text:
    Sorg versus The First German Evangelical St. Paul’s Congregation.
    1. The onus of showing error is upon the plaintiff in error.
    2. The error must be manifest; and is not to be made out by averment or conjecture.
    3. If the rulings of the court below relate to facts, the plaintiff in error must furnish the evidence, or so much as is necessary to make the exceptions intelligible.
    4. Whether a witness is an expert qualified to pronounce an opinion is mainly in the discretion of the court below. The Supreme Court will not reverse unless in a clear and strong case.
    5. Trustees of charitable and religious societies having no personal or private interest in the property held by the corporation, are competent witnesses in any action in which the corporation is a party.
    November 5th 1869.
    Before Thompson, 0. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 42, to October and November Term 1869.
    This was an action of debt by John IT. Sorg against the First German Evangelical St. Paul’s Congregation. The action was commenced December 2d 1867, and was for a balance claimed by the plaintiff to be due him for building a church edifice.
    The building was erected under a contract dated August 1st 1865, between Ernest Rohrkaste and others, trustees of the defendant of the first part, and the plaintiff and another of the second part, by which they “in consideration of the sum of $25,500, payable as hereinafter provided, hereby convenant and agree with the said parties of the first part, their successors in office, to build a church, &c., said building to be erected in accordance with the plans and specifications made by Griese & Weile, Cleveland, Ohio, architects; and the said parties of the second part shall in ali respects relative to the erection of said building be subject and strictly guided by and conform to the orders and directions given by said architects. The said parties of the second part hereby further bind themselves to have the building by December 1st 1865, under roof; and that by July 1st 1866, the said church be entirely completed. The meaning of the foregoing sentence ‘ under roof’ is, that by the first day of December next, all internally in the church buildings shall be completed and the roof thereupon. Payments to be made by the parties of the first part in accordance with the conditions contained in the specifications. It is further agreed between the parties hereto, that each one of the parties to this agreement give security in the sum of $5000 for the faithful performance of the obligations the respective parties have hereby assumed.” The article of agreement was the only part of the evidence which was contained in the paper-hook. From the “history of the case,” it appeared that the building was «not under roof on the 22d of December 1865, and on the night of that day there was a storm by which a great part of the gable and all the rafters were blown down. The plaintiff rebuilt these at an expense of $1500, and delivered the building completed at the time stipulated. The plaintiff claimed this sum in addition to the contract price. The plaintiff alleged and on the trial gave evidence for the purpose of showing, that the accident though caused directly by the storm, was the result of a radical defect in the plan and that the architect was advised of the defect, but declined to remedy it. At the time the contract was executed, each party gave to the other a judgment bond with sureties conditioned for the faithful performance of the covenants. There was a settlement between the parties after the church was completed and it was ascertained that $8000, part of the contract price, were due from the defendants; this sum was paid and the judgment-bonds surrendered. The plaintiff alleged that this settlement included nothing but the contract price; the claim for the extra work being still insisted on.
    On the trial before Judge Kirkpatrick, the plaintiff examined A. Romach, who testified that he was a house-carpenter and had worked at this church; that he had been a carpenter for about thirty years, had taken contracts to build houses and professed to know something of plans and specifications. The plaintiff then proposed to ask him: “ What in your opinion was the cause of this fall, independently of the storm ? Was it or not from any defect of the plan, if so, from what, and how could it have been prevented ?” The defendant objected to the question, it was overruled by the court and a bill of exceptions. was sealed. The defendant offered Ernest Rohrkaste, one of the trustees who executed the articles of agreement for building the church and who was an obligor in the bond to plaintiff. On this bond judgment had been entered. A scire facias had been issued on the judgment ; there had been a verdict for the defendants; a motion for a new trial, which had been overruled, but no judgment had been entered for the defendant. The plaintiff objected to the witness as incompetent from interest. The witness was admitted and a bill of exception sealed.
    The plaintiff submitted nine points, all of which were refused but one. It is not necessary to state them, as the errors assigned to their answers were not in accordance with the rules and as the charge of the court below and the opinion of the Supreme Court exhibit the questions decided.
    The defendant’s point was that the plaintiff could not in this action recover the cost of rebuilding the gable and rafters blown down; to which the court answered: “ Affirmed; unless you find the rebuilding was done upon a promise by the defendant to pay the same beyond the amount named in the contract.” The portion of the charge contained in the paper-book is as follows:—
    “Having thus gone over, according to our best recollection, the main features of this case, we will now proceed to give you the law governing them, which will control you in finding your verdict upon the facts as they may be discovered by you.
    “ 1. If you should find that the church was to be roofed in by December 1st 1865, and it was not so done, and that in consequence thereof, and by no fault of the defendants or their agents, it was struck hy the storm and blown down, the plaintiff cannot recover, and your verdict must be for the defendants.
    “ 2. In order to satisfy you that the time was enlarged, the burden of proof is upon the plaintiff, and the evidence which he adduces, and by which you find the fact of its enlargement, must be clear, distinct and entirely satisfactory; we instruct you that the modification or overthrow of a solemn written agreement can only be safely ventured upon on the strength of evidence, of kind and character such as we have mentioned. You, however, are the judges of the evidence in this and every other branch of this case, and upon you is properly devolved by the law the duty and responsibility of weighing its value and estimating the degree of credit to which it may be entitled.
    “ 8. If you should be of opinion that the time for roofing in this building was enlarged; that the plaintiff did not use due diligence in procuring his material and erecting the edifice, and that it was not owing to any fault of the defendants or their agents that the building was struck by the storm and blown down, the plaintiff cannot recover, and your verdict must be for the defendants.
    “ 4. But even if you should find that the time was enlarged, and that the plaintiffs used all due and proper diligence in the procurement of material and in the erecting of the building, and you also find that by every subsequent act or word, either in the re-erection of the building without notice to the defendants, that he would look to them for compensation, or a promise upon their part that he should be compensated, or at the settlement spoken of by the witnesses, he did or said anything by which in your judgment he showed that he did not contemplate looking to the defendants, he cannot recover, and your verdict must be for the defendants.
    “ 5. If you should find that there was a settlement as detailed by the witnesses, and that that settlement was at the time (no matter what the plaintiff might have since done) considered by all the parties a complete and final settlement of all their claims and accounts — this claim included — the plaintiff cannot recover, and your verdict must be for the defendants.
    “6. If you should find it to be a part of the contract and specifications attached and therein alluded to, as claimed by defendants, that4 should the contractor or sub-contractor present any bill for extra work, performed without having informed the architect or committee of the same, or without having made an agreement in writing with said architect or committee, then the said contractor would have no authority to claim payment for such additional work performed,’ and that the work for which compensation is now sought is such work as was therein and thereby contemplated and intended, and that there was no agreement in writing by-the defendants, or the architect, or the building committee, authorizing and directing the same to be done, the plaintiff cannot recover, and your verdict must be for the defendant.
    44 7. From all the evidence in the case, if you should be of opinion that the church was destroyed as claimed, without default or negligence on either the part of the plaintiff or defendants, the plaintiff cannot recover, and your verdict must be for the defendants; and for the reason that he could have provided against this and all like contingencies in his contract, and having failed to do so, the loss must be his and not the defendant’s.
    44 8. If you should find from all the evidence in the case, that the time was enlarged and that the plaintiff did use all diligence and was guilty of no default in the prosecution of his work, and that from some default, neglect or interference of the defendants or the architects or "agents, this loss occurred, the plaintiff may recover.
    44 9. If you should be of opinion that the plaintiff was induced to re-erect the gable and roof by any promise or inducement so held out or made by the defendants, or any one properly representing them, as to influence him thereto, the plaintiff is entitled to recover.
    4410. If you shall find that the loss occurred by any change in the original plans or specifications upon the part of the defendants or their architects, by whom it is admitted he was to be controlled or governed, the plaintiff is entitled to recover.
    “ 11. If you shall find from all the evidence in the case, that the loss was occasioned by the conduct of the defendants, their agents or architects, and not by any default, misconduct or neglect on the part of the plaintiff, he. is entitled to recover.”
    The verdict was for' the defendant.
    The plaintiff took a writ of error and assigned for error the rulings as to the evidence: — the refusal to charge as requested in the several points of the plaintiff; the answer to the defendants’ point and the fourth paragraph of the charge.

