author: Mr. Justice Merour

text:
    Bonner versus Herrick et al.
    1. A vendee of land under articles of agreement who has been deceived by fraudulent misrepresentations of the vendor as to tbe number and amount of the liens upon the land, and whose vendor is unable to make to him a good and sufficient deed by reason of the existence of such liens, is not obliged to apply the purchase money on account of said liens where the amount thereof exceeds the amount of such purchase money. He may in such case elect to rescind the contract.
    2. Where a party to an agreement for the exchange of lands is in the position above described, he is entitled to demand from the other party an unconditional release of the liens on the premises for which he has contracted. In case of failure on the part of said party to procure said release the party defrauded is at liberty to rescind the contract of exchange and to resume possession of the premises originally owned by him.
    3. A release of liens conditioned on the performance by the defrauded party of his contract of exchange is not such an unconditional release as said party is bound to accept.

      4. Where such release is tendered after the defrauded party has elected to rescind and resumed possession of his own land and immediately before the land for which he has contracted is to be sold under an execution issued upon one of the lions, the tender is too late and need not be accepted.
    5. It is not error for the court to comment on the evidence, or to express an opinion on the weight thereof, if the facts are left to the jury.
    November 21st 1881.
    Before Siiarswood, C. J., Mercub, Gordon, Trunkey, Sterbett and Green, JJ. Paxson, J., absent.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1881, No. 113.
    Ejectment by John Bonner against Charles A. Herrick, Daniel Herrick and George Herrick, for seventy-live acres of land in tlie townships of Cambridge and Iiockdale.
    On the trial, before Ciiuroii, r. J., the facts of the case appeared to he as follows: — On May 4th 1876 the plaintiff Bonner, being the owner of a certain hotel known as the Bonner house in the borough of Cambridge, and the defendant Charles A. Herrick, being the owner of the farm in controversy, entered into articles of agreement for tlie exchange of their properties. It was by said articles agreed that each party should make to the other a good and sufficient deed, and further, that Herrick should pay to Bonner tlie sum of $1,200, that being the agreed difference in value between the properties.
    Both parties, in pursuance of the articles of the agreement took immediate possession of the properties, which they had acquired thereunder: the plaintiff Bonner of the farm, tlie defendant Herrick of the hotel. On March 17th 1877 Herrick, having elected to rescind the contract, vacated the hotel and took possession again of his own farm, whereupon Bonner on December l'ltli 1877 brought the present action of ejectment.
    Herrick, in order to justify his rescission of the contract, gave evidence to show that he liad been induced to enter into the articles of agreement by false representations on the part of Bonner as to the value of the hotel, the receipts thereof, the size of the lot and the amount of the liens thereon, all which allegations were denied by Bonner. He also claimed that Bonner was unable to give him a good and sufficient deed by reason of the liens entered up against the liotel premises.
    There was evidence to show that Bonner at tlie time of the contract stated to Herrick that there were no liens on the hotel property except one for $700 held by Mrs. Bishop. As a matter of fact, there were other liens amounting in all to $10,000. These liens exceeded in amount the value of all the real estate owned by Bonner and so continued up to the time of trial.
    Bonner introduced evidence to show that Herrick bad specially agreed to pay off the Bishop judgment as part of tlie $1,200 payable by him, and contended that even if there was no such special agreement, Herrick was bound to apply a part of the $1,200 in this manner. Ho also proved that after the issuing of execution on said judgment, viz., in July 1877, he had tendered a deed to Herrick and also a release by all the judgment creditors of their liens upon the hotel property, conditioned upon Herrick’s carrying out his contract of exchange. Herrick declined these tenders both of the deed and of the release.
    In August 1877 the hotel property was sold under the Bishop judgment and the whole proceeds thereof applied on account of the several liens against the premises.
    Plaintiff requested the court to charge, inter alia,
    1. That if Herrick, after the exchange of the lands in question, put Bonner into possession of the farm agreeably to the terms of the contract, and if Herrick afterward took possession thereof by force, fraud or collusion with Bonner’s tenant, and without tendering a reconveyance or notice of rescission, Bonner is entitled to recover in this case without performing or tendering further performance on his part.
    Answer. We see no reason for answering the point as requested.

      5. That the existence of judgment liens at the time of making the contract and exchange of the land in question constituted no grounds for the rescission of the contract on the part of Herrick if Bonner was able and willing at all times to procure their release and satisfaction; and that he was not bound to so remove them unless he was required to do so by a demand of the defendant for performance, and at the same time showing a readiness and willingness on his, the defendant’s part, to comply with his covenants.
    Answer. That we answer in the affirmative, and we say to you, that is not of itself, ground for rescission of contract. But if there were liens against the property, in the language of the defendant’s point, “ If at the time of making the contract, on May Jth 1876, judgments were recorded, liens upon the record, largely in excess of all the real estate of the plaintiff, and the same remained until after the bringing of this suit,” the plaintiff is not entitled to the specific performance of the contract.
    Defendants requested the court to charge, inter alia:
    3. That the paper tendered to Charles A. Herrick by plaintiff August 10th 1877, is not a release of the hotel property from the lien of the judgments against Bonner, and Herrick was under no obligation to accept it or the deed tendered by the plaintiff. Answer. Affirmed.
    5. That if, at the time of the making of the contract of May 4th 1876, there were judgments of record in this county, liens upon the hotel property, largely in excess of the value of all the real estate of the plaintiff, and that the same remained until after the bringing of this suit, the plaintiff is not entitled to the specific performance of the contract sought in this action, and tiie verdict of the jury should be for the defendants. Answer. Answered in the affirmative.
    The court charged, inter alia, as follows:
    “ This case is in a nutshell. If this contract was procured from Ilerrick through fraud, misrepresentation, or overreaching, in any or all the elements which are alleged to have been used, of such fraud or misrepresentation, the plaintiff cannot take any advantage, and he cannot call upon this court and jury to specifically perform this contract. If he did not use any fraud other than a commendation of the property, although the contract may be improvident, and Herrick may have made a bad bargain, nevertheless, we cannot help him, and we will specifically perform this contract by giving the plaintiff this property; hence your verdict would be for the plaintiff.....[We know as a matter of fact from the vast number of witnesses brought here from Cambridge and Rockdale townships, and from the character of this litigation, that it would be undoubtedly productive of a great deal of neighborhood talk. One side would have their partisans, and the other their partisans. I do not, say it occurred in this case, but possibly any animadversion against the character of the defendants for truth and veracity may have its origin in the neighborhood by the partisans of the plaintiff. I do not know that, but we say this attacking a man’s character for truth and veracity coming upon the heels of a hotly contested litigation, although it is a makeweight for you it would have very little effect upon me in determining the position of the parties, when there is so much evidence in the ease. Men get reputation from the malevolence of their neighbors, and from the partisanship. No one can tell how a reputation does arise. A dozen men might get in a neighborhood, decry a man among themselves, and each one of them come and say he had a bad reputation, and when called upon to specify they could name a half dozen or a dozen, and they might all be on the same stand. The law allows that as a makeweight. The oath of one party is against that of the other, and you have a right, and it is your duty to take into consideration the character of the witnesses. That is for you.”]
    Verdict and judgment for the defendants. Plaintiff thereupon took this writ of error, assigning for error the answers to the plaintiff’s and defendant’s points, and the portion of the charge above cited in brackets.

      W. li. Bole (with whom were O. li. Marsh and II. J. Humes), for the plaintiff in error. —
    In order to set aside a written instrument on the ground of fraud, the evidence must be clear, precise and indubitable: Stine v. Sherk, 1 W. & S. 195 ; Pennsylvania R. R. Co. v. Shay, 1 Norris 198; Cummins v. Hurlbutt, 11 Norris 165. The credibility of witnesses is peculiarly for the jury: Heister v. Lynch, 1 Yeates 108; Magellan v. Thompson, 9 W. & S. 54; Massey v. Buck, 1 Phila. 215. The remarks of the judge on this point were grossly improper : Burke ro. Maxwell’s Adm’s, 31 P. F. Smith 139. Plaintiff, having tendered a complete release of all liens on the hotel Íroperty, is entitled to insist on performance of the contract: )avidson v. Moss, 5 How. (Miss.) 673 ; Townsend u. Ohampernown, 1 Y. & J. 447; Innis v. Campbell, 1 Rawle 373 ; Hampton v. Speckenagle, 9 S. & R. 212. A vendee once fairly in possession of land under articles of purchase, but ousted by illegal means, is entitled to recover in an action of ejectment, without bringing into court the balance of the purchase money due upon articles : D’Arras v. Keyser, 2 Casey 249; Wykoff v. Wykoff, 3 W. & S. 481.

