author: Mr. Justice Sterrett

text:
    Workman versus Curran.
    1. Pending an action of trespass, to determine the validity of a claim to a right of way, a title to said way cannot be acquired by prescription, by those who claim under the parties, against whom said action was brought.
    2. If between the date of the final judgment in. the action, of trespass and the closing of the way twenty-one years have not elapsed a title by prescription has not been acquired.
    February 24th 1879.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey and Sterrbtt, JJ. Woodward, J., absent. o
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1876, No. 133.
    Trespass on the case by Adele Curran against H. W. Workman for damages for the obstruction of a right of way.
    Plaintiff owned a house on south Front street in Philadelphia. Adjoining this property on the north is a court called “Workman’s Court,” which, together with the land adjoining said court on the north, was owned by defendant. The plaintiff claimed the right of way over this court by prescription.

      On October 9th 1833, the defendant and his brothers and sisters,' then living, who were seised in fee as tenants in common of the locus in quo, brought an action of trespass in the District Court of Philadelphia against Lewis Roberts and Thomas Wilson, the plaintiffs’ predecessors in the title. It was admitted at the trial of this cause at bar that the right of way then in dispute was, and is, the same now here in dispute. That action of trespass was not tried until 16th May 1850. On 20th May 1850, verdict was rendered for Workman et al., plaintiffs, and on 14th September 1850, judgment was entered in favor of the plaintiffs, and .the record having been removed by the defendants to the Supreme Court, the judgment of the court below was affirmed- on 9th February 1852, and on 3d April 1875, the record was remitted to the court below.
    On 30th January 1873, the defendant fenced up the court, and on 2d ApriL1873, plaintiff brought this action.
    The defendant, at the trial, submitted the following points, which the court,'Pratt, J. refused:
    1. That such adverse possession [i. e., peaceable, quiet, adverse possession for a period of twenty-one years] could not exist while the case of Workman v. Roberts was pending, or until the judgment therein was finally affirmed by the Supreme Court.
    2. That the record of said case shows that final judgment therein was rendered by the Supreme Court February 9th 1852, and the evidence shows that the fence, the erection of which led to the institution of this action, was erected January 30th 1873, being within twenty-one years from the entry of such judgment, and therefore plaintiff cannot recover in this action.
    3. That this final judgment of record, unsatisfied and capable of execution at any time, was a continuous and perpetual assertion of right exclusive in defendant and denial of any right on the part of plaintiff by defendant to use and occupy the alley in question, and therefore plaintiff cannot recover in this action.
    The court, inter alia, charged:
    “ I give it to you as the law, which you are bound to take from the court, that if you find from the commencement of this suit, the suit which was begun in 1833, the plaintiff in this case had adverse, uninterrupted, peaceable and quiet possession of the use of this alley, as described in the declaration, and that no notice was given to him of any denial on the part of the defendant of the right, your verdict should be for the plaintiff.”
    The verdict was for plaintiff. After judgment defendant took this writ, and assigned for error, inter alia, the refusal of the above points and the portion of the charge noted.

      Q. Stuart Patterson and George W. Biddle, for plaintiff in error.
    The court should have directed a verdict for defendant, because twenty-one years had not elapsed between the 9th of February 1852, the date of the entry of the final judgment in the case of Workman v. Roberts, and the 30th of January 1873, the date of the erection of the obstruction complained of, and because pending that suit the prescription could not run in favor of plaintiff. The title to an easement can be gained by prescription only where there has been for twenty-one years an actual, adverse, continuous, uninterrupted user under a claim of right. A prescriptive title can always be rebutted by proof of circumstances, tending to show that no grant could have been or probably was made, or that the owner of the servient tenement did not acquiesce: Washburn on Easements 111; Goddard’s Law of Easements 90, 110; Cooper v. Smith, 9 S. & R. 32; Strickler v. Todd, 10 Id. 63; Hoy v. Storrett, 2 Watts 330; Butz v. Ihrie, 1 Rawle 218; Garrett v. Jackson, 8 Harris 335 ; Okeson v. Patterson, 5 Casey 26 ; Pierce v. Cloud, 6 Wright 113 ; Worrall v. Rhoades, 2 Whart. 428; Esling v. Williams, 10 Barr 126 ; Jessup v. Loucks, 5 P. F. Smith 361; Fishing Co. v. Carter, 11 Id. 21; Biddle v. Ash, 2 Ashm. 211.
    And title by prescription will be defeated, if the owner of the servient tenement resists or opposes the user, especially if his resistance is manifested by proceedings at law.
    The maxim is “ Ita quod, nee per vim, nee clam, nec precario:” Washburne on Easements 112. “ The word, ‘ vim,’ means contention of any kind, as, that the enjoyment has been during a period of litigation about the right claimed * * * if the user has been in. this sense not peaceably enjoyed, no easement can be thereby acquired:” Goddard’s Law of Easements 124 ; Eaton v. The Waterworks, 17 Q. B. 267, 269; Livett v. Wilson, 3 L. J. [C. P.J 186; Solomon v. Vintners’ Co., 4 Hurst. & N. 602 ; Stillman v. White Rock Co., 3 Wood. & M. 549; Bealey v. Shaw, 6 East 216.
    So also, the presumption of payment of a debt is conclusively rebutted by proof of pendency of prior legal proceedings for the recovery of the debt, though those prior proceedings were not pressed to judgment: McCullough v. Montgomery, 7 S. & R. 28; Summerville v. Holliday, 1 Watts 518.
    Facts being established their sufficiency to rebut a presumption of law is for the court, not for the jury: Delany v. Robinson, 2 Whart. 503 ; Reed v. Reed, 10 Wright’243.
    In this case, the plaintiff had always kept the alley, which is the locus in quo, open for the use of his tenants in the court. How then could the defendant in error’s user thereof be so injurious to the plaintiff in error, as to call upon him to resist it ?
    No title by prescription could therefore arise, in favor of the defendant in error: Washburne on Easements 89 ; Donnell v. Clark, 19 Me. 174; Thomas v. Marshfield, 13 Pick. 240 ; Cooper v. Smith, 9 S. & R. 33.

      W. Channing Kevin, for defendant in error.
   Mr. Justice Sterrett

delivered the opinion of the court, March 17th 1879.

It is admitted that the right of way, which is the subject of the present contention, is the same that was in controversy in the first action of trespass; and the cardinal question in this case is whether the pendency of that suit was sufficient to repel the presumption, of a grant which otherwise would arise from the long continued use and enjoyment of the way by the defendant in error.

By the verdict and judgment in that case it was conclusively settled that those under whom she claims had no right of way in 1833, when the first suit was brought, and it is not claimed that any has been acquired since, unless it be by an uninterrupted use and enjoyment for over twenty-one years. There is no pretence of right acquired in any other manner ; nor can any claim of right be substantiated on that ground even, unless at least a portion of the period during which the first action was pending be included in the computation. The present suit was brought in less than twenty-one years after the first was determined, and hence no presumption of a grant could arise from the use and enjoyment of the way during that intervening period. It therefore becomes material to determine whether the use by the defendant in error and those under whom she claims could be ripening into a right during the pendency of the first suit, from 1833 until February 9th 1852, when it was finally determined by the judgment of this court. Wha.t then was the effect of the pending action on the respective rights of the parties ?

In this state we have no statute on the subject of private ways, except the Act of April 25th 1850, which prohibits their acquisition through unimproved woodland ; and hence it is necessary to resort to the common law, the principles of which have been recognised as cases from time to time called for their application, but the precise point now under consideration does not appear to have arisen in any of our reported cases.

In Garrett v. Jackson, 8 Harris 331, it is said by Chief Justice Black, that “ where one uses an easement whenever he sees fit, without asking leave and without objection, it is adverse, and an uninterrupted adverse enjoyment for twenty-one years is a title which cannot be disputed. Such enjoyment without evidence to explain when it began, is presumed to have been in pursuance of a grant.” It will be observed that the enjoyment must be adverse as well as uninterrupted, and one of the conditions of adverse enjoyment is that it be without objection. If therefore it is shown that, during the period of alleged acquisition of an easement by use and enjoyment, the owner of the servient tenement resisted such claim or opposed such use, it will negative the claim: Washburn on Easements 112. “It was accordingly held, says the same learned author, that a prescriptive right to divert water from a stream could not be acquired by an enjoyment for the requisite period where it appeared that the party, against whom it was claimed, during that time remonstrated against such diversion and consulted counsel for a prosecution therefor.”

In Nichols v. Aylor, 7 Leigh 546, where one had flowed the lands of another for more than the requisite period, but it appeared the latter had complained and denied his right to do so, it was held that these facts rebutted the presumption of its having been done under a grant. In his opinion, Tucker, President of the Court of Appeals, says, “ the presumption of right or of a grant arises from the long acquiescence of the party, and does not arise where the enjoyment is contested: Bealey v. Shaw, 6 East 216. It would be strange indeed if a grant was to be presumed to have been made by him though he was continually contesting the right, and accordingly in Livett v. Wilson, 3 Bing. 115 (11 E. C. L. R. 64), it is distinctly made an answer to the presumption that the user ‘had been almost always the subject of contest.’ It is also observable in that case that no action had ever been brought asserting the rights of the party, and that his repeated complaints and denial of the title of his adversary were considered as sufficiently rebutting the presumption of a grant.”

