, J.

Samuel and William Burns were partnérs in the lumber business. They purchased a number of timber tracts with partnership funds, and for partnership purposes. The deeds, however, which conveyed the property to them made no mention of the fact of the partnership, and of course the legal title was vested in them as tenants in common. Samuel Burns died intestate. His administrator applied to the Orphans’ Court, and obtained an order of sale for the payment of debts. The only debts he owed were partnership debts. The court below has decreed the proceeds of the sales made under their order to the payment of their debts. William Burns, the surviving partner, has since been decreed a bankrupt, under the Act of Congress, and his assignee claims the fund, and is the appellant here.

What was ordered to be sold by the Orphans’ Court, and what was sold, was the estate of Samuel Burns, not that of the partnership. The money in the hands of the administrator is the proceeds of his estate. Whether the sale was of a moiety of the land— the title of Samuel as tenant in common — or his interest as a partner in the firm — the result here must be the same — the surviving partner or his assignee in bankruptcy can have no right to the money. The case of Abbott’s Appeal, 14 Wright 234, relied on by the appellant, has no application. There the land was sold by the sheriff, under an execution against the partnership — it was the interest of the firm which was converted into money.

Decree affirmed and appeal dismissed at the costs of the appellant.


author: Thompson, C. J.

text:
    Harris versus Harris.
    The measure of damages for breach of a parol contract to convey land, is the consideration and compensation for improvements in reliance on the contract, deducting a reasonable rental of tne premises; except when there has been fraud on the part of the vendor in the original contract.

    2. Failure to convey is not such fraud, although the vendor had power to convey.
    3. A vendor by parol agreed to convey land; the vendee paid the purchase-money, went into possession and was evicted by a subsequent vendee under articles from the same vendor. In an action by the first vendee against the vendor for breach of the contract more than five years after-wards, Held, that the limitation in the 6th section of Act of April 22d 1856, was not a bar.

      4. The vendor continued to promise to convey until his agreement to sell to the other vendee, there was no breach of the contract until then.

      5. The vendee being in possession under the contract was not guilty of laches in not demanding a conveyance or damages for refusal.
    6. Clark v. Trim die, 2 P. P. Smith 492, analogous.
    November 13th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Fayette county: No. 58, to October and November Term 1871.
    The writ in this action was issued March 26th 1868, by Jonathan J. Harris against Samuel Harris.
    The declaration was that the defendant, in consideration of $200, sold and agreed to convey to the plaintiff a tract of 71 acres of land, “ and thereupon did assume and unto the said plaintiff did faithfully promise” that he would convey the land in fee-simple to the plaintiff; and in pursuance of the “sale, purchase and agreement,” the plaintiff took possession of the land “ as of his own estate,” and expended large sums of money thereon in improving the said tract, by erecting “ buildings, &c., to the value of $5000.” But the defendant, “ his promises, assumptions and agreements not regarding, but intending to cheat and defraud, and otherwise deceive the plaintiff, did not convey the said tract of land to him as aforesaid, but sold the same to one Hunter Richey, who brought an action therefor, &c., and caused the plaintiff to be ejected from said tract of land; to the damage of.the plaintiff $10,000,” &c.
    The defendant pleaded “Non assumpsit” and “Now assumpsit infra quinqué annos.”

    The cause was tried December 12th 1870, before Gilmore, P. J.
    The plaintiff testified, that he had bought the land mentioned in the declaration from the defendant, his father, in March 1844, for $1000, of which $800 were then owing by the defendant to the plaintiff, and the remaining $200 were to bepaid in two equal payments in 1845 and 1846. The contract was by parol, and the payments were made in accordance with the agreement. The plaintiff, being an unmarried man, leased the land to his brother, who entered on the land in March 1844, and remained there three years; after he went out, the plaintiff went into possession, and remained for 22 years.
    He testified that he had made improvements to the value of $6000 or $7000. The defendant lived about a mile from him, was frequently at the place, saw the improvements progressing, told plaintiff “ to go on and improve the property, it was paid for; make it valuable.” When the last payment was made, the defendant said he had not the deed made; the plaintiff was then going from home, and the defendant told plaintiff the deed should “be made against you come back.” When he came back defendant had married a second time, and on being asked for the deed, said: “ Let it be; the limitation will make as good a title as I can make.”
    The plaintiff gave evidence by other witnesses corroborative of his own testimony.
    He gave in evidence an agreement dated March 1st 1866, between the defendant and Hunter Richey, by which the defendant, for the consideration of $2600, agreed to convey the tract above-mentioned to Richey, on the 1st of April then next; also, an action of ejectment by Richey against the plaintiff, who was in possession, for the recovery of the land, and a verdict for Richey, July 15th 1867; a writ of error by the plaintiff in this case to the Supreme Court, and judgment of affirmance January 7th 1868, (6 P. E. Smith 395); an habere faaias possessionem, executed March 25th 1868.
    The plaintiff offered evidence of the value of the farm at the time of the eviction ; the defendant objected to the offer ; it was admitted, and a bill of exceptions sealed.
    The plaintiff then gave evidence of the value of the land at the time of the eviction.
    The plaintiff’s point, with the answer, was:—
    “1. If the jury believe from the evidence that there was an agreement between Samuel Harris and Jonathan J. Harris for the sale and purchase of this land, and that S. Harris had it in his power, and was able to make said Jonathan J. Harris a deed for the same, and refused, it was a fraud on his part, and that the measure of damages is the value of the land at the time of the eviction.”
    Answer: “We charge you that if you are able to find from the evidence that there was such a contract as declared upon in the narr., and that the defendant had it in his power to comply with the contract and refused to do so (which is not questioned), the plaintiff would be entitled to recover ; and if he acted in bad faith towards the plaintiff, the measure of the damages would be the value of the land at the time he was evicted.”
    The following were points of the defendant, with their answers:—
    2. “ The damages, if any, which the plaintiff can recover, are such,, only, as will compensate him for what he paid as purchase-money, in pursuance of the contract, with interest, and for the cost of permanent improvements made upon the land in reliance upon the contract with the knowledge of the defendant, deducting the value of the rents, issues, and profits of the land during the plaintiff’s occupancy.”
    Answer : “ We cannot instruct you as requested in this point. If there was a contract and it was violated in bad faith, the plaintiff would be entitled to recover the value of the land at the time of the eviction, and this is in accordance with our answer to plaintiff’s point.”

      4. “ The Act of Assembly of the 22d of April 1856, sec. 6, is a bar to the plaintiff’s recovery, this suit not being brought within five years from the date or making of the alleged contract or arrangement.”
    .Answer: “ This is refused.”
    5. “ The facts of this case having been passed upon by this court in the case of Richey v. Harris, and been found in favor of this defendant, his conduct cannot be said to be fraudulent — and he only declined to do what the Statute of Frauds and Perjuries expressly forbade his doing.”
    “ This instruction is refused. The result of the action of Richey v. Harris is no bar to this action. This action may succeed when the other fails, and this kind of action is generally brought because plaintiff cannot recover the land by reason of the Statute of Frauds and Perjuries. But there is no such statute against this kind of action. ’
    The verdict was for the plaintiff for $5369.33.
    The defendant removed the case to the Supreme Court by writ of error.
    He assigned for error:
    1. The admission of the evidence of the value of the land at the time of the eviction.
    2. The answer to the plaintiff’s points.
    3. 4 and 5. The answer to the defendants’ 2d, 4th and 5th points.