      F. L. Blaolcmarr, for the defendants in error. —
    The question of fraud, or no fraud, was properly and fairly left to to the jury. A court of chancery will never enforce specific performance where the title in question is not marketable, or where it would be contrary to good conscienc,e to do so : Lauer v. Lee, 6 Wright, 171; Freetly v. Barnhart, 1 Smith 279; Ferguson’s Appeal, 6 Smith 487, note; Herzberg v. Irwin, 11 Norris, 48. The present case is an ejectment to enforce specific performance, and is, therefore, governed by the same principles: Peebles v. Reading, 8 S. & R. 484 ; Tyson v. Passmore, 2 Barr 122; Brawdy v. Brawdy, 7 Barr 158; Greenlee v. Greenlee, 10 Harris 225; Dongan v. Blocher, 12 Harris 28 ; Piersoll v. Neill, 13 P. F. Smith 427; Church v. Ruland, 14 P. F. Smith 432; Patterson v. Martz, 8 Watts 379; Fratly v. Barnhart, 1 P. F. Smith 279; Miles v. Stevens, 3 Barr 37; Pennock v. Freeman, 1 Watts 401; Bishop v. Reed, 3 W. &. S. 264; Henderson v. Hays, 2 Watts 148; Werkheiser v. Werkheiser, 3 Rawle 326 ; Hauberger v. Root, 5 Barr 112; Stickney v. Borman, 2 Barr 67; Miller et al. v. Henlan, 1 P. F. Smith 265; Prutzman v. Ferree, 10 Watts 143; Woods v. Lane, 2 S. & R. 53.
   Mr. Justice Merour

delivered the opinion of the court, January 3d 1882.

This action of ejectment was to enforce specific performance of contract. It is based on an agreement between the parties for an exchange of properties, in which the plaintiff was to take the farm of the defendant, and the latter the hotel property of the plaintiff; and the defendant was to pay the sum of $1,200, as the agreed difference in value between the properties. Possession was taken by each party of the property he was entitled to have under the contract. Afterwards, the defendant, alleging fraud in obtaining the contract from him, and also the inability of the plaintiff to give him, a title according to the agreement, claimed a right to rescind the same, .and took possession of the farm. To recover possession the plaintiff brought this suit.

The defendant gave evidence tending to prove that he was induced to enter into the contract through representations of the plaintiff as to the value of the hotel and the receipts thereof, the size of the lot, and the amount of liens on the property, and that the representations were false, fraudulent and deceitful. The alleged fraudulent representations of the value, receipts and condition of the hotel and size of the lot were controverted. The conflicting evidence was fairly submitted to the jury, and they wore correctly instructed as to the law applicable thereto. The evidence was, that the plaintiff represented the only lien on the property to be one of about $700 in favor of Mrs. Bishop; yet, the unquestioned evidence shows the liens thereon, in fact, were about $10,000. They were never removed by the plaintiff, so as to enable him to make a good and sufficient deed ” for the property, as he had agreed. He contends the defendant agreed to pay the Bishop judgment as part of the §1,200, or, if he did not so agree, he might have done it, and the same operated as a payment on the §1,200; and further, that he tendered to the defendant a conditional release of the lien of the other judgments. In answer to these contentions it may be said, the payment of the Bishop judgment would not protect the defendant, nor give him a good title to the hotel property. It would remain incumbered to the amount of §9,000. He, therefore, was not required to pay the Bishop judgment, nor would he have been safe in so doing while the larger liens remained. After waiting ten months, and the liens not being removed, the defendant elected to rescind the contract, moved out of the hotel, and out on to his farm. Some five months thereafter, and on the day before the hotel was tobe sold on the Bishop judgment, the plaintiff did tender a conditional release of the líen of the other judgments. The release was too late in time, and insufficient in form. The defendant, after giving the plaintiff ample time to remove the liens, had not only elected to rescind, but had given up possession of the hotel property, and it was just on the eve of being sold by the sheriff. The paper tendered was not an absolute release of liens by the other judgment creditors. It was conditional on the defendant complying with his contract. This was a condition precedent which the plaintiff had no right to require. The obligation rested on him to first put himself in condition to fulfill his part of the agreement before he could require the defendant to perform the other part. Nothing less than an absolute and unconditional release of the other liens would fully protect the defendant. He was not obliged to accept the proposition of third parties and a contingent risk of litigation with them. No sufficient release of the liens was executed. The court correctly held, if these liens of record were largely in excess of the value of the real estate of the plaintiff, and so remained when suit was brought, the plaintiff was not in condition to enforce specific performance of the contract.

It is not error for the court to comment on the evidence, nor to express an opinion on the weight thereof, if the facts are left to the jury. In calling their attention to the evidence affecting the credibility of the defendant the court commented on it with some freedom; yet, it was careful to say to them that it was all for their consideration.

¥e deem it unnecessary to discuss all the specifications in detail. We discover no error calling for reversal in any of them. The charge, as a whole, was a clear and correct presentation of the case.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Chase to use, etc. versus Hubbard and Wife.
    1. The bond of a married woman accompanying a mortgage given by her upon her land in order to secure the purchase money thereof constitutes a valid obligation which may be enforced against the particular land in question. Shnyder ». Noble, 13 Norris 386, followed.
    3. The Supreme Court will not reverse for an error which it is evident has done no injury to the person complaining thereof.
    3. A. and wife purchased a lot of ground, giving their joint bond and mortgage to secure part of the purchase money. Subsequently they sold one-half of the lot to B., who agreed to pay part of the purchase money on account of the mortgage. C., afterwards, with knowledge of the arrangement between A. and wife and B., took an assignment of the bond and mortgage, and also procured .from B. a conveyance of his one-half of the lot. Various payments had been mad,e on account of the mortgage, leaving due thereon only the amount which B. had agreed to pay. In an action by O. against A. and wife upon their joint bond, to recover the unpaid balance, the court charged that as A.’s wife was, at the time of the execution of the bond in suit, a married woman, no judgment could be recovered against her. Held, that as the bond was given to secure the purchase money of land conveyed to defendants, this instruction was erroneous; but, inasmuch as in the event of recovery by the plaintiff, defendants would have a right to recover back from him the sum paid, by process of subrogation, lie was not entitled to judgment.

      November 21st 1881.
    Before Sharswood, O. J., Meeour, Gordon, Trünkey, Sterrett and Green, JJ. Paxson, J., absent.
    Error to the Court of Common Pleas of Crawford county: ■ Of October and November Term 1881, No. 144. '
    Debt, by Sarah A. Chase, survivor of Edward II. Chase, to the use of Watson and Pierce against Asher S. Hubbard and Mary E. Hubbard, Ms wife, upon a joint and several bond for §4,000 given by defendants to plaiutiff Sarah A. Chase and Edward II. Chase, deceased. Judgment was entered upon this bond by virtue of the warrant of attorney thereto annexed, on November 19th 1877 in the sum of $1,054.94, that being the amount alleged to be due and unpaid thereon.
    Subsequently, on application of defendants, the court opened this judgment as to all in excess of §743.54 with interest thereon. This amount, viz., $840.44, being paid into court, defendants pleaded as to the residue of the bond, “payment with leave,” and as to defendant Mary E. Hubbard, “ coverture.”
    On the trial before Church, P. J., the facts of the case appeared to be as follows: — On February 6th 1871, Edward 11. Chase and Sarah A., Ms wife, sold and conveyed a lot of ground in the city of Titusville to defendant Mary É. Hubbard for the sum of §1,000. The residue of the purchase money wras secured by a mortgage given by both defendants to Chase and wife for §3,000, which mortgage was accompanied by the bond in suit.
    In May 1871 defendants conveyed one-half the lot to A. IT. Carr for the sum of §2,000. One-lialf of this sum Carr paid in cash, the remaining half he agreed to pay on account of the Chase mortgage. He gave also Ms note to defendants for said remaining half, which was, however, never paid. From time to lime defendants paid off various sums on account of the mortgage, leaving- due thereon, in January 1879, about §2,000. Haring that month Watson and Fierce, the use plaintiffs, took an assignment of the Chase bond and mortgage, paying value therefor. There was evidence to show that, at the time of this assignment, Hubbard notified Watson and Pierce of the amount due and also of the arrangement with Carr, and that said Watson and Pierce had agreed with him to look to Carr for payment of $1,000 of the amount, still due upon the mortgage.
    On September 11th 1879 Watson and Pierce purchased the land conveyed to Carr, at a sheriff’s sale under an execution issued against it by P. T. Wintlirop a judgment creditor of said Carr. This sale was made subject expressly to the Chase mortgage. Defendants subsequently paid further installments on account of said mortgage. Edward II. Chase afterwards died, whereupon the present suit was instituted.