Again, where an easement in an aqueduct on the land of an adjoining owner Avas claimed by adverse user, and it appeared that the owner of the servient tenement had forbidden his neighbor to enter, and had ordered him off the land while there for the purpose of repairing the aqueduct, it was held that such verbal orders, though unaccompanied by further acts, were admissible to shoAV an interruption of the easement; and that it was not necessary to use actual force to eject, in order to disturb and break the continuity of possession or use and thus prevent it from ripening into title: Powell v. Bagg, 8 Gray 441. These and other authorities that might be cited, recognise the principle that the presumption of a grant may be rebutted by proof of declarations Avithout evidence of forcible resistance. While the presumption of a grant, 'arising from a long continued, adverse and uninterrupted use and enjoyment operates in analogy to the Statute of Limitations, it differs from the case of title to land claimed by adverse possession. There the owner is disseised and if such disseisin continues long enough the title becomes complete. A mere verbal protest or prohibition to occupy the premises Avill not be sufficient without entry. The OAvner in such case would still be disseised. But title to an easement by adverse user stands on a someAvhat different ground. There the owner remains in possession of the premises. The title rests chiefly on his acquiescence in the adverse use, and the evidence which disproves such acquiescence rebuts the title to.the easement: Smith v. Miller, 11 Gray 145.

In this case the evidence of non-acquiescence during the pendency of the suit was of the most conclusive character. The record of the pending action, furnishes an emphatic denial of right in those under whom the defendant in error claims, and a positive assertion by the plaintiff in error of exclusive right in himself, and this too in the appropriate forum for the determination of such questions. It would be most unreasonable therefore to presume a grant in the face of such conclusive evidence of an open, public denial of the right claimed, and a standing protest of record against its exercise.

The first four assignments of error are sustained. There was also error in that portion of the charge covered by the eighth assignment of error.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Scott versus Kittanning Coal Co.
    1. A contract to deliver fifty thousand tons of coal in a year, the shipments to be made at the rate of six thousand tons per month, at the buyer’s option, upon notices to be furnished on a certain day in each month for the quantity required for the succeeding month, is a severable contract.
    2. Where there has been a part performance of such a contract, and coal has been received, paid for and consumed, the fact that for a portion of the coal thus received, other and inferior coal was substituted, does not give a right to rescind the contract; the appropriate remedy for injury received by such substitution is by set-ofÜ'or án action for damages.
    3. It was not error to -reject evidence of a false statement of the president of the coal company, as to the cost of the coal, made during the negotiations for said contract.
    4. The pleas were “ payment” and “ non assumpseruntV During the trial defendants moved to amend by pleading set-off specially, which was denied. Held, that had notice been given under the plea of payment, the set-off could have been proved with like effect, as if specially pleaded, and consequently the motion was really for leave to give notice of special matter which was within the discretion of the court. The case was not within the Act of 1806, which permits a defendant to “ alter his plea or defence, on or before the trial of the cause.”
    5. Under the plea of non assumpsit, the defendant is entitled to give in evidence anything which shows that at the time the action commenced, the plaintiff had no right to recover, and under said plea defendants, in a suit for damages on the above contract for not taking a residue of the coal contracted for, had a right to show that of the coal delivered under the contract, a portion of other and inferior coal was substituted, and that damages were thereby sustained by defendants.
    6. The same evidence is admissible as tending to prove that the plain.tiff was not ready and willing to deliver the coal stipulated in the contract.
    7. What was the true measure of damages in the ease as above stated, considered by Trunkey,- J.
    February 24th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1877, No. 2.

      Case by the Kittanning Coal Company against John C. Scott & Sons, to recover damages for a breach of a contract to take and pay for fifty thousand tons of coal.
    The defendants originally pleaded payment, and subsequently on the trial added the plea of non asswnvpserunt.

    The material portions of thé contract -which was in writing, were as follows:
    1st. The Kittanning Coal Company agrees to deliver on board vessels at Greenwich wharves, its best run of mine bituminous coal, denominated Excelsior vein, from collieries in Clearfield county, in orders of said John C. Scott & Sons, at four dollars and sixty cents ($4.60) per two thousand two hundred and forty pounds, on shipments to points beyond Wilmington, Delaware.
    2d. The quantity to be delivered is fifty thousand (50,000) tons, commencing with March 1st 1874, and ending with February 1875. Shipments to be at the rate of six thousand (6000) tons monthly,, at the option of the said John C. Scott & Sons, they giving notice on or before the twenty-fifth of each month of their requirements for the succeeding month.
    At the trial, before Biddle, J., the plaintiff offered evidence tending to prove that defendants had not called for all the coal, and had never given the notices as required by the contract; but that deliveries of coal had been made upon shorter notice, for which the plaintiff had allowed credit. The deliveries thus made, amounted to about eighteen thousand tons. During the period these deliveries of the eighteen thousand tons were being made, it appeared that the plaintiff had bought coal from a neighboring mine. This coal was placed on the cars at the mines, and as the cars when they left the mines, were exclusively within the control of the Pennsylvania Railroad, the plaintiff’s witnesses could not say whether or not any of this purchased coal had been delivered to Scott & Sons.
    The defendants offered to show that the formal notices required by the contract had been waived by the company, and the deliveries made and accepted under the contract; but that the plaintiff fraudulently substituted other and inferior coal for that contracted for, and concealed the fact from defendants, who accepted and paid for it in the belief that it was the coal stipulated for, and that by reason of this, defendants were compelled to abandon contracts made with their customers, under which they might have disposed of the entire amount of coal named in the agreement.
    The defendants made the following offers of evidence :
    To show what coals were loaded into the vessels of the Messrs. Scott, which were sent to Greenwich under this contract, and especially to show that among other loads on cars of coal that went in, were the car-loads described in manifests, which were produced by a witness on behalf of plaintiff, and which appear to have come from Mr. Bacon and White & Lengel, and other persons than from the Franklin colliery, Excelsior vein.
    This offer was objected to, on the ground that there was no plea to raise such a defence, and the court sustained the objection. (Second assignment of error.)
    To prove that the plaintiff fraudulently substituted other and inferior coal for that which they had contracted to deliver, and concealing this fact, delivered this inferior article, in part performance of the contract; that the defendants did not know, at the time of such deliveries, that the coal was of this inferior character; but finding objections made by their customers, made inquiries of the plaintiff, and were assured that the coal delivered was of the kind stipulated, and accepted and paid for the coal so delivered as part of 'the coal mentioned in the contract, believing it to be such, and as part performance of the contract; and that this fraudulent substitution involved the defendants in great losses, and prevented them from effecting sales of the balance of the amounts mentioned in the contract; which proof was to be followed by evidence that the plaintiff waived the clause in the contract calling for a notice, on or before the 25th of each month, for the requirements for the succeeding month, and accepted in lieu thereof other notices, and undertook to make, and did make, the deliveries above referred to, in part performance of their contract.
    A like objection sustained. (Third assignment of error.)
    To offer in evidence the twenty-five bills of lading or manifests produced by the plaintiff upon defendants’ call, showing the coal shipped from various mines to the Kittanning Coal Company at Greenwich; to be followed by offering also in evidence forty-five papers, headed “ Duplicate Manifest of Bituminous Coal, dispatched by Kittanning Coal Company from Franklin Colliery, Excelsior vein,” sent by the plaintiff to the Pennsylvania Railroad Company at Greenwich; and to be followed by evidence showing that about five thousand tons of the coal, described in the twenty-five manifests first mentioned, were loaded into the vessels of the defendants, under the contract sued on, under orders from the plaintiff, and without the knowledge of the defendants; with further evidence that the fact that the coal referred to was not from the Franklin colliery, Excelsior vein, was studiously concealed- from the defendants by the plaintiff.
    Objected to, on the ground that this offer tended to prove a mat- • ter of set-off, and there was nothing in the record warranting this evidence of set-off. Objection sustained. (Fifteenth assignment of error.)
    To show that the defendants did not know of the delivery of the coals from other mines than those of the Franklin colliery, Excelsior vein; that in the month of July 1874, one of defendants stated to Mr. Shillingford that the Pacific Mail Steamship Company were complaining bitterly of the character of the coal; that witness had heard a report that the plaintiff was putting other coal into the vessels than that from the Franklin colliery, Excelsior vein, and asked Mr. Shillingford distinctly whether they were so doing or not; to which Mr. Shillingford replied that they were not so doing, but were furnishing them with the coal from their Franklin colliery, Excelsior vein, only.
    Objected to as before, on the ground that it is only matter of set-off. Objection sustained. (Nineteenth assignment of error).
    The defendants then offered the same evidence contained in the offers under the foregoing second and third assignments, as tending to prove that the plaintiff was not ready and willing to deliver the coal stipulated in the contract. Objection sustained.
    (Fourth assignment.)
    The defendants then offered to plead a set-off specially. This was objected to on the ground that after the plaintiff has closed his case the defendant cannot plead a set-off; which objection was sustained. (Fifth assignment of error.)
    The defendants also offered to prove what occurred at the time of the negotiation of the contract for the purpose of showing the representations made by Mr. Shillingford, the president of the company, as to the cost of the production of the coal, and that the price named was based upon these representations; and further, that in that connection he stated that they had been and were then producing the coal at a certain price, or that it was costing them that price; that the defendants stated that if that was the cost they were willing to make the contract at $4.60 for 2240 pounds ; that he then assured them or stated to them that that was what it had cost and was costing at that time; that on the faith of this statement the contract was entered into; that this statement was false, as the then cost was only ninety cents instead of $1.18, as represented, and was so known by him at the time of the representation ; and that the contract was made upon the faith of that statement being true; that the cost of production at that time was a material element in the calculation made by the defendants, and was as stated by them to the president of the plaintiff, as it would enable them to determine whether they could compete successfully with other producers in the Clearfield and other sections.
    Objections to both these oilers were sustained.
    (Sixth and seventh assignments.)
    Defendants offered a number of letters from the defendants to the. plaintiff, as tending, in connection with the orders or notices already in evidence, to show the course of dealing of the parties under the contract, and that the stipulation as to notice, on or before the twenty-fifth of each month, of the requirements of the succeeding month, had been waived by the plaintiff.
    The objections to these letters were all sustained.