      H. Burgwin, for plaintiff in error.

      Collier, Miller £ McBride, for defendant in error.
   The opinion of the court was delivered, January 3d 1870, by

Sharswood, J. —

Upon the plaintiff in error is the onus of showing thát there is error in the record. The error must be manifest and is not to be made out by averment or conjecture. Hence if the rulings of the court below relate to the facts, it is his duty to furnish the evidence, or at least so much of it as may be necessary to make the exceptions intelligible. A proposition presented as a point may be abstractly true, yet in the concrete, in its application to the facts disclosed in the evidence, it may be irrelevant, and only calculated to mislead the jury from the true questions involved in the controversy. We have been furnished by the plaintiff in error with none of the evidence, except an agreement of August 1st 1865, and not the whole of that, as the defendants allege, for the specifications referred to in it and executed at the same time, and which therefore form a part of it, are not given. Whether the action was brought upon this agreement does not appear; for there is no copy of the declaration on the paper-book. All that we have are the docket-entries, which inform us that it was an action of debt. In undertaking to decide upon alleged errors, with such scanty materials, we would be groping in the dark. But, besides this, the rules of the court, in regard to assignments of error, have not been complied with. “When the error assigned is to the charge of the court, the part of the charge referred to must be quoted totidem verbis in the specificationRule VII., 6 Harris 578. Answers to points are clearly within this rule. All the assignments, except the first and second, are open to this objection. They set out a simple refusal or affirmance of the points, when every one of them was, in fact, accompanied with some qualification or explanation, not quoted in the specification. The tenth assignment, which relates to a part of the charge, does not quote the language of it. According to Rule VIII., we are justified in holding all these assignments as none.

It is true that we may, and sometime have, overlooked such irregularities where manifest error has appeared and injustice been done. But that is not the case in this instance. Taking the charge and answers altogether, with the plaintiff’s own history of the case, we think that no substantial error was committed by the learned judge below of which the plaintiff in error has any right to complain. The plaintiffs made a written contract on the 1st of December 1865, to build a church for the defendants, according to plans and specifications of certain architects, and under their directions, for a fixed sum. They bound themselves to have the building under roof by December 1st 1865. They failed in this engagement, how or why we are not told. The building being still open and without a roof, on the night of December 22d 1865, the wall of one of the gable ends was blown down by a violent storm. The plaintiffs, without any agreement or understanding with the defendants, rebuilt this wall. It is for the cost of this rebuilding, as extra work over and above the sum named in the written contract, that this action was brought. They now allege that the injury was owing to the want of skill in the architects and to defects in their plan. The jury were instructed that if the fall of the wall was a providential occurrence, without fault in either party, the plaintiffs could not recover ; that it was a contingency against which they should have provided in their contract. It was left to the jury to say, upon some evidence, we must presume, whether the time for putting the building under roof was enlarged, and that if they should find, from all the evidence in the case, that the time was enlarged, and that the plaintiffs did use all diligence, and were guilty of no default in the prosecution of the work; and that, from some default, neglect or interference of the defendants, or their architects and agents, this loss occurred, the plaintiffs might recover. As to the alleged settlement, we have not the evidence to enable us to judge of the accuracy of the charge, and the answer to the ninth point, which refers to the same matter; but if there was evidence, which we must presume, to submit the question as stated by the judge, it was an accord and satisfaction. There may have been error in this, but it has not been made to appear. The language of some of the answers may be open to criticism, as not entirely consistent with the general principles stated in the charge, but, taken altogether, the jury could not have been misled. .We are satisfied, then, that no injustice has been done by the verdict and judgment below.