      The court charged, inter alia, as follows: — “ [It is a rule of law, to which there is no exception, or, but one exception, and that I will advert to presently, that a bond given’by a married woman is absolutely void.
    “ The law makes one exception, and only one; that is, when a bond is given for purchase money of real estate, it is valid as against the real estate purchased. Not that it changes the rule in that it gives a married woman greater power to contract, but because the law, in its equity, will not permit a married woman to hold real estate and not pay the purchase money of it. In other words, when she has promised to pay purchase money, it is her duty to pay; it is, as it were, a part of the title by which she is to hold her estate, and law and equity step in and say she cannot hold it without paying the price. We say to you, this is so where there is no other security given than a judgment note; but when a married woman gives a mortgage and a judgment note accompanying it, and that mortgage has been executed according to the forms of law, as by examination separate and apart from her husband before a justice of the peace, and the contents made known to her, and executed formally without the coercion or compulsion of her husband — when that is done that becomes the security, and to that security the mortgagee— the seller of the land — must look.
    “ If you find that Mary E. Hubbard at the time of the execution of this bond was a married woman, there can be no recovery in this case against her.
    The plaintiffs have not proceeded upon the mortgage; why they have not sold upon this mortgage we do not know. Eor some reason or other, they have ceased to proceed upon the mortgage, and have undertaken to bring suit upon the bond.
    “We say that Mrs. Hubbard having given other security for the purchase money, she cannot be compelled to pay upon this bond. The reason of this is not that a married woman is more competent to give a bond for the payment of purchase money, than any other debts she may owe, but simply because the seller, having sold his land and taken no security therefor, the law will not permit her to hold the land and not pay for it, but when she has done what the law points out, to wit: the giving a mortgage, that is all that ought to, be required of her.
    “If you find that Mary E. Hubbard, on the 6th of February 1871, when she gave this bond, was a married woman, your verdict will be for her.].......If you find from the evidence that when there was one thousand dollars due, Carr was to become the paymaster of that obligation to Chase, or whoever might hold the mortgage, and that, when that was paid, Mr. Hubbard would bo relieved in consideration of that agreement, and it was the deed or purchase that Carr had heretofore made from Hubbard, and that Watson and Pierce agreed to look to Carr, or to Carr’s purchase of this undivided one-half interest, then they must look to Carr for it. And then, so far as A. S. Hubbard is concerned, that is evidence from which you may say this judgment is paid as to him.”
    Verdict and judgment for defendants. Plaintiffs thereupon took this writ, assigning for error the portion of the charge above cited in brackets.

      Guthrie (with whom was Byles), for the plaintiffs in error,
    relied on Shnyder v. Noble, 13 Norris 280.

      Neill and líeywang, and S. Grwnibine, for the defendants in error. —
    The attempt was to enforce this bond as a personal obligation against M rs. Hubbard. This could not succeed. Plaintiffs were entitled to a judgment in rein against the property purchased by her only : Schlosse’s Appeal, 8 P. F. S. 493 ; Sawtelle’s Appeal, 3 Norris 306; Quinn’s Appeal, 5 Norris 447. It is, at any rate, clear from the verdict that the jury found for both defendants on the plea of payment.
   Mr. Justice Gordon

delivered the opinion of the court, January 2d 1882.

On' February 6th 1871, Edward H. Chase and Sarah A. Chase sold and conveyed a lot of ground in the city of Titus-ville to the defendants, Asher S. Hubbard and Mary E., his wife, for the sum of $4,000 — $1,000 of which were paid in hand on the delivery of the deed, and the balance was secured by a judgment bond and mortgage. On November 19th 1877 judgment was entered on this bond in the sum of $1,054.94, that being the amount alleged to be then due and unpaid. On the judgment thus entered execution was issued to September term, 1879, and afterwards, on application of the defendants, the court opened this judgment, as to all of it in excess of $743.54, with the interest thereon from July 9th 1877, equal to $840.4-4, which were paid into court. The judgment being thus opened, the parties went to trial on the pleas of “ payment with leave,” and as to Mary E. Hubbard, “ coverture.” On this latter plea the court instructed the jury: “ If you find that Mary E. Hubbard, at the time of the execution of this bond, was a married woman there can be no recovery in this case as against her.”

In view of the fact that the bond was executed by the feme covert and her husband to secure the purchase money of land sold to them, this ruling was erroneous. As this question has been fully discussed and settled in the case of Shnyder v. Noble, 9 W. N. C. 182; 13 Norris, 286, we need give it no farther attention, and were there nothing more in the pending suit, the judgment must be reversed. But on the plea of payment the facts were fully developed, and the jury, on those facts, found for the defendants. As, therefore, Asher S. Hubbard, the coobligor and mortgagor, with his wife, was not protected by the plea of converture, it follows that the jury must, under the evidence, have found either that the mortgage was paid or, what is practically the same thing, that Hubbard and his wife were equitably discharged from the payment thereof. Under these circumstances it seems clear to us that the ruling of the court below, on the plea of coverture, did the plaintiffs no possible harm.

We think a brief review of the facts, as found by the jury, will demonstrate the rectitude of this conclusion. In May 1871 Hubbard and wife conveyed the one-half of the mortgaged premises to A. H. Carr for $2,000 ; one-half of this sum was paid by Carr to his vendors, and the other half he agreed to pay .on the Chase mortgage. For this amount he also gave to the defendants his note, which, it seems, was never paid. This, however, is of no moment, inasmuch as the property thus sold was subject to the Chase mortgage, and under the arrangement between the defendants and Carr, if they were at any time forced to pay off this mortgage they would be entitled to subrogation as to Carr’s part of the property. Then, in January 1879, Watson and Pierce, the use plaintiffs, with knowledge, as the jury have found, of the arrangement between the defendants and Carr, took an assignment of the Chase mortgage, and, afterwards, on September 11th of the same year, a sheriff’s deed, made under a sale of Carr’s interest in the property, on a judgment of P. T. Winthrop, was obtained by F. B. Guthrie, Esq., the agent or trustee of Watson and Pierce. This sale was expressly made subject to the mortgage above-mentioned. The transaction, then, stands thus: Watson and Pierce, now the owners of the Chase mortgage, buy Carr’s interest in the premises, not only subject to that mortgage, but with full knowledge of the agreement between Carr and the defendants. Now, let us suppose that Hubbard and wife pay off this mortgage to Watson and Pierce, what would prevent them from claiming subrogation as against the land now owned by these very plaintiffs ? for, to repeat, on the notice given by Guthrie himself, this land was bought subject to the mortgage, and all there was of it were the $1,000 which Carr, or Carr’s land, was to pay. . But as it would be to no purpose to compel the defendants to pay that, in relief of the plaintiff’s property, which they would_ be entitled to recover back by the process of subrogation, the object is better accomplished by the release of the defendants from the payment of the"mortgage and its accompanying bond. The verdiet, then, which to us seems but reasonable and just, founded, as it is, upon the facts above detailed, renders the technical ruling of the court below, on the plea of coverture, of no moment whatever, since the result could not have been altered had the ruling been the converse of what it was.

The judgment is affirmed.


author: Mx\ Justice Paxson

text:
    Huston versus Ticknor & Co.
    1. Upon the distribution of the proceeds of certain real estate sold at sheriff’s sale a subsequent judgment creditor claimed priority over a prior judgment creditor by virtue of a writing under seal purporting to be under the hand and seal of such prior judgment creditor, whereby she agreed to postpone the lien of her judgment. The prior judgment creditor denied having executed the writing, whereupon an issue was framed to determine whether it was her act and deed. Held, that the proper course would have been so to frame this issue as to constitute the party alleging the instrument to be genuine the plaintiff, and the party denying its genuineness the defendant.
    3. In the above case an issue was framed without objection by either party wherein the creditor who denied having executed the postponement was constituted the plaintiff, and the subsequent creditor was constituted defendant. On the trial, the plaintiff herself went upon the stand, denied the execution of the paper, and rested. Defendant then offered the paper in evidence, but without proving its execution. Held, that it was error to admit the paper in evidence.
    3. Notwithstanding the form of the issue, the burden of proof was on the defendant in the above case to establish the genuineness of the paper in question.
    4. A subscribing witness is one who was present at the time of signing the instrument, or who was called in immediately afterwards, who either actually saw the party signing the instrument or had an acknowledgment of the signature made to him by such party, and who thereupon at the time subscribed 1ns name as a witness of the execution at the request or with the assent of the parly signing the same.
    5. If, however, a person present at the execution of an instrument does not subscribe to the same as a witness at that time, but does so subscribe afterwards and without request, he is not to be deemed a subscribing witness.
    6. Proof of the signature of a person subscribing to an instrument in the manner last specified does not constitute proof of the execution of tne instrument.
    November 22d 1881.
    Before Sharswood, C. J., Mbrcur, Gordon, Paxson, Trunket, Stebbett and Green, JJ.
    Error to the Court of Common Pleas of Crawford county; Of October and November Term 1881, No. 320.