      A. Howell and A. H. Willson, for defendant in error,
    referred to the Act of April 22d 1856, § 6, Pamph. L. 535; Bright. Purd. 654 pl. 13; Clark v. Trindle, 2 P. F. Smith 492; Murphy v. Hubert, 7 Barr 420; Rider v. Maul, 10 Wright 376; Webster v. Webster, 3 P. F. Smith 161. As to the evidence as to the value of the land: Lee v. Dean, 3 Wharton 316; King v. Pyle, 8 S. & R. 166; Bitner v. Brough, 1 Jones 127. As to damages, they should be such only as would compensate for the purchase-money and permanent improvements, less the rents, &c.,: Hertzog v. Hertzog, 10 Casey 418; Dumars v. Miller, Id. 319; McNair v. Compton, 11 Id. 23; Bender v. Bender, 1 Wright 419; McKowen v. McDonald, 7 Wright 441; Miranville v. Silverthorn, 12 Id. 147; Meason v. Kaine, 13 P. F. Smith 335.

      W. H. Playford and D. Kaine, for defendant in error.—
    Where a vendor has not acted in good faith, the vendee may have damages for the loss of his bargain: King v. Pyle, Lee v. Dean, Bitner v. Brough, Hertzog v. Hertzog, McNair v. Compton, supra; Good v. Good, 9 Watts 567; Hoy v. Gronoble, 10 Casey 9. As to Act of 1856, they cited Clark v. Trindle, supra.

   The opinion of the court was delivered, January 9th 1872, by

Thompson, C. J.

The learned judge below erred in admitting evidence to prove the value of the land out of which the action has arisen, under a parol sale, and in answering the plaintiff’s points as he did; also the points of the defendant on the same subject. We have so repeatedly announced that the rule in actions for damages for a breach of contract to convey, under a parol sale of real estate, is not to be measured by the value of the land, but by the consideration paid, and compensation for improvements made in clearing, fencing, building, planting orchards, &e., in reliance on the contract, deducting therefrom a reasonable rental for the use of the premises, that I will not encumber this opinion by citing them — they have often been cited in previous opinions. The only exception to the rule is, where there has been fraud on part of the vendor in the original contract. But the failure to convey is not such fraud. Buyer and seller both know that such a contract could not be enforced, and it was no more a fraud to refuse performance by conveying than any other breach of a contract to perform an act. While in a warn, as matter of form, the breach of the undertaking sued upon is, in actions on simple contracts, generally charged as fraudulent, the law gives no damages on that ground. Compensation to the plaintiff for his injury, in view of the consideration, is all that is required. The learned judge charged that if the defendant had it in his power to comply with his contract and did not do so, and “if he acted in lad faith towards the plaintiff, the measure of the damages would be the value of the land at the time he was evicted.” Bad faith was an indefinite term — it did not necessarily imply fraud, and did not indicate fraud in the contract. There was nothing showing anything like that in proof. The charge certainly had only the failure to convey in view in this remark; it was what the point asked. It was error therefore to affirm it: McNair v. Compton, 11 Casey 23; McKowen v. McDonald, 7 Wright 441. It is obvious that this ruling, if permitted to stand, would in most cases of a parol sale of land and failure to convey, be the equivalent of specific performance, differing only in this, it would transfer to the buyer the value instead of the property in specie. It would operate as a virtual repeal of the statute. This is not the rule of the cases in this Commonwealth by any means; and for these instructions the judgment must be reversed.

It is contended by the plaintiff in error that the learned judge also erred in refusing his 4th point. We do not concur in this. We agree with him that the 6th section of the Act of the 22d April 1856 presented no bar to the plaintiff’s right of recovery. This statute, which was designed to prevent fraud, is not to be so construed as to become an instrument of fraud; and it would be so if we were to sanction the construction contended for by the plaintiff in error. The plaintiff below claims that he contracted with his father for the land in question in 1844 or 1845; paid the greater portion of the purchase-money; entered into the possession with his permission, under the contract, and commenced improving, cultivating, building, &c., and has continued so to do for twenty-two or three years with his knowledge and acquiescence. When at last his father sold the land to another, he resisted a recovery on the common and usual opinion in such cases, that he had a right to hold it. Up to this time both parties acted in accordance with the original contract, excepting that the father did not convey, but often spoke of his intention to convey. It was very natural for the son to await his leisure. But having lost the land at last, and having instituted his suit to recover damages for the breach of contract in failing to convey, it is claimed that he is too late, that he should have brought suit within two years after the passage of the Act of 1856. The answer to that is, there was in fact no breach of the contract at that time. The plaintiff cannot, with either grace or honesty, say, “ My son, you ought not to have trusted in my promises; you should sooner have insisted on your deed or sued me for damages for not making it.” Being in possession of the land pursuant to a parol purchase, every day spent in cultivating and improving it, perfecting his title, he was guilty of no lachas, therefore, because he did not turn upon his father, demand a conveyance or damages for a failure to convey. If we were to hold as claimed, that such a case is within the Act of 1856, all that a vendor would have to do, would be to let his vendee by parol go on improving for five years, and then on some defect of such performance as is required to take the case out of the Statute of Frauds and Perjuries, turn him out of the possession of the land, and keep the improvements for nothing. Such a rule could never receive the sanction of any civilized community where such sales are allowed at all. In Clark v. Trindle, 2 P. F. Smith 492, followed in numerous cases since, we held that the limitation of the period within which proceedings to enforce resulting or implied trusts of land, under the Act of 1856, was controlled by the fact of possession being in the cestui que trust. The analogy of such a case is so close to the case in hand, that we rely on it as assisting in the interpretation to be given to the law of the latter. In neither case is laches to be attributed to the party in possession : Richards v. Elwell, 12 Wright 361. In the case of the sale, the purchaser is not bound to know, or even to suspect’ that the seller will not comply with his contract, and that he will not be permitted to hold the land under his purchase. He can stand on his possession under the contract until he is evicted. When that occurs, if not sooner, his right to damages most clearly accrues. Where no possession has ever been taken, the limitation of the statute undoubtedly applies. No other error appearing than those above noticed, we reverse this judgment for the reasons therein given.

Judgment reversed, and venire de novo awarded.