We come now to the consideration of the errors which have been assigned according to rule. The first is, because the court refused to permit A. Romach, a witness for the plaintiffs, to be asked “ what, in your opinion, was the cause of the fall of this wall, independently of the storm ? Was it or not from any defect of the plan; and if so, from what, and how could it have been prevented ?” This was objected to because the witness was not an expert, whose opinion was competent. He was a house-carpenter —had taken contracts to build houses, and professed, as he said, to know something about plans and specifications. This preliminary question of fact as to whether a witness is an expert, qualified to pronounce an opinion, as we have held in The Ardesco Oil Company v. Gilson, decided in this term (anth, p. 146), must in a great measure, be confided to the discretion of the court below trying the cause, and we will not reverse either on account of admission or rejection of such evidence, unless in a clear and strong case. This is not such a case. The witness was not a mason or architect, and professed no knowledge or experience in building walls. It would not have been error to have received. it, neither can we pronounce it to be an error, which subjects the judgment to a reversal, that it was rejected. It lies within the limits of discretion. This renders it unnecessary to consider the other objection to these questions as leading.

The second error assigned is in admitting Ernest Eohrkaste as a witness on part of the defendant. He was objected to on the ground of interest. The plaintiff offered a record of the Common Pleas, No. 442, March Term 1867. A copy of this record, or even of the docket-entries, is not furnished. But if we take the plaintiffs’ statement of it, in his history of the case, it was a judgment on a bond given to secure the plaintiffs on the building contract, in which the witness was one of the obligors, and on a scire facias issued upon it there had been a verdict for the defendants, but no judgment entered upon it. Admitting, however, that the original judgment still stood unaffected by this subsequent proceeding, how does it appear that the witness was interested in this suit ? a His suretyship was for the fulfilment of the written agreement by the defendants — the payment of the sum therein stipulated — which had been paid in full, and the amount claimed in this action was no part of that sum, but something extra and beyond it. It was also objected that the witness was a trustee of the church and a member of the building committee. This appeared, indeed, by the written agreement. But the trustees of charitable or religious societies, having no personal and private interest in the property holden by the corporation, are competent witnesses in any action in which the corporation is a party: 1 Gfreenl. on Ev. § 333.

Judgment affirmed.


source: Caselaw Access Project

author: Read, J. —

license: Public Domain

text:
    The Ardesco Oil Company versus Richardson and Tack.
    1. A company leased a leaking oil-tank, made with iron sides and wooden bottom, the lessee agreeing, in lien of rent, to put it “ in perfectly good repair.” This did not require more than putting it in as good condition as it could be made with a wooden bottom.
    2. “ Repair” means to restore to its former condition, not to change either the form or material.
    3. Evidence of declarations of the president of the company that the cost of repair would not exceed $500 was admissible for the purpose of showing that the parties did not intend an iron bottom, which would cost several thousand dollars.
    4. Evidence that the president was present whilst the repairs were going on, and expressed his satisfaction with them, was admissible.
    5. Evidence of the amount expended in making the repairs was admissible as pertinent to the question of the breach of contract and as to damages.
    November 6th T869.
    Before Thompson, C. J., Eead, Agnew, Shar-swood and 'Williams, JJ.