      (Eighth to fourteenth assignments of error, inclusive.)
    The plaintiff submitted the following point, to which is appended the1 answer of the court:
    If the plaintiff was' competent to deliver coal according to the contract upon receiving notice of the quantity wanted, according to the contract, the plaintiff was entitled to recover the amount it would have received under the contract if the defendant had received the coal less the cost to the plaintiff of delivering the article, including the royalty on the cost.
    Ans. “ The law is correctly stated in this point.”
    (Twenty-sixth assignment of error.)
    Among the points submitted by defendants were the following, with the answers of the court thereto:
    4. That if the jury find that the plaintiff fraudulently and surreptitiously substituted other coal than that contracted for, of inferior quality, and that the defendants did not learn the fact till after the coal so delivered had been sold to their customers and consumers, and that the substitution was made to the extent of thousands of tons, and with the intent to defraud the defendants, such substitution would entitle the defendants to repudiate the contract and decline to accept any further deliveries from plaintiff.
    Ans. “ That proposition I negative in this particular suit.”
    (Thirtieth assignment of error.)
    5. That if plaintiff is entitled to recover at all, it must be because the defendants failed to take the coal at the times at which-they should have taken it, and if so entitled, the measure of damages is the difference between the contract price and the market price at the times at which the defendants should ’have taken it under the contract. >
    Ans. “ As I have already said, I do not think that that is the true measure of damages. I think the true measure of damages is the profit the plaintiff would have made upon this operation, which would be, of course, deducting from the price agreed to be paid, the cost of its delivery and the royalty.”
    (Thirty-first assignment of error.)
    The verdict was for the plaintiff for $20,864.88. A remittitur of $3,531.80 of this amount was afterwards filed. The defendants took this writ among their assigments of error being those above noted.

      Samuel Dickson and John O. Bullitt, for plaintiffs in error.—
    The substitution of five thousand tons of. other coal in the deliveries made entitled the defendants to rescind. The contract being entire the defendants could not be required to accept anything less than entire performance.
    Fraud in the performance of a contract will justify its rescission. as well as in its inception. The offers of defendants were to show that the substitution had been fraudulently made. This was competent evidence under the plea of non assumpsit: Heck v. Shener, 4 S. & R. 249; Libhart v. Wood, 1 W. & S. 265; Ridgway v. Hungerford Market Co., 8 A. & E. 171; 30 E. C. L. R. 59; Mercer v. Whall, 5 Q. B. 447 ; Telegraph Co. v. Rubber Works Co., L. R. 10 Ch. Ap. 515; Clough v. Railway Co., L. R. 7 Ex. 26.
    The offer which is the subject of the seventh assignment of error contained all the elements to make out a false representation. It was to prove that the statement of cost was false — was known to be so by the president of the company when he made it — that it was material — and induced the defendants to enter into the contract : Krumbhaar v. Birch, 4 W. N. C. 144; Short v. Stevenson, 13 P. F. Smith 95.
    The measure of damages was clearly the difference between the contract and the market prices at the time when the coal should have been taken. It was the duty of the company to have the coal actually ready for delivery. Then if they had not received the-required notice for the month they could have disposed of the production for the ensuing month as they saw fit; but not having shown that they had mined the coal, or were ready to deliver it, they were not in condition to perform, which was a condition precedent to the right to recover. .

      A. Sydney Biddle and li. O. McMurtrie, for defendants in error.
    —As the coal actually supplied had been paid for, the suit concerned only the damages sustained in respect to the balance. As there was no plea of set-off, or payment with leave, no evidence was admissible which related to injuries alleged to have been sustained by breach of contract in the delivery of the eighteen thousand tons. The contract was divisible, and the covenant of quantity was independent, and not a condition precedent. The deliveries were not made on the original contract. In each instance the original contract was departed from, the required notice not having been given, and each delivery was made under a new contract. Can it be contended that a breach as to the quantity delivered under this new contract, whether from neglect or fraud, would entitle to a rescission of the original contract ? Even if the coal delivered and accepted had not been paid for, and this action had been to recover the contract price of the eighteen thousand tons delivered, as well as the loss on the residue undelivered, the position of defendants would be untenable: Boorne v. Eyre, 1 H. Black. 273, n. a; Duke of St. Albans v. Shore, Id. 279; Campbell v. Jones, 6 Term Rep. 570; Simpson v. Crippin, L. R. 8 Q. B. 16; Withers v. Reynolds,. 2 B. & A. 882; Fillieul v. Armstrong, 7 A. & E. 557 ; Franklin v. Miller, 4 Id. 599.
    The contract was never intended to be entire. The covenant as to the quantity was independent. The evidence of injury to the defendants in the substitution of inferior coal among the cargoes paid for and delivered, was not admissible under the pleas of non assumpsit and payment: Erwin v. Leibert, 5 W. & S. 105; Heck v. Shener, supra; Alexanders. Pusey, 13 S. & R.454; Dunlap v. Miles, 4 Yeates 370.
    The question is really a simple one. What is this claim, arising from ■ the inferiority of part of the goods, which have been sold, delivered, accepted and paid for ? Is it, as the defendants claim, a discharge of liability to accept other goods not delivered ? Or is it not, rather, a claim that can be.sued for (or that can be deducted as a set-off, when set-off is pleaded) ? If not used as a defence, the claim may be sued for in a separate action, which proves it to be a set-off; for, if not, the party would be concluded by the verdict, though the defence was never taken.
   Mr. Justice Trunkey

delivered the opinion of the court, May 5th 1879.

The Kittanning Coal Company agreed to deliver, on board vessels at Greenwich wharves, fifty thousand tons of its best run of mine bituminous coal, denominated Excelsior vein, from collieries in Clearfield county, commencing with March 1st 1874, and ending with February 1875, at the rate of six thousand tons monthly, at the option of John C. Scott & Sons, they giving notice on or before the 25th day of each month of their requirements for the succeeding month. Scott & Sons agreed to furnish vessels for and receive the above stated quantity of coal, and make payment therefor at thirty days from date of each bill of lading. That the contract was not entire, but severable, is obvious: Lucesco Oil Co. v. Brewer et al., 16 P. F. Smith 351; Morgan et al. v. McKee, 27 Id. 228.

The company delivered, and Scott & Sons received, under this contract, eighteen thousand thirty-eight and one-half tons of coal. This must be taken as an uncontroverted fact. The defendants affirm it. The plaintiffs proved it in the first breath of their testimony ; repeated it, and added that this suit was brought to recover the damages sustained by the company by the neglect of Scott & Sons to take (or rather call for, when the amount would have been readily supplied) the balance of the fifty thousand tons at the price named in the contract (see their history of the case); and, in their declaration, aver that they “have done all things on their part required by the said agreement to be done, and were always ready and willing to deliver coal pursuant to .their said contract to said defendants; and although said defendants did accept and pay for a small quantity of said coal, to wit, ten thousand tons, yet they, the said defendants, did not, nor would not, during the term of the said agreement, receive the residue of said coal.”

During the whole time for delivery and receiving of the coal, the defendants gave no notice, on or before the 25th of any month, of their requirements for the succeeding month. Deliveries were made from time to time, as called for, beginning in March and ending in October. This also both parties affirm.

It was the duty of the defendants to make the calls for the coal, not exceeding six thousand tons per month, and receive the same, so as to permit delivery of the fifty thousand tons within the time limited. Nothing in the offers of testimony, for the purpose of showing a waiver of the requirements as to notice, would warrant a jury in finding that the defendants were relieved.from making calls so that the plaintiffs could deliver the coal within the terms of the contract. What matters it whether proof were received of a course of dealing, showing a waiver of notice on the 25th day of each month, when the fact was already patent and undeniable that no coal was delivered or received without notice, and that such notice never was given on that date, but on such dates as suited defendants’ convenience ? The rulings upon those offers were not erroneous.

When notice was given to the plaintiffs, if they were bound to deliver at all in pursuance thereof, they were bound to deliver the very coal designated by the contract. They could not lawfully substitute any other without defendants’ consent; and defendants could have refused any other coal, whether inferior or superior, for they were entitled to the specified article. If the plaintiffs stealthily substituted inferior coal, they perpetrated a fraud upon defendants, for which they are answerable. If authority were wanting for the foregoing, it is in the cases cited by defendants, but it is not gainsaid.

It is contended by defendants that if fraudulent substitution of coal was made in the delivery, they may now rescind the contract. The cases cited, we think, do not rule this. Where a servant or laborer claims wages, a physician or attorney fees, an agent or trustee commissions, fidelity lies at the bottom of the service, the breach whereof forfeits right of compensation. If two have an executory contract and one colludes with the other’s agent respecting its performance; or if in an agreement for sale, the price to be fixed by C., one party bribes C., the wrongdoer shall not profit by his turpitude, nor by the agreement itself. In a sale and delivery of goods, there is not such relation of trust and confidence as where one does service for another, and in delivery of a similar but different article there may be no fraudulent intent, and if there be, it is not of so heinous a nature as bribing a referee or corrupting the other’s agent. True, a fraudulent delivery of one article for another authorizes rescission of an entire contract, perhaps would of a severable one, but not after the goods had been accepted, paid for and consumed. Rescission is one form of remedy for a defrauded party which, generally, he may exercise upon discovery of the fraud, though he cannot wholly restore; and if the fraud be not discovered in time for that remedy, others remain whereby he may recover damages. This contract was severable and the coal delivered was paid for and used by defendants. They can restore nothing. They never notified plaintiffs that they would receive no more coal for their default in performance. We are not convinced that there was error in holding that the appropriate remedy for the alleged fraud, discovered at the trial, wras by set-off or action for damages.

The pleas were “payment” and 11 non assumpserunt.” During the trial defendants moved' to amend by pleading set-off specially, which was denied. Had notice been given, under the plea of payment, the set-off could have been proved with like effect, as if specially pleaded, and, consequently, the motion was really for leave to then give notice of special matter. Whether to allow it was in the discretion of the Court of Common Pleas. The case was not brought within the Act of 1806, which permits a defendant to “alter his plea or defence, on or before the trial of the cause.” The rights of defendants under that act are well stated by Lewis, J., in Yost v. Eby, 11 Harris 327.