Sharswood, J., dissented.


text:
    Vance versus Nogle.
    1. Nogle contracted to sell land to a married daughter with the consent of her husband for §2500 in instalments, and a portion of the products during his own and his wife’s life; the daughter made the first payment, and entered into possession; the father died, bequeathing all his estate to his wife, who for some years received the products from the daughter who also tendered the instalments as they became due. Held, that the contract was binding on the vendor notwithstanding the coverture of the vendee, she having performed the conditions.
    2. A wife may acquire separate property in equity by agreement with her husband without intervention of trustees.
    3. A contract between a vendor and feme covert cannot be rescinded by him except by her refusal to perform the conditions.
    4. Walker v. Coover, 15 P. P. Smith, recognised.
    November 17th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Lawrence county: No. 81, to October and November Term 1871.
    This was an ejectment commenced, 20th of April 1866, by Elizabeth Nogle against Robert Yance, for a tract of 100 acres of land.
    John Nogle being the owner of the premises in dispute, on the 11th of July 1864 entered into an agreement in writing and under seal with his daughter Caroline Vance, who was the wife of Robert Yance, by which he sold the premises to Mrs. Yance. The agreement recited that the land was in the possession of Rezin Nogle, and the vendor covenanted to convey it to Mrs. Yance for the consideration of $2500, “to be paid as follows: $2 in hand, the receipt of which is hereby acknowledged by signing this article, and $200, two years from the 1st day of October .next, and $200 per year, from the 1st of October 1864, until the full amount, $2500 aforesaid, is paid. And it is further agreed, that the said Caroline Yance, as a part of conditions for said land in addition to the aforesaid amount, shall give the said party of the first part, the one-third of all the agricultural products of said farm, to be delivered at his residence in Newport, Penna., or so much thereof as he or his wife may require for their own use, and the balance, if any, to a convenient market. This part of the contract is to continue during the natural lifetime of the said John Nogle and his wife and then to cease. And it is further agreed by and between the parties that a deed shall be made to the party of the second part, his heirs or assigns, by the surviving executor or executors or administrators of said John Nogle, and after the decease of the said John Nogle and his wife, and he or they, the said executors or administrators, shall secure the balance of the purchase-money, if any shall remain unpaid, by bond or mortgage on the land, at or before the delivery of the deed. Possession to be given on the 8th day of October next.” * * *
    John Nogle died in September 1864, leaving a will by which he gave all his estate, real and personal, to his wife, the plaintiff, during life, with power to dispose of the same by will or otherwise.
    The case was tried, December 5th 1870, before McGuffin, P. J.
    William 0. Harbeson, the executor of the will, testified that the plaintiff produced the articles of agreement to the appraisers of the testator’s personal estate; she knew that the purchase-money due upon them had been appraised; the defendant had tendered to him the payments stipulated for in the agreement as they became due.
    The assessor of the township testified that by the direction of the plaintiff, the land was changed after the death of the testator, from “John Nogle’s heirs” to “R. M. Vance.”
    The defendant testified that the plaintiff, after the testator’s death, told him to get possession of the farm from Rezin, who had not used them well, “ as she would hold us to the article.” The defendant and wife brought an ejectment against Rezin, and got possession, March 1st 1865. He had delivered to the plaintiff the products of the farm under the article until the fall of 1867, when she refused to receive them.
    The following are points of the parties, with their answers:—
    Defendant’s:
    2. There being no allegation or evidence of fraud, deceit, undue influence, imposition, or any unfairness on the part of Caroline Vance; or of want of capacity, mistake or surprise on the part of John Nogle, in the making of the contract; or of any want or failure of consideration, inadequacy of price or other hardship in the contract itself; if Caroline Vance has performed the contract on her part, equity will not rescind or cancel it, even though it might not now specifically execute it; but will restrain the plaintiff from executing her legal title, so long as the defendant does equity by keeping the contract.
    Answer: “We answer in the negative. All the facts alleged in the point being admitted; the plaintiff, under the evidence before the jury, in consequence of the inability of Mrs. Vance to contract in such manner, may still rescind the contract and resort to such action to obtain the possession of the land, leaving the defendant and wife to their remedy, if any, upon the contract.”
    4. If the jury find that Elizabeth Nogle was present when this contract was made, heard it read, knew its terms or provisions ; that after her husband’s death, with full knowledge of all the facts, and acting mi juris, she requested Caroline Vance or her husband to sue for and recover possession of this land in pursuance of the contract; that she would look to them or hold them to its fulfilment or performance; that she exhibited this contract to the appraisers of the estate of John Nogle, deceased, for the purpose of having the purchase-money therein mentioned appraised as part of his estate, and had such appraisement made and filed in the register’s office; that in obedience to her request and notice, Caroline Vance brought suit, recovered this land, moved upon it, farmed it, and from time to time delivered to Elizabeth Nogle her share of' the agricultural products raised thereon, in accordance with the terms of the contract, and that she (Elizabeth Nogle) received them for a year or more; and that Caroline Vance has since tendered to her, Elizabeth Nogle, her share of the products of said land, and has tendered the purchase-money as it became due to the executors, or either of them; Elizabeth Nogle is estopped in law and in equity from asserting or recovering her legal title against said Caroline Vance.
    Answered in the negative.
    5. This is in effect a grant or contract for the conveyance of this land to Caroline Vance, upon condition of performance on her part of the stipulations therein contained to be by her performed; and that so long as she performs or tenders her performance of the conditions on her part, equity will enforce the grant.
    Answer: “ This is but an executory contract, and is not a conveyance complete, but provides therein for a further assurance to be made and delivered by the legal representatives of John Nogle ; we therefore answer this point in the negative.”
    Plaintiff’s:
    3. The contract under which plaintiff claims was not merely a voidable but a void contract, a nudum pactum, and therefore incapable of confirmation or ratification; the testimony in this case exhibits no act or state of facts by which plaintiff is estopped from asserting her title under the will.
    Answer: “ The contract was void and incapable of being enforced by law, yet the parties might consummate it, all being willing, although not binding at its inception, could be ratified by its full execution in fact. And being but executory, the evidence of the performance of the covenants, so far, by the defendant and his wife are not such acts as against the plaintiff as will estop her from asserting her title to the land, on a refusal to proceed any further with the consummation of the contract in evidence.”

      The jury found for the plaintiff.
    The defendant took a writ of error, and assigned for error :
    1-3. The answers to the defendant’s points.
    4. The answer to the plaintiff’s point.

      D. B. & E. T. Kurtz. —
    Ejectment may be defended against by a contract which would not be specifically enforced : Greenlee v. Greenlee, 10 Harris 225. The vendee having complied with his part of the contract, his title cannot be defeated by one who encouraged him to improve, &c.: Maple v. Kussart, 3 P. F. Smith 348; Crowell v. Meconkey, 5 Barr 168; Hamilton v. Hamilton, 4 Id. 193; Wilson v. Bigger, 7 W. & S. 111. Estoppels do not depend on distinctions between void and voidable sales : Smith v. Warden, 7 Harris 424; Stroble v. Smith, 8 Watts 280; Spragg v. Shriver, 1 Casey 282; Fulton v. Moore, Id. 468; Big Mount. Imp’t Co.’s Appeal, 4 P. F. Smith 361. The plaintiff by taking the products concluded herself: Share v. Anderson, 7 S. & R. 43; Johnson v. Fritz, 8 Wright 449; Adlum v. Yard, 1 Rawle 163. A post-nuptial contract void at law may be good in equity: Duffy v. Ins. Co., 8 W. &. S. 413; McKennan v. Phillips, 6 Whart. 571; Hutton v. Duey, 3 Barr 100. A contract which could not be enforced; if performed by one party cannot be repudiated by the other: School Directors v. McBride, 10 Harris 215; Troxell v. Lehigh & Cr. Iron Co., 6 Wright 513. Mrs. Vance can hold the land so long as she performs the conditions: Baxter v. Smith, 6 Binn. 427; Patterson v. Robinson, 1 Casey 81. As to mutuality in the contract they cited 3 Parsons on Contracts 409; S. Eastern Railr. v. Knott, 17 Eng. L. & Eq. 555; Stapilton v. Stapilton, 1 Atkyns 2; Sutherland v. Briggs, 1 Hare 34; Erwin v. Myers. 10 Wright 96; Grove v. Hodges, 5 P. F. Smith 504.

