author: Mr. Justice Trunkey

text:
    Big Black Creek Improvement Company versus The Commonwealth.
    1. The Act of April 24th 1874, provides, that corporations doing business in this Commonwealth, and possessing “ the corporate right or privilege to mine or to purchase and sell coal,” shall report semi-annually to the auditor general the number of tons ruined by such company, and also the number of tons mined upon the company’s land by any unincorporated association, partnership or individual, under any lease or contract, and shall pay a tax thereon. The Big Black Creek Improvement Company held extensive coal lands which it leased to others to be worked, but the corporation itself, by its charter, was expressly prohibited from mining. Held, that it is liable to the tax under the above act.
    2. The object of the act is to reach every corporation which purchases and sells coal, which mines coal on its own land or land it has leased, or which causes coal to be mined under a lease, contract, grant or mining privilege, to unincorporated persons on property that it owns, or has a coal privilege or interest therein.
    3. Statutes are to be construed so as may best effectuate the intention of the makers, which sometimes may be collected from the cause or occasion of passing the statute, and where discovered it ought to be followed with judgment and discretion in the construction though the construction may seem contrary to the letter of the statute.
    May 18th 1880.
    Before Mercur, Gordon, Paxson, Trunkey and Sterrbtt, JJ. Sharswood, C. J., and Green, J., absent.
    Error to the Court of Common Pleas of Dauphin county: Of May Term 1880, No. 189.
    This was an appeal to the Court of Common Pleas of Dauphin county hy the Big Black Creek Improvement Company, from the-settlement of an account against them by the accounting officers of the Commonwealth. The appeal was filed July 7th 1879.
    The Big Black Creek Improvement Company was incorporated on the 12th of April 1855. The company was authorized to hold very considerable quantities of coal land in certain townships in Luzerne county, and to prepare the same to be worked and leased; the veins to be opened, schutes, breakers and screens to be erected, and had conferred on it the powers usually conferred on corporations, with all the rights, pow'ers and privileges, and subject to all the restrictions, provisions and liabilities conferred and imposed upon the Swatara Company by the 2d, 3d and 4th sections of the act incorporating the same, approved the 6th day of March 1849.
    The Swatara Improvement Company has the usual powers conferred on coal companies, except that by the 4th section of the act it is provided that this company shall not have mining or hanking privileges. A supplement was passed on the 2d day of April 1860, to the charter of the Rausch Creek Company, hy which it had conferred on it many additional privileges, but was again deprived of any mining or banking privileges with the addition that the capital stock or dividends of the company shall not be taxable. On the 3d day of April 1863, a supplement was passed to the Big Black Creek Improvement Company, giving it all the privileges and subjecting it to all the restrictions and provisions contained in the Act to incorporate the .Rausch Creek Improvement Company, approved the 2d day of April 1860.
    The company, when called on from the state department, made report (under protest) on the 31st of January 1879, of the number of tons of coal mined on its lands by unincorporated associations, partnerships or individuals, but averred that it is not, subject to pay taxes on account of such mining.
    The claims of the Commonwealth for the taxes in these cases are under the seventh section of “ An act for the taxation of corporations,” approved the 24th of April 1874, Pamph. L. 71, which is as follows:
    “ That every company incorporated or organized by or under any law of this Commonwealth, or incorporated or organized by or under any law of any other state, and doing business in this Commonwealth, which possesses the corporate right or privilege to mine or to purchase and sell coal, shall semi-annually, upon the first days of July and January, in each and every year, make report, under oath or affirmation, to the auditor-general, of the number of tons of coal mined during the six months preceding the said first day of July and January, by such company, and also of the number of tons of coal that shall be mined by any unincorporated association, partnership or individual, under any lease, contract, grant or mining privilege, upon the property of which the company making such report is the owner or lessee, or has any mining or coal privileges or interest therein, and also the number of tons not mined as aforesaid, which shall have been purchased during the same period by the said company, and shall pay into the treasury of the Commonwealth an additional tax on its corporate-franchises, created by or used within this Commonwealth, at the rate of three cents upon each and every ton of two thousand two hundred and forty pounds of coal so mined or purchased as aforesaid: Provided, That the amount of coal consumed in the transaction of its business by any such company, shall not be included in its return : And provided further, That said tax shall not be payable more than once in respect to the same ton of coal: And provided also, That if any such company shall neglect or refuse for a period of thirty days, after such tax becomes due, to make said return, or to pay the same, the amount thereof, with an addition of ten per centum thereto, shall be collected for the use of the Commonwealth, as other taxes are recoverable by law from the said companies.”

      Under this section the auditor-general and state treasurer settled an account against the company, charging it with a tax of three cents on each ton of coal mined by lessees on the company’s lands, as appeared by the company’s report thereof, showing a balance of $1744.26 due the Commonwealth. When the report was asked for, the company protested against their liability, but the account was nevertheless settled against it. It then appealed to the Common Pleas of Dauphin county. Its specifications of objection were, 1.. That the companies are not coal companies. 2. Because the tax is claimed on coal which the companies did not mine nor purchase and sell. 3. Because the companies have not, and do not possess the corporate right or privilege to mine, or to purchase and sell coal, and, therefore, not liable to a tax on their corporate franchises, created by or used within this Commonwealth, of three cents per ton on coal, under the 7th section of the Act of April 24th 1874, under which said account was settled.
    The cases -were tried before Pearson, P. J., without a jury, in pursuance of agreements filed under the Act of April 22d 1874, and the facts found by him with reference to the acts of incorporation as above stated.
    . In an opinion the court, inter alia, said: .
    “Although interdicted from the privilege of mining or dealing in coal, in the ordinary method of buying, selling or mining, it 'is impossible to doubt from the charter of this company that it purchased its large body of land in the coal regions with the view of making profit out of the coal on its land. It is to cause the same to be leased and worked, the veins to be opened, schutes and breakers to be built, screens to be erected, &c., and do the various acts usually attendant on starting coal works. After this preparation the company was not to work the mines, but it is very clear that they were to be let out to others. The company could neither buy nor sell, but could be paid a royalty for each ton mined and received by its tenants.
    “It is impossible to doubt but that the coal was mined on the land of this company by unincorporated associations, partnerships or individuals within the very letter of the Act of 1874, as already cited. Although not coming within any Act of Assembly in force when this company was incorporated, yet there was no provision in the charter prohibiting a tax law to be passed imposing a tax on the coal mined by others on this company’s land and holding it responsible for the tax thereon, and this has been done in clear language.
    “ The only remaining question arises under the Act of the 2d day. of April 1860, incorporating the Rausch Creek Company. Is this tax now claimed imposed on the capital stock or dividends of the company ? It is certainly distinguishable from a tax on capital stock. This is on the coal mined by others by the ton. It is not what is known in this state as a tax on ‘ capital stock,’ nor is it what we generally understand by a tax on ‘ dividends.’ That has a well-settled meaning in Pennsylvania. If the power of taxation is to be taken away from the state it should be by clear and unequivocal expressions, not by mere implication. Another reason exists. The charter of the Rausch Creek Company was granted after the amendment to the Constitution in 1857, which secures to the legislature the power to alter, revoke or annul any charter of incorporation whenever in their opinion it shall be injurious to the citizens. It might be well said that the prohibition from taxing one company equally with another was unfair, and should not be practised or tolerated. * * * On the whole we are clearly of the opinion that this corporation is subject to taxation in the mode imposed by the accounting department and for .the sum fixed by it.”
    The court then entered judgment for the Commonwealth for $1984.06. The company took this writ, and alleged that the court erred in this entry of judgment.

      Greorge Lear, for plaintiff in error.
    The question in these cases involves the proper construction of the seventh section of the Act of April 24th 1874. The error of the court is in holding that all corporations owning land upon which unincorporated associations, partnerships and individuals mine coal, are liable to a tax of three cents on each ton of coal mined on the land; and that the purchase of land, preparing it for mining and leasing it for a royalty constitute the purchase and sale of coal.
    The fourth section of the act incorporating the Rausch Creek Company provides that the company shall not have mining or banking privileges. The corporate right to mine is certainly not given where it is expressly withheld. Corporate rights are not to be presumed or implied. Without the corporate right to mine or to purchase and sell coal the company is not liable under the Act of 1874. Mining is expressly prohibited; to purchase or to sell is not sufficient; it must do both.
    The purchase of land containing coal, and leasing the same to an unincorporated association, partnership or individual, or to a corporation, to mine the coal upon it at a royalty to be paid to the owner, is not mining or its equivalent. To purchase land containing coal, and to sell it as. a product separated from the land would imply the right to mine, which is expressly denied in the charters. Of course, it cannot mean that to purchase the land and sell it again, with coal beneath the surface, is the right to purchase and sell coal; for that is no more the purchase and sale of coal than it is the purchase and sale of timber, if there be trees growing on the land. To purchase the land, and lease the veins at a rent or royalty to lessees who mine the coal and sell it, do not constitute the'sale and disposal of the products of the land within the mean- • ing of the charters. This tax is on the franchise. The coi'porate right to mine and to purchase and sell coal constitutes a corporation of a certain class, and without being in that class the claim to the tax cannot be sustained: Kittanning Coal Co. v. Commonwealth, 29 P. F. Smith 100. This company does not come within the class, and is not described in the act imposing the tax.