Error is assigned to the rejection of evidence of a false statement of the president of the company, as to the cost of placing coal on board vessels at Greenwich, made in negotiations for the contract. An action for deceit for fraudulent misrepresentation by the vendor of the price he had paid, or of the price he had been offered for the subject of the contract cannot be sustained: Hemmer v. Cooper, 8 Allen 334; Davis v. Meeker, 5 Johns. 354. The defendants rely on Krumbhaar v. Birch, 4 W. N. C. 144, and Short v. Stevenson, 13 P. F. Smith 95, as ruling the point in their favor. The former is where one sold his right, title and interest in a patent right, for territory including Philadelphia, representing that he owned half the patent right, whereas, he had before sold his whole interest for Philadelphia; and the latter where one purchased land for himself and associates, and pretended to his associates that he had paid $12,000 for it when he had only paid $6000. These decisions do not touch the question, is it a fraud for a vendor to misstate the cost or price of the article he is selling ? The legal answer seems as well settled as the moral one, though they are dissimilar, and the seventh assignment is not well taken.

By the plea of non assumpsit, the defendant puts the plaintiff on proving his whole mase, and entitles himself to give in evidence anything which shows that, at the time the action was commenced, the plaintiff had no right to recover: Heck v. Shener, 4 S. & R. 248. That action was for housekeeper’s services and for goods sold, and it was held that, under the plea, evidence was admissible that the plaintiff had embezzled goods of defendant, not as a set-off, but to defeat the action. “As to the objection of the plaintiff being taken by surprise, it is no greater surprise, than when under the same plea, the defendant gives in evidence, a release, infancy or coverture. Neither do I think there is much force in the other objection, that the matter of the evidence is not a liquidated debt or demand. If it is of 'sufficient magnitude to bar the plaintiff’s action, there will be no need of going into calculations. But if not sufficient for that purpose, it is as easy for the jury in this action to ascertain the amount to be deducted from the plaintiff’s demand, as it is for the jury in an action to be brought by the defendant against the plaintiff to ascertain the amount of his damages.” Per Tilghman, C. J. Under this plea the defendant may show that the plaintiff is an insolvent debtor and the cause of action vested in his trustees; that the plaintiff accepted goods at another place than that mentioned in the contract; a former recovery; and that the work for which the plaintiff claims was done in an unworkmanlike manner: Kennedy v. Ferris, 5 S. & R. 394; Scott v. Province, 1 Pitts. 189; Gilchrist v. Bale, 8 Watts 355; Gaw v. Wolcott, 10 Barr 43. In Falconer v. Smith, 6 Harris 130, it was held that, in an action on notes given for machinery, it was competent for the defendant to prove that when the agreement was made the plaintiff warranted the machinery to be of a certain quality and that the warranty had failed, though the notes were given several months after the date of the agreement. The plea of non assumpsit “entitles the defendant, without prior special notice, to give evidence of anything which shows, ex cequo et bono, the plaintiff ought not to recover. This is emphatically true of matters of defence springing from or immediately connected with the transaction sued on, and impeaching the consideration of the contract averred by the plaintiff. * * * It is true that under our more recent decisions, unliquidated damages for a breach of warranty may be averred as matter of set-off, and then a special plea or notice would be necessary; but, as was justly observed in Sadler v. Slobaugh, 3 S. & R. 388, a breach of warranty may, at the option of the defendant, be either reserved as the foundation of a separate action, or set up as a defence, going to the consideration of the assumpsit sued on.” Per Bell, J.

In various forms the defendant offered to prove that the plaintiffs fraudulently substituted inferior coal from other mines for that which they had contracted to deliver, and, concealing this fact, delivered the inferior article in part performance of the contract; that the defendants did not know at the time of such deliveries that the coal was of this inferior character; that finding objections made by their customers they inquired of plaintiffs and were assured by them that the coal delivered was of the kind, stipulated, and they accepted and paid for the same as part of the coal mentioned in the contract, believing it to be such; and that this fraudulent substitution involved the defendants in great loss, prevented them from making sales of the balance of the coal mentioned in the contract, and disabled them from receiving the same.

At present it must be taken as if they had the testimony at hand to establish the facts in the offers. Had it been received it might have availed as a complete defence. The matter was immediately connected with the transaction which is the basis of this suit; it shows a wilful injury in the performance of part of a contract by the plaintiffs upon which they claim damages because the defendants failed to perform. By the settled law of this state the offered testimony was admissible under defendants’ plea of non assumpse-runt, not to prove a set-off, but to prove that the plaintiffs had no right to recover. Besides, it was again specially offered as tending to prove that the plaintiffs were not ready and willing to deliver the coal stipulated in the contract. Why was it not admissible for this purpose? If the company pretend they were always ready and willing to perform, is it not evidence in rebuttal that when called on fof coal they gave it from other mines ? Slight it may be in the opinion of the court, but its weight was for the jury. We are of opinion there was error in rejecting the offers of testimony set forth in the second, third, fourth, fifteenth and nineteenth assignments.

The only remaining assignments we shall notice are the twenty-fifth, twenty-sixth and thirty-first, which relate to the question of damages. We think the instructions of the learned judge correct, except in not considering the value of the coal in plaintiffs’ mines; but it seems his attention was not directed to this, and we would pass it, were the cause not to be tried again. Compensation should be the criterion in this as in other actions for breach of contract. Most frequently the simple rule that the measure of damages is the difference between the contract price and the market price at the time the contract ought to have been completed, gives the injured party a fair recompense for his loss. In a case like this that would be inadequate. Had the plaintiffs mined and stocked so large a quantity of coal the loss in increased handling, waste and the like, would not be covered by the difference between the market and contract price, to say nothing of the improbability of finding a market for the coal. The contract did not require them to mine and stock — it was enough if they were competent to deliver the coal according to contract; that is, had their mines in order, the miners, and all necessary means to mine and deliver the coal, and were prevented by default of defendants. In such case, nothing ■ short of the value of the contract would be a compensation. That would be determined by deducting from the contract price the cost of delivery, including the royalty and the value of the coal as it remained in place. Possibly the coal, in the opened mines, in working order and with large capacity, at the time the contract should have been performed, was of no value to the vendors. It may have been worth nothing above the royalty. Unless it was worthless as it remained in place, the property of the plaintiffs, they ought not to recover the difference between the contract price and the sum of the cost of delivery and royalty.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Mercur

text:
    Clark versus Miller
    1. An Act of Assembly required a trustee before executing a deed to the purchaser of land belonging to the trust estate to give security in the Court of Common Pleas, to be approved by said court, conditioned for the investment of the proceeds of the sales in other securities. The original papers of the court being lost, the docket entries showed that on April 12th 1845, the trustee presented a petition to said court in said trust estate, which petition was filed, and on motion of his attorney the court permitted petitioner “to give security, according to special Act of Assembly. Eo die, bond filed.” The purchaser testified that he took possession of the land on April 1st 1845, and that the trustee informed him “ that he had given bail in the Common Pleas.” Held, that this was sufficient evidence of a compliance with the act and gave the trustee authority to convey.
    2. The purchaser took possession of the land in 1845. By reason of negotiation and delay on the part of the trustee, the purchaser never received his deed therefor until 1855. In 1871 the heirs of the cestuis que trust ent brought ejectment, and attacked the validity of the deed on the ground that it contained a recital, that security was given and approved in 1852. There was no record or other evidence to explain this recital. Held, that this unexplained recital could not impair the validity of the title vested in the vendee, and that after the lapse of so much time every reasonable intendment should be made to protect it.
    February 25th 1879.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Woodward, Trunkey and -Sterrett, JJ.
    Error to the Court of Common Pleas, No. 8, of Philadelphia county: Of July Term 1877, No. 27.
    Ejectment by O. Henri Clark and others against Cornelius Miller, to recover a lot of ground of about five acres, in Germantown. Defendant pleaded “Not Guilty.”
    A jury was waived and the case tried by Finletter, J., who found the facts as follows : “ The plaintiffs are the children of Ann Eliza Maison, named in a certain deed of July 2od 1825. By the terms of that deed John Maison, the then owner in fee of the premises (for which suit is brought), conveyed the same to John Miller and John Weiss, their heirs and assigns, upon trust for Ann Eliza Mai-son for life, and after her death to her children and their issue. Weiss and Miller refused the trust, and Peter Maison was duly substituted for them as sole trustee, under the trusts of said deed.
    This action was begun on the 4th of February 1871, and the writ duly served upon the defendant, the tenant in possession, whose landlord is admitted to be A. L. Roumfort, who is admitted to defend the action.
    This defendant, Roumfort, also claims title under the original owner, John Maison, and rests his title upon the following facts:
    An Act of Assembly (Pamph. L. 1844,117) of 14th March 1844, was passed as follows:

      “ An act to authorize Peter Maison to sell and convey certain real estate:
    “ Sect. 1. Be it enacted, &c., that Peter Maison, trustee of the estate of Ann Eliza. Hansen, be and is hereby authorized to sell at public or private sale, as he may deem most advantageous, all or any part of the estate and premises, granted and conveyed by John A. Maison to John Miller and John Weiss, by deed dated the 23d of July 1825, recorded in the office of the recorder of deeds, at Philadelphia, in trust for certain uses and purposes therein set forth, and to make and execute a good' and sufficient deed or deeds to the purchaser or purchasers thereof, in fee-simple, altogether discharged, from the trusts of the said deed of John A. Maison to John Miller and John Weiss, and from any obligation on the part of the said purchaser or purchasers to see to the application of the purchase-money. Provided, that before the said Peter Maison shall make or execute any such deed, he shall give security in the Court of Common Pleas of Philadelphia county, to be approved by the said court, conditioned for the investment of the proceeds of the said sales,
    . by the. said Peter Maison, in such other securities as the said court shall approve, on the same trusts as are set forth in the said deed of John A. Maison to John Miller and John Weiss.”
    Subsequently to the passage of this act, certain proceedings were had in the Court of Common Pleas for the city and county of Philadelphia in reference to this trust estate. Due search has been made for the records of these proceedings, and all of the papers have been lost except the docket entries, which are as follows:

      “ Assignees and Trustees’ Docket B., p. 390.
    In the matter of the estate of John A. Maison — Trust estate.
    January 13th 1844, petition of Edward Richard Hansen and Ann Eliza, his wife, formerly Ann Eliza Maison, presented, read and filed. And on motion of Greorge Sharswood, Esq., court grant prayer of petitioners, and appoint Peter Maison trustee, in the place of John Weiss, deceased.
    April 12th Í845, petition of Maison read and filed, and on motion of Mr. Biddle, court permit petitioner to give security according to special Act of Assembly. Éo die, bond filed.”
    The defendants then offered in evidence a deed from Peter Maisori, trustee, &c., to Augustus L. Roumfort, the defendant, dated March 26th 1855, recorded in deed book R. D. W., No. 19, p. 37.
    Reference is to be had thereto to explain this opinion.