      Error to the District Court of AllegheMy county: No. 61, to October and November Term 1869.
    The Ardesco Oil Company, on the 31st of January 1868, instituted an action of assumpsit against Samuel Richardson and Theodore E. Tack for an alleged breach of a contract, of which the parts material to this case are as follows:—
    “ Articles of agreement, made this 22d day of January 1866, between The Ardesco Oil Company of the first part, and Samuel Richardson and Theodore E. Tack of the second part, witness: That the said party of the first part hereby lease and let to the said parties of the second part, one iron tank, situated on the premises of the Ardesco Oil Company, in McClure township, Pennsylvania, for the purpose of storing crude petroleum — the capacity of said, tank being about 13,000 barrels, more or less — for the term of two years, from the 22d day of January 1866; and in lieu of rent, the parties of the second part agree to put the tank in perfectly good repair, and to leave it in the same condition at the expiration of the lease.” * * * “And it is' further agreed that the party of the first part shall at all times (if there is not sufficient oil in the tank) have the liberty of pumping water into said tank to such an amount as to keep it safe in times of high water, which shall be done without charge to the parties of the second part.”
    The breach of the contract alleged was that the defendants did not put the tank in good repair.
    There was very little evidence returned with the paper-book. It appeared by the statements of the respective parties in their paper-books, that the plaintiffs were owners of an extensive oil-refining establishment on the Ohio river, and in 1865 had erected at their works a large tank of the capacity of 13,000 gallons made with iron sides and wooden bottom for storing crude petroleum. Before it was used a rise in the river forced the bottom up, and the tank became unfit for use. The tank being in this condition it was leased to the defendants by the above articles. It is the custom to put water into tanks with wooden bottoms, because the water remaining at the bottom prevents leakage of the oil. Shortly after the lease the defendants employed a tank-builder who repaired the bottom of the tank at cost of about f1000. The tank continuing to leak, another tank-builder put in an entirely new wooden bottom, which made the tank as secure as it could be made by a wooden bottom; but both the tank-builders were of opinion, that owing to the position of the tank and the nature of the ground, no wooden bottom could be put in that would not leak. The tank continued to leak, the leakage varying from 10 to 180 barrels per day. The plaintiff’s evidence wTas that it always leaked more than a tank “in good repair” should leak. The defendant’s evidence by experts was that the repairs were as thorough as time and skill could make them. The defendants in their paper-hook stated that hy their uncontradicted evidence no oil had been lost from the tank whilst in the possession of themselves or their successors, On the trial the defendants offered to show that after they took possession and were about to make the repairs, Mr. O’Hara, the president of the company, said that their cost would not exceed from $200 to $500, as tending to show that the plaintiff did not intend by the agreement to exact the addition of an iron bottom costing several thousand dollars; also, to prove that Mr. O’Hara was present several times whilst the repairs were in progress, saw the work going on, and expressed his entire satisfaction with the repairs as they were being made; also, the amount expended by defendants in repairing the tank, for the purpose of showing performance in good faith of the provisions of the contract. These offers were all objected to by the plaintiffs, admitted by the court, and several bills of exception sealed.
    The following are points submitted by plaintiff, and their answers:—
    “ 4. The opinion of either party at the time the contract was made, or afterward, as to what repairs were necessary in order to put the tank in perfectly good repair, or what such repairs would probably cost, is irrelevant, and should not be considered by the jury."
    Answer: “ The estimate put upon the necessary repairs by the president of the company, can only be considered by the jury as tending to show his understanding of the contract, as to whether iron or wood was to be used in making the repairs.”
    “ 6. In regard to the alleged breach of defendants’ contract, the only inquiry of the jury should be, did the defendants put the tank in perfectly good repair, and leave it in such condition at the end of their lease ? Any work they may have done, or expense they may have incurred, in their efforts to repair the tank, have no bearing on this question, if the jury find that in point of fact the tank was not in perfectly good repair at the end of the lease.”
    Answer: “We cannot instruct the jury as requested in this point, without some qualification. It is true, that if nothing but an iron bottom would put this tank in the condition required by the terms of the contract, then all the labor performed, and expenses incurred by them, would be of no avail, and could not be considered by the jury in estimating the damages. But if a wooden bottom could be made so as to meet the requirements of the contract; and if this bottom was not sufficient, then the question would arise, would, or would not, all the material put in by the defendants have to be taken out, and new material procured and put in, or could this bottom be made complete, so as to answer the demands of the lease, by adding thereto other materials, and carrying out and completing the work done by them ? If this could be done, then the plaintiffs would be entitled only to such damages as would so complete the work."
    The court (Hampton, P. J.) recapitulated the evidence and charged:— * * *
    “ The plaintiff’s counsel contends that unless a wooden bottom can be made as tight as an iron bottom, the defendants were bound to put in one of the latter material.
    “ The counsel for the defendants insists that they were only bound to make as good a job as could be made, using wood, instead of iron, as the material, and that they had done so.
    “ There is one question of fact and of law in this case. The law of this contract is, that the defendants were bound to put the tank in perfectly good repair, and to leave it in the same condition at the expiration of the lease — and the question of fact is, have they done so ? The parties themselves made the law, by the very terms of the contract. The words ‘perfectly good repair,’ do not mean that any particular material must be used. Iron, brass, copper, zinc, lead, wood or stone may be used, if either will make such a job as was contemplated by the parties when they entered into this agreement. Now, what do they mean by the terms employed ? This tank had a wooden bottom at the time — many others had the same kind — but some had iron bottoms. The latter material has become, according to the testimony of an experienced tank-builder, much more common now than when this lease was made. We have no evidence, except the terms of the contract, that either party contemplated a change of the material from wood to iron — nor does it seem to me very likely, if it had been thought necessary by the plaintiff to make such a change, that this contract would have been silent on the subject. The words here are to receive a reasonable construction — and what is that ? Why, that the character of the materials and workmanship must be of such a quality — so adapted to the purpose for which these repairs were designed, as, in the estimation of men experienced in this business, would be presumed perfectly good. Every branch of business must be judged of by the rules of the trade, and the common sense of mankind. If a landlord should lease to a tenant a house with a shingle roof, which leaked badly, and bind the tenant to put the house in perfectly good repair, would it be the understanding of the parties that he was to repair the roof with the same kind of materials, although it might not be as tight, or as warm, as permanent, or as secure against fire, as a slate-roof?
    “ If, therefore, this bottom was made of such material and workmanship as to constitute it a perfectly good job, in the sense in which that phrase is legitimately used by men skilled in that branch of business, and if the same was so left, then the plaintiff cannot recover, and your verdict should be for the defendants. But if you should find otherwise, then your verdict should be for the plaintiff, for such sum as would put the repairs in that' condition. You will take all the evidence into your careful consideration, and will render such a verdict as will be just under the law as laid down by the court.”
    The verdict was for the defendants. The plaintiff took a writ of error and assigned for error the admission of the evidence objected to and the instructions of the court.

      IT. Burgwin, for plaintiffs in error.

      Gr. Shiras, Jr., for defendants in error.
   The opinion of the court was delivered, November 22d 1869, by

Read, J. —

The plaintiffs were the owners of a large refining works on the Ohio river, and had erected on their premises an oil tank for storing crude petroleum in the spring of 1865. It had iron sides and a wooden bottom, and held about 13,000 barrels of oil. Before it had been used by the plaintiffs, by a rise in the river, and the water getting under it, the bottom was injured and it could not be used without repairs. The ground on which it stood had been selected by the plaintiffs, and it turned out from its position and the nature of the ground it would leak more than such a tank when in good repair would leak. If the plaintiffs had undertaken to repair it they would naturally have done so by repairing the injury to the wooden bottom by strengthening it and putting it in the same condition as nearly as possible as it was when completed before the rise in the river. This they would have considered as putting the tank in perfectly good repair.

Instead of doing this themselves, on the 22d of January 1866 they leased it to the defendants for two years, and in lieu of rent the defendants agreed “ to put the tank in perfectly good repair and to leave it in the same condition at the expiration of the lease.” All that this would naturally mean, would be at the outside to put a new wooden bottom in, and then it would be as good as it ever was when originally finished for use by the plaintiffs. Repair means to restore to its former condition, not to change either the- form or the material. If you are to repair a wooden building you are not to make it brick, stone or iron, but you are to repair wood with wood.