      Lyman D. Gilbert, Deputy Attorney-General, and Henry W. Palmer, Attorney-General, for the Commonwealth.
    The seventh section of the Act of 1874, has already received a judicial construction in the case of the Kittanning Coal Company v. Commonwealth, supra. As there decided, the tax in dispute was imposed upon the corporate franchise of corporations having the privilege to mine or to purchase and sell coal. The intention of this section was to tax corporations in respect to the coal mined; or, if no mining was done by them, in respect to the coal they trafficked in. The coal itself is untaxecl, and its amount is computed for no purpose except to measure the extent to which the tax is levied upon the corporate franchise. It is true this corporation does not have mining privileges, but mining corporations are only one of the classes of corporations taxed by that section. Another class that is there taxed, consists of those having corporate rights to make merchandise of coal, and to this class this company belongs. It has an undoubted corporate privilege within certain limits to buy and sell coal lands; to prove and open veins of coal, to prepare the same to be worked and leased and lease them. The kind of lease it can thus make depends entirely upon its discretion. It may be for a fixed sum, or it may be as in this instance for a royalty paid upon each ton of coal mined by the lessee. But in either event the lease so made amounts to a sale of coal, and the lessor, in the contemplation of this tax law, becomes a vendor of the coal: Lykens Valley Coal Co. v. Dock, 12 P. F. Smith 238; Tiley v. Moyers, 7 Wright 404; Appeal of Stoughton et al., 7 Norris 201.
    The coal, in contemplation of law, is detached from the real estate when the right to the coal has been parted with, and is sold as coal, and not as coal land. Where the owner of the coal land has sold the right to take all the coal that is in his land, and retained the land itself, the owner of the land and the owner of the coal are each taxable according to their several interests: Armstrong v. Caldwell, 3 P. F. Smith 284; Logan v. County, 5 Casey 373. The Act of 24th April 1874, intended to tax corporations trafficking in coal in respect to all coal mined upon their lands by ‘£ any unincorported association, partnership or individual, under any lease, contract, grant or mining privilege” from the corporation, and this corporation has the corporate right to traffic in coal within the meaning of that tax section.

      May 31st 1880.
   Mr. Justice Trunkey

delivered the opinion of the court,

Upon all corporations, having the right to mine, or to purchase and sell coal, the Act of 1874 imposed a tax of three cents for every ton mined or purchased, and required returns of the quantity of such coal to be made by the corporations to the auditor general; and also like tax on “ the number of tons of coal that shall be mined by any unincorporated association, partnership or individual, under any lease, contract, grant or mining privilege, upon the property of which the company making such report is the owner or lessee, or has any mining or coal privileges or interest therein.” No unincorporated person, or association of persons, mining, or purchasing and selling coal, is liable to the tax. The object of the law is to reach every corporation which purchases and sells coal, which mines coal on its own land or land it has leased, or which causes coal to be mined under a lease, contract, grant or mining privilege, to unincorporated persons on property that it owns, or has a coal privilege or interest therein.

This plaintiff in error has extensive coal interests. It has the corporate right to own coal lands, to open the veins of coal, to erect all proper buildings, machinery and improvements for mining, to construct a railroad, and when the veins are prepared to be worked, it may lease them on such terms as may be agreed between it and its lessees. It leased for a stipulated sum for each ton mined. Having no mining privilege, nor fight to purchase and sell coal, “in the ordinary method of buying, selling or mining,” in a critical argument, it claims non-liability to the tax, because the literal meaning of the words employed in the first clause of the seventh section, do not require it to make returns to the auditor general. But it is an owner of coal lands, with corporate coal privileges and interests therein, w'hich it leased to natural persons for mining, and we cannot doubt that it is plainly within the intendment of the statute. Here, if anywhere, the rule should apply that “ statutes are to be construed so as may best effectuate the intention of the makers, which sometimes may be collected from the cause or occasion of passing the statute, and, when discovered, it ought to be followed with judgment and discretion in the construction, though that.construction may seem contrary to the letter of the statute.”

We think the learned judge of the Common Pleas was clearly right in his conclusions and on his opinion

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Schriver versus Eckenrode.
    1. An action will lie for the breach of a parol contract concerning lands though the contract be such that specific performance of it cannot be enforced.
    2. S. purchased from the assignee of E., for the benefit of creditors, a farm which E. by parol guarantied contained a certain number of acres. S. paid to the assignor the full amount of the purchase-money, and received a deed for the farm which conveyed a less number of acres. . In an action by S. against E. on his parol guaranty, Held, that S. could recover. The Statute of Erauds has no application to such a case.
    3. AlthoughE. had made an assignment of the land, for the benefit of creditors, there was such an interest remaining in him as was sufficient to support the guaranty; in other words, he was not a mere volunteer.
    4. A writ of error should not be taken to a judgment obtained on a single issue where there are other issues raised by the pleadings which are yet to be tried.
    5. In the trial of a case the defendant pleaded specially a former recovery, and the plaintiff in his replication prayed that the same might “ be inquired of by the record.” The court entered judgment for the defendant, but there was no trial on the general issue which was also pleaded. In reviewing the case on a writ of error, the Supreme Court, presuming that the issues of fact had been disposed of, reversed the judgment and entered judgment for plaintiff without a venire or procedendo. The court below then granted leave to the plaintiff to issue execution. Held, that this was error, that the effect of the judgment of the Supreme Court on the special plea must be held as only an adjudication that the former action is no bar to the present action.
    May 19th 1880.
    ' Before Mercuk, Gordon, Paxson, Trunkey and Sterrett, JJ. Sharswood, C. J., and Green, J., absent.
    Error to the Court of Common Pleas of Adams county: Of May Term 1880, No. 90.
    Assumpsit by George I. Schriver against Elijah Eckenrode to recover the value of the difference between the represented and the actual value of certain land sold by the assignee of defendant to the plaintiff.
    The plaintiff declared upon a contract of guarantee by the defendant, that the tract of land in dispute, purchased by plaintiff from defendant’s assignee for the benefit of creditors, contained one hundred and forty-four acres, while in fact it contained only one hundred and thirty-two acres and a fraction. In a former action for deceit, upon the same claim, the verdict was for defendant, and the latter pleaded specially “former recovery,” upon which issue judgment was entered in the court below for defendant, which judgment was afterwards reversed by this court, and “judgment entered for the plaintiff on the special plea.” (See report of case in 6 Norris 213.) No venire nor procedendo was awarded in the judgment of the Supreme Court. After the return of,the record, to the court below leave was obtained from said court to issue execution to enforce the judgment as entered by the Supreme Court. A rule taken by defendant to show cause why the execution should not be set aside was discharged by the court. A writ of error was again taken, and this court reversed the order of the court below awarding execution and discharging the rule to set it aside, and a procedendo was awarded, the following opinion being filed by Mr. Justice Trunkey, on June 9th 1879:
    The defendant pleaded non assumpsit under which he could have proved a former recovery. Afterwards he specially pleaded former recovery, to which the plaintiff replied and prayed that the same might “ be inquired of by the record.” The parties seem to have submitted, informally, the latter issue to the court, and a decision was made in favor of'defendant, which was reversed in this court and judgment entered upon the special plea for the plaintiff. Believing the issues of fact had been disposed of before the case was brought here, the point presented was considered. We did not apprehend the real state of the cause, else another course would probably have been adopted, though the opinion and judgment could not have been different if rendered at all. The parties did not file an agreement dispensing with a jury and submitting to the court, and there has been no trial in any mode known to the law. Hence, by their unusual procedure, they have obtained a formal judgment upon a single question which ought to have been tried with others of fact, to be followed by a lawful trial, and, possibly, more writs of error. The delay and costs will be persuasive that it is unprofitable to obtain a judicial determination of such questions by piece-meal. Nor is it always safe, for had there been an actual trial how could it be said every question of fact was not disposed of?
    Upon return of the record execution was awarded to the plaintiff. There was nothing to authorize this action. At most the j.udgment entitled him to an inquiry of damages, and in justice not to that. The pleadings raised the general issue which put upon the plaintiff the burden of proving his claim ; and the defendant had waived nothing, and had made no express or implied agreement that the court should examine any fact save one, and that by inspection of the record. By concerted action of the parties — one could not have done it alone — the court was induced to give judgment on the special plea. Neither could have intended that to settle the question of indebtedness or its amount, for they made no agreement to that effect, and the general issue remained of record. Therefore, the judgment for plaintiff upon the special plea must be held as only an adjudication that the former action is no bar to recovery in this. To suffer it to go farther would give one party an advantage to which he is not justly entitled.
    The order of the court awarding a, fieri facias is reversed, and said writ set aside; record remitted and procedendo awarded. ¿