      The material portions are as follows:
    “ And at a Court of Common Pleas, held at Philadelphia, for the city and county of Philadelphia, on the 13th day of January 1844, the petition of the said Edward Richard ’Hansen and Ann Eliza, his wife, by their attorney in fact, the said Peter Maison, was ¡>resented, setting forth that the said John Weiss was deceased, and that the said John Miller had never accepted the trust above mentioned nor acted in any manner therein, as appears by an instrument to said petition annexed, and praying the said court to appoint some suitable person as trustee, according to the Act of Assembly in such case made and provided, whereupon the said court on due consideration granted the prayer of the said petitioners, and appointed the said Peter Maison a trustee of said estate, in lieu of the original trustee aforesaid, and in and by an Act of the General Assembly of the Commonwealth of Pennsylvania, passed the 14th day of March 1844, entitled “ An act to authorize Peter Maison to sell and convey certain real estate,” it was enacted that the said Peter Mai-son, trustee, aforesaid, be and was thereby authorized to sell at public or private sale, as he might deem most advantageous, all or any part of the estate and "premises granted and conveyed by the said John Maison to John Miller and John Weiss in and by the above-recited indenture in trust for the purposes therein set forth, and to make and execute a good and sufficient deed or deeds to the purchaser or purchasers thereof, in fee-simple altogether discharged from the trusts of the above-recited indenture, and from any obligation on the part of the said purchaser or purchasers, to see to the application of the purchase-money, provided that before the said Peter Maison should make or execute any such deed he should give security in the Court of Common Pleas of Philadelphia county, to be approved by the said court, conditioned for the investment of the proceeds of the said sales by the said Peter Maison in such other securities as the said court shall approve, on the same trusts as were set forth in the above-recited indenture. And at a Court of Common Pleas, held at Philadelphia on the 28th day of May 1852, the said Peter Maison entered into a bond with James D. Whetham as surety in the sum of $800 conditioned for the investment of the proceeds of said sale as directed by the said Act of Assembly, which said surety was approved by the said court and duly entered.”
    Copy of certificate endorsed on said deed.
    City and county of Philadelphia, ss.
    Be it known that at a Court of Common Pleas held at Philadelphia the 28th day of May 1852, the within named Peter Maison, trustee, &c., entered into bond with James D. Whetham, surety in the sum of $800, conditioned for the investment of the proceeds of the sale of the within-granted premises, as directed by the Act of Assembly within recited, which said surety was duly approved and entered of record in said court, agreeably to the said within-recited Act of Assembly. In testimony whereof, I have hereunto set my hand and affixed the seal of the said court this day of A. D. 1855.”
    To the admission of this deed the plaintiffs objected on the ground,
    1. That the Act of Assembly supra was unconstitutional, and therefore conferred no right upon Peter Maison to sell the property in question.
    2. That the requirements of the act had not been complied with, that such security should first be given in the Court of Common Pleas, to be approved by the said court, conditioned for the investment of the proceeds of the said sales by Peter Maison, in such securities as the court should approve.
    (I admitted the deed, to which admission plaintiff’s counsel excepted.)
    “ The depositions of Roumfort and a number of other witnesses were read, showing that Roumfort agreed with Maison to buy the premises in question in 1844,, and under the agreement took possession in 1845, since which time he had continually occupied them as a farm, and performed the ordinary acts of ownership upon them without objection till the commencement of this suit. No deed was however made to Roumfort till the present one of 1855, owing to a dispute between him and Maison as to the price to be paid for the premises.”
    Ann Eliza Maison, the cestui que trust mentioned in the trust deed from John A. Maison, was married to Richard Hansen, of Copenhagen, Denmark, December 15th 1827. Her-husband died at Berlin, Illinois, July 9th 1854. The said Ann Eliza Hansen died a widow at Berlin, Illinois, December 9th 1870, leaving surviving her five children, who either singly or joined with their husbands are plaintiffs in this suit.
    The oldest of the five children reached her majority March 4'th 1851, and married the same year. The youngest reached her majority August 3d 1864.
    The plaintiffs submitted the following points, to which are appended the answers of the court:
    1. That the Act of Assembly of 14th March 1844, to enable Peter Maison to sell and convey certain real estate, did not enable him to convey to Roumfort a valid title to the premises in dispute indefeasible by the plaintiffs.
    Ans. “ The said Act of Assembly authorized Peter Maison to make conveyance. Under the act he conveyed the premises in dispute to Roumfort, and the title thereby acquired is valid and indefeasible by the plaintiff.”
    2. That there is no evidence that the provisions of the Act of Assembly of March 14th 1844, in reference to the entering security by Peter Maison, and the approval of such security were complied with, and therefore no title passed by the deed from him to Roumfort.
    Ans. “ There is evidence in the cause which satisfies me that the provisions of the Act of Assembly of March 14th 1844, in reference to entering security by Peter Maison, and to the approval thereof, were complied with, and therefore a good title passed by the deed from him to Roumfort.”
    3. That under all the evidence the plaintiffs are entitled to recover.”
    Ans. “ Under all the evidence the plaintiffs are not entitled to recover.
    Exceptions to the findings and conclusions of the court were dismissed and a new trial refused, and after judgment plaintiffs took this writ and, inter alia, assigned for error the answers to the above points and the admission in evidence of the deed from Peter Mai-son to Roumfort.
    The objection that the Act of 1844 was not constitutional was not pressed at the argument in this court.

      B. B. Brown and Peter Mo 0'all, for plaintiffs in error.
    The defendant failing to find any record of the security required by the Act of 1844 or approval by the court, substituted therefor a certified copy of docket-entries. These being admitted paved the way for the deed, which was accordingly made evidence.
    This is the case of a peculiar authority to sell conferred by statute, depending for its lawful exercise on the existence of conditions precedent, viz.: the entry of security conditioned according to the provisions of the statute, and the approval of the security by the court. The docket-entries do not show any amount of security nor approval by the court.
    If an Act of Assembly authorizes a sale by guardian on entering into recognisance to be approved by the court, a certificate from the clerk that such recognisance was given is not evidence. A copy of the recognisance should be stated with the approbation of the court: Jones v. Hollopeter, 10 S. & R. 326.
    Recitals in a sheriff’s deed are no evidence of his authority to sell. The judgment and execution must be produced: Hampton v. Specknagle, 9 S. & R. 212.
    The existence of a petition and the order of the court thereon, authorizing the sheriff to make a deed, cannot be presumed against one who was a stranger to the proceeding: Baskin v. Seechrist, 6 Barr 154.
    The docket-entries say, “ April 12th 1845the deed says, “28th of May 1852.” The endorsement on the deed says impliedly on neither date was security entered. There are no docket-entries as to May 28th 1852.
    There is no allegation, except that in the deed, that security was entered on that day and the incompleted endorsement on the deed shows plainly that the requirements of the act had not been complied with. Take, therefore, either the question of law or of fact as it is involved in the point as to the admissibility of this deed, and it seems: First, that the docket-entries cannot be received to supply the missing record, and secondly, that if admitted, that deed with collateral circumstances establish the fact that no security was given and therefore it could not pass a. valid title indefeasible by the plaintiffs.

      A. Sydney Biddle and B. O. MeMurtrie for defendant in error.
    —The requirements of the Act of 14th of March 1844 were complied with. The sole question under this head is whether there was any evidence whatever to entitle a jury to find that the security required had been .given. This is a writ of error and unless the. court should have instructed the jury to find for the plaintiffs, the judgment must be affirmed. What remains of the record is quite sufficient to show what actually occurred. An Act of Assembly had been passed requiring the trustee, before executing a deed to the purchaser of land belonging to the trust estate, to give “security in the Court of Common Pleas.”
    The original papers of the court being lost, the docket shows that on the 12th of April 1845, Maison, the trustee, presented a petition in the Court of Common Pleas, in the trust estate of John A. ’ Maison, which petition was filed, and on motion of his attorney, the court thereupon permitted the petitioner to give security according to the special Act of Assembly. Bo die,, bond filed. It appears from the deposition of Roumfort, the purchaser, that on the 1st of April 1845, he took possession of the lot and that about that time, Maison, the trustee, in answer to a request for the deed, told him, that “ he had given bail or that he would shortly give bail in the Court of Common Pleas.” By bail, the witness meant the security required by the Act of Assembly.
    Moreover the order is, that the court permit the petitioner to give security according to the special Act of Assembly. These words indicate that the security had been and doubtless it was in the petition filed that day, mentioned and approved. It is impossible that this can mean that the court permit him to tender the security. No such order is made. The only permission necessary is to file, not to offer to file, the bond. The order is only made after the security is accepted. That the bond was the security for this sale is clear, as there was nothing else for which security could be given —nothing else to secure. But the maxim of omnia prcesumuntur, &c., is clearly applicable. Where an Act of Assembly requires a trustee to give security to be approved by the court, it will certainly be presumed, where the court records have been destroyed, that what could only lawfully be done in a certain way was performed in that way, when performed under the direction of the court.
   Mr. Justice Mercur

delivered the opinion of the court, May 5th 1879.