In a suit therefore upon this agreement there would be two questions to be tried: 1st, was there a breach ? and 2d, what are the damages sustained by-the plaintiffs? The evidence on both sides of course would relate to these two points.

The plaintiffs’ theory was that perfectly good repair meant that if this could not be effected except by putting in an iron bottom, the defendants were bound to put in an iron bottom and thus make it a complete iron tank, when the original tank which was the subject of repair was intended by the plaintiffs to have only a wooden bottom, and was so built by them and ready for use but never tested by the plaintiffs, but believed by them to be entirely fitted for the purpose of storing crude petroleum. The lease was in fact of an iron tank with a wooden bottom.

The leak complained of was of water not oil, for in such tanks water is pumped in to prevent the leakage of the oil. The ground for alleging a breach of the agreement was the water leakage, and the material point of time in this respect was at the expiration of the lease when it was to pass into the possession of the plaintiffs.

The defendants immediately proceeded, at an expense of about $1000, to repair the bottom then in the tank. This proving insufficient, they employed another experienced tank-builder, who at an additional expense of about $2000 put in at their request an entirely new bottom, on top of the first one, and made it as tight and secure as it could be made with a wooden bottom.

The evidence of the declarations of Mr. O’Hara and of his presence whilst the repairs were going on, as disproving the iron bottom theory and upon the question of damages was properly admitted, and so also the evidence of the repairs actually made, and their expense, was entirely pertinent not only on the question of any breach of the agreement but of the damages alleged by the plaintiffs.

Upon examining the charge and the answers • to the points assigned for error we do not find any error. The court explained the law and properly left the finding of the facts to the jury.

The counsel for the plaintiffs in error has not given the evidence bearing upon his exceptions and points, to enable us to judge of their applicability. To answer some of the points as requested by the plaintiffs would have been positive error, and in others the court were called upon to decide matters of fact, which is the province of the jury.

The error of the plaintiff’s contention was that he asked for more than the agreement called for.

Judgment affirmed.

Sharswood, J., dissented as to the admission of O’Hara’s declarations, and the answer of the court to the 4th point.


author: Agnew, J. —

text:
    Gibson versus Kauffield.
    1. A peddler who employs a servant to peddle for him, and for that purpose puts his license into the servant’s hands, is not liable to the penalty under the 2d section of the Act of March 28th 1799 (Peddlers).
    2. The purpose of the act was to prevent the peddler from transferring his license to another, and the substitution of one not having the qualifications to peddle required by the act.
    3. It is the transfer of the use of the license for the benefit of the transferee which is prohibited.
    4. The Act of March 28th 1799 is penal, and a party must be brought within its letter.
    5. The license of the employer would not be a protection to the servant from the penalty under the 2d section of Act of April 16th 1840 (Peddling without License), the license being a special personal privilege.
    November 8th, 1869.
    Before Thompson, 0. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 70, to October and November Term 1869.
    This was a qui tam action by E. Kauffield against William J. Gibson, a licensed pedlar, to recover the penalty imposed by 2d section of the Act of March 28th, 1799, 3 Sm. L. 360, Purd. 784, pi. 7. The section is as follows:—
    “ If any person having a license shall lend or otherwise dispose of the same to any other person, the person so lending, and the person so receiving the same, shall be liable to a fine of fifty dollars, respectively.”
    The action was commenced before a justice of the peace, who rendered judgment for $50 against the defendant; from this an appeal was taken to the Court of Common Pleas.
    On the trial before Sterrett, P. J., it was shown that the defendant had taken out a license to peddle with two horses and a wagon, and employed William Hill to drive his wagon and transact his peddling business for him, and for that purpose put his license into the hands of Hill as his servant or agent.
    The defendant’s fourth point, which was refused by the court, was:—
    “ The employment of another to perform this business of the defendant, and giving him the authority of said defendant, is no loaning of said license under the law.”
    The court instructed the jury:—

      “ Defendant’s counsel claims that if Hill did use the defendant’s license, it was done as the employee of defendant. That defendant having obtained the license, had the right to employ Hill or any one else, and send him out to peddle under his license. We do not understand this to be the law. — The license to peddle confers a special personal privilege on the licensee, which he has no right to transfer.”

      The verdict was for the plaintiff for $50.
    The defendant took out a writ of error and assigned for error:—
    1. The answer to his point.
    2, 3. The parts of the charge given above.

      J. It. Large, for plaintiff in error.

      I. S. Miller, for defendant in error.
   The opinion of the court was delivered, November 15th 1869, by

Agnew, J. —

The first and second assignments of error raise the single question whether a licensed pedlar who hires a servant to drive his wagon is liable for the penalty in the Act of 28th March 1799, which provides that if a pedlar shall lend or otherwise dispose of his license, he shall be liable to a penalty of fifty dollars. The purpose of the Act was to prevent the licensee from transferring his license to another. The license confers a special privilege to one possessing certain prescribed qualifications to travel as a pedlar on foot or in a wagon; and the object of the Act was obviously to prevent a substitution, by a transfer of the license to any one not possessing the legal qualification to peddle. It is the transfer of the use of the license by loan or sale, or by any arrangement for the benefit of the transferee, which is the prohibited act. But a servant employed to drive the pedlar’s wagon and sell for him, is not a bailee or transferee of the license. He takes no title to it by loan, hiring, or sale, or by any arrangement amounting to a disposition of it; but merely performs the business of the pedlar for the benefit of the latter, and not of himself. It cannot be said that the pedlar has either lent him his license, or has disposed of it to him.