      At the trial of the present case before McClean, P. J., the plaintiff produced evidencé in substance as follows: That plaintiff had purchased the farm in dispute from Durburow, the assignee, for the benefit of creditors of Eckenrode; that he went over the farm with Eckenrode, who was then in possession, and who then stated to him that there were one hundred and forty-four acres in the tract, and that the price was $5000. At this time the assignee was not present, but Eckenrode assured plaintiff that he had authority to sell and that Durburow would agree to any arrangement he Avould make, and that the articles could be made with Durburow. Subsequently the parties met again, when the assignee was present, when Eckenrode repeated the statement that the farm contained one hundred and forty-four acres. Schriver then made a calculation at $31.25 per acre for one hundred and forty-four acres, making $4500, and, showing it to Eckenrode, asked if he was sure he had one hundred and forty-four acres, and he replied yes, he would guarantee it. Schriver then offered $4500 to the assignee for the farm, who remarked that he would sell the land as he had advertised it, which was one hundred and forty acres more or less, that he would not guarantee what it contained, as he did not have the deeds in his possession. He afterwards agreed to accept Schriver’s offer, and Schriver and Durburow entered into an agreement for the sale of the farm for $4500.
    The plaintiff took possession of the farm April 1st 1873, and paid his hand money, but the assignee, Durburow, had not prepared the deed of conveyance, and it was not delivered for some weeks afterwards, when it was left at Schriver’s house in his absence. Pie examined it on his return home, and then found that he had in the farm hut one hundred and thirty-two acres and one hundred and twenty-six perches. In the spring of 1874 Schriver paid the balance of his purchase-money to Durburow. He claimed a deduction on account af the deficiency, but was advised by counsel that he could not withhold it from the assignee, with whom he had no covenant as to the quantity of land.
    The plaintiff having closed his case, the defendant moved for a nonsuit, which the court granted, and subsequently, on motion and after ai-gument, refused to take off. This refusal was assigned for error by plaintiff, who took this writ.

      R. Gr. McQr&ary, for plaintiff in error.
    The plaintiff’s case, as laid in his narr., was fully made out by his testimony. He proved an agreement upon a valuable consideration; a breach of the defendant’s undertaking; and resulting damage to himself. The promise or guarantee declared on and proved was not for the debt or default of another, nor was if for any estate in or out of lands, and therefore not affected by the Statute of Frauds. It was a separate and independent agreement upon a consideration moving between the parties to it concerning a matter about which it was competent for them to contract: Arnold v. Steadman, 9 Wright 186. This is not like a claim by vendee against his vendor- for deficiency in land. A parol promise or engagement is, if on valuable consideration, in cases not affected by the Statute of Frauds, as binding and enforceable as a specialty: Shoenberger’s Executors v. Zook, 10 Casey 24.

      David Wills, for defendant in error.
    Where the contract for the sale of real estate is complete or executed, and the defendant induced the plaintiff to enter into it by means of fraudulent misrepresentations, an action upon the case for deceit is the proper remedy: Chitty on Contracts *311. For fraudulent representations not introduced into a written contract between the parties respecting the subject-matter of the representations, case is the proper remedy, if any: 1 Chitty’s Pleading *137, 8th Am. ed.; 1 Id. *154, 16th Am. ed.; Kreiter v. Bomberger, 1 Norris 59. The execution of a conveyance is the consummation of a purchase; after which the parties have no recourse to each other except for imposition or fraud: Baily v. Snyder, 13 S. & R. 160; Frederick v. Campbell, Id. 136; McLelland v. Creswell, Id. 143; Phillips v. Scott, 2 Watts 318; Galbraith v. Galbraith; 6 Id. 112; Cronister v. Cronister, 1 W. & S. 442; Farmers’ and Mechanics’ Bank v. Galbraith, 10 Barr 490 ; Jones v. Wood, 4 Harris 25; Wilson v. McNeal, 10 Watts 422; Creigh v. Beelin, 1 W. & S. 83; Gregory v. Griffin, 1 Barr 208.
    The claim is against the vendor, because it is for a deficiency. The written agreement does not warrant the exact number of acres. The deed was accepted for a specific number of acres. The written contract must be complete in itself without the aid of parol testimony. The attempt of the plaintiff is to modify or change the agreement by parol: Soles v. Hickman, 8 Harris 180; Ferguson v. Stover, 9 Casey 411; Smith’s Appeal, 19 P. F. Smith 474. The assignee of the defendant was his representative, enjoying his rights only and no others, and bound where he would be bound. He was not the representative of creditors, and not clothed with their powers. He was but a volunteer and not a bona fide purchaser for value: Twelves v. Williams, 3 Whart. 485; Knowles v. Lord, 4 Id. 500; Luckenback v. Brickenstine, 5 W. & S. 145; Vandyke v. Christ, 7 Id. 373; Bullitt & Fairthorne v. M. E. Church, 2 Casey 108; Mellon’s Appeal, 8 Id. 121; Fulton’s Estate, 1 P. F. Smith 204; Spademan v. Ott, 15 Id. 131; Jordan v. Sherlock, 3 Norris 366. The contract of a guarantor is accessory and conditional. It creates only a contingent liability. The principal must be first pursued before the liability is fixed: Chitty on Contracts 499; Kramph’s Executrix v. Hatz’s Executor, 2 P. F. Smith 525.

      June 21st 1880.
   Mr. Justice Gordon

delivered the opinion of the court,

If the court ordered the nonsuit, in this case, under the impression that the defendant’s parol guaranty could not be enforced because of the Statute of Frauds and Perjuries it made a mistake. In this state it is well-settled law that an action will lie upon parol contracts concerning lands, though they be such that specific performance of them will not be enforced. Such is the doctrine of Thompson v. Shepler, 22 P. F. Smith 160, and of Frederick v. Campbell, 13 S. & R. 136. The latter ease holding that, in an action upon a bond for purchase-money, parol evidence was admissible to show that at the time of the execution of the deed the vendor declared that he had good title to two hundred and twenty-five acres of land and would warrant that quantity. Now Eckenrode did expressly warrant that the tract of land, then about to be conveyed, did contain one hundred and forty-four acres, and though he had made an assignment of the premises to Durburow, for the benefit of his creditors, yet there was such an interest remaining in him as was sufficient to support the undertaking here alleged; in other words, he was not a mere volunteer.

Thus, the very nature of the alleged contract between these parties was such that, had it been in'writing, specific execution of it could not have been compelled, for it was not intended that the deficiency should be made good in land. Schriver was about to pay $4500 fór a certain defined tract of land, and the warranty could have meant nothing more than this, that if there should turn out to be a deficiency in the guaranteed amount of land, Eckenrode would make it good, not in land but in money. Let us now suppose the plaintiff to have purchased on the faith of the agreement of the defendant that the farm should contain one hundred and forty-four acres, we have, then, this condition of affairs; the plaintiff has been obliged to pay the whole amount of the purchase-money to the assignee, who, of course, was not bound by the gfiaranty, and yet he gets but one hundred and thirty-two acres, whilst the price paid for the fourteen acres, which the defendant undertook to see that he should have, has, as we discover from the final account of the assignee, gone into Eckenrode’s pockets. This is neither just nor lawful, and if the jury should find, as they may find, the case to be as above supposed, this money honestly belongs to Schriver, and he ought to have it.

The exception which embraces the ruling of the court on the question of the exclusion of evidence proposed by the plaintiff is not sustained.