This was an action of ejectment for certain lands, which were once held by Peter Maison in trust for the plaintiff. It was conveyed by the trustee to A. L. Roumfort, under whom the defendant claims. The contention is as to the validity of that sale.

The Act of 14th March 1844, Pamph. L. 117, authorized the trustee to sell at public or private sale, and to make and execute a good and sufficient deed to the purchaser in fee-simple discharged from the trust, and from any obligation on the part of the purchaser to see to the application of tho purchase-money.

The first assignment that the court erred in not holding the act to be unconstitutioxlpi was not pressed on the argument. Under the authority of Norris v. Clymer, 2 Barr 277, the prescribed mode of sale was clearly within legislative power.

The second and third assignments present the question whether there was a substantial compliance with the act in making the sale and conveyance. A trial by jury wras waived and the cause submitted to the decision of the court. The learned judge found all the facts necessary to show a compliance with the statute, whereby an indefeasible title vested in Roumfort; and also that there was sufficient evidence of adverse possession to bar the plaintiff’s right of action. • To all his finding of facts we must give the same effect as to the verdict of a jury. By the election of the parties it is the substitute of a verdict. If, then, there was evidence of the facts found sufficient to leave to a jury, we must hold them to be established.

The evidence is part record and part parol. The act declared that before, the trustee should make and execute any deed he should give security, to be approved by the Court of Common Pleas of Philadelphia county, conditioned for the investment of the proceeds in other securities on the same trusts as the land was held. The original papers cannot be found among the records, yet on the proper docket in the prothonotary’s office is found the following entry immediately following the entry of Maison’s appointment as said trustee: “ April 12th 1845, petition of Peter Maison read and filed. And on motion of Mr. Biddle court permit petitioner to give security according to special Act of Assembly. Mo die, bond filed.” No other special Act of Assembly than that of 14th March 1844, is shown to exist, which authorized the trustee to give security. The conclusion is therefore clear that it was given under and in pursuance of that act. Having been thus and then filed in court, and by its leave, it must be presumed to have been accepted and duly approved by the court. This then gave the trustee full authority to convey.

The parol testimony shows an express and distinct sale by the trustee to Roumfort, that he took possession in the spring of 1845, and continued in the undisturbed possession until this writ of ejectment was served in 1873. The sale was at $75 per acre, amounting to $385. The trustee delayed making a deed in pursuance of his contract until in October 1852. He then accepted a judgment bond for the purchase-money, and executed and acknowledged a deed to Roumfort, and it actually passed’ into the hands of the vendee. The latter left it in the hands of the scrivener, who had drawn the writings between the parties, and on calling for it a few days thereafter ascertained that the trustee had ordered the scrivener not'to deliver it. This was followed by the trustee asking that the purchase-money be paid down in lieu of the judgment-bond. Roumfort then sent him the money with interest to date. Some six months thereafter he returned the check without any explanation. After further negotiations and delay, and an increased consideration being demanded, finally, in consideration of $1500 being paid, he executed and delivered a deed for the premises to Roumfort on the 26th March 1855.

The plaintiffs assail the validity of this deed by reason of a recital therein that the trustee entered into a bond with one Whetham as security in the sum of $800, conditioned for the investment of ’the proceeds of the sale as directed by said act, and that it was approved by the Court of Common Pleas held on the 28th May 1852. No records of the court are shown verifying this recital. No reason is shown for giving this security in 1852. If given, it is left to conjecture whether it was supplemental to the original bond. The action of the court in 1845 authorized a sale and conveyance. The vendee was at all times ready to comply with the terms of his contract. Although baffled and delayed he more than fulfilled them. The fact that the deed which he eventually procured and succeeded in retaining contains an unexplained recital cannot impair the validity of the .title vested in the vendee. The vendor having the power to convey, it was not essentially necessary that that power should be recited in the deed. After nearly twenty-six years’ possession by the defendant and those under whom he claims, every reasonable intendment should be given to protect the title acquired by the vendee. Nor is the fact that the plaintiffs were minors at the time of the' conveyance sufficient to invalidate the sale. It is not shown that the trustee has not fully accounted for the proceeds of the sale. As the view we take of the validity of the sale fully sustains the judgment of the court, we deem it unnecessary to consider the conclusive effect of the adverse possession.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    North versus Phillips.
    1. Transactions in stocks by way of margins, settlement of differences and payment of the gain or loss, without any intention to deliver the stocks, are mere wagers.
    2. The rule of damages as stated in Bank v. Reese, 2 Casey 143, does not apply to ordinary stock contracts, but only to trusts and cases where justice cóúld not be reached by the usual measure of damages.
    3. Where parties in such transactions, stand in eguali jure and there is no fraud shown, the rule governing damages is the same as in contracts in any other marketable commodity, that is the market value of the stock on the day it should have been delivered with interest. Huntingdon and Broad Top Railroad Co. v. English, 5 Norris 247, followed.
    February 26th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1877, No. 36.
    Assumpsit by James R. Phillips against George H. North and William F. North, trading as George H. North & Co.
    The defendants were brokers in the city of Philadelphia. In March 1872 plaintiff gave them an order for three hundred shares of Pennsylvania Railroad stock, to be purchased on a buyer’s option of thirty or sixty days. The contract was that North & Co. should buy the stock on margin, Phillips to deposit with them ten per cent, of the par value of the stock to protect them against a fall, and at any time that this margin of ten per cent, should be reduced by a decline in the market, Phillips was to make up the difference in the margin; otherwise the defendants were privileged to sell the stock.
    Purchases were made in pursuance of these contracts, and in May 1872 defendants were carrying fifteen hundred shares of the stock for plaintiff. The market declined, and North & Co. continually notified Phillips that more margin was required, but he was always behind with the ten per cent, margin, as required by the contract. On the 18th of September 1872, the defendants furnished plaintiff with an account, wherein it was shown he was largely in debt for margins, and defendants threatened to sell him out, if additional margin was not furnished. A temporary arrangement was made, and a portion of the stock was sold with Phillips’s consent. The defendants, however, continued to carry for him one thousand shares of the stock, and as the market was still declining, renewed their requests for margins, and their threats to sell, if they were not furnished.
    Monday, November 11th 1872, was the day after the great Boston fire. A panic was expected in the stock market. In consequence of Monday being the day fixed for the funeral of General Meade, the Board of Brokers had adjourned over from Saturday until Tuesday. A special meeting of the board was culled for Monday, which was opened at ten o’clock that morning. North & Co. sent to the office of Phillips, which was the only address they had or could find, to notify him of the condition of the market. His office was closed, and as he could not be found, his stock was-sold.
    The plaintiff testified that he called at the office of defendants the morning after the sale, and saw Mr. George H. North. “ I said to Mr. North I had received notice of the sale of my one thousand shares Pennsylvania Railroad stock. What does it mean? He replied that he was called on, or something of that kind. Then I asked him why he didn’t notify me; why he didn’t call on me ? I think he made no response to that. Then I told him that I would not accept the sale. Then Mr. North called a friend, standing outside the office, to the office door, and asked him, the friend, if he would know me (pointing to me). He said that he would, or that he did. Then Mr. North pulled out his watch and said, ‘ I call on you for $5000 margin in five minutes,’ or he would sell my stock. Then I said to him, ‘ You notified me that you had sold the stock,’ and then I told him that I would hold him responsible for the stock he held of mine, and I think something to the effect that I would not be swindled out of any moré money in that way, and left the office.”
    George H. North testified. “We went into the back office, and Phillips wanted to know by what authority I sold the one thousand shares Pennsylvania Railroad. I told him that I had notified him the day before in the morning, and before I had sold the stock, by one of my clerks, to come to my office at once to deposit further margins, or to deposit margin, and my clerk reported that he was not at his office or counting-house, or whatever you call it. I then called Mr. Murphy, who was in the front office, and I asked him whether he would know this gentleman again, and after Murphy replying that he would know Mr. Phillips, I tendered Mr. Phillips’s one thousand shares Pennsylvania Railroad stock, and gave him till three o’clock to pay for them. That was the end of the conversation. He made no reply to that, and left the office. I recollect taking out my watch when I made this remark, giving him until three o’clock to pay for them. The word ‘ call’ was not made use of by Mr. Phillips. He did not call on me for any stock.”
    On cross-examination, Phillips, in substance, testified: Gave them $500 for this investment — the purchase of three hundred shares of stock. A corresponding amount in proportion to the number of shares bought was deposited when the other shares were bought. Presume these amounts might be termed margins, but ordered the stock to be bought; expepted to make money on the rise in the stock; presumed the balance of the purchase-money was to come from myself, but never paid it;' stock was carried for him by his paying J and -J- shaves* according to the market; had dealt with other brokers in a like manner; stock was never transferred; never asked to have it transferred.
    The testimony was very conflicting. The value of the stock carried for Phillips varied from $20,000 to $78,000.
    The defendant’s sixth and seventh points were as follows :
    6. That the measure of damages, if the plaintiff be entitled to recover damages, is the difference between the price at which stock was sold and the price at which his principal could have replaced it within a reasonable time after the notice of sale.
    7. That the sale of stock by a broker or agent, where the dealings were in differences, will only entitle the injured party to demand the return of the stock, or if the party fail or refuse to make return thereof, then, within a reasonable time, to replace it himself, and recover, if entitled so to do at all, the differences in value.
    To which the court, Allison, P. J., answered:
    “ If you find this is a contract for the purchase and sale of stock, then I instruct you, upon the law of Pennsylvania, as very clearly settled in the case of Bank of Montgomery «..Reese, that the true measure of damages is the difference between the value of the stock on the day it was sold and the highest value that it reaches up to the day of trial.”
    In the general charge the court, inter alia, said :
    “ The plaintiff alleges that when called upon, from time to time, he made deposits as what he called margins. When asked upon what terms this stock was bought, he said, in one portion of his evidence: ‘ I bought this stock for an investment, just as I would buy anything else, with the expectation of making money by the rise of the stock.’ When, on cross-examination, he was asked if he did not buy this stock upon what is technically called margins, he said: ‘ I bought it with the expectation of making money by the rise; I suppose you can call it buying on margins.’ When brought back to state exactly upon what terms he dealt with the defendants, he said: ‘ I bought the stock, and I expected to pay for the stock at its maturity.’ This is important, because this case may turn very much upon what you, the jury, may find this to have been — whether it was a purchase by the defendants, acting as brokers or agents for the plaintiff, or whether it was a mere gambling on the part of plaintiff and the defendants that they would hold stock and agree to carry stock for him, he to pay nothing more than the call for margin, and not to be called upon at any time to pay for this stock when théy should demand the payment at his hands.
    “ This is important, because the distinction is a very difficult one to draw so as to bring it to the comprehension of those who are not familiar with these transactions. Yet, still it is a substantial difference in our law, and the Supreme Court of Pennsylvania have had this question before them. It is decided in a very recent case, reported in 22 P. F. Smith. The question was there whether it was an agreement to purchase — that is, the custom or purchased stock — and whether he should, upon complying with the terms of the purchase, be entitled to' have that stock delivered to him, or whether it was only an agreement that he should not risk anything more than the margin he had paid from time to time. In the first place, although it may be bought upon time, it may be a bargain for an option. If it is a bargain by which the right of property in a stock vests in a customer, so that he would be entitled to call upon the seller to deliver the stock, that, in law, is a good contract. But if it was nothing more than an agreement that stock was to be carried for him by other parties, who did not part with the title, and did not agree to sell the stock and vest the title in him, so that he was simply to take the chances of making money or losing money by the rise or fall of the stock, the law says it would be an invalid contract. In the case of Kirkpatrick v. 'Bonsall this distinction is endeavored to be set up by Chief Justice Agnew. We cannot call this, on the face of it, a gambling contract, so I say to you that a bargain for an option, if this was that kind of a contract, may be a legitimate and perfectly fair and proper business transaction.”
    The verdict was for plaintiff for $4000. The defendants took this writ and assigned for error, inter alia, the answers to the foregoing points, and submission to the jury of the question whether this was or was not a gambling contract.