It will not do to reply, that by hiring an unqualified person as a servant, for instance an alien or a person not of good moral character; the same mischief would ensue as by lending the license or disposing of it, and that, therefore, it falls within the spirit of the act, for this is a penal law, and the defendant must be brought within its letter. The action is not against Hill, the hired man, but was brought against Gibson the pedlar. As to Hill the act of 1840 provides a penalty for peddling without a license. He clearly would not be protected, by exhibiting the license of another person; unless we should hold that the license is not a special personal privilege. This we cannot do in the teeth of the several acts requiring that a pedlar shall be a citizen of the United States, of honesty and of good moral character, and who, from loss of limb or other bodily infirmity, is disabled from procuring a livelihood by labor; otherwise dishonest and unqualified persons might be hired.

The judgment is therefore reversed.


author: Sharswo.od, J. —

text:
    Drusadow et al. versus Wilde et al.

    1. W. conveyed land to P. in fee in trust that <!S., wife of said W., is to take this lot in fee simple for the sole and separate use of the said S., her heirs and assigns for ever,” * * * and upon the further trust that the said S., or such person as she shall appoint, shall take and receive the rents, issues and profits of the lot for ever.” S. during coverture devised the lot in fee. Held, that the deed vested in her a general power of appointment which was effectually exercised by her devise.
    2. The intention of the grantor was that the interest of the wife and her appointee should be a fee.
    3. Where the subject of the power is particularly described, the power will be effectually exercised, though the instrument does not mention or refer to it as being in execution thereof.
    4. Where the words of the will may be satisfied without supposing an intention to execute the power, it is no execution.
    5. A grant or devise of the profit of land passes the land itself.
    November 8tb 1869.
    Before Thompson, C. J., Read, Aonew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county; No. 84, to October and November Term 1869.
    This was an action of ejectment commenced April 26th 1867, by George W. Wilde against Rudolph Drusadow and Sarah E. Drusadow, his wife, James Trainor and William Spears — Trainor and Spears being tenants of the other defendants. C. Hanson Lowe, assignee of Wilde, was afterwards added as plaintiff. The land in controversy was a lot in the borough of Manchester, now Allegheny City. The plaintiff was originally the owner of this and other lots: on the 20th of January 1860 he and his wife, Susan Wilde, conveyed them to Robert E. Parke, in fee, in trust that his wife “ is to take this lot (that in controversy) in fee simple, for the sole and separate use of the said Susan Wilde, wife of the said George W. Wilde, her heirs and assigns, for ever.” * * * and the other lot “during the natural life of the said Susan Wilde, in trust, nevertheless, for the sole and separate use of the said Susan Wilde during her natural life, and no longer; and at the decease of the said Susan the said last-described lot is to revert to the said George W. Wilde, his heirs and assigns.
    “ And upon the further trust, that the said Susan Wilde, or such person as she shall appoint, shall take and receive the rents, issues, and profits of the first-described lot for ever, and the last-described for and during her natural life: Provided, nevertheless, that the said Susan Wilde shall not, at any time hereafter, make or set up any claim to dower in any other real or personal estate of the said George W. Wilde now owned by him, or which shall hereafter be acquired by him. And provided also, that the said Susan Wilde shall, at the request of the said George W. Wilde, his heirs and assigns, execute, sign and deliver a quit-claim deed for any such other estate real of the said George W. Wilde.”
    Mrs. Wilde died in January 1866, leaving her husband to survive her. The defendants offered in evidence the will of Mrs. Wilde, dated January 15th 1866, by which she disposed of the lot in dispute as follows :—
    “In the first place I give and bequeath to Sarah E. Coliribury (a young girl who for two years waited on me with much affection) my two-story brick house on the corner of Beaver and Spruce streets, in the borough of Manchester, in the state and county aforesaid, with all the appurtenances, &c., to have and to hold the same for her own use and that of her heirs, for ever.”
    Sarah E. Colinbury, the devisee, is Sarah E. Drusadow, one of the plaintiffs.
    The plaintiffs objected to the admission of the will, it was rejected by the court and a bill of exceptions sealed. There was evidence that Mrs. Wilde died without heirs. The court (Kirkpatrick, J.), amongst other things, instructed the jury as follows:— “ So we say to you, if you find that Susan Wilde died without heirs, the law makes her husband heir, and 0. Hanson Love is entitled to recover.”
    The verdict was for the plaintiffs. The defendants took out a writ of error and, besides others, assigned for error, the rejection of the will and the foregoing instructions.

      J. P. Large, for the plaintiffs in error,
    referred to the Married Woman’s Act, April 11th 1848, Pamph. L. 586, Purd. 699, pi. 11 et seq.

      J. S. Ferguson and W. P. Fetterman, for defendants in error,
    referred to Act of 1848, supra; Penna. Co. for Ins. on Lives v. Foster, 11 Casey 184; Wright v. Brown, 8 Wright 224.
   The opinion of the court was delivered, January 3d 1870, by

Sharswo.od, J. —

The first three assignments of error are all in substance one: that the court below erred in the rejection of the offer of the will of Susan Wilde.

The relevancy and admissibility of this evidence depend upon the question whether Susan Wilde being a married woman had any power to make the disposition of the premises which she undertook to do by the instrument of writing in question. By indenture dated January 20th 1860, George W. Wilde and wife conveyed the property to Robert M. Parke, upon trusts expressed as follows: “ said Susan Wilde, wife of the said George Wilde is to take this lot in fee simple, for the sole and separate use of the said Susan Wilde, wife of the said George, her heirs and assigns for ever.” “And upon the further trust that the said Susan Wilde, or such person as she shall appoint, shall take and receive the rents, issues and profits of the first-described lot for ever.” It will not be necessary to inquire whether where an estate is conveyed in trust for the separate use of a married woman, she can make a valid disposition of it by will under the 7th section of the Act of April 11th 1848, “ to secure the rights of married women:” (Pamph. L. 537): see Alexander v. Paxson, 11 Wright 12. We think that the deed of trust vests in her a general power of appointment within the rule laid down in Lancaster v. Dolan, 1 Rawle 231, and that the will in question was an effectual exercise of that power.