The judgment is reversed, and a new venire is awarded.


author: Mr. Justice Paxson

text:
    Elder’s Appeal. McDivit’s Estate.
    A. was the executor of his father' and authorized to sell his real estate. He agreed, in 1864, with his sisters B., O., D. and E., to convey to them certain real estate, “ to hold their titles to the extent of their respective interests in the estate” of their deceased father. In pursuance of this agreement, in 1866, a deed was made accordingly, and on the same day they reconveyed to A. the deed, reciting that “ the interest hereby conveyed to the said grantee is as §7473.51 is to §2619.22 for the said B., for the like sum of §2619.22 for the said C., the like sum of §2619.22 for the said D., and the sum of §4669.60 for the said E., the sum of §20,002.96 being the total amount of the respective interests of the said parties in the said real estate.” On the 1st of October 1875, the administrator of A. agreed with B., 0., D. and E. that the above amounts “ shall be regarded as the amounts due to said parties by A., in full and fina-l settlement of their respective shares of their father’s estate, out of the estate of A., and for the payment of which the estate of A. is regarded as liable.” Held, that this latter agreement liquidated the claims of the sisters, and converted the same from an interest in the land to a claim against the estate of A., and that in the distribution of the proceeds of his estate they were entitled to interest on their claims from October 1st 1875, the same as other creditors were entitled to interest on their claims.
    May 19th 1880.
    Before Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Sharswood, O. J., and Green, J., absent.
    Appeal from the Orphans’ Court of Adams county: Of May Term 1880, No. 116.
    Appeal of James A. Elder, a creditor of Joseph P. McDivit, deceased, from the decree of the court allowing interest on certain claims made in the distribution of the estate of said decedent. James McDivit died in 1858 leaving a will wherein he directed his property, real and personal, to he sold by his executor, and .appointed his son, Joseph P. McDivit, his sole executor. On the 1st of July 1864 the said executor entered into an agreement, wherein he agreed to sell and convey to Alexander Rider, Mary McDivit, Martha McDivit and Julia J. McDivit, certain portions of the real estate of James McDivit, deceased, the said Rider to pay $2500, and the other four to hold their titles to the extent of money paid’ and their respective interests in the estate of the aforesaid decedent, James McDivit. It was also agreed “ by and between all the parties to the foregoing agreement, that when the titles are made for the several tracts of land mentioned in the said agreement that the parties of the second part, grantees in the said deeds, shall convey to the said Joseph P. McDivit an interest in the share with themselves in the several tracts, each party to hold to the extent of money paid on said tracts or legacies due or coming due to them under the will of decedent, the extent of the several and respective interests of the holders to he designated upon the back of the deeds, and all the rents, issues and profits accruing from April 1st 1864 in the premises above described, to be settled and divided between the parties according to their several and respective interests in the property.”

      On the 2d of August 1866, in pursuance of the above agreement, the said Joseph P. McDivit conveyed to the parties of the second part in said agreement the real estate therein mentioned, and on the same day, for the consideration of $7473.60, the said grantees reconveyed the same to Joseph P. McDivit, “ together with all and singular the buildings and improvements thereon made or erected, profits, commodities, advantages, emoluments, hereditaments and appurtenances whatever, to the said described undivided interest in said tracts of land belonging, or in anywise appertaining, and the reversions, remainders, rents, issues and profits thereof; also all the estate, right, title, interest, use, possession, property, claim and demand whatsoever, of them the said parties of the first part, in law and in equity, or otherwise, howsoever, of, in, to or out of the same, to have and to hold the said undivided interest in the tracts of land as above described, and the premises hereby granted, mentioned or intended so to be, with the appurtenances, unto the aforesaid Joseph P. McDivit, his heirs and assigns for ever, to his only proper use, benefit and behoof, and to and for no other intent, meaning or purpose whatsoever.
    “The interest hereby conveyed to the said grantee is as $7473.51' for the said Joseph P. McDivit is to $2619.92 for the said Mary McDivit, the like sum of $2619.92 for the said Martha McDivit, the like sum of $2619.92 for the said Julia J. McDivit, and the sum of $4669.69 for the said Sarah Rider, the sum of $20,002.96 being the total amount of the value of the respective interests of the said parties in the real estate hereinbefore described, and of certain real estate in Maryland, adjoining first described tract.”
    On the 1st of October 1875 an agreement (called agreement Z) was entered into, which, after a recital of the foregoing facts and deeds, proceeded, “ And whereas Joseph P. McDivit is now deceased, and letters of administration on his estate have been granted to Mary J. McDivit and James A. Elder, and it is desired to adjust amicably the respective amounts due to the legatee and devisees under the will of James McDivit and their representatives, it is hereby agreed by and between Martha McDivit, Julia J. McDivit and Alexander J. Rider, executor of the will of Sarah Rider, deceased, on the one part, and Mary J. McDivit and James A. Elder, administrators of the estate of Joseph P. McDivit, as follows : The respective amounts mentioned in connection with the respective names in said deed, to wit, Mary McDivit, $2619.92; Martha McDivit, $2619.92; Julia J. McDivit, $2619.92; Sarah Rider, $4669.60, shall be regarded as the amounts due and coming to said parties by said Joseph P. McDivit, as executor of the estate of James McDivit, in full and final settlement of their respective shares, parts, portions and legacies out of the estate real, personal and mixed, out of the estate of James McDivit, deceased, and for the payment of which the estate of Joseph P. McDivit. is regarded as liable, and these respective amounts shall be paid to said parties out of the estate of Joseph P. McDivit, if upon a final settlement thereof it be solvent, and the said real estate sell for $20,002.96; but if said real estate be sold for less or more than this last-mentioned amount, then the amounts of indebtedness are to be increased or decreased accordingly in a proportionate rate; the part and portion of said Mary McDivit, now deceased, is to be paid to the persons legally entitled thereto.
    “And on the receipt of these respective sums after a proportionate adjustment ascertained from a sale of said real estate, the said parties receiving said moneys, agree on their part to make, execute and deliver to the purchasers of said real estate, or to whomsoever the said administrators’ of Joseph P. McDivit desire, a full and complete quit-claim deed of all and every interest which they may have in said real estate, so that the purchaser or holder thereof shall hold. it free and clear from any claim which possibly might exist in any persons by reason of what is contained in said deed, executed and delivered to Joseph P. McDivit, bearing date August 2d 1866.”
    A portion of the real estate of Joseph P. McDivit was sold, and the fund brought into court for distribution. The claims of Martha and Julia McDivit, Rider and the representative of Mary McDivit were presented to the auditor, and he found that the relation between said parties and the estate of Joseph P. McDivit was that of debtor and creditor, and allowed them a dividend. Subsequently, the remainder of the real estate of said Joseph P. McDivit was sold, and a second auditor appointed to distribute the fund arising from said sale. The auditor distributed the balance in the hands of the administrators, pro rata, to all the creditors. Exceptions were filed to this report, which the court, Herman, P. J., of the Ninth Judicial District, dismissed, in an opinion, saying:
    “ That the sisters of Joseph P. McDivit retained an interest in the land described in their deed to him of August 2d 1866, is, I believe, clear, but the effect of the agreement of October 1st 1875 was to extinguish that interest by converting it into an indebtedness against his estate, and fixing the method of ascertaining the amount to which each sister should be entitled. The parties to this agreement were fully competent to make it, and it was doubtless to the best interest of all the parties, as well as the creditors of Joseph, that the matter should have been settled in this way. As soon as the agreement was made, the sisters stood in the relation of creditors to Joseph’s estate, as much entitled to be paid as his other creditors, and as much entitled to interest for the delay of payment.
    “ In ascertaining the amount of this indebtedness, the whole amount of sales of all the land sold by the administrators, must be taken into account. Having in this way ascertained the amounts due to each, interest should be allowed from October 1st 1875, the date of the agreement. Then, as the sisters did not receive on the former audit a pro rata on the full amounts of their respective claims, this deficiency should he first made up to them out of the fund now for distribution, so as to equalize them with the other creditors, and, after this has been done, a pro rata with the other creditors should be awarded to them on the remainder of their claims. * * *
    June 19th 1880.
    “And now, to wit, September 22d 1879, the auditor’s report is hereby re-committed to same auditor, with instructions to modify and correct his report in accordance with this opinion.”
    The auditor then allowed interest on said claims from the date of the agreement, October 1st 1875 to July 12th 1879.
    Elder, who was a creditor, took tips appeal, and alleged that the court erred in allowing interest.

      W. A. Duncan, for appellant. —
    The agreement does not stipulate for interest on the claims adjusted. The products, “rents, issues, profits,” of the lands, out of which these claims arise, are not accounted for by the administrators in their accounts, and are not included in the funds distributed. The claimants having an interest in the lands could not claim interest until the lands were sold. The estate being insolvent this agreement cannot bind non-assenting- creditors. These claimants were only to become creditors upon executing to purchasers quit-claim deeds.

      David Wills, for appellees.
    The claims of the appellees were debts, for the payment of which the estate of Joseph P. McDivit was liable. It was liable for the payment of them at his death. But the parties, by agreement, determined the character of them, and the appellees claimed interest from the date of the agreement, to wit, October 1st 1875 to July 12th 1879, and the court decreed it to them. Why should their claims not be entitled to interest? The fact that they could not be paid until the land was sold, does not prevent them from bearing interest. No payment was made on the other indebtedness until the land was sold, but this did not stop the running of interest. It is to be presumed that the decedent settled with the appellees, and paid them the interest on their claims prior to his death. They make no claim for interest further back than the date of the agreement. The appellees have not an interest in the lands, and have not received any share of the rents, issues and profits, and if not allowed interest would not be placed on an equality with the other creditors of the estate.
   Mr. Justice Paxson

delivered the opinion of the court,

This case is singular in its obscurity. This peculiarity runs all through it, and is nowhere more apparent than in the agreements and deeds of the parties upon which this litigation is based. Nor does the record, as printed, throw much light upon the case. The appellant appeals as a creditor of the estate of Joseph P. McDivit, yet, there is not a word in his paper-book to show that he is a creditor, and, but for the admission in the counter-statement of the appellees, we would be justified in dismissing his appeal for that reason. A portion only of the auditor’s report is printed, and from it we can form.but an imperfect idea of the condition of the estate, and of the position of the respective claimants thereon. If our conclusions .are not as satisfactory as they might be, it is owing to the imperfect manner in which the ca'se is presented, and the feeble light thrown upon it by the proceedings below.