      D. Craig and L. Taylor, for defendant in error.
   The opinion of the court was delivered, November 20th 1871, by

Agnew, J.

This is not a contest between the creditors of a husband and a wife claiming property acquired by her after marriage, in which she is required to show clearly and precisely a separate estate which has gone into the purchase. Here a vendor is seeking to get back, by ejectment from a feme covert vendee, property of which she took possession under her purchase, has in part paid for, and stands ready and offers to pay for, according to her contract, and the court below sustained the vendor’s suit on the ground that the contract was void at law by reason of the coverture. This was a clear error. “ That a wife (says Judge Rogers) can acquire a separate property, which a court of equity will protect, is ruled in many cases and is recognised in McKennan v. Phillips, 6 Whart. 576. See Hunter v. Cochran, 3 Barr 105. And in McKennan v. Phillips, Chief Justice Gibson put the question, “ can a wife acquire a separate property in equity by an agreement with her husband, without the intervention of trustees ?” And, he replies, “ a countless train of authorities at once spring up to show that she can.” The same question had been discussed by Justice Kennedy, and numerous authorities vouched, with the same result, in Duffy v. Insurance Co., 8 W. & S. 413. The doctrine of legal unity, as between husband and wife, was afterwards most fully discussed in its influence upon her right of property, and many authorities collated in the case of Williams’s Appeal, 11 Wright 307. Chief Justice Woodward differed from the majority of the court, not on the doctrine of equity, but upon the effect of a judgment as a purely statutory lien when standing in the name of a wife against a husband. Justice Thompson was not in the case, but his opinion on the subject is given in Pennsylvania Salt Co. v. Neel, 4 P. F. Smith 17, holding that a deed from a husband and wife to the wife as the second party “is sustainable in equity, and has (he says) always been so held in this state on equitable principles, although the action might be a common-law action.” When authorities are so numerous sustaining deeds between husband and wife against the common-law doctrine of their legal unity, one would think the learned court below would not have found it difficult to sustain an agreement to convey to a wife whose husband is assenting thereto, by a vendor who was herself sui juris. On what principle of equity, where the feme covert vendee is in possession making improvements, paying as far as she is permitted, and ready and willing to pay the remainder, shall the vendor be permitted to rescind and turn her out of possession? Clearly nothing short of an unwillingness and a refusal of the feme covert to comply with the contract can justify a rescission. It is said she may be unable and therefore may fail to comply. But this is no ground of present rescission. When that event happens the vendor will have her remedy, and can turn both wife and husband out of possession, and thus end the contract. In principle this case is decided by Walker, garnishee, v. Coover, 15 P. F. Smith 430. It was there held that an assignment of two bonds to a married woman as collateral security, upon' her undertaking to pay certain debts of the assignor, was good, notwithstanding her coverture, she having paid a part of the debts, and going on to pay the remainder. The attaching creditor could not strike down the assignment as void. We are of opinion, therefore, that the learned judge below erred in his rulings on this the only real question in this cause, and the

Judgment is therefore reversed, and a venire facias de novo awarded.


author: Williams, J.

text:
    Stall versus Meek.
    1. Stall, in 1857, about leaving home, left claims due him, with Meek for collection and from the proceeds to pay a debt due Braden and the remainder to Stall’s wife. This constituted the wife Stall’s agent.
    2. During Stall’s absence Braden brought suit; the wife asked Meek for money to pay; he said it should not trouble her; he would pay Braden ; he afterwards told her he had paid. Braden recovered judgment, which Stall, on his return in 1867, was compelled to pay. In 1869, he sued Meek, who pleaded the statute. The court charged: “ Unloss there was fraud on plaintiff in concealing the receipt of the money, the statute would be a bar; anything said to the wife not communicated to plaintiff would not be such fraud as would prevent the bar; the concealment must be practised on the husband or his constituted agent.” Held to be error, being calculated to mislead the jury as to the agency of the wife.
    November 14th 1871.
    Before Thompson, C. J., Read, Askew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Greene county: No. 119, to October and November Term 1871.
    The action in this case was commenced January 23d 1869, before a justice of the peace, by Samuel Stall against James Meek, to recover the proceeds of a note which the plaintiff had left with the defendant for collection, with instructions, as he alleged, to pay the proceeds to one D. W. Braden, to whom the plaintiff was indebted, and the balance, with the proceeds of other accounts also left with Meek for collection, to Stall’s wife. The note was paid to the defendant, but he did not pay Braden, who compelled the plaintiff to pay the debt due him. The justice gave judgment for the plaintiff; the defendant appealed to the Common Pleas.
    The plaintiff there filed a declaration in assumpsit; the defendant pleaded non assumpsit and payment, &c., and non assumpsit infra sex annos.

    The cause was tried, April 14th 1871, before Gilmore, P. J.
    The plaintiff testified that he had held a note for $40 against Joseph Murray, dated in February 1867, payable in four or six months; that he was about going to California, and on the 12th of February 1857, he put the note into the hands of the defendant to collect and pay Braden ; he put also into his hands, for collection, a book of accounts, amounting to from $50 to $100, after paying Braden, the balance of the collections was to be paid to plaintiff’s wife. Whilst he was away, process, at the suit of Bra-den, was served on his wife at his house, and judgment recovered against him. He returned home in 1867, when a scire facias on Braden’s judgment was issued; plaintiff took out a subpoena for Meek as a witness to appear at the hearing on the sci. facias to pro-ve what he heard from Braden, and he asked him if he had not a receipt from Braden; defendant said he would not attend at the trial; judgment was rendered against plaintiff, and he was compelled to pay it, amounting then to about $70.
    He gave other evidence, corresponding with his own testimony, as to leaving the note and accounts with the defendant, and his instructions with regard to them.
    The wife of plaintiff testified that Meek paid her money he had collected from the book accounts, but frequently said he would not pay her the proceeds of the note; that he intended to pay Braden with that. After service of Braden’s process, she went to the defendant to get money to pay him ; the defendant- would not give her any, saying her husband had left the note with him to collect and pay Braden, and that he was going to pay Braden himself: she told him her husband had been sued by Braden ; he replied she need not bother herself any more, he would pay Bra-'den ; about a month afterwards, in answer to her inquiry, fie said he had paid Braden and taken his receipt; he told her he had collected all he could from the books, and fie gave them to her; she brought suit on a number of apparently open accounts against persons who produced receipts from the defendant, and 'she had to pay the costs.
    The defendant testified that the wife of the plaintiff had got from him nearly all the money he had received.
    The court charged : that unless the defendant practised a fraud Upon the plaintiff, by concealing from him the receipt of the money, the statute would be a bar; and anything said to the wife of plaintiff or other persons not communicated to the plaintiff, would not constitute-such a fraud as would prevent the running of the statute. The concealment must be practised upon the plaintiff or his constituted agent.
    The verdict was for defendant.
    The plaintiff took a writ of error and assigned the charge for error.