As to the first point it is objected that the limitation of the power to the rents, issues and profits does not reach the corpus of the estate, and indicates an intention in the creator of the power that it should not extend beyond her life. But there is no construction of words older and better settled than that a grant or devise of the profits of land passes the land itself: “for what,” says Lord Coke, “is the land but the profits thereof? for thereby vesture, herbage, trees, mines and all whatever parcel of the land doth pass,” Co. Litt. 4, 6: Parker v. Plummer, Cro. Eliz. 190; Paramour v. Yardley, Plowd. 541; Doe d. Goldin v. Lakeman, 2 B. & Ad. 42; Johnson v. Arnold, 1 Ves. Sen. 171; Reed v. Reed, 9 Mass. 372; Anderson v. Greble, 1 Ashm. 138; Carlyle v. Cannon, 3 Rawle 489. Nor is there any reason to hold that this proves an intention to confine the exercise of the power to the enjoyment of the land during the life of Mrs. Wilde. Her appointee was to take as she was to take, “ for ever;” and the clause immediately following, which relates to the other lot, confines that to her natural life expressly. The estate in the trustee to feed the uses of the appointment was a fee, and it appears very evident that the intention of the grantor was that the interest both of her and her appointee was to be commensurate with it.

The remaining point is that the will was an effectual execution of the power. It does not indeed refer to it in terms, nor is it necessary that it should. The subject over which the testatrix possessed the power is particularly described, and the authorities are clear and consistent in holding that where this is the case the power will be effectually exercised though the instrument' does not mention or refer to it as being in execution thereof. It is only •when the words of the will may be satisfied without supposing an intention to execute the power that it is no execution: 4 Kent Com. 335; Sugd. on Powers 284,1st Am. ed. Our own decisions are in entire accordance with these authorities: Allison v. Kurtz, 2 Watts 185; Coryell v. Dunton, 7 Barr 530; Keefer v. Schwartz, 11 Wright 503.

The conclusion at which we have arrived that there was error in excluding the will, renders the other assignments of error, which relate to the charge of the court on the question whether George W. Wilde, as the husband, was entitled to succeed to the estate of his wife in the absence of any known heirs or kindred under the intestate laws, entirely immaterial, and dispenses with any consideration of them upon this writ of error.

Judgment reversed and venire facias de novo awarded.


author: Sharswood, J. —

text:
    Schmidt et al. versus Weidman.
    1. W., an attorney, was employed by S. to collect a note; be obtained judgment and issued execution. S. being absent, W. compromised with the debtor, and received a less sum than was due on the judgment. W. retained his fee for services in this case and in others, and deposited the balance with another attorney to be paid to S., and so informed S. The other attorney did not pay the balance when demanded. T. had W. arrested for embezzlement. Held, in an action for malicious prosecution, the judge below could not be required to give his opinion as to whether W. was civilly liable to S. on account of the compromise.
    2. Civil liability .of W., if it existed, was not probable cause for instituting criminal proceedings, nor could it bear on the question of malice.
    3. If one commences a criminal prosecution merely for the purpose of compelling his debtor to pay a just debt, it is primft facie evidence, both of want of probable cause and of malice, and shifts the onus on the defendant.
    November 8th and 9th 1869.
    Before Thompson, C. J., Bead, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 88, to October and November Term 1869.
    This was an action on the case for malicious prosecution and false imprisonment, commenced August 27th 1867, by Anthony Weidman against Ludwig Schmidt, Michael Berger and Jeremiah Gumbert. A nolle prosequi was afterwards entered by the plaintiff as to Gumbert.
    The plaintiff was a practising attorney in Pittsburg. Some time in the early part of 1867 Schmidt, one of the defendants, was indebted to Berger, the other defendant. At or about the same time Schmidt held a judgment-note for $250 against the firm of Bassett & Morrow. By an arrangement between Berger and Schmidt, Berger was to take an assignment of the note on account of his claim, Schmidt to be at the expense of its collection and to guaranty its payment. The note was assigned to Berger and put into the hknds of the plaintiff for collection. Weidman entered judgment on the note and issued execution. About the time of the sheriff’s sale of Bassett & Morrow’s property, Schmidt was absent from the city of Pittsburg, and Weidman, judging from information received from the sheriff and others, that there was doubt whether the judgment could be realized, accepted from the defendants $250 in full of the judgment, interest and costs. This occurred about the 1st of August 1867. The plaintiff being about to change his residence to the city of New York, and Schmidt still being absent, the plaintiff left $100 of the sum received by him on the judgment with Mr. Dicken, another lawyer in Pittsburg, to be paid to Schmidt, notified Schmidt that the money was with Dicken, and directed him to call on Dicken for it. The plaintiff claimed that the difference between the $250 and the $100 had been appropriated to the costs of the judgment and execution and to the payment of his fees for professional services in this case and in other business of Schmidt. The plaintiff immediately after removed to New York. Schmidt, on his return to Pittsburg, called upon Dicken for the money: he did not obtain it. The evidence was conflicting as to whether Dicken told Schmidt that plaintiff had deposited no money with him or whether he declined paying Schmidt for some other reason. Schmidt then went to Harrisburg, and on the 20th of August made an information before the mayor of that city, charging that the plaintiff had received the amount of a note for $250 placed in his hands for collection, and that “ he did wilfully and feloniously appropriate the same to his own pui'poses and use.” On the same day Schmidt made an affidavit before the same magistrate that “ Anthony Weidman is a fugitive from justice, and that from information received, he has just cause to believe and that he does believe, that the said Weidman is in the state of New York.” He then- obtained a requisition from the Governor of Pennsylvania on the Governor of New York for the delivery of the plaintiff as a fugitive from justice. Gumbert, who was a police officer of Pittsburg, accompanied Schmidt to Harrisburg, was appointed agent to execute the Governor’s requisition, and in company with Schmidt went to New York city. The plaintiff was arrested there, and at once agreed to return to Pittsburg in custody of Gumbert, without requiring a warrant of delivery from the Governor of the state of New York. He was brought to Pittsburg and taken before the mayor of the city, and on hearing was discharged.
    On the trial before Hampton, P. J., there was much evidence as to the circumstances stated above; there was evidence also tending to show that Berger furnished money to aid in the arrest and prosecution of the plaintiff; that the prosecution wa-s instituted for the purpose of compelling the payment of the $100. The plaintiff gave evidence that when Schmidt called on Dicken for the $100, Dicken told him that he (Dicken) had received it from the plaintiff and that when Schmidt satisfied him that he was the proper person it should be paid ; and that in none of the interviews between Dicken and Schmidt, did Dicken assert that the plaintiff had not deposited the money with him. The defendants gave evidence that when Schmidt demanded the money of Dicken, he declared that the plaintiff had left no money with him. They also gave evidence in relation to the circumstances of the assignment of the note and the employment of the plaintiff to collect it, and that Schmidt did not owe him for other professional services. There was also evidence on both sides on the questions of malice and want of probable cause. In the course of the trial there were several bills of exception to evidence, which were not discussed or passed on in the Supreme Court.
    The following are points submitted by the defendants, with their answers:—