There appears to be only one question, viz., that the court erred in allowing interest on the claim of the appellees. It is as clear as anything can be in such an obscure ease, that under the agreement of July 1st 1864, and the deed of August 2d 1866, the appellees retained an interest in the land conveyed by them to Joseph P. McDivit. The amount of their interests, respectively, was estimated in dollars merely for the purpose of showing the proportion or share owned by each. . Thus, the whole was valued at $20,002.96 ; the interest of Mary McDivit was $2619.92, that is to say, her interest in 'the property was in the precise proportion of $2619.92 to $20,002.96. The agreement of July 1st 1864, provides that the rents-, issues and profits accruing from April 1st 1864, should be divided between the parties according to their several and respective interests in the property. The deed of 1866 is silent as to the profits. Agreement “Z” was made on the 1st of October 1875, between the appellant as administrator of the said Joseph P. McDivit and the appellees, and liquidates the interests of the- said appellees, and converts the same from an interest in the land to a claim against the estate of McDivit. The agreement means this or nothing. It says that the respective amounts “ shall be regarded as the amounts due and coming to said parties by said Joseph P. McDivit, as executor of the estate of James McDivit, in full, and final settlement of their respective shares, parts, portions and legacies out of the estate, real, personal and mixed of James McDivit, deceased, and for the payment of which the estate of Joseph P. McDivit is regarded as liable.” This liquidation was subject, however, to the contingency of the real estate selling for $20,002.96. If it sold for less the liquidated claims were to abate proportion ably. But if abated for such reason, why not draw interest ? It is too clear for argument that after the execution of agreement “Z,” the rents, issues and profits belonged to Joseph P. McDivit. The appellees have no claim thereon, as their, interest in the land was turned into a claim against the estate of the deceased executor. They thus became mere creditors of the estate, and as such are as much entitled to interest as are the other creditors.

The decree is affirmed, and the appeal dismissed at the costs of the appellant.

Mr. Justice Gordon, dissented.


text:
    Leibig, Administrator of Zeller, versus Steiner.
    1. Where in charging the jury it was manifest that the judge doubted the truth of the plaintiff’s sole witness of the contract in dispute, but as clearly ’left her credibility to the jury and repeatedly reminded them that they were to determine the facts, the Supreme Court will not reverse.
    2. Where an examination of the charge reveals a somewhat lengthy review of the testimony on both sides, but no misstatement, although the jury may have been influenced by the opinion of the judge but were neither misled nor bound by his instructions, there is no ground for reversal.
    3. Where declarations as to the terms of a parol contract are admissible.
    May 20th 1880.
    Before Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Siiarswood, C. J., and Green, J., absent.
    Error to the Court of Common Pleas of Lebanon county: Of May Term 1880, No. 181.
    Assumpsit by Andrew Zeller against Frederick W. Steiner.
    After the case was at issue the death of Zeller was suggested and the name of his administrator, L. M. Leibig, substituted.
    The material facts will be found stated in the opinion of the court below and that of this court.
    At the trial, before Henderson, A. L. J., the defendant offered to prove that he had a conversation with Andrew Zeller before he moved to the farm of defendant, and that he told the witness that he was sickly and could not work any more; that he was going to move to the place of his father-in-law; that he had a good chance and could do well there; that he was to live there rent free, could keep two cows, get the feed for one horse or more, get his fire wood and potato land, half the proceeds of chickens and butter, and all that he would have to do was to feed their own stock and defendant’s and work around the yard. This evidence to be followed by proof of other declarations of a similar character, made subsequent to the alleged contract, as testified to by Miss Zeller.
    Objected to, because this is an action on a special contract entered into in the spring of 1874, and the testimony is irrelevant, and the declarations of the plaintiff had reference to a contract entirely different from the one sued upon. Evidence admitted.
    The court charged as follows: “ It is your duty to examine carefully the evidence — to consider the credibility of witnesses; to see. the circumstances under which they testify; to look at their testimony through the bias that may surround them ; whether it is the effect of prejudice, passion or feeling. It is also your duty to reconcile, if possible, discrepancies in the evidence; but above all it is your duty to reach the-truth through the evidence, and that alone. You understand that this is an action brought by Andrew Zeller in his lifetime against Frederick F. Steiner, his father-in-law, to recover on a contract for services rendered by himself and his wife. You have been sworn to try the suit between his administrator and the defendant, simply because since the bringing of this suit Andrew Zeller died, and his administrator has been substituted.
    “ Now you certainly have observed, in the progress of the trial and the discussion of the counsel, that if the plaintiff has any claim at all it is based on the testimony of Kate Zeller, this young girl who testified as to a contract made sometime in 1874 between Steiner and Zeller. Zeller and his wife went to live with Steiner sometime in the spring of 1878. This conversation took place, according to Kate’s testimony, sometime in the spring of 1874. She was then, as it appears, a child between the age of eleven and twelve years.