      Feigned issue. By virtue of several executions the real estate of one W. T. McMurtry was sold at sheriff’s sale in November 1880, and the proceeds were paid into court. Before the auditor, appointed to report distribution, the fund was claimed on the one hand by Ticknor &■ Co., and on the other hand by Caroline A. Huston, both of whom held judgments against McMurtry. Miss Huston’s judgments were entered October 1876. Ticknor & Co.’s judgments had been originally entered March 8th 1872. They were not revived until after the expiration of five years, viz., on April 24th 1877. Miss Huston therefore, claimed that her judgments, which had not expired, became the first liens on the real estate of McMurtry.
    Ticknor & Co. claimed, however, that their judgments retained priority over those of Miss Huston by virtue of an alleged agreement under seal, executed by Miss Huston, dated April 24th 1877, which they produced, and which was as follows :
    “ Ticknor & Co. v. W. T. McMurtry. In the Court of Common Pleas of Crawford county, Nos. 424, 425, 426, 427, 428, 429, 430, and 431, April Term 1872.
    “ And now, April 24th 1877, in consideration of the sum of one dollar, to me in hand paid by Messrs. Ticknor & Co., the receipt of which is hereby acknowledged, I do hereby agree that upon any distribution of the proceeds of sale of the real estate of W. T. McMurtry, upon the above or any other judgment or judgments against him, that the above named judgments, or any revival thereof, shall have priority and be first Íaid in any such distribution, before any judgment or judgments now hol'd against the said W. T. McMurtry.
    “ Witness my hand and seal the day and year first above written.
    “In presence of C. A. Huston, [seal.]
    D. F. Booth.
    W. T. McMurtry.”
    Miss Huston denied that she had ever executed this paper, and alleged that it was a forgery. The auditor then certified the inatter to the court, whereupon the court directed an issue, to determine the genuineness of the paper, the order framing the issue being as follows :
    “And now, to wit: February 28th 1881, it is ordered that a feigned issue be formed, in which C. A. Huston shall be plaintiff, and Ticknor & Co., shall be defendants. The following questions are to be determined in and by said issue:
    “ First. Whether or not four certain judgments . . . . in which Caroline A. Huston is plaintiff and W. T. McMurtry is defendant, are paid in whole or in part.
    “Second. Whether or not a certain paper writing . . . . purporting to be a postponement of the lien of the said judgments to the lien of certain judgments held by Tieknor & Co. against W. T. McMurtry . . . . is the act or deed of the said O. A. Huston.
    “ Narr. shall be framed as on a wager, shall contain two counts and shall severally embrace the two propositions herein above stated. Plea and replication to follow as in similar cases.”
    No exception was taken to the form of the issue.
    On the trial, before Church, P. J., the plaintiff’s counsel called Miss O. A. Huston, in her own behalf, who testified— the paper in dispute being shown to her — that though the signature to the paper looked like hers, she never signed it, nor authorized any one to sign it for her. The plaintiff then rested.
    The defendant’s counsel then offered in evidence the paper in dispute.
    “ Plaintiff’s counsel object.
    “ By the Court. — Objection overruled.
    “ Plaintiff’s Counsel. — They have not proven any signature to it.
    “ By the Court. — -They do not have to ; the very matter in dispute; you introduced it in evidence the first thing ; it is in evidence, practically and substantially, and you may read it if you like; you could not go a step without it; this verdict would have to be for the defendant if that paper was not in evidence ; it does not need to be proven ; it is in dispute.
    “Paper dated April 24th 1877, signed by C. A. Huston, and witnessed by H. F. Booth and W. T. McMurtry, read to the jury.”
    The defendants afterwards called D. F. Booth, a subscribing witness to the paper, who testified:
    “ I. witnessed a paper; J)r. McMurtry and Miss Huston were present when I witnessed it; McMurtry and Miss Huston were standing at the desk, or to one side, and I was in the front of the store at work ; I was called back and asked to sign the paper, which I did; it looks like my signature, -with the exception of the D; the D is different from what I write ; I never witnessed but one paper to my knowledge; I witnessed one paper ; I have no recollection of witnessing any other; it was in 1877 ; I do not know what time in 1877 ; cannot tell if it was in the spring.
    “ Cross-examination — The paper I witnessed had something to do with the drug-store ; that was my understanding of it at the time.....Miss Huston’s name was on the paper I signed ; whether McMurtry’s was there or not I cannot say; I have not much recollection about that; it seemed to me that it was, and then that it was not; I cannot say anything about it at all.”
    McMurtry denied that he signed the paper as a subscribing witness.
    E. L. Litchfield, one of the defendants, testified :
    “ I saw .this paper (the postponement in question), April 24th 1877; Mr. Ticknor brought this paper in blank (the date and signatures were blank), at our office in Conneautville ; Mr. Ticknor and Mr. McMurtry were there.

      “ Q. What was done with the paper ?

      “ A. Mr. McMurtry took the paper, and said Miss Huston would sign it.
    “ Plaintiff’s counsel object; objection overruled.

      “ By the Court. — Gro oh from where you stopped. McMurtry took the paper.

      “ Witness. — He took the paper from our office, and was gone a short time, and returned to our office with the name of C. A. Huston to it and D. F. Booth, and says, I saw Miss Huston sign it, and I saw D. F.- Booth sign it as a witness, and took a pen and signed it himself, in our office, in our presence, in our store, as a witness, with the remark that two witnesses, perhaps, were better than one. That was done on April 24th 1877.”
    O. O. Ticknor, another of the defendants, testified:
    “ McMurtry came in the store and took the paper and went out, and was gone about fifteen minutes, and came back with it signed, as you see it, excepting his name, with Miss Huston’s and Booth’s names, and the date, and then he signed it himself.”
    The plaintiff presented, inter alia, the following points:
    1st. That the plaintiff having sworn that she never signed the paper in question called a postponement, the defendants must satisfy the jury, by a preponderance of testimony, that she did sign and execute the said paper, or the verdict should be for the plaintiff. Answer. — The burden of proof in this case is upon the plaintiff. If this point means the burden is upon the defendant, it is declined.
    4th. That if the jury believe the testimony of Ticknor and Litchfield, that W. T. McMurtry signed the paper called a postponement, in their office, saying that he had seen Miss Huston sign the same — Miss Huston not being present — he is not a subscribing witness to the paper, and proof of the genuineness of his signature is not evidence of the execution of the said paper by Miss Huston. Answer. — We answer this: McMurtry is a subscribing witness if he signed the paper in question, and proof of his signature is a part of the common law proof of the execution of the paper.

      The court instructed the jury, inter alia : “ The plaintiff in this case is C. A. Huston, and she alleges it is not her signature, and the burden of proof is upon her to show that it is not her signature. She is the actor in this suit and the burden of proof is upon her.....
    “ If yon find this is her signature, then you find for the defendants, Ticknor & Co. If yon find it is not her signature, you find for her, the plaintiff.”
    Verdict and judgment for the defendants. The plaintiff took this writ of error, assigning for error, inter alia, the admission in evidence of the paper in dispute before proof of its execution ; the answers to the above points, and the portion of the charge above quoted.

      Thomas Roddy (with him Humes •mñ.Frey), for the plaintiff in error. —
    The paper was improperly admitted in evidence: Herrington v. Gable, 31 P. P. Smith 406; 1 Greenleaf on Ev. 569; Hines v. Barnitz, 8 Watts 45. The burden of proof was improperly placed on the plaintiff in the issue. The court could not, by ordering Miss Huston to be made plaintiff, compel her affirmatively to prove a negative, nor cast a presumption into the scale against her, which rightly belonged in her favor. The arrangement of the parties, which made her plaintiff and Tick-nor & Go. defendants, might control the order of proceedings, for that is largely a matter of discretion with the court, but it could not abrogate the rules of evidence nor reverse the legal presumption for or against her. These are matters beyond the control of the court: 1 Greenleaf on Ev. § 74; Depew v. Clark, 1 Plnla. 432; Oostigan v. II. It. Co., 2 Ilenio 615; Powers v. Russell, 13 Pick. 76.
    McMurtry, not having signed the paper in the presence of Miss Huston, was not a “subscribing witness”: 2 Bouvier’s Law Diet. 555; 1 Greenleaf on Ev. § 569.

      I). O. McGoy (IF. R. Bole with him), for the defendants in error. —
    The court was right in admitting the paper in evidence. It was the paper, the signature to which was in dispute. The plaintiff’s counsel had just before shown it to the witness, the plaintiff, and she had testified wfitli regard to it. It was practically in evidence by the plaintiff, and the cause could not be tried at all without that paper before the jury. Besides, the defendants called Booth, the subscribing witness, immediately. This cured the defect, if there was any, as ruled in Himes v. Barnitz, 8 Watts 45. It would have been a vain thing for the defendants to call McMurtry, the other subscribing witness, as it was already known that he would deny his own signature to the paper and testify that he had never seen it until in 1880. The law does not require vain things. Therefore the testimony-offered and received was clearly within the rule as laid down in Harrington v. Gable, 31 P. E. Smith 410.
    It was entirely proper that, in the forming of this issue, the burden of proof should be put where it was. The plaintiff, of course, knew whether she signed the paper or not. This was the only question in the cause. Her agent and her clerk were the attesting witnesses, or appeared to be so. Proof was accessible to hex’, while the defendants did not pretend that they had seen the paper executed, or that they could prove by any positive testimony that it had been. The defendants were compelled to x’ely upon a cross-examixxation of the plaintiff and her employés and such secondary evidence as they might be able to find.
   Mx\ Justice Paxson

delivered the opinion of the court, January 3d 1882.

This was a feigned issue. A number of assignments of error have been filed to the x-ulings of the learned judge below.

The first criticisxn we have to make is to the form of the issue. It was fx’amed to try the single question, whether a paper postponing the lien of certain judgments held by the plaintiff to the lien of certain other jxxdgments held by the defendants, was the act and deed of the said plaintiff. The latter denied having executed such a paper, and the issue was accordingly framed to try this question of fact. In framing such an issue the party holding the affirmative should be made the plaintiff. This, howevei-, was not done. On the contraxy, the pax’ty denying the executioxx of tfie paper was made the plaintiff, and the parties asserting it were made defendants. No exception was taken to the fox’m of the issue,, and we would not, therefore, re-vex’se on that ground. But the consequences resulting from this error are so serious, and so interwoven with the entire trial, that our duty requires us to consider them.