      B. W. Downey, for plaintiff in error.

      Wyly and Buchanan, for defendant in error.
   The opinion of the court was delivered, January 9th 1872, by

Williams, J.

The complaint of the charge in this case is well founded. Even if correct in the abstract, it was erroneous as applied to the evidence, and calculated to mislead the jury. The evidence clearly tended to show that the defendant was instructed to pay the plaintiff’s indebtedness to Braden out of the money he might receive on the note and accounts left with him for collection, and to hand the residue to the plaintiff’s wife; and if so, she was the plaintiff’s agent to receive the money, and the defendant’s declarations to her, if made as alleged, were made “ to his constituted agent.” There was not a particle of evidence ten - ing to show that the alleged declarations were not communicated to the plaintiff. On the contrary, the reasonable inference is that they were; and, .besides, there was evidence from which it may be fairly inferred that the wife had informed the plaintiff of the defendant’s declaration that he had paid Braden. If not, why did the plaintiff, when served with the sci. fa. to show cause why execution should not issue, take out a subpoena for the defendant, for the purpose of proving the payment of the judgment, and why did he ask him if he had not a receipt from Braden ? It is true that the court did not in express terms charge the jury that there was no evidence that the wife was the plaintiff’s agent; and that anything said to the wife, because not shown to have been communicated to the plaintiff, would not constitute such a fraud as would prevent the running of the statute. But the jury may have readily inferred that this was the meaning of the court, from the language of the charge as applied to the evidence. If the court did not intend to be so understood, why charge that “ anything said to the wife of the plaintiff, or other persons, not communicated to the plaintiff, would not constitute such a fraud as would prevent the running of the statutean<j that “ the concealment must be practised on the plaintiff or his constituted agent ?” Is it not clearly implied by this language that there was no evidence that the wife was the agent of the plaintiff, or that the defendant’s declarations to her had been communicated to him ? Whether this was the meaning of the court or not, we think that the charge was susceptible of this construction, and that it was calculated to mislead the jury. The evidence tended to show that the wife was the plaintiff’s agent, and that the declarations alleged to have been made to her by the defendant were communicated to him. The case should have been submitted to the jury upon instructions applicable to the evidence, and not upon instructions applicable to a state of facts which the evidence did not tend to establish.

Judgment reversed, and a venire faeias de novo awarded.


author: Agnbw, J.

text:
    McClelland’s Executor versus West’s Administrator, to use, &c.
    1. A suit was by West, administrator, to use, &c.; a son of West had no interest in the claim to destroy his competency as a witness for plaintiff.
    2. Under Act of April 1st 1869, all witnesses are primá facie competent as regards interest and policy.
    3. Since the Act of 1869, the court should discountenance all objections to witnesses on the score of interest and policy, unless made clearly to appear.
    4. The settlement of an account and striking a balance is a clear admission of a precise indebtedness, in answer to the Statute of Limitations.

      5. The balance of a settled account in which interest is included, carries interest on the whole from the settlement.
    6. The balance of a stated account is principal; it cannot be re-examined to ascertain the items or their character.
    7. Johns v. Lantz, 13 P. P. Smith 324, approved; McClelland v. West, 9 P. P. Smith 487, Weaver v. Weaver, 4 P. P. Smith 152, distinguished.
    November 13th 1871.
    Before Thompson, C. J., Read, Agnew, Siiarswood and Williams, JJ.
    Error to the Court of Common Pleas of Fayette county: No. 37, to October and November Term 1871.
    This was an action of assumpsit brought May 26th 1870, by Samuel Cooper, administrator of Jonathan R. West, deceased, “ for the 'use of Jacob D. West and George L. West, now for the use of Jacob D. West and Daniel E. Cooper” against the executor, &c., of Joseph McClelland, deceased.
    The case was tried December 6th 1870, before Gilmore, P. J. The claim was on a book account commencing September 1837, and ending in 1849.
    The plaintiff offered as a witness Enos West, a son of Jonathan R. West, the intestate ; he was objected to by the defendant and he thereupon executed a release to George L. West of all his interest in the estate of Jonathan R. West, deceased. The court admitted the witness and sealed a bill of exceptions.
    The witness was shown an account and testified: ■“ I made this account out for my father against McClelland in 1859-60; made partly out of books and partly from bills; when I made it out I gave it to my father, who started to see McClelland to settle; I saw no more of this bill until 1864, when my father being sick I came to town to see him ; he requested me to go and settle with McClelland for him ; I went and saw McClelland ; told him my father wished me to settle with him, if he had no objections; he told me that there was a part of that bill he would neither settle nor pay; hadn’t the bill with me; I asked him ‘ what part ?’ he told me ‘the part that had John Sangston’s name on it;’ I told him ‘ that I thought the bill generally had his (McClelland’s) name on them ;’ he said he ‘ would settle and pay all that had his name on,’ but said ‘ he hadn’t time to settle with me then ;’ that I would have to come down again. Some two weeks afterward I came down; found him on the street; asked him, if he had time to settle now; he said he had ; we went to his house; he pulled out a small stand drawer; took out a bunch o.f papers; this bill was among them. He then examined this bill over; he had two bills marked with a cross; they had John Sangston’s name on, and he said he would not pay them. He went over the balance of the bill and he said, it was all right, after I had made some explanations in regard to some of the items. He then produced his books; he went all over his books; didn’t appear very well satisfied at first with them; said ‘something was wrong.’ We went all over them from the beginning, and I made his account some $20 better than he had it on his book; he handed me a pen and ordered me to change the figures on his ledger. He then put it down on this bill, under the aggregate of this account. Just before that, I told him that the saw-mill bill was not charged in my father’s account; he asked me what the old man charged for building the saw-mill ? I said $150. He said it was a pretty large bill. I told him father said he would send out and measure it and it would come to $175. He said ‘ rather than to go to that trouble to put it down at $150.’ We then took the amount off of his ledger and put it under this bill; struck the balance; the balance was $228.54. I then claimed interest on that sum from the date of the last charge; he said I was only entitled after six months; we both calculated the interest for fourteen, years, it amounted to $191.94; adding the principal and interest together, making $428. He said ‘ it was a pretty big bill, and that he would go over the next day and see the old man himself; that he thought he would throw off a part for the sake of getting his money.’ When I first saw him it was the latter part of May, and it was pretty well along in June 1864, when we made the settlement. Afterwards I had a small bill on him ; I was drafted and had to make up my commutation-money. I called on McClelland for my bill; he told me to borrow the money; that ‘it would take about all he could raise at present to pay the old man’s bill off.” My father died September 6 th 1864. In a conversation before we undertook to settle, and after I had got in the room, he said the statute of limitation or the limitations had never paid a debt for him, but paid him a good many. I notified the executor of McClelland about six months after McClelland’s death, that the boys had a claim against McClelland; did not state the amount.”
    Joseph McClelland died in January 1866.
    The account was then given in evidence.
    It showed the balance .... $228.54
    Interest 14 years ..... 191.94
    420.48
    The defendant gave no evidence.
    The defendant requested the court to charge the jury :—
    That what was said by McClelland to Enos West at the time of balancing the accounts, to wit, “ It is a pretty big bill, and I will go over to-morrow and see the old man myself; I think he will throw off a part for the sake of getting his money,” is not equivalent to a promise by McClelland to pay the balance struck in favor of West, and that as it was not equivalent to such a promise, it did-not take the claim out of the Statute of Limitations, and the plaintiff cannot recover.
    The court answered: “ If there was a settlement, and the balanee ascertained, tbe expression afterwards by tbe defendant’s intestate, that ‘ it is a pretty big bill, and that he would go over and see the old man himself,’ would not be sufficient to destroy the acknowledgment of the debt, and entitle the plaintiff to recover, against the plea of the statute. The expression was nothing more than a surprise at the amount, and a declaration to appeal to the generosity of the creditor.”
    The court also charged the jury that plaintiff was entitled to recover interest on the settled account, from the date of the settlement, and this although the balance included interest on the account up to the settlement.
    The verdict was for the plaintiff for $584.40.
    The defendants took a writ of error. They assigned for error:—
    1. Admitting Enos West to testify.
    2. The answer to the defendant’s point.
    8. The charge as to interest.