      “ Her story is straightforward and to the point. That is, she testifies that Mr. Zeller said that he was tired staying there and was going to leave; that Steiner, the father-in-law, objected, and then said he would give him and his wife each $150 a year if they would remain. Just what they were to do — what their work was to be — is not so clearly set out by her, because it appears that, all through, the farm was in possession of a tenant, was farmed by a tenant, Zeller at the time living in a house on the premises in the same yard as the father-in-law. Take this story by itself alone ; does it carry conviction to your mind ? Does it satisfy you of the truth so as to establish the facts making up this contract ? It is not necessary that you should assume or that you should jump to the conclusion that the young girl perjured herself. There may be many reasons given as a foundation for the story that would probably fix upon her young mind a statement that she might carry with her, and give to it a shape that she gives here, if it was not entirely as she told it. Then you must examine the story in in the light of its probabilities.
    “ Is this story true ? Does it satisfy you that Mr. Steiner made a contract of this character with Zeller under the circumstances testified to by this girl ? If he was to pay him and his wife $150 a year each so long as they were to remain there, for what was he to pay it ? Simply for the attendance, such as some of the witnesses spoke of; and, as Kate says, was rendered by Zeller and his wife to Mr. Steiner, the father-in-law. Was it simply for attending to the cows and keeping the yard in order, and the stable clean, and matters of that kind around the yard, for there is nothing said on her part that went beyond that? Is it probable that the amount would be paid, and paid in the manner in which she says it was to be paid, $150 to each ? If you will think a moment, $150 to each in addition to. what they were getting, .you will find it was probably a very large compensation to either the woman'or the man; but under any circumstances a large compensation to a woman living in a separate house in the same yard with her father — whether her father or not: Especially, you might consider the large compensation of the daughter living at home on the place with her father. But the alleged contract was made with the husband. If the contract is established to your satisfaction, it matters not whether it was much or little. It is only with a view that you examine closely the testimony of this girl to see whether or not it satisfies you that such a contract as she testifies to was made between this plaintiff and the defendant. It is the duty of the plaintiff to satisfy you that such was the contract — that a contract was made for this money for which he comes into court to recover.
    “Now, we say that it was not necessary to call this testimony of the witness perjury, if you should not believe it; or if it should not satisfy you of a contract having existed between these parties. When you consider the manner in which she says it was stated by old man Steiner, you may at once find in the surrounding circumstances something upon which to base her story, and out of which it may have grown; if not sufficiently clear to justify you in concluding that it stated a fixed contract between the plaintiff and the defendant. For instance, these parties were living there, as they say — as many of the other witnesses say — and Andrew Zeller and his wife well satisfied with their condition at this place; not there grudgingly, by the testimony of the other witnesses; for one of the witnesses testifies he said he could not get along on his own farm, but he went away cheerfully because he could do better, and because his wife wanted to go home to her father. That is the testimony of Binkley, I think, one of the witnesses who was called and testified as to the inducement for going there, and under which they went there at that time. Now, going there, we say, under these circumstances, with the advantage that was given him by his father-in-law, and .the relation that existed between the father-in-law and the son-in-law and the daughter, at the time this conversation or contract was made, you can see that something might have been said that a child of eleven or twelve years would pick up and mould and give form to five, six or seven years after-wards, from whi'ch a contract might be inferred, or possibly tortured, when it would not be listened to, possibly, at the time. If a little girl of eleven or twelve years of age should come to any one of us and tell us that a contract had been made between two farmers of such and such a character, we would hesitate, probably, in determining in our minds that that story carried the exact features of a contract, or was such as to justify us in giving effect to it as a contract between these parties. But these parties, we see, were living there in the relationship that existed between them ; and when Mr. Zeller said to the old man that he was going back to his own farm, he was probably prompted in so doing because he was too feeble to do his own work. As some’of the witnesses testified in a subsequent part of the case, if he was complaining that he could not get along as well as he wished in doing the work of the old man — when he said he was going back home, the old man Steiner may have -urged them to remain, and may have made it appear that the contract was worth $300 ; something or other might have been said to justify this child, now grown, to tell what she has told here, without the slightest imputation against her character for truth and fairness. What did occur we do not know further than she tells it — further than the evidence we have here.
    “ Now I submit to you whether all the evidence of this case satisfies you that a contract was made at that time to give these parties $300 a year in addition to what they were getting; or, if that was the only evidence in this case, would that justify you in coming to the conclusion that such was the contract ? It is for you to determine. This is evidence — competent evidence;' and if believed, just in the manner in which it was told (and under the circumstances, the child could tell what did occur exactly), it would be competent to establish, and would establish, the contract.
    “Now you come to the other side of the question, and examine it in the light of all the evidence, and there is a different disposition between these parties. You have the fact established by some of these witnesses just referred to that this man went there willingly, not grudgingly. Old man Binkley testified that he could go there rent free; and I think that Mr. Wagner testifies substantially that he told him what the contract was; that he could not do as well on his own farm in Lancaster; could not raise as much, and that his wife wanted him to go back to her father, rent free, and to get other things mentioned; and, under the circumstances, he went.
    “ Then, you have the testimony of the other witnesses — subsequent to the story, as told by this little girl — subsequently to that conversation where the contract or the version of the manner in which Zeller and his wife were living with Frederick Steiner is given of them by several different persons, both of them being present; and you recollect clearly the version — that they were there substantially on shares, rent free. If they were there living in that way, as they said, is it at all probable that the contract of 1874, as testified to by the girl, was made at all, particularly as the fact repeatedly appears in the evidence that the old man was enfeebled; that he was sick much of the time, and his wife a short time, and not able to do much ? Is it at all probable that the contract was as told by this little girl, where so much detail was gone into by Zeller and his wife, how well they were doing, that they would not have mentioned the further fact that they got this $150 a year each in addition to what they had been telling: for you will recollect that, at one time, Zeller was rather complaining that he could not do what he ought to do, but he would let his wife attend to the dairy, &c., and they would get along well in that way.
    “ Then you go along one step further, and you have the testimony of William Steiner, who testifies .clearly and positively to the fact that his sister was anxious that there should be something done to relieve and prevent the claim of rent being made against them in case of the father’s death, or in case they left. Is it not altogether probable that if that was troubling them they would have looked to the other matter — they would have looked to the compensation that was to be given them — for it does not appear that any demand was made at any time while they were there — no evidence of any demand of payment or a claim made, until the bringing of the suit some time after Zeller had left the place, his wife having died in the meantime.
    “All these are mere circumstances for you to consider in weighing this case. Consider it now in the light of good common sense; for, after all, it is a question of appeal to the common sense of the jury.
    “ See from the whole of the evidence whether the contract, as set up by the plaintiff, is made out, so you can conscientiously render a verdict for the amount claimed under it. If it is, it is your duty to give that verdict; otherwise it is your duty to give a verdict in favor of the defendant.” '
    The plaintiff took this writ, his first assignment of error being the admission of the plaintiff’s evidence above, and the remaining assignments the foregoing charge of the court.

      Charles M. Zerbe and W. M. Derr, for plaintiff in error.—
    The charge of the court below was more an argument than a charge. There was no evidence to discredit the girl’s testimony. No one alleged, and there was no attempt to show that she was guilty of perjury. The court alone intimated such a fact. The cjiarge was not a fair exposition of the facts, it was too argumentative and tratiscended the powers of the court. It was made up of conjectures that were not founded on circumstances in evidence, and its expressions were misleading. It sounded strangely to hear the judge speak of Miss Zeller’s testimony as her story, which unquestionably belittled the witness and accused her of falsehood; prejudiced the minds of the jury against her, and being the only witness, did great injury to the rights of the plaintiff. That this charge was erroneous, we refer to the following authorities: Reeves v. Delaware, Lackawanna & Western Railroad Co., 6 Casey 454; Washington Mutual Fire Ins. Co. v. Rosenberger, 6 Norris 207; Greeley v. Thomas, 6 P. F. Smith 35; Parker v. Donaldson, 6 W. & S. 132; Bickham et al. v. Smith, 5 P. F. Smith 335.
    May 31st 1880.

      John Benson, for defendant in error.
    The court left it to the jury to determine, under all the' evidence in the case, whether the contract on which the plaintiff relied was made out or not. Surely there was no error in this. The court may have, in substance, expressed an opinion, but not in specific terms, and that is no ground for reversal. They have the right to leave the whole case, where it is a question of fact, to the jury, and to review all the facts fairly: Heilbruner & Co. v. Wayte, 1 P. F. Smith 259. And to express an opinion upon the facts, if it is not given in the form of a binding direction: Magaw v. Garrett, 1 Casey 322. A judge may give his opinion freely on the weight and value of the evidence, for he is the best and safest adviser of the jury : Repsher v. Wattson, 5 Harris 365; also, see Oyster v. Longnecker, 4 Id. 269; Brown v. Clark, 2 Id. 377; Emmons v. Stahlneeker, 1 Jones 367.
   Mr. Justice Trunkey

delivered the opinion of the court,

It is agreed that there was an express contract. The plaintiff avers it was made in the spring of 1874, about a “year after Zeller moved to Steiner’s farm, and Steiner promised to give Zeller §150 a year, and his wife the same amount for the time they would stay there, from the time they came until the time they left.” This is denied by defendant, who alleges their contract was made before Zeller moved; that Zeller was to pay no rent, have feed for one horse, two cows and potato land; that he and his wife would do the work on the premises, attend their own stock, and' two cows for Steiner; and the butter, eggs and produce to be divided equally between them. It is apparent that the agreement alleged by defendant is consistent with the plaintiff’s claim, for the parties might, subsequent to the original contract, have agreed for an additional consideration of §300 per annum, to be paid to Zeller. Whether they did agree on such further consideration is the real contention.

The plaintiff proved his claim by one witness, Kate Zeller, a granddaughter of one of the parties, and a great-granddaughter of the other, and if her testimony is believed, he is entitled to recover. To repel her statement the defendant was permitted to prove the declarations of Zeller and his wife, made in his presence, before and after the spring of 1874; and they were sufficient to warrant the finding of a contract substantially as claimed by the defendant. Alone, the declarations made before the alleged contract of 1874 amount to nothing, but with those made after, they have weight, .showing that Zeller, all the time he was on Steiner’s farm, asserted a contract in which he made no claim of $800 per annum, nor any other specific sum as its consideration. It was competent to prove those declarations; certainly competent, if it be true, as was objected, that they “had reference to a contract entirely different from the one sued upon.” Whatever the actual contract, it related to the services and compensation of Zeller while he lived on Steiner’s place. One party had as good right to prove the contract which he averred as the other. The first assignment of error is not sustained.

It is urged that the charge, as a whole, was calculated to mislead the jury. If their attention was confined to one view of the case, when there was more than one for them to consider, or if the general tenor of the charge was to mislead, although no particular portion is erroneous, or if those facts only were reviewed which tended to establish one side of the case, or if facts were supposed and submitted, as if proved, when there was no evidence, there is cause for reversal: Reeves v. Railroad Co., 6 Casey 454; Garrett v. Gonter, 6 Wright 143; Parker v. Donaldson, 6 W. & S. 132; Bickham v. Smith, 5 P. F. Smith 335. A judge may give his opinion freely on the weight and value of evidence, for he is the best and safest adviser of the jury; but he has no authority to decide any question of fact, when the party affirming it has sustained his averment by any reasonable proof. Very strong expressions of opinion on the facts are tolerated, indeed sometimes may be necessary. Even entire accuracy in the statement of facts may not be obtained, yet, if the case is left fully and clearly to the jury, under instructions not calculated to mislead, there is no fatal error: Repsher v. Wattson, 5 Harris 365; Bitner v. Bitner, 15 P. F. Smith 347.