Had the parties been reversed, the ox’derly mode of trial would have been for the plaintiff to have called the subscribing witnesses, and after having, in the usual manner’, proved the exe'cution of the paper’, offered it in evidence. This would have made out a prima facie case, and it woxxld therx have been for the defendants, who denied its execution, to have sustained suelx denial by testimony.

What actually occunod upon the trial was this: After the plaintiff’s case was opened sire went upon the stand and positively denied having executed the paper’, or lxavixxg authorized any one to execute it for hex’. At this point the plaintiff rested her case.

The defendants then offered the paper in dispute in evidence. Neither the subscribing witnesses, nor any witnesses, were called to prove plaintiff’s signature. The paper was admitted by the court against the objection of plaintiff. The result was tlie admission of a paper which had not been proved, and the execution of which liad been dented by the plaintiff, who, up to this point, was the only witness who had been sworn in the cause. This error was cured in part by the defendants’ subsequently calling one of the subscribing witnesses, and it is referred to now chiefly as showing the incongruous results flowing from the original error in the form of the issue. This will further appear by reference to the third assignment of error. In reply to the objection of plaintiff’s counsel, that the signature to the paper had not been proved, the court replied: “ They do not have to. The very matter in dispute; you introduced it in evidence the first thing. It is in evidence, practically and substantially, and you may read it if you like. You could not go a step without it. This verdict would have to be for the defendants if that paper was not in evidence. It does not need to be proven. It is in dispute.” We are entirely unable to see liow a paper that is in dispute requires no proof, nor how a refusal of the court to admit the paper without proof would entitle the defendants to a verdict. In Harrington v. Gable, 31 P. F. S. 410, which was a feigned issue to try the execution of a judgment note, the plaintiff offered the note in evidence without proof of its execution. The court below rejected it, which ruling was affirmed by tins court, Woodward, L, saying: “The offer of the note and of the record of the judgment, at the opening of the cause, was premature, and was properly rejected.” It is true, in the case cited, the issue was properly framed, the plaintiff being the party holding the affirmation of the issue. This, however, we think, is not material, for reasons which will be stated hereafter.

The most serious result, however, consequent upon the form of the issue, was the shifting of the burden of proof. This is a radical error, and underlies the entire case. The learned court instructed the jury : “ Gentlemen: The plaintiff in this ease is O. A. Huston, and she alleges it is not her signature, and tlie burden of proof is upon her to show that it is not her signature. She is the actor in this suit, and the burden of proof is upon her.”

The learned judge was evidently misled by the form of the issue. This leads us to consider the question, how far the plaintiff, having submitted to be placed in the front of the battle, without an exception, can now take advantage of the ruling of the court upon this point.

The general rule of law is, that the burden of proof lies upon tlie party, who substantially asserts tlie affirmative of the issue. “ And regard is had in this matter to the substance and effect of the issue, rather than to the form of itGreenleaf on Evidence, § Yé. The narr. in this case is in the usual form of a wager. It is true C. A. Huston is the actor, and this makes the whole thing excessively awkward. Regarding, however, the substance, we find on her part nothing but a denial of what the defendants had previously asserted, to wit, that the paper in question was her act and deed. She was, therefore, merely asserting a negative, and under no rule of law, was the burden of proof upon her. The order of court or arrangement by which she was made the jdaintiff, might perhaps control the order of proceedings, but it could not abrogate well-established rules of evidence and deprive her of the legal presumptions to which she was entitled. The 9th and 15th assignments are sustained.

There was also error in the answer of the court to the plaintiff’s fourth point. The said point is as follows: — “ That if the jury believe the testimony of Ticknor and Litchfield, that W. T. McMurtry signed a paper called a postponement in their office, saying that he had seen Miss Huston sign the same, Miss Huston not being present, he is not a subscribing witness to the paper, and proof of the genuineness of his signature is not evidence of the execution of said paper by Miss Huston,” which point the learned judge answered by saying, “ McMurtry is a subscribing witness, if he signed the paper in question, and proof of his signature is a part of the common law proof of the execution of the paper.”

The paper referred to bore upon its face the name of ~W. T. McMurtry as a subscribing witness. Prima facie, therefore, he was such. The defendants, however, did not call him to sustain the paper. It was shown by the testimony of each of the defendants, that McMurtry brought them the paper purporting to be signed by Miss Huston, and by D. F. Booth as a subscribing witness; that he stated he had seen them both sign, and then, in the absence of Miss Huston, appended his own name as a subscribing witness, remarking at the time that “two witnesses were better than one.” The plaintiff in rebuttal called Mr. McMurtry, who flatly denied his signature to the paper, after which the defendants called several witnesses to prove that it was his signature.

It is plain from the defendants’ own showing that McMurtry was not a subscribing witness. He did not sign as such in the presence of Miss Huston, nor at her request. The familiar rule upon this subject is accurately stated by Mr. Greenleaf in his work on Evidence, at § 569: “ A subscribing witness is one who was present, when the instrument was executed, and who at that time, at the request or with the assent of the party, subscribed his name to it, as a witness of the execution. If his name is signed, not by himself, but by the party, it is no attestation. Neither is it such, if, though present at the execution, he did not subscribe the instrument at that time, but did it after-wards and without request, or by the fraudulent procurement of the other party. But it is not necessary that he should have actually seen the party sign, nor have been present at the very moment of signing; for, if he is called in immediately after-wards, and the party acknowledges his signature to the witness, and requests him to attest it, this will be deemed part of the transaction, and, therefore, a sufficient attestation.” The rule is laid down in a similar manner in Bouvier’s Law Dictionary, vol. 2, p. 555.

In view of the foregoing state of facts, it was error for the court to instruct the jury as a matter of law that McMurtry was a subscribing witness' to the paper, and that proof of his signature was proof of its execution. It was the more hurtful, as the effect of such proof, under the ruling of the court, was to contradict the plaintiff’s statement that the signature was not hers.

This disposes of all the serious errors in the case. Complaint is made of the charge, in several of the assignments, particularly of inaccuracies as to the statement of the facts. As it is manifest, that only a portion of the testimony is printed, we will not attempt a review of those portions of the charge, feeling confident if any such errors exist, the learned judge will correct them upon another trial.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Sterrett

text:
    Egbert versus Payne.
    1. The prima facie presumption is that a fund deposited in bant belongs to the person in whose name it has been deposited. Where such fund is claimed by another party the burden of proof is upon him to establish his ownership.
    2. What is sufficient evidence on the part of a claimant in such case to submit to a jury, considered and passed upon.
    3. Where the court in instructing the jury assumes facts which the testimony does not justify, or suggests an illegal or improper purpose upon the part of one of the parties without any cause, this will bo held to constitute error calling for reversal.
    November 23d 1881.
    Before Sixarswood, O. J., Meroitr, Gordon, Baxson, Trunxcev, Sterrett, and Green, JJ.

      Error to the Court of Common Pleas of Orawford county : Of October and November Term 1881, No. 318.
    Feigned issue, between N. IT. Payne, plaintiff, and M. O. Egbert, defendant, to determine the ownership of a sum of $1,883.12, deposited in the Second National Bank of Titusville,! to the credit of Payne, and by the .said bank paid into court.
    On the trial, before Church, P. J., the facts appeared to be substantially as follows : For some years prior to August 1870, the firm of Egbert & Brown, of which the defendant was a member, were large dealers in and producers of oil. The office of the firm was in New York city, and the plaintiff, Payne, was their agent in the oil region, and transacted their business generally in his own name. He also had charge of M. C. Egbert’s private business in the oil region. Mr. Egbert was frequently in the oil territory, and when there assisted Mr. Payne in the purchase, sale and shipment of oil, and in making payments and collections. He occasionally deposited money in various banks to the credit of Payne for use in the business. Payne was in the habit of rendering accounts, which, although not kept with business-like accuracy, showed his purchases, drafts, payments and shipments, &c. Frequent settlements were made between the parties. About the end of the year 1870, the firm of Egbert & Brown failed in business, when a final settlement of accounts was had, and Payne’s agency for Egbert, and for Egbert & Brown, then terminated.
    In October 1880, the cashier of the Second National Bank of Titusville called N. H. Payne’s attention to the fact that a deposit of $1,883.12 had .been standing to his credit on the bank ledger for over ten years. Mr. Payne had no recollection of the matter but on reference to the original deposit slip, found that it was in the handwriting of M. C. Egbert. Payne then wrote the following letter to Egbert, and received the following reply:
    “Franklin, Pa., Oct. 8, 1880.
    “ Dr. M. C. Egbert :

      “Dear /Sir: — I was at Titusville yesterday; saw Gr. C. Hyde, of 2d National Bank. He says to me, you have a balance in bank here, which has been here a long time. On investigation I find that there was deposited to the credit of N. H. Payne, Jan’y 29, 1870, $1,883.12, which was never drawn out. On reference to the deposit slip I think the N. H. Payne' is in your handwriting. I am unable thus far to find my old book of that date to show how it came to be overlooked. The probabilities are that you deposited it to save bringing the money home, or for some specific purpose, and reported to me, and I have forgotten to draw it out. ' One thing, however, is certain, I accounted to Egbert & Brown for all money received from them, so there is no possibility of them having any claim on it. Egbert & Brown’s account on their bank books is settled and closed.