      C. Boyle and D. Kaine, for plaintiff in error.
    As to 1st error cited: Post v. Avery, 5 W. & S. 509; Haus v. Palmer, 9 Harris 296; Purdy v. Dedrich, 2 Philad. R. 278; Graves v. Griffin, 7 Id. 178; Wilkinson v. Turnpike Co., 6 Barr 398; Karns v. Tanner, 16 P. F. Smith 297.
    As to 2d error: McClelland v. West, 9 P. F. Smith 487; Webster v. Newbold, 5 Wright 592; Harbold v. Kuntz, 4 Harris 210; Farley v. Kustenbader, 3 Barr 418.

      D. Downer, for defendant in error.
    As to 1st error, cited Bennett v. Hethington, 16 S. & R. 193; Ott v. Houghton, 6 Casey 451. As to 2d error: Huff v. Richardson, 7 Harris 388.
   The opinion of the court was delivered, May 13th 1872, by

Agnbw, J.

The objection to the competency of Enos West as a witness cannot be sustained. He was not a party to the record and had no interest in the subject of the controversy, nor was he a party to the contract or account out of which the debt in suit arose, and no assignment from him was necessary to enable the' plaintiffs to maintain their action. Whatever interest he had was a resulting interest in the final settlement of the estate of Jonathan R. West. But as the action was brought, he had no interest in that particular claim, for the action was not brought for the benefit of the estate, but for the use of Jacob D. West, and George L. West, whose interest passed to D. N. Cooper. They were the parties conducting the suit. The release of Enos West was to George L. West, in whom the title of the estate of Jonathan R. West had apparently vested before, either by the act of the decedent or that of his representative. In this state of the record the release was primá. facie a release, and not an assignment. Now, in the bill of exceptions, it does not appear that the right of Jacob D. and George L. West, to bring the suit, was denied or that proof of their title was demanded as preliminary to the objection to the competency of the witness. Since the Act of 1869, enacting that neither interest nor policy of law shall exclude a witness, the ground of Post v. Avery is removed by legislation. Now the policy at the bottom of that case and its sequents is reversed, and prima, facie all witnesses are competent so far as_ interest and policy are in the question. It therefore lay upon the defendant to show a ground of incompetency still remaining to exclude the witness. As the record stood then without objection, there was nothing to show that the estate of Jonathan R. West, or that Enos West had any interest in the controversy before the court. Since the act of 1869, the court, in order to act in good faith toward the legislative branch of the government, must discountenance all objections on the score of interest and policy unless they be made clearly to appear.

The question upon the Statute of Limitations is without difficulty. This was not the case of a party promising to settle an account, or using any such ambiguous terms, and therefore it does not fall within Weaver v. Weaver, 4 P. F. Smith 152: McClelland’s Executor v. West, 9 P. F. Smith 487, and that class of cases. On the contrary, it was the case of an actual settlement of the amount, stating it and striking a balance and a computation of interest by both parties on the balance. There was but one witness and no contradiction of his testimony, and the paper itself on which the settlement was made, balance struck and interest added, was produced and identified. There could not be a plainer admission of a precise debt and certain amount, accompanied as it was also, by an express waiver of the Statute of Limitations before the parties took off the accounts of both sides. Indeed, it is a stronger case than Johns v. Lantz, 13 P. F. Smith 324, and well deserves the remarks made by our Brother Sharswood in that case. The answer of the court to the defendants’ point was therefore not erroneous.

Where an account is settled and a balance struck, the balance clearly bears interest, notwithstanding interest had been added into the account. The balance of the account being stated by themselves, becomes a new principal, and we do not go behind it, to ascertain the items, or their character, which entered into the account.

Judgment affirmed.