As a general rule, that the judge should submit the facts, without expressing his opinion thereon, and without making an argument in favor of either side, is safer, more satisfactory, and better accords with the rights of parties to have disputed facts decided by the jury. It is difficult for a judge to act as an advocate for one of the parties without giving just cause of offence. Exceptional cases arise where it is the duty of the judge to express his opinion of the -facts and guide the minds of the jury to a correct view of the evidence; and, therefore, it has been settled that when he does so without misleading or controlling them in the disposition of the facts, there is no ground for reversing. Often the court below is better able than the court of review to judge of the propriety or necessity of commenting on the evidence or the character of witnesses. The address of counsel to the jury may have been the moving cause,’and of that a court of review would know nothing. For instance, if a witness testify to a decisive fact, yet inconsistent with other testimony, and counsel presses on the jury that if they disbelieve the witness he is perjured, the court could properly* inform the jury that their adverse verdict would not convict him of perjury, and that it would only show they thought him mistaken.

We are not convinced that the charge of the learned judge wa& unjust to the plaintiff. That he doubted the truth of the plaintiff’s sole witness of the contract is clear, but he as clearly left her credibility to the jury, and repeatedly reminded them that they were to determine the facts. He spoke of her testimony as “ her story,” and the plaintiff complains that it sounded strangely in the judge, “ belittled the witness, and accused her of falsehood; prejudiced the minds of the jury against her.” If such was the meaning, or if the word was probably so understood, this cause must go back to be tried again. Its first use is in the sentence, “Her story is straightforward and to the point.” Then, after calling attention to what she said, he asks, “Is the story true?” Following with comments on the' testimony and circumstances, he expressly submitted to the jury to determine if there was a contract, as averred by the plaintiff. The context forbids that the jury could have understood the word “story” in any other sense than narrative, and we are satisfied it was not; nor was it intended to be, in the least degree, prejudicial to the witness. An examination of the charge reveals a somewhat lengthy review of the testimony on both sides, but no misstatement. The jury may have been influenced by the opinion of the judge, but they were neither misled nor bound by his instructions. At the outset he advised them of their duty; to examine the evidence; to judge of the credibility of witnesses and consider their surroundings; to reconcile, if possible, discrepancies in the testimony ; but, above all, to reach the truth through the evidence alone; and, in conclusion, said if they could conscientiously find, from the whole evidence, a contract as set up by the plaintiff', it was their duty to render him a verdict, otherwise to find for the defendant.

Judgment affirmed.


author: Mr. Justice Paxson,

text:
    Pennsylvania Railroad Company versus Commonwealth.
    In providing for the taxation of certain corporations, the 4th section of ♦the Act of June 7th 1879 declares : “ If the dividend or dividends made or declared by such company or association as aforesaid, during any year ending with the first Monday of November, amount to six or more than six per centum upon the par value of its capital stock, then the tax to be at the rate of one half mill upon the capital stock for each one per centum of dividend so made or declared ; if no dividend be made or declared, or if the dividend or dividends made or declared do not amount to six per centum upon the par value of said capital stock, then the tax to be at the rate of three mills upon each dollar of a valuation of the said capital stock, made in accordance with the provisions of the second section of this act.” -The 2d section provides: “ In case the dividend or dividends made or declared on either its common or preferred stock during the year ending as aforesaid shall amount to less than six per centum upon the par value of the said common or preferred stock, the treasurer and secretary thereof * * * shall between the first and fifteenth days of November of each-year in which no dividend has been made or declared * * * estimate and appraise the capital stock of such company upon which no dividend has been made or declared * * * at its actual .value in cash, not less, however, than the average price which said stock sold for during said year, and not less than the price or value as indicated or measured by the amount of the dividends made or declared: * * * Provided, that if the auditor general or state treasurer, or either of them, is not satisfied with the valuation so made and returned, they are hereby authorized and empowered to make a valuation thereof, and to settlo an account on the valuation so by them made for the taxes, penalties and interest due the Commonwealth thereon.” On an appeal from a settlement made by said officers, Held, that for the purpose of such an assessment by the officers of the state or the corporation the ‘‘ actual value in cash” of the stock, is to be ascertained by the prices at which it sold between the 1st and the 15th of November, and not by the average sales during the year ending on the first Monday of November.
    May 20th 1880.
    Before Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Sharswood, C. J., and Green, J., absent.
    Error to the Court of Common Pleas of Dauphin county: Of May Term 1880, No. 193.
    In the court below, this was an appeal from the settlement made by the accounting officers of the Commonwealth for tax on capital stock of the Pennsylvania Railroad Company, for the financial year ending the first Monday of November 1879. The defendant was chartered under the laws of Pennsylvania, and. at the time of the settlement of this account, had capital stock of the par value of $68,870,200. On May 2d 1879, it made a dividend of two per cent;, and on November 1st 1879, another dividend of two and one-half per cent.
    The Act of June 7th 1879, Pamph. L. 112, makes the following provisions :—
    Sect. 2. That hereafter, except in the case of banks, savings institutions and foreign insurance companies, it shall be the duty of the president or treasurer of every company now or hereafter incorporated by or under any law of this Commonwealth, and of every company now or hereafter incorporated by any other state or territory of the United States, or foreign government, and doing business in this Commonwealth, or having capital employed in this Commonwealth in the name of any other company or corporation, association or associations, person or persons, or in any other manner, to make report in writing to the auditor-general annually, in the month of November, stating specifically the total authorized capital stock of the company, the whole number of shares of stock, the number of shares of stock issued, the par value of each share, the amount paid into the treasury of the company on each share, the amount of capital paid in, the date, amount and rate per centum of each and every dividend made or declared by their respective corporations during the year ending with the first Monday in said month; and in all cases where any such company shall fail to make or declare any dividend upon either its common or preferred stock during the year ending as aforesaid, or in case the dividend or dividends made or declared on either its common or preferred stock during the year ending as aforesaid shall amount to less than six per centum upon the par value of the said common or preferred stock, the treasurer and secretary thereof, after being duly sworn or affirmed to do and perform the same with fidelity, according to the best of their knowledge and belief, shall, between the first and fifteenth days of November of each year in which no dividend has been made or declared as aforesaid, or in which the dividend Or dividends made or declared upon either its common or preferred stock amounted to less than six per centum upon the par value of said common or preferred stock, estimate and appraise the capital stock of such company upon which no dividend has been made or declared or upon the par value of which the dividend or dividends made or declared amounted to less than six per centum, at its actual value in cash, not less, however, than the average price which said stock sold for during said year, and not less than the price or value as indicated or measured by the amount of the dividends made or declared; and when the same shall have been so truly estimated and appraised, they shall forthwith forward to the auditor-general a certificate thereof, accompanied by a copy of their said oath or affirmation, by them signed, and attested by the magistrate or other person qualified to administer the same: Provided, that if the auditor-general or state treasurer, or either of them, is not satisfied with the valuation so made and returned, they are hereby authorized and empowered to make a valuation thereof, and to settle • an account on the valuation so by them made for the taxes, penalties and interest due the Commonwealth thereon; and any corporation or company dissatisfied with such settlement may appeal therefrom, in the manner now provided by law for appeals from settlement of accounts by. the auditor-general and state treasurer.
    Sect. 4. That every company or association whatever, now or hereafter incorporated by or under any law of this Commonwealth, or now or hereafter incorporated by any other state or territory of the United States, or foreign government, and doing business in this Commonwealth, or having capital employed in this Commonwealth in the name of any other company or corporation, association or associations, person or persons, or in any other manner, except foreign insurance companies, banks and'savings institutions, shall be subject to and pay into the treasury of the Commonwealth annually, a tax to be computed as follows, namely : If the dividend or dividends made or declared by such company or association as aforesaid, during any year ending with the first Monday of November, amount to six or more than six per centum upon the par value of its capital stock, then the tax to be at the rate of one half mill upon the capital stock for each one per centum of dividend so made or declared; if no dividend be made or declared, or if the dividend or dividends made or declared do not amount to six per centum upon the par value of said capital stock, then the tax to be at the rate of, three mills upon each dollar of a valuation of the said capital stock made in accordance with the provisions of the second section of this act; and in case any such company or association shall have more than one kind of capital stock, as, for instance, common and preferred stock, and upon one of said stocks a dividend or dividends amounting to six or more than six per centum upon the par value thereof has been made or declared, and upon the other no dividend has been made or declared, or the dividend or dividends made or' declared thereon amount to less than six per centum upon the par value thereof, then the tax shall be at the rate of one half mill for each one per c.entum of dividend made or declared upon the capital stock, upon the par value of which the dividend or dividends made or declared amount to six or more than six per centum, and in addition thereto, tax shall be charged at the rate of three mills upon each dollar of a valuation, made also in accordance with the provisions of the second section of this act, of the capital stock upon which no dividend was made or declared, or upon the par value of which the dividend or dividends made or declared did not amount to six per centum ; and it shall be the duty of 'the treasurer or other officer having charge of any company or association upon which a tax is imposed by this section of this act, to transmit the amount of said tax to the treasury of the Commonwealth, within fifteen days from thirty-first day of December, in each and every year: Provided, that whenever such corporation or company shall make any profit and add the same to its sinking fund, without a division thereof amongst its stockholders, the amount of the profit thus added to its sinking fund shall be included in the report required by the second section of this act to be made, and for the purpose of this act the same shall be treated as having been divided amongst the stockholders, and shall subject the capital stock to taxation as a dividend: Provided, however, that said money or any part thereof shall be expressly set apart for the payment of debts.
    The dividends of the company in 1879 having been less than six per centum, an appraisement of the value of the capital stock was made by the secretary and treasurer of the company, based upon the' average value of the stock during the year from the first Monday in November 1878 to the first Monday of November 1879, as shown by the sales at the Philadelphia Stock Exchange. This appraisement was made in accordance with the provisions of the second section of the above act. Upon the basis thus taken, the valuation amounted to $51,652,650. The'tax on this amount was $154,957.95, which sum was paid on January 15th 1880. The accounting officers of the state were not satisfied wdth this appraisement, and they made a valuation' of the capital stock based upon its actual value in cash, as ascertained by its selling price in public market during the period extending from the 1st to the 15th day of November 1879. This calculation resulted in a valuation of $66,804,094, on which the tax was $200,412.27, or $45,454.32 over the amount already paid by the company, and this amount said officers settled against the company as the balance due to the Commonwealth. The company appealed from this settlement to the Court of Common Pleas of Dauphin county, and after the case was at issue upon a plea of nil debet, an agreement was filed, wherein it was, inter alia, stipulated :—
    3. That the valuation of stock on which the settlement in this ease was made, was based upon the actual value of the stock in cash, as ascertained by its selling price in public market during the period extending from the first to the fifteenth days of November 1879.
    4. That this case shall be tried by the Court of Common Pleas of Dauphin county, without the intervention of a jury, under the provisions of the Act of Assembly of 22d April 1874, Pamph. L. 1874, p. 109, and the company shall have the right to take an appeal from the settlement made against it by the accounting officers, and to take a w'rit of error to the Supreme Court without the entry of security.
    The court, Henderson, A. L. J., found the foregoing facts, and decided in favor of the Commonwealth for $47,727.03. Exceptions were filed which the court overruled, and judgment was entered on the court’s decision. The defendant then took this writ, and alleged that the court erred in not holding that the true measure for fixing the value of the stock for taxation under the Act oí 1879, for the year, ending the first Monday in November 1879, is the average market value during the said year, when not less than the amount indicated by dividends, and not the average value between the- first and the fifteenth of November 1879.