      S. Edwin Meg ar gee, James ,W. Latta and Chapman Biddle, for plaintiffs in error.
    This was a gambling contract, and this court will not enforce it: Kirkpatrick v. Bonsall, 22 P. F. Smith 155; Maxton v. Gheen, 25 Id. 168.
    The rule of damages laid down in Bank v. Reese, 2 Casey 143, applies only where there is a relation of trust: Wilson v. Whitaker, 13 Wright 115; Neiler v. Kelly, 19 P. F. Smith 409; McHose v. Fulmer, 23 Id. 367; Huntingdon and Broad Top Railroad Co. v. English, 5 Norris 247; Wagner v. Peterson, 2 Id. 241; Greenway v. Wilkinson, 1 C. & P. 625; Cortilyou v. Lansing, 2 Caines Cas. 216 ; Hart v. Ten Eyck, 2 Johns. Ch. 117; West v. Went-worth, 3 Cowen 32; Clark v. Painey, 7 Id. 596 ; Baker v. Drake, 53 N. Y. 211.
    To apply the rule of the highest price to a case, like the one at bar, would be fraught with,injustice to the defendants. Phillips has risked little or nothing. If, as he says, he was an intended bona fide purchaser, he still had the price of the stocks, less the trifling sum he had advanced for margins. If there had been a tender of the purchase-money, the one thousand shares of Pennsylvania stock would have been immediately delivered to Phillips. Musgrave v. Beckendorff, 3 P. F. Smith 310, was an agreement for the return of the identical bonds loaned, and is distinguished and discussed in Huntingdon Railroad v. English, supra. Reitenbaugh v. Ludwick, 7 Casey 132, was the case of a trust.

      R. I). Maxwell and W. S. Price, for defendant in error.—
    Whether or not this was a gambling contract was a question for the jury, and under a full instruction from the court they determined it. The measure of damages adopted by the court below, upon the authority of Bank of Montgomery v. Reese, 2 Casey 143, should be affirmed by this court. Noiler v. Kelly, 19 P. E. Smith 403, decides that when there is a duty on a party to deliver stocks or securities at a particular time, which duty has not been fulfilled, he is liable for the highest price in the market between that time and the trial. It is submitted that the rule is the same when the party has, by a wrongful disposition of the stock, put it out of his power to deliver it at the appointed time.
    The same measure of damages was applied to a breach of a contract to replace borrowed stock, in Musgrave v. Beckendorff, supra. A party liable to account for stocks, is chargeable with the highest market Drice on his refusal to account: Reitenbaugh v. Ludwick, supra

       Sec Fareira v. Gabell, ante, p. 89. — Rep.

   Mr. Justice Gordon

delivered the opinion of the court, May 7th 1879.

Says the learned judge of the court below, in his charge to the jury: “If you find that this is a contract for the purchase and sale of stock, then, I instruct you, upon the law of Pennsylvania, as very clearly settled in the case of the Bank of Montgomery v. Reese, that the true measure of damages is the difference between the value of the stock on the day it was sold and the highest value that it reaches up to the day of trial.” No longer ago than the 4th day of March 1878, in the case of the Huntingdon and Broad Top Railroad v. English, 5 Norris 247, this court, without dissent, ruled that the rule of damages as stated in the Bank v. Reese, 2 Casey 143, did not apply to ordinary stock contracts, but only to trusts and cases where justice could not be reached by the ordinary measure of damages.

Where parties, as in the present case, stand in equali jure there cannot be two different rules of compensation for the breach of a contract, one for the buyer and another for the seller. Were North & Co. suing on a breach of the alleged contract by Phillips, their damages would be measured by the market price of the stock, on the day fixed for its delivery, as compared with the contract price. If we reverse the parties the same rule applies; if North & Co. refused to execute the contract, then Phillips was entitled to the difference in the prices as above stated, but nothing more, unless fraud was practised upon him, and then his damages might be exemplary. In fine, the rule governing damages in contracts for stock is the same as that in contracts for any other marketable commodity.

Without special notice of the remaining assignments of error, we pass to an examination of the character of the contract, or contracts, between these parties. It would seem, from the statement of the counsel for the plaintiff below, that the defendants were to carry for him four hundred shares'of the stock of the Pennsylvania Railroad Company untiltthe 11th of November 1872, and six hundred of the same shares until the 14th of the same month. He complains that they “slaughtered” these shares, on the morning of the eleventh of November; that is, if we understand the term, sold them before the time for which they had agreed to carry them had expired. Hence arises his claim for damages.

Phillips, himself, says: “ On receiving that note” (the one informing him of the sale) “I went to the offibe of Messrs. North & Co. on the morning of the 11th of November 1872. I saw Mr. George North. I said to Mr. North I had received notice of the sale of my one thousand shares of Pennsylvania Railroad stock; what does it mean ? He replied he was called on, or something of the kind. Then I asked him why he did not notify me. I think he made no response to that. Then I told him I would not accept the sale. * * * Then North, pulling out his watch, said, ‘ I call on you for $5000 margin, in five minutes,’ or heAvould sell my stock. Then I said to him, ‘You notified me you had sold the stock;’ then I told him I Avould hold him responsible for the stock he held of mine.” So the matter rested until the bringing of this suit.

From the above testimony, one would naturally conclude, that Phillips Avás the actual oAvner of one thousand shares of stock which his brokers had, without authority, disposed of. But there was nothing of the kind. These stock shares belonged to the defendants. Phillips neither had paid for, nor intended to pay for any of them. They Avere worth at this time some $52,000, and Phillips himself being judge, Avas not worth half that amount. According to the statement, above referred to, North & Co. were only to carry them for him for a certain length of time, for a consideration, technically called a “shave.” In other Avords, they agreed to hold this stock in his name, for thirty or sixty days, as the case might be, in order that he might have the advantage of any rise in price that might happen in the meantime, it being also understood, that he must make good any fall in such price. Thus, the dealings of the par-ties Av-ere in “differences” and “margins,” and the purchase and sale of the stock was a mere pretence. Hence it Avas, that when North was challenged about the disposition of these stocks, he made no demand for their price but for margin. So Phillips, on the other hand, never pretends that he paid for any of the shares, ■which the defendants, from time to time, professed to sell to him, but he says, “ I settled margins, from time to time, as they called for them by their notes; that is, notifications of Messrs. North.” Now, as is said in Maxton v. Gheen, 25 P. F. Smith 168, transactions in stocks, by way of margins, settlement of differences and payment of the gain or loss, without any intention to deliver the stocks, are mere wagers. Nothing, however, could better describe the transaction in hand than the above language. It is conceded that an optional contract may be valid and binding upon the parties to it, as in the case of Kirkpatrick v. Bonsal, 22 P. E. Smith 125, where the agreement was to deliver oil, within a given time, buyer’s option and at a fixed price, but there was nothing in the transaction which indicated an intent to gamble on the fluctuation of prices. Had any such intent been apparent, the result would have been different, for the doctrine above stated, is in that case, emphatically recognised and approved. In the case in hand, however, the very proofs adduced by the plaintiff to establish his several contracts with the defendants, reveals the fact that they were mere gambling devices, such as the courts will not help the parties to enforce.