text:
    The Empire Transportation Co. versus Steele.
    1. Thompson, in Pennsylvania, shipped oil by a transportation company to Saxton in New York, and received bills of lading which were endorsed to Steele as security for money advanced to Thompson, on his drafts on Saxton. The drafts were dishonored; the company refused to deliver the oil to Steele, because Saxton, owed them freight. Held, in a suit by Steele against the company, evidence that the oil was Saxton’s was admissible.
    2. Steele by endorsement of the bills took only the title to the oil which Thompson had.
    3. Secondary evidence insufficient in this case to admit proof of the contents of a writing.
    November — 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Forest county: No. 1, to October and November Term 1871.
    This action, commenced September 20th 1869, was brought by A. TI. Steele, cashier of the Tionesta Banlc, against the Empire Transportation Company, to recover the amount of money advanced by the plaintiff to A. J. Thompson, as security for which Thompson endorsed to the plaintiff four bills of lading of oil from the defendants to Thompson, numbered respectively 1425, 1426, 1589 and 1673. The money advanced was on two drafts, dated January 6th 1869, at five days’ sight, drawn by Thompson on L. D. Saxton, of New York, the consignee in the bills of lading; one draft was for $788.30, and the other for $726.
    On the trial, May 27th 1870, before Campbell, P. J., the bills of lading Nos. 1539 and 1673 were produced, and plaintiff proved that he had advanced the money to Thompson on the drafts, and that all the bills of lading had then been transferred by Thompson to him.
    Steele, the plaintiff, testified that the two other bills of lading, 1425 and 1426, had been delivered by Thompson at the same time, and had been forwarded to the Importers’ and Traders’ National Bank.
    The plaintiff then read the deposition of C. M. Myers, the clerk of Saxton, who testified that four car-loads of oil had been shipped by Thompson, consigned to Saxton; that drafts had been drawn on bills of lading 1425 and 1426; accompanying the bill of lading was a draft; “we always got a bill of lading when a draft was paid ;” these drafts were protested. The oil in the four bills of lading arrived in New York, but had never been received by Sax-ton; the delivery was refused because Saxton owed the defendant an outstanding account for freight, not wholly for this lot of oil. Saxton tendered McCorkle, the agent of the company, the freight due on this lot. The drafts were not paid by Saxton, because the defendants refused to deliver the oil. He testified also: “ I have made diligent search for the hills of lading for cars 1425 and 1426, and have been unable to find them. I cannot say whether the bills of lading were ever in Mr. Saxton’s possession or not, but have seen them.”
    The deposition of Saxton was read; in it he testified: “ These bills of lading were in my possession in the city of New York. During my absence and sickness I do not know what has become of them, but believe they have been lost. My bookkeeper made search for them at my request, and they have not been found by him. I do not know now where they are.”
    The defendant then offered to prove the contents of the bills,of lading, 1425 and 1426.
    The offer was objected to by the defendants, received by the court, and a bill of exceptions sealed.
    The plaintiff gave evidence of the contents of the bills of lading and other evidence'of the demand by him and Saxton on the defendants for the oil, and their refusal to deliver; also evidence of the quantity and value of the oil. /

    The defendants gave evidence that Thompson had shipped oil to “ L. D. Saxton, Agent, New York,” by their line, in two cars, Nos. 1539 and 1673, containing together 155 barrels of oil; they arrived at Communipaw, the point of delivery of New York oil; the freight on these barrels was $432: it had not been paid; the value of the oil was about $1200; no freight was ever paid or tendered for this oil; when these cars arrived Saxton owed the defendants $3446.20 for freight, exclusive of that due for these cars; no bill of lading wrns ever presented to the defendants endorsed to plaintiffs, or endorsed in any way. When the plaintiff demanded the oil, he produced no bill of lading and offered no money, but said he was Mr. Steele, and claimed the oil shipped in two cars by Thompson to Saxton, “agent;” he claimed no particular cars.
    The defendants called Thompson, who testified : “ I bought the oil in my own name.”
    The defendants proposed to show by the witness that the oil was bought by him for Saxton, and that his (Thompson’s) interest was five cents commission on each barrel, and that Saxton paid for the oil.
    This was objected to by plaintiff and excluded, and a bill of exception sealed.
    The court affirmed the plaintiff’s third point, viz.: “ The measure of damages is the value of the oil in New York at the time of demand and refusal, with interest upon such sum from that date.”
    The verdict was for the plaintiff for $2551.50; the plaintiff remitted all over $1674.54, for which sum judgment was entered, and the defendants sued out a writ of error.

      They assigned for error:—
    1. Admitting proof of the contents of hills of lading 1425 and 1426.
    2. Affirming the plaintiff’s point.
    3. Excluding the evidence proposed to be given by Thompson.

      J. R. Clark and W. P. Lathy, for plaintiffs in error,
    cited as to 1st assignment: 1 Greenleaf’s Ev., § 558; Parks v. Dunkle, 3 W. & S. 291; Hemphill v. McClimans, 12 Harris 367.
    As to 3d assignment: Angell on Carriers, § 49; Arbuckle and Thompson v. Colburn, 1 Wright 176.

      M. P. Davis and S. N. Pettis, for defendant in error,
    cited as to 1st error, Carland v. Cunningham, 1 Wright 228; Graff v. P. & St. L. Railroad, 7 Casey 489. As to the 3d error, Angell on Carriei’s, §§ 495, 496, 499.
   The opinion of the court was delivered, January 9th 1872, by

Thompson, C. J.

We shall notice the third assignment of error first. It presents the most material point in the case.

Neither party has furnished us with a copy of the bills of lading in the case, and they are the instruments out of which this controversy has ax-isen. We must presume, therefore, that they are in the ordinary form of such instruments, without special or unusual exceptions or provisions.

A. J. Thompson, it appears, was the shipper of the oil in controversy, axxd shipped by the Empire Transportation Company. Bills of lading were delivered to him for the oil, which was consigned by him to one Saxton, agent, in New York, he paying freight. Thompson drew two drafts on him, which were discounted by the plaintiff’s bank, and he assigned as collateral the bills of lading. If Thompson was the owner of the oil at the time, it is not to be doubted but that the assignment passed the property in the oil to the plaintiff. But if he was not, what intex’est in it did the assignment pass ? Lord Loughborough, in Mason et al. v. Lichlarrow, 6 East 21, delivering the opinion of the Exchequer Chamber, held that the endorsement of bills of lading had never been regarded in the commercial law as resting on the footing of bills of exchange, or other strictly commercial paper; that inquiry was a duty, and consequently that the endorsee took such paper on the credit of the endorser. So is the case of Kingsford v. Merry, 11 Exch, 577. In the Mechanics’ Bank v. The New Haven R. R. C., 3 Ker. 628, and in Mower v. Peabody, Id. 121, the same thing is contained, in the principle announced that as a bill of lading is a mere symbol, its delivei-y or negotiation px’oduces no greater effect than would the delivery of the goods it represents, and that the right conferred by the endorsement will be limited to that which might have been exercised by the endorsee had the goods themselves been transferred instead of the bill. That principle is also recognised in Decan v. Shipper, 11 Casey 239; also in Schumacher v. Eby, 12 Harris 521. It must be remembered, that we are here speaking of the general commercial law, without reference to our factor act, or to the act approved 24th September 1866. It is well known that there being no market overt in this state, or in New York, had the oil been delivered to plaintiff in fact, he would have taken only such title as Thompson had, and any party having a right to contest that title would be authorized to show that he had none. That was what defendants proposed to do, as to the transfer of the bills. If the one is only the equivalent of the other in vesting title, it must follow that the offer should have been received. If Thompson had no title, the bank got none. The question was raised by a party legally claiming the oil for unpaid freights. It seems unquestioned that they had this right, for the plaintiffs claiming it, tendered the balance due defendants on that score. Had the testimony been admitted, it is possible that the plaintiff might have shown such a state of facts arising out of the conduct of Thompson and Saxton as would have been in law equivalent to title. But we cannot say how that may be, or what new aspects the case may assume on another trial. We can only treat of the exception as it appears, and we think it is sustained.