      “ Ilyde said no other person could draw this but myself, and he could not refuse my check, but asked as a favor that 1 would leave it until he was sure there was no mistake about it.
    “ I wish you would write me, stating that any money deposited by you to my credit in their bank was my property.

      “ Very respectfully
    N. II. Payne.
    “P. S. — I see by a memorandum that you left for New York, January 13th, a few days before the deposit, but you had time to have returned before the 29th.”
    “ October 9th 1880.
    “ N. II. Payne, Franklin, Pa.
    “ Dear Sir: — Your letter, of 8th inst., is received. I am glad to learn of the discovery of the deposit at the First National Bank of Titusville.
    “ But I think you will be satisfied, on reflection and a careful examination of the accounts between us, that I am the one entitled to the balance; for it is far more likely under the circumstances then existing — I, having a large business and accounts, scattered in various directions, involving large amounts, and dependent on others for the keeping of these accounts, that I would overlook such an item than that you, whose transactions were smaller and almost wholly personal, would overlook such an amount due to yon. Besides this, I 'have quite a distinct recollection that at one time, in settling our accounts, there was an apparent deficiency of about this sum in the amount which I ought to have, and that the account was settled by me with that apparent disadvantage. You certainly have never had any reason to suppose that L was owing you such an amount as would have been the case, if the amount had been charged to you as a payment from me. But there will be no difficulty in determining to whom this belongs, as the books will show for themselves. If it shall appear to be yours, I will cheerfully join in an order for its payment to you, and I will expect you to do the same in my behalf if the facts so require. In the meantime I think it proper that the balance be allowed to remain in bank until we can ascertain the facts, and have written the bank to that effect.
    “ Bespectfully, yours,
    M. C. Egbert.”
    Both Payne and Egbert afterwards sued the bank, whereupon the bank, by leave of the court, paid the amount of the deposit into court, and this issue was awarded. The old accounts between Payne and Egbert & Brown, and Payne and Egbert were offei’ed in evidence, but they shed no light on the transaction. Egbert had no recollection of making the deposit other than that arising from the fact that the deposit slip was in his handwriting; tíe testified that he thought the money was part of $2,700 received by him for a diamond pin, which he sold about that time; and that he must have deposited it in Pajme’s name, either for use in the business, or for some specific purpose which was not carried out. Further, that in making a settlement of his individual account with Payne, after the date of the deposit in question, he complained to Payne that he (Egbert) seemed to be about $2,000 short of what he ought to have, but as they could not find the discrepancy, the account was settled as rendered. Payne denied this. It appeared that at the time of the deposit Egbert was worth about half a million dollars, and Payne was worth not over $3,000.
    The court, in answer to points presented by the plaintiff, instructed the jury that the deposit, being in the name of Payne, prima facie belonged to him, and that Egbert could rebut this presumption only by distinct and clear proof — the mere fact that Egbert made the deposit being insufficient.
    The defendant presented the following point:
    “ If the jury believe that the defendant, M. O. Egbert, deposited the money in dispute to the credit of Payne, the plaintiff, as the agent of Egbert & Brown, or of himself, for the purpose of having said money placed to his, the defendant’s, credit, either on the accounts of Egbert & Brown, or on his own individual accounts with said plaintiff, and the said money was never used for the purpose for which it was deposited, or in any other way, for the benefit of said defendant, then the money belongs to said defendant, and the verdict of the jury should be for him.”

      Answer. “ This is affirmed, provided you find the facts as stated there, that the deposited money was never used for the purpose for which it was deposited. Was it deposited for any specific purpose % We are given no account of it. It does not seem to be deposited in opening an account, or rather what a person would call a running account. There does not seem to be any other item to the credit of N. H. Payne, or drawn by him. It just seems to be specifically deposited, not for the .purpose of opening a bank book. A bank book does not seem to have been given to Egbert or Payne. [Was it deposited for a specific purpose? to wit, in the name of N. H. Payne, to be used in the business of Egbert, or Egbert & Brown, by Payne, as their agent ? If not, then it would seem to be a gift, in some mysterious way, to this plaintiff. There is no evidence of a specific purpose for which this was deposited, because-there is no evidence upon either side whether for a specific or general purpose.] (Third assignment of error.) Egbert does not know anything about it, and does not tell you lie does. That £ must have been,’ whatever Payne says about it, and £ must have been,’ whatever Egbert says about it — a verbal argument of both, just as counsel argued upon the subject to-day.”
    In the general charge, the court said, inter alia :
    £< Prima facie this money belongs to N. II. Payne.
    “ This is the claim to be rebutted by evidence, and that is what M. C. Egbert has endeavored to do.....[Has he explained to your satisfaction that it was his money ? If he gave it to N. IT. Payne for some purpose, or, if he gave it to N. II. Payne for any illegal or improper purpose, it would be an executed gift, and he could not take it back.”]
    Verdict and judgment for the plaintiff. The defendant took this writ of error, assigning for error the answer to defendant’s point, and the portion of the charge inclosed in brackets.

      J. B. Brawley (with him A. B. Biehmond <& Son), for the plaintiff in error. —
    There being no evidence in the case tending to show that the deposit was a gift by Egbert to Payne, either for a legal or illegal purpose, the court erred in submitting this irrelevant issue to the jury: Whitehill v. Wilson, 3 P. & W. 405 ; Sartwell v. Wilcox, 8 Harris 117; Evans v. Mongel, 1 Barr (19 ; Newbaker v. Alricks, 5 Watts 183 ; Stouff'er v. Latshaw, 2 Watts 165 ; Mnsselman v. Railroad Company, 2 W. N. C. 105 ; Delaware & Hudson Canal Co. v. Torrey, 9 Casey 143. The defendant’s point should have been affirmed without qualification. The answer, though nominally a qualified affirmance, virtually denies it.

      O. Heydrick, for the defendant in error. —
    There was no evidence, which should have gone to the jury, to rebut the plaintiff’s prima facie ownership. The attempted proof offered by the defendant falls short of that upon which the plaintiffs were nonsuited in Sims v. Bond, 5 Barn. & Ad. 389. The plaintiff being entitled, therefore, to binding instructions in his favor, it is immaterial whether the answer of the court to the defendant’s point was right or wrong. But we contend it was hot wrong. The evidence being that Egbert deposited the money in Payne’s name, and there being no explanation of the transaction, the jury might well have found that it was a gift; and the instruction of the court complained of was simply to the effect, that if it was an executed gift, for any purpose, legal or illegal, it was irrevocable.
   Mr. Justice Sterrett

delivered the opinion of the court, January 2d 1882.

The single question of fact involved in this feigned issue was, whether the money deposited in the Second National Bank of Titusville, January 28th 1870, to the credit of Payne, the plaintiff below, belonged to him, or to Egbert, the defendant.

The deposit having been made in the name, and to the credit, of Payne, the money was prima facie his ; and the burden was thus cast on Egbert of proving that it belonged to himself and not to the plaintiff below. He undertook to do this by proving that the money was deposited by himself, as was shown by the deposit slip in his own handwriting, and by introducing other testimony, tending to prove that the deposit was made, not for the individual use and benefit of Payne, but for the purpose of enabling him to use it in the business, either of Egbert himself, or of Egbert & Brown, of which firm Egbert was a member, and for both of which parties Payne was then acting as agent; and, that the money, having never been applied to the use of either Egbert & Brown, or Egbert, still belonged to the latter. A single question of fact, solely for the consideration of the jury, was thus presented.

There appears to have been no exception to the admission or rejection of testimony, at least none is urged here; but the complaint is, that the charge of the court was calculated to prejudice and mislead the jury. In that portion of the charge which constitutes the first assignment of error the learned judge, referring to Egbert, the defendant below, says : Has lie explained to your satisfaction that it was his money ? If he gave it to Payne for some purpose; if he gave it to Payne for any illegal or improper purpose, it would be an executed gift, and he could not take it back.” This suggestion of a gift for an illegal or improper purpose, was unwarranted by anything that appears in the record, and was calculated to invite the jury to an inquiry in which their only guide was vague suspicion or -conjecture. There was no testimony tending to prove a gift either for a proper or an improper purpose. It is scarcely necessary to cite authorities to show that this was error. In Stouffer v. Latshaw, 2 Watts 165, it is said: “ To submit a fact, destitute of evidence, as one that may, nevertheless, be found, is an encouragement to err which cannot be too closely observed or unsparingly corrected.” The same general principle is recognized in Sartwell v. Wilcox, 8 Harris 117; Newbaker v. Alricks, 5 Watts 183; Whitehill v. Wilson, 3 P. & W. 405.