      James A. Logan and Hall $ Jordan, for plaintiff in error.—
    When, under the second section of the Act of 1879, the dividend equals or exceeds six per cent, during the year ending the first Monday of November, then such dividend is the measure of liability for taxation; but when the dividend is less, then the secretary and treasurer are to appraise the stock at its actual value in cash, hot less, however, than the average price which it “sold for during said year,” and not less than the value indicated by the “amount of the dividends made or declared” within that year.
    The time for making the appraisement is one thing; but the period to be embraced within it is another and quite different thing. For the latter the statute fixes but one neriod, the whole financial year, and neither the state officers nor the company officers can legally take or adopt any other. It is unreasonable to suppose the legislature ever intended to designate a time to be included in the appraisement other than that for which the tax is imposed; and there is nothing in the statute to show it ever so intended. The intent was to first during the year fix the value as determined by the dividends when they showed a value equal to par, or more, by amounting to six per cent, or above, or when this failed, and the stock presumably below par, that an appraisement should fix its actual value within the year as the measure of taxation. Moreover, the date of appraisement thus adopted by the state officers, was within the next succeeding financial year to that now under consideration; and, in the nature of the case, may be included by the officers of the corporation in its return for the-financial year ending on the first Monday of November 1880.
    If the Commonwealth’s position is within the letter it is not within the spirit and intention of the act. The letter must, in the construction of the act, yield to the intention as gathered from the whole body of the act: Potter’s Dwarris on Statutes 189; Rex v. Loxdale, 1 Burr. 447; Commonwealth v. Fraim, 4 Harris 163; Commonwealth v. Navigation Co., 16 P. F. Smith 81; Durousseau v. United States, 6 Cranch 314. If there be any doubt about the proper construction of a statute for raising revenue, such doubt will always be resolved in favor of that construction which conforms to the power of the legislature : Cooley on Taxation 41, 42; Washington Avenue, 19 P. F. Smith 352.

      Lyman H. Grilbert, Deputy Attorney-General, and Henry W. Palmer, Attorney-General, for the Commonwealth-
    The right to make an assessment for taxation is a matter of statutory grant, and without express warrant of law does not exist. Where it has been conferred it must be exercised in the manner in which the legislature directs. These are elementary doctrines of taxation. When a duty of assessing for taxation is laid upon any tax official, the rule of law, unless words to the contrary are used, requires the taxable property to be assessed according to the value it bears at the time when the assessment shall be made.
    June 19th 1880.
    Cooley upon Taxation, p. 261, states: “Every person is therefore to be taxed for the year upon his personalty, estimated as of the time of the assessment, and every parcel of land, according to its value at that time.”
    Accepting this as an accurate statement of the law upon this subject, we contend that where there is a direction to assess it is necessary to use direct and positive language in the taxing statute to justify the assessment being based upon any other value than that which the property represents at the time the assessment is made.
    The Act of 1879, in unmistakable words, requires the assessment to be made “between the first and the fifteenth days of November of each year.” If “ actual value in cash” is equal to or greater than the average price which said stock sold for during said year, and not less than the price or value as indicated or measured by the amount of dividends made or declared, in both instances the “actual value in cash” is to be the price at which the stock shall be assessed, and nothing in the section alters the. rule of law that the value in cash is to be the cash value at the time of the assessment. It is only when the “ actual value in cash” is lower than the value as ascertained by these two tests that it is to be disregarded and the taxable value of the stock is not to be its cash value at the time of the assessment. Whether the method of making the assessment in this case was well or badly chosen is not a question for judicial concern or decision: Kittanning Coal Co. v. Commonwealth, 29 P. F. Smith 100. To the objection that the tax is measured by a period of time in regard to which no tax is imposed, the ready reply is that the legislature has the authority to do so.
   Mr. Justice Paxson,

delivered the opinion of the court,

This case involves but a single question. The Pennsylvania Railroad Company having declared less than six per cent, dividends for the financial year ending on the first Monday of November 1879, it became necessary, under the Act of 7th of June of that year, Parnph. L. 172, to make an appraisement of its capital stock for the purposes of taxation. This was done by the secretary and treasurer, and a return thereM made to the auditor-general’s office. The par value of the stock so returned was $63,870,200, and its cash value $51,652,650. The tax on this sum, at three mills on the dollar, amounted to $154,975.95, which was promptly paid by the company. The value of the stock was fixed by taking its average market value from the first Monday of November 1878, to the first Monday of November 1879.

The auditor-general and state treasurer not being satisfied with ■ the valuation placed upon the stock by the company’s officers, proceeded to make another valuation, as authorized by the second section of the Act of 1879, and fixed its value at $66,804,094, the tax upon which amounts to $200,412.27, being $45,454.32 in excess of the amount paid by the company. This result was obtained by taking its selling price in the public market from the 1st to the 15th of November 1879. The court below sustained the action of the state authorities, and gave judgment against the company for $47,727.03.

The contention on the part of the company is that the stock should have been appraised at its average selling value during the year for which the tax is laid, and not at its value from the 1st to the 15th of November succeeding; in other words, that the stock must be appraised at the average price for which it sold for during the year.

The Act of Assembly does not say so. It requires an appraise* ment to be made between the 1st and 15th day of November, of the stock of non-dividend paying corporations, or those paying less than six per cent., said stock is to be appraised at its cash value, '“not less, however, than the average price which said stock sold for during said year.” If the legislature intended to have the stock appraised at its average price during the year, it was very easy to' have said so. We find nothing in the act from which such intent can be gathered with any reasonable certainty. On the contrary, the use of the words-“ not less, however, than the áverage price which said stock sold for during said year,” necessarily implies the power to appraise the stock at more than its average price during the year. The construction of the act contended for by the company would expunge the words above quoted, or render them nugatory. It is our duty to give them effect if consistent with other portions of the statute. They mean just this: that if the stock of the compapy is lower when the appraisement is made in November than it was during the previous year, it shall be appraised at not less than the average selling price for the year. On the other hand, if it is higher in November, it may be appraised at its increased value. If it be objected to this view that the advantage is all on the side of the state, we may safely concede it to be so. The object of the act was to raise revenue, and. it appears to have been drawn with care, and in the interests of the state.

We are of opinion that the learned judge of the court b.elow ruled the law correctly, and his judgment is accordingly

Affirmed.