On the question of the secondary evidence to supply the lost bills of lading, the proof of search was, in my opinion, deficient. It was made by Saxton’s clerk only. Had the testimony clearly shown that they had been received by Saxton, and the proof had shown a diligent search among his papers by the clerk, this, with Saxton’s testimony that he had them not, and that they were lost, might have been sufficient; but the clerk does not say whether he searched among Saxton’s business-papers or not. He only says he made diligent search for them. Saxton made none at all. If a paper be traced to a custodian and is lost, as a general thing, his search is all that is required. In addition, the depositor or owner of the paper ought to be asked to purge himself of its possession. We notice this as the case goes back for another trial. Standing alone, we perhaps would not, under the circumstances of the case, reverse on this ground; for the presence of the bills of lading could not be said to have been of vital importance. So thought, no doubt, the learned judge. But more care should be taken on another trial.

For the reasons given on the 3d assignment of error, this judgment is reversed. We see no other error in the case.

Judgment reversed, and new trial awarded.


text:
    Zents, to the use of Dale, versus Legnard.
    1. The plea “ covenants performed” with no “ absque hoc,” to a declaration in covenant averring performance, admits plaintiffs performance.
    2. A covenant was to convey upon payment of purchase-money, an offer of performance, without making or keeping up a tender of the money, was all that was required of the vendee, when the vendor refused to perform.
    November — 1871.
    Before Thompson, 0. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Forest county: No. 36, to October and November Term 1871.
    This was an action of covenant, brought February 20th 1869, by Solomon Zents, to the use of J. G-. Dale, against John B. Legnard.
    The declaration alleged that by articles of agreement dated April 15th 1867, between Legnard and Zents, it was agreed that Legnard should, within 14 days, convey to Zents two-sixteenths of the working interest of well No. 2, &c., for which Zents agreed to pay $500 at the execution of the agreement (which was paid), and $300 in 14 days from its date, when Legnard was to convey the interest mentioned, “including tools, cable and all the fixtures, excepting the engine,” &c. The declaration averred that although Zents had always been ready to perform all things contained in the agreement by him to be performed, yet Legnard had not conveyed to him the interest mentioned in the agreement, but had re-. fused and continued to refuse, &c.
    The defendant pleaded “covenants performed.”
    The case was tried, September 30th 1870, before Campbell, P. J.
    Dale, the use-plaintiff, testified that after the articles had been assigned to him, he handed $300, the last payment, to Legnard, who received it, but said he would not make a deed, as stated in the contract, because it had not been drawn “according to his talk with Zents.” Legnard handed the money back to Dale, who said it would be ready to pay when Legnard made the deed.
    Plaintiff gave evidence that Legnard said, Zents had “ not come up to time,” and he was going to keep the money paid and the well too.
    The defendant testified that he had sold the interest to Zents ; Dale paid him the balance due. On looking over the article, he found Zents was to pay only for the engine; but the agreement had been that Zents was to pay his share of all the machinery. Legnard returned the money to Dale, and they agreed to leave determining the matter till Zents came back. Before Zents came back, Legnard wanted the money, and asked Dale for it, but he said he had used it, and would not give it to him.
    The defendant gave evidence of the tender of a deed to Dale, who refused to accept it, because it was not in accordance with the articles.
    The plaintiff asked the court to charge:
    1. That if they believe from the evidence that the defendant covenanted to sell to S. Zents, his heirs and assigns, any portion of the interest described in the article of agreement upon which suit in this case was instituted, and that J. G. Dale is the assignee of the plaintiff, and that performance or tender of performance was made by S. Zents, or his assignee, the plaintiff'here, and performance was refused by the defendant, the plaintiff is entitled to recover.
    2. That the measure of damages, in the event of a recovery by the plaintiff, is the value of the interest at the time of the plaintiff’s tender of performance, and the defendant’s refusal to convey under his article of agreement.
    The court charged: “ This is an action of covenant, and [the plaintiff must not only aver but'show performance on his part. The plaintiff’s narr. avers the payment of the $500 hand-money, and also general performance on his part, but does not aver that the $300 was tendered. But he does give evidence that this $300 was tendered, and accepted, and returned to the plaintiff, on the allegation that the contract has a clause about fixtures, not agreed upon by the parties; and if the evidence is believed it was agreed to refer the matter to S. Zents, and if he said the bargain was as the article showed, he, the defendant, would have to perform ; but that $300 was returned to Dale to await the return of Zents, and it has never been made since, nor has it been kept up, and the money brought into court. Under this state of facts we instruct you that the plaintiff cannot recover.] By allowing the $300 to be defalked from plaintiff’s damage, so as to enable him to recover, he must both aver and prove performance or willingness to perform, or that he was prevented by the act or agreement of defendant. This answers the plaintiff’s first point in the negative.
    “ We also refuse to answer the 2d point as requested. The plaintiff seeking damage for breach of the covenants by defendant, and alleging performance by himself, can recover only such damages as he has shown, and not the whole value of the property.
    “Before the charge was delivered to the jury the plaintiff’s counsel offered to amend the narr. by averring an offer and readiness of the plaintiff to pay the defendant the $300, balance of purchase-money; but the court is of opinion that the evidence does not make out a tender, and that such amendment would not avail, and so instruct the jury,”
    The verdict was for the defendant, and a rule for a new trial granted. On the 29th of December 1870 the rule was discharged and the amendment to the declaration allowed.

      The plaintiff took out a writ of error, and assigned for error—
    1, 2. The answers to his points.
    3. The part of the charge in brackets.

      M. W. Tate, B. J. Reid and S. W. Pettis, for plaintiff in error,
    as to 1st and 3d assignments cited, Williams v. Bentley, 3 Casey 294; Wagonblast v. McKean, 3 Grant 393; Rawson v. Johnson, 1 East 203; Robison v. Tyson, 10 Wright 286. The plea “ covenants performed” admits plaintiff’s performance: Wilkinson v. Turnpike Co., 6 Barr 398; Smith v. Frazier, 3 P. F. Smith 226; Rangler v. Morton, 4 Watts 265; Martin v. Hammon, 8 Barr 270.
    There was no paper-book for defendant in error.
   The opinion of the court was delivered, January 9th 1872, by

Thompson, C. J.

Undoubtedly it was error in the learned judge to charge that the plaintiff below was bound to make and keep up a tender of the unpaid purchase-money on the articles of agreement between the parties in order to entitle him to recover. The conveyance and payment of the purchase-money were to be contemporaneous acts, and an offer of performance by the plaintiff was all that was required of him in order to a recovery when the defendant refused to perform. This is so conclusively settled in Wagonblast v. McKean et al., 2 Grant 393, and Williams v. Bentley, 3 Casey 294, that no more need be said on the point. The error is demonstrated by these cases without looking after others.

The plea of covenants performed was the only plea in the case. It seems to me this admitted the plaintiff’s narr. Had the addition of absque hoc appeared, a different result would have followed, but no such addition does appear. The defence therefore rested not on failure of performance by plaintiff, but on performance by the defendant. This being the single issue, the question of performance as alleged in the narr. was admitted, and it was error to allow it to be controverted by the defendant so as to control the result.

We see no other error in the case; but for the above reasons the judgment must be reversed.

Judgment reversed, and venire de novo awarded.