The contention of the defendant below was fairly and clearly presented in his prayer for instructions. The testimony was quite sufficient to justify the submission of that proposition to the jury, and it should have been affirmed without the qualifications complained of in the second assignment. Some of the remarks made by the learned judge in that connection were not warranted by the testimony, and cannot be regarded as harmless. On the contrary, when considered in connection with the previous suggestion that the money may have been given “ for an illegal or improper purpose,” they were calculated to mislead the jury, and, for aught we know, may have had that effect.

in that portion of the answer covered by the third assignment the defendant’s point was virtually negatived, and the case withdrawn from the jury, by an assumption of fact which the testimony did not justify. Speaking of the money, the learned judge says: “Was it deposited for a specific purpose, to wit, to be used in the business of Egbert, or Egbert & Brown, by Payne, as their agent ? If not, then it would seem to be a gift, in some mysterious way, to this plaintiff. There is no evidence of a specific purpose for which this was deposited, because there is no evidence upon either side for a specific or general purpose.” Being thus instructed that there was no evidence that the money was deposited either for a general or a specific purpose connected with the business of Egbert or the firm of which he was a member, the jury were necessarily driven to the conclusion that it “ was a gift, in some mysterious way,” to Payne, as suggested by the court, or, that there was nothing in the case to rebut his prima facie right to the money, based on the fact that it was deposited to his credit. In either view, the l’esult would be the same — a verdict in favor of the plaintiff below. The radical error in this part of the answer is in assuming that there was no testimony for the consideration of the jury tending to sustain the contention of the defendant below. If such had been the fact it would have been the duty of the court to have withdrawn the case from the jury by directing a verdict for the plaintiff; but there was evidence, both direct and circumstantial, which it was the province of the jury to consider, and from which they might, perhaps, have found the facts substantially as embodied in defendant’s proposition. The rule is, as stated by the present Chief Justice, in Howard Express Co. v. Wile, 14 P. F. Smith 201: “ Where there is any evidence which alone would justify an inference of the disputed fact it must go to the jury, however strong or persuasive may be the countervailing proof.” Among other items of evidence tending to sustain defendant’s view of the case is the letter addressed to him by Payne in October 1880, in which the latter, speaking of the deposit, says : “ On a reference to the deposit slip, I think the c N. H. Payne ’ is in your handwriting. 1 am unable, thus far, to find my old book of that date to show how it came to be overlooked. The probability is that you deposited it to save bringing it home, or for some special purpose, and reported to me, and I have forgotten to draw it.” Other facts and circumstances, which need not be referred to, had a similar bearing ; and, on the whole, we are of opinion that the plaintiff in error has just reason to complain of the charge and the manner in which the case was submitted to the jury.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Mercuk

text:
    Shafer’s Appeal.
    1. The fact that usurious interest has been paid upon a judgment note after the entry of judgment thereon does not necessitate the opening of the judgment in order to afford just relief to the defendant. The payment amounts to an equitable payment on the judgment to the amount of the excess of interest, and the court may stay execution, as in the case of any other alleged payment, until the facts can be ascertained and the just amount be applied to the judgment.
    2. A firm consisting of A., B. and C. held notes of D., upon which the latter had paid usurious interest. O. died, whereupon A. and B. formed a new partnership with E. This last-named firm was wholly separate and distinct from the former. Its formation was duly advertised and well known. Its books were new and separate, and it assumed none of the obligations of the old firm. D. then borrowed money from the new ■firm of A., B. and E. wherewith to pay the notes held by the old firm, and actually applied the money borrowed for that purpose. In order to secure said new firm he gave them a judgment note for the amount borrowed. Judgment being entered upon this note, D. moved to open the same in order to compel the application of the usurious interest paid to the old firm on account of the judgment. Reid that the new note was a novation of the debt; that the defendant could not set ujo as against the new firm defences arising out of his transactions with the old one; and that, therefore, he was not entitled to the relief sought for.
    November 23d 1881.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunket, Sterrett and Green, JJ.
    Appeal from the Court of Common Pleas of Crawford county: Of October and November Term 1880, No. 312.
    This was an appeal by David Shafer from an order refusing to open a judgment entered on a judgment note by virtue of a warrant of attorney to confess judgment, in favor of J. R. Dick & Co. against Henry Shafer, George Shafer and David Shafer.
    The defendant, David Shafer, in his petition to open the judgment, averred that the note in question was the last renewal of a series of notes, on all of which interest in excess of six per cent, had been included; and prayed for an issue to determine what amount, if anything, is due upon said note in suit. A rule to show cause was granted, testimony was taken, and after argument the court, Church, P. J.s discharged the rule, filing the following opinion, which sets forth the facts developed by the testimony:

      “ This is an application to open a judgment and let defendants into a defence to show payment of usurious interest thereon, and have the excess over the lawful rate applied upon the principal.
    “ The note upon which the judgment was entered is dated December 28th 1874, and is made payable to the firm of J. E. Dick & Co. At that time the members of that firm consisted of James E. Dick, Samuel 13. Dick, and Sturgess T. Dick. For some time prior to February 7th 1874, the firm of J. E. Dick & Co. consisted of James E. Dick, J. M. Dick and S. 33. Dick. On February 7th 1874, J. M. Dick died, and his death dissolved that partnership. A new copartnership was formed by the survivors J. E. and S. B. Dick which existed till July 1st 1874. On this last date a new copartnership was formed, under the firm name of J. E. Dick & Co., by James E., Samuel B. and Sturgess T. Dick, and was the one in existence December 28th 1874.
    “ On January 1st 1875, James E. Dick retired from the firm and died subsequently. There is no evidence of any transfer of this indebtedness on this note of defendants by the firm of James E., S. B. and S. T. Dick to any other or new firm, and the legal effect of the situation is that the judgment debt is now due and payable to S. B. Dick and S. T. Dick, survivors of J. E. Dick, who are partners doing business under the firm name of J. E. Dick & Co.
    “ If there was any indebtedness of the principal debtor here, Henry Shafer, to the firm of J. E. Dick & Co. prior February 7th 1874, it was to a firm composed of J. E. Dick, J. M. Dick and S. B. Dick; and when, on the last named day, J. M. Dick died, that firm was dissolved; if any new note was given, it was given not to renew any old debt but to borrow the money from the new firm to pay the debt of the old firm. Tlie survivors of that old firm were, of course, the proper persons to settle up the old partnership business, and to settle with the personal representatives of tlie estate of J. M. Dick an account of the latter’s interest in the effects, rights and credits of the firm of which he was a member. The transaction operated as a discharge and extinguishment of all former contracts or debts by way of a substitution of one debt for another. In the civil law this is called a ‘ ‘ novation of tlie debt.” It arises when a now contract is entered into with intent to dissolve a former engagement, or when a new debt is substituted for an old one. This novation takes place by tlie intervention of a new creditor, where a debtor, for tlie purpose of being discharged from liability to his original creditor, by the order of that creditor contracts a new obligation in favor of a new creditor: Pothier Obi. No. 549. It had all the elements of a novation of the debt, and hence was equivalent to the payment of any original debt, if any there was. By the civil law it was known as delegation by payment.

      “ It was assented to by the three parties, to wit: namely, by J. R. Dick and S. B. Dick, as survivors of the old firm; by j. R. Dick and S. B. Dick, as new creditors forming a new firm ; by Henry Shaffer and others as debtors of the old firm becoming debtors of the new firm, and receiving the old notes turned in as paid and canceled. In this case, under the evidence, each firm kept a separate and distinct set of books and the debt was actually transferred in these books from one debtor to another debtor, and with the knowledge and consent of all jjarties. The debtor was bound to know the members of the firm of which he was the debtor, and with whom he contracts. The authority for these principles is to be found in the 5th edition of 1 Parsons on Contracts, p. 517, and 2 Ibid. p. 625.
    “ It follows, therefore, that there can be no defense, interposed to this debt, which has its origin prior to the death of J". M. Dick.....As we are bound to treat the obligation given on December 28th 1874, as the novation of the debt theretofore duo to the old firm, and where assets must necessarily be separately taken care of and administered, it follows that these present plaintiffs, S. B. Dick and S. T. Dick, surviving partners of J. R. Dick, and composing the firm of J. R. Dick & Co., as creditors of the defendants, have a right to recover their loan made at the last named date.
    “ If the defendants have paid any interest on this note in judgment since its maturity, at a greater rate than six per cent., they are entitled to have any such excess paid credited on the principal debt; they are also entitled to have deducted from the principal debt any discount they may have suffered from its date to its maturity over the lawful rate of six per cent.
    “ The rule to show cause why this judgment should not be opened to permit defendants to show usurious payment, &c., is discharged. The plaintiffs are only entitled to recover the real and true sum loaned by them to defendants, to pay the old debt due the firm of J. R. Dick & Co. as it existed prior to February 7th 1874, with interest thereon from the time of said loan, and the payments made by defendants to plaintiffs since that time are to be deducted therefrom, and from the principal thereof if there be any excess of payment over the largest interest accruing or accrued thereon.
    “ Rule discharged.”
    David Shafer took this appeal, assigning for error the refusal of the court to open the judgment.

      J. J. Henderson (with him F. P. Bay), for the appellant.
    —It is not denied that usurious interest was paid on the loan all the time it was running. The debt was the same, the parties were the same. The change in the membership of the firm of J. 17. Dick & Co., by the death of J. M. Dick, and the admission of S. T. Dick, did not affect the indebtedness to the firm of J. 17. Dick & Co. There is no evidence that a new loan was made December 28th 1874, but, on the contrary, it was proved that the note then given was merely an extension of the old debt. No money was paid on the old note, and none was obtained on the renewal note. There is no evidence showing that either party intended to create a new debt, or that the makers intended to enter into a contract with new parties. A novation is never presumed, and there is nothing in the facts of this case to show that either of the parties thought of such a thing. The case is within the familiar principle of Campbell v. Sloan, 12 P. F. Smith 481; Miller v. Irwin, 4 Norris 376, and Stephens v. Monongahela Bank, 7 Norris 158.