Judgment reversed.


author: Chief Justice Sharswood

text:
    Hayes’s Appeal.
    1. Under the Act 27th April 3855 (Pamph. L. 368), the children of deceased uncles and aunts of an intestate take per stirpes, and not per capita. Brenneman’s Appeal, 4 Wright 115, followed.
    2. The Act of 1855 constituted the grandchildren of brothers and sisters, and the children of uncles and aunts additional classes of collateral heirs as contradistinguished from next of kin, and the 14th section of the Act of April 8th 1833, (Pamph. L. 315,) does not apply to them.
    February 26th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1879, No. 155.
    Appeal of Caroline Hayes, Lucinda G. Elder and Mary G. Marr, from the decree of the Orphans’ Court of Philadelphia county, distributing the personal estate of Rosetta M. Graham, deceased.
    Rosetta M. Graham died November 10th 1877, intestate, unmar'ried and without issue, her nearest relatives being first cousins, children of deceased paternal uncles and maternal aunts as follows :
    1. Mrs. Caroline Hayes, Mrs. Mary G. Marr and Mrs. Lucinda G. Elder, children of Alexander Graham, deceased.

      2. Mrs. Isabella Forker, daughter of Thomas Graham, deceased.
    3. Thomas Graham, Speaker Graham and Margaret I. Graham, children of John Graham, deceased.
    4. Mrs. Harriet Dorsey, daughter of Mrs. Barnum, a maternal aunt of the whole blood.
    5. Mrs. Rosetta F. Dewart and Augustus VanHorn, children of Mrs. VanHorn, a maternal aunt of the half blood.
    The question raised was whether distribution should be made per capita or per stirpes, all the several persons among whom the estate was to be distributed standing in the same degree of consanguinity to the intestate.
    The auditing judge, Penrose, J., filed the adjudication, making distribution per stirpes, and saying :
    “ Whether the parties shall take per stirpes or per capita is a question which if it were res integra would now be decided, without hesitation, in favor of the latter view.

      “ The Acts of 1883 and 1855 relating to intestates’ estates, are in pari materia, and therefore to be read in harmony with each other and as forming one system, the words used being understood in the same sense in each.
    “ Under the former act, lineal descendants take by ‘ representation’ indefinitely; yet in all cases, both in the instances specified in sect. 2 and under the express terms of sect. 14, where they all stand in the same degree of relationship they take per capita. Such also is the case with children of deceased brothers and sisters, who, under that act, took by £ representation’ and were the only collaterals that did so.
    ££ That persons standing in the same degree of relationship, when they were the only ones participating in the distribution, should take per capita, was a marked characteristic of the act, the reasons for which are stated by the commissioners in their remarks on sect. 4 (see Parke and Johns. Dig., p. 781), and to bring every case within the operation of this rule, sect. 14 contained the general provision that 1 whenever by the provisions of this act, it is directed that real or personal estate shall descend to or be distributed among several persons, whether lineal or collateral heirs or kindred standing in the same degree of consanguinity to the intestate * * * if there shall be more than one-they shall take in equal shares,’ &c.
    “ When, therefore, the Act of 1855 provided for representation so'far as grandchildren of deceased brothers and sisters and the children of deceased uncles and aunts were concerned, it would seem that it was intended, not to destroy the symmetry of the system thus provided, or to grant a rule for grandchildren of brothers and sisters, and children of uncles and aunts, different from that in case of children of brothers and sisters and grandchildren of the decedent himself, but simply to remedy the hardship arising from the exclusion of representation ‘ after brothers’ and sisters’ children’ under the original act, the effect of which was to give the whole estate to surviving children of brothers and sisters, &c., and to leave out altogether grandchildren, the children of such as might have died.
    “ This would seem to follow from the well-established principle with regard to repeals by implication, which never take place unless the repugnancy between the new and the old statute be plain and unavoidable. ‘ A construction which repeals former statutes or laws by implication and divest long approved remedies, is not to be favored in any case.’
    “ It will be observed that the Act of 1855 does not refer to sect. 14 of the Act of 1833 at all.
    “ In accordance with these views, Judge Read, in Miller’s Appeal, 4 Wright 390, declared that the Act of 1855 was ‘ but in fact an extension of art. 4, &c., of sect 2’ (of the Act of 1833) ‘ to the case of collaterals; and as the first did not affect grandchildren so the second does not touch the case of nephews and nieces, nor does it repeal the eighth section except pro tanto ; and therefore nephews and nieces still remain in the same position as grandchildren and take per capita and not per stirpes.’

    “ Unfortunately, however, the question in that case was as to the children of deceased brothers and sisters, and not as to their grandchildren, or as to the children of deceased uncles and aunts; while a case reported at a previous page in the same volume (.Brenneman’s Appeal, 4 Wright 115), determined the one question as to the latter and in precisely the opposite direction — it being there held that first cousins take per stirpes.

      “ It was argued in the present case that it was to be distinguished from Brenneman’s Appeal, because here the distribution is to be made between first cousins alone, while there the widow of the decedent received one-half of the estate and the balance only went to the cousins.

      “ It is not easy to see the force of the distinction. If the argument is seriously made, it finds an answer in the Act of 1833 itself, in the provision which makes the widow’s share paramount, the rules for distribution among either lineals or collaterals being ‘ subject to the interest’ given to her, and not taking effect at all until she has received it.

      “ It may be that the attention of the court was not called to the effect to be given to sect. 14 of the Act of 1833; but so long as Brenneman’s Appeal stands unreversed it is binding upon the Orphans’ Court, and the rule there laid down governs the present case.”
    Exceptions were filed to this adjudication, which the court dismissed, when this appeal was taken.

      Charles JE. Morris, William A. Marry Henry J. McCarthy and WiUam A. Porter, for appellants.
    In Brenneman’s Appeal, the attention of the court was not called to the provisions of the 14th section of the Act of April 8th 1833, Pamph. L. 315. The Act of 1855 was a remedial one.
    Prior to said act, children of uncles and aunts, if no nearer relatives to the intestate were living, took as next of kin and took per capita, but if an uncle or an aunt had been living and children of deceased uncles and aunts, the former would have taken the whole estate to the exclusion of the latter. The purpose of the act was to extend a share of the estate to the latter, they taking such share as their deceased parents would have taken if living. In other words, the Act of 1855 was only to apply when there were different degrees of consanguinity, those standing in the more remote degree taking by representation: Lane’s Appeal, 4 Casey 487; Krout’s Appeal, 10 P. F. Smith 380.
    It is submitted that the true construction of the Act of 1855 requires that when all the heirs stand in equal degree of consanguinity to the intestate they share per capita; when in unequal degrees those more remote take per stirpes: Parke & Johns. Dig. 781; Miller’s Appeal, 4 Wright 387; Scott on the Intestate Law 483-487. Brenneman’s Appeal, supra, is overruled by Miller’s Appeal, supra.

      John' Thompson Spencer, for appellee, Mrs. Dorsey.
    Under the language of the Act of 1855 it seems plain that the parties in. interest here, being the children of uncles and aunts, inherit the estate of their deceased first cousin per stirpes. The words in the act, “ by representation,” undoubtedly mean that, both in their technical and their ordinary sense. Any other interpretation will make that statute insensible and contradictory: Brenneman’s Appeal, supra; Lane’s Appeal, supra; Krout’s Appeal, supra; Person’s Appeal, 28 Id. 123.
    In Miller and Wife’s Appeal, 4 Wright 390, the distributees, 'being nephews and nieces, were one degree too near the intestate to bring the case within the rule of descent laid down under the Act of 1855. If one of the nephews had been dead leaving issue, they, under that statute, would have taken their deceased parent’s share per stirpes.

   Chief Justice Sharswood

delivered the opinion of the court, March 24th 1879.

The Act of April 8th 1833, Pamph. L. 315, after providing in the fourth section for brothers and sisters, and nephews and nieces, declares in the seventh and eighth sections that, “ in default' of all persons hereinbefore described, the real and personal estate of the intestate shall descend and be distributed among the next of kin to such intestate, provided that there shall be no representation admitted amongst collaterals after brothers and sisters children.” The effect of these provisions was to exclude the grandchildren of brothers and sisters, wherever there were brothers or sisters living, and' also the children of uncles and aunts, wherever there were uncles or aunts living. It was to remedy this supposed injustice that the Act of April '27th 1855, sect. 2, Pamph. L. 368, was passed. It constituted the grandchildren of brothers and sisters, and the children of uncles and aunts, additional classes of collateral heirs as contradistinguished from next of kin. It would have been very easy if it had been so intended to have framed the act, so that the fourteenth section of the Act of 1833 would have applied, that when they should all be in equal degree they should continue to take as they had done as next of kin per capita; and per stirpes only where there were living nephews or nieces, or uncles or aunts. But the legislature, whether by design or inadvertence, did not do so, but directed, in the plainest and most explicit terms, that the real and personal estate shall descend and he distributed among the grandchildren of brothers and sisters, and the children of uncles and aunts, by representation, such descendants taking equally among them such share as their parents would have taken if living.” No one can question that by these words, as to these new classes of collaterals, the rule of representation was established whether they stood in unequal or equal degrees of relationship to the intestate. As to them the rule of the fourteenth section of the Act of 1833 was changed. How then could this court have decided otherwise than it did in Brenneman’s Appeal, 4 Wright 115, unless it had assumed to change the language of the Act of 1855, in order to make the whole system uniform- and harmonious. Is it at all probable that the judges who decided that case without a dissent could have overlooked the fourteenth section of the Act of 1833, as is now supposed ? We think the Act of 1855 was rightly construed in Brenneman’s Appeal, and on the authority of that case affirm the decree of the court below.

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