      II. L. Richmond, for the appellees.
   Mr. Justice Mercuk

delivered the opinion of the court, January 2d 1882.

This is an appeal from the refusal of the court to open a judgment. It was entered on a note, executed by the appellants for $4,000, dated December 28th 1874. The note was given to J. 17. Dick & Co., bankers. The firm was composed of James 17. Dick, Samuel R. Dick, and Stnrges T. Dick. Four days after the giving of the note, James 17. retired from the firm, and subsequently died, and the judgment is now in the hands of the two surviving partners.

It is not shown that any usurious interest was paid on this note, before judgment was entered thereon. If any such was afterwards paid, no necessity exists for opening the judgment to obtain just relief. It is no cause for an attack on the validity of the original judgment. It is merely an equitable payment thereon to the amount of the excess of interest paid. The court may stay execution for the sum thus claimed, as in case of any alleged payment, until the facts can be ascertained, and the just amount be applied on the judgment. The order made by the court, when it discharged the rale to open the judgment, clearly provides for ascertaining the amount legally duo thereon.

Prior to the formation of the firm, to which the note in question was given, other persons had been banking in the name of J. 17. Dick & Co. The appellants had been indebted to those persons and paid them usurious interest. The attempt was to compel the application of that interest on this note. It was to charge Sturges T. Dick with a liability he never incurred, and a responsibility he never assumed, lie was not a member of either firm, when such excess of interest was either charged or paid. The last firm was wholly separate and distinct from the former. Its formation was duly advertised and well known. New and separate books were opened. It assumed none of the obligations of tbe preceding firms. The firm of which Sturges is a member, discounted the present note, and paid the money or its equivalent therefor. The learned judge' found as a fact, and on sufficient evidence, that this note was not given to renew any old debt; but to borrow money from the new firm to pay a debt due the old firm. This was the creation of a debt to. a new firm, to cancel a debt due to another firm. It was therefore a novation. It is unimportant that some of the persons in the earlier firm were also members of the last firm. This note was given with an intent, and for the purpose, of fully paying and discharging the debt due to the firm, of which Sturges was not a member, and to substitute an indebtedness to the firm of which he was a member. In furtherance thereof, all the other notes were given up and canceled, and a new note given to a new firm. The learned judge correctly held that this alleged equity of the appellants could not be invoked to the prejudice of Sturges. A contract, made under the facts shown,. cannot be successfully attacked in the manner proposed.

Decree affirmed, and appeal dismissed at the costs of the appellants.


author: Mi\ Justice Gordon

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    Shafer and Martin versus Randolph.
    Persons holding themselves out to third parties, dealing with them, as partners in a single enterprise, will be bound to such third parties as partners accordingly, even though there may be no agreement of partnership inter sese.

    November 23d 1881.
    Before Sharswood, C. J., Merque, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Orctwford county: Of October and November Term 1881, No. 56.
    Assumpsit, by Hiram Randolph and A. F. Randolph against Thomas Shafer and James Martin (and others not served) to recover for breach of an alleged contract, whereby the defendants procured the plaintiff to manufacture certain patented articles, under a patent-right owned by defendants, at a stipulated price, which the defendants afterwards refused to pay. The narr. averred a joint contract, on the part of the defendants, Shafer and Martin, and breach. There was no defence as to Shafer, except as to the number of articles contracted for. Martin defended on the ground that the contract was made by Shafer alone, who had no right to bind him.

      On tbe trial, before Church, P. L, the evidence showed that the defendants, Shafer and Martin, with several others, had purchased jointly a certain patent right for the manufacture and sale of patent grain separators. The plaintiff, A. F. Eandolph, testified that, in 1877 Shafer engaged him to manufacture twelve separators, at §10 each; that Martin was present during the interview, and made no objection, stating that he and Shafer and others had bought the patent-right jointly as partners; that, after the twelve machines were made, and three of them delivered, Shafer paid $15 on account, and told Kandolph to go to Martin and the other owmers of the patent, who were to pay their share of the cost of manufacture ; that Martin, on being applied to, put him off, saying he thought some of the separators would be sold within a week, whereby the money could be raised to pay plaintiffs for making them.
    Shafer denied that the contract was for twelve separators, alleging that the agreement was for three or four, and if they sold readily others should afterwards be made. Martin denied that he had ever made any partnership with Shafer, other than the joint purchase of the patent-right, and denied his affirmance of the bargain made by Shafer. It appeared that Martin, in reply to an application from a party to hire a machine, had said : “I do not want to hire them — -we have them to sell; I will sell you one for $20.”
    The defendants presented the following point:
    “ That this suit being’ brought against the defendants jointly, and there being no evidence to show that both joined in the contract, the plaintiff cannot recover.”

      Ansveer. “ This suit does not seem to have been brought against the defendants jointly, but against the defendants and others. Those two defendants, being the only ones served with process, are the only ones at present before the court. If these two defendants owned a patent-right with others, and one of these bargained for the making of the patented article, and for the sale of the same for their joint and common account, it was such a bargain that one partner might make for and bind his copartners, and the fact of the partnership not having been registered as provided by law, the leaving out of some partners, who might have been lawfully joined, is not cause for plea of abatement, nor according to the rules of court in pleading as to partnership or non-partnership.”
    Verdict and judgment for the plaintiff for $122. The defendants took this writ of error, assigning for errpr the answer to their point, as above.

      Wm. P. Bole (M. P. Damis with him), for the plaintiff in error. —
    Evidence of joint ownership of a patent-right is wholly insufficient to sustain a claim founded on liability of the joint owners, as partners, for the cost of manufacturing the patented articles under a contract made by one only of such joint owners. These owners were simply assignees of the patent, and at no time formed any copartnership of any kind whatsoever.

      D. G. McOoy <& Now, for the defendants in error. —
    "Whether the defendants below, Shafer and Martin, were general partners in any kind of business is not material. It Avas sufficient to show that they were jointly concerned in the particular transaction in which the plaintiffs, Randolphs, Avere employed to construct the machines: Kirk v. Hartman, 13 P. F. Smith 105. Of the fact that they Avere so concerned there was ample evidence to go to the jury, and the jury found that they Avere.
   Mi\ Justice Gordon

delivered the opinion of the court, January 2d 1882.

The counsel for the defendants below, plaintiffs in error, is not correct in his assertion that there was no evidence in this case tending to prove a partnership betAveen the defendants themselves, or with other parties. A. F. Randolph swears that Shafer told him that Gregg, Martin and Fisher were partners with hinself in this fanning mill adventure.

He furthermore repeats, that both Shafer and Martin informed him that they were in company Avith several other persons ; that upon his applying to Martin for his pay for the manufacture of the mills, he put him off until the first of April, as he thought, by that time Dunn would have sold mills enough to make the money for him, and that, upon a similar application to Fisher, he made the promise that he Avould pay his share as fast as returns came in from the sales of mills. Again, Jonathan Wetsel swears, that he went to Martin to hire one of the mills, and that his answer was, “ I do not Avant to hire them ; we have them to sell; I will sell you one for twenty dollars ancl will warrant the mill for four years, and it will pay for itself in that time.” Fisher, also, on the part of the defence, testifies as follows: “ Randolph came to me the time him and mo talked; he was by himself ; I told him I would not have any mills made faster than I could sell them; I had a little money invested in it, and was not going to invest any more; if ho made any to sell I would pay him my share, but nothing further.” Farther on, he says he supposed that Shafer and Martin were concerned as well as he. When this evidence is taken in connection with the admitted fact that the defendants, jointly with others, owned the patent for those mills, or separators, Ave cannot understand hoAv it can be truthfully said that there was no proof of partnership to go to the jury.

It is true tins was fclie partnership of an experiment; of a single adventure; yet for all this it might have been not the less a partnership: Sims v. Willing, 8 S. & R. 103. More than this, there may not, as between the defendants and their associates, have been a partnership in fact or intention, and yet, as to third persons, they may be held as such. Por, as was said in Kirk v. Hartman, 13 P. F. Smith, 97, where one holds himself out, or knowingly suffers himself to he held out, as a partner, on the faith of which others give credit to the firm, he will be held, though, in fact, he is not a partner. And in Johnston v. Warden, 3 Watts 101, it was held, that where the defendants had represented themselves as partners, and had been trusted as such, they must he bound as partners. In the case in hand there was certainly evidence to the effect that the defendants represented themselves to Randolph and others as partners, and if this was believed by the jury, as it seems to have been, then as partners they were'properly held. Such being the case, it is obvious that the answer of the learned judge, to the point put by the defendants’ attorney, did them no harm, though doubtless the better way would have been to have negatived it outright, and without qualification.

On the whole, we think the case was fairly submitted, and that the plaintiffs in error have nothing of which they can justly complain.

The judgment is affirmed.