      “ 1. An attorney at law has no power or authority to compromise the case of his cliént, without the express assent and authority of his client.
    “ 2. Under the facts the plaintiff had no power to make the abatement and deduction made by him in settling the judgment of Ludwig Schmidt, for use of Michael Berger v. Bassett & Morrow. And as soon as he gave the receipt to the defendants and satisfied the said judgments, he was liable to be charged with the full amount of debt and interest, less his reasonable fees and compensation for entering up the judgment and collecting the same.”
    The court answered: “ These points have nothing to do with the case.”

      “ 8. The record of the judgment, Schmidt for use of Berger v. Bassett & Morrow, offered in evidence by the plaintiff, shows that the money due thereon belonged to Michael Berger, and that the plaintiff in entering and collecting said judgment was the attorney of Michael Berger.
    “ 4. It was the duty of the plaintiff, in a reasonable time after he collected the money for said judgment, to have notified his client Michael Berger, and to have remitted the money or paid over the same to him.”
    The court answered: “ This would be the law, if Mr. Berger had not appointed Schmidt his special agent to take the note to his attorney and have it collected, and he, Schmidt, was to receive the money and pay it over to him, as he did not want to have any trouble about it. This is Berger’s own testimony here on the stand, and it is a little surprising that such a point should be pressed.”
    “ 5. If the plaintiff did not pay over the money to Michael Berger, nor give him notice that he had received the same, but paid the whole or part of it to a stranger, without the knowledge or consent of Michael Berger, that such payment or deposit by the plaintiff was no release or discharge of his liability to his client, Michael Berger.
    “ 6. Under the record evidence (to wit, the judgment Schmidt for use, &c. v. Bassett & Morrow), the plaintiff had no legal right to apply any of the proceeds of said judgment collected by him as an attorney, to the indebtedness of Ludwig Schmidt to him, the plaintiff. And if he did so, it was an embezzlement of the money of Michael Berger, within the meaning of the Act of Assembly.”
    The court answered: “We have before stated, that whether Weidman retained more than he was entitled to for his fees, cannot be determined in this action. The repetition of this question in so many different ways in these points, makes it look a little as if the prosecution had been commenced for the purpose of collecting money alleged to be due from Weidman, which he denied.”
    “ 10. The note in question being, as the record shows, the property of Michael Berger, the plaintiff, after collecting the same, was bound to pay over to Berger, or to his agent Schmidt, the full proceeds, deducting only any claims that he might have against Berger, but no claims against Schmidt.”
    The court answered: “ These facts are already sufficiently answered.”
    The verdict was for the plaintiff for $1200. The defendants took out a writ of error. They made a number of assignments of error, amongst which were the foregoing answers to their points.

      J. L. Koethen and J. Barton, for plaintiffs in error,
    referred to Seibert v. Price, 5 W. & S. 439; Beach v. Wheeler, 6 Casey 72; Campbell v. Boggs, 12 Wright 524; Stokely v. Robinson, 10 Casey 318.

      B. F. Lucas (with whom were A. Gr. Lucas and A. M. Brown), for defendants in error,
    referred to Prough v. Entriken, 1 Jones 81; Smith v. Ege, 2 P. F. Smith 419; Cotten v. Huidekoper, 2 Penna. R. 153.
   The opinion of the court was delivered, January 3d 1870, by

Sharswood, J. —

The assignments of error are twenty-three in number. However, as the counsel for the plaintiffs in error have very properly, in their brief of argument, relied only upon two points, we may dismiss the others without examination.

The first of these is, that the court erred in refusing to affirm the several points of the defendants below, to the effect that Weidman had no authority to compromise the claim which the defendants put in his hands for collection; that he was really attorney for Berger, and not for Schmidt; that his deposit of the money in the hands of Dicken did not discharge his liability; that he had retained more money than he was entitled to for fees, and that he had in other respects made himself civilly responsible to the defendants.

The plaintiff below was an attorney at law, and brought this action against the defendants to recover damages for a malicious prosecution. It appeared that Schmidt was indebted to Berger for board, and having in his possession a note of a third person for $260, he passed it to Berger, who agreed to accept it, provided Schmidt would be at the trouble and expense of collecting it. For that purpose Schmidt placed it in the hands of Weidman, the plaintiff, who sued, obtained judgment, and issued execution : but in the exercise of what he supposed a sound discretion, in the absence of Schmidt from the city, compromised the claim by accepting the face of the note without interest and costs. Schmidt being absent, and Weidman about to remove and settle in New York, he deposited $100, after deducting thereout the costs he had paid and the amount of fees due him by Schmidt in that and other business which he had transacted for him, in the hands of another member of the bar, J. Charles Dicken, and addressed a note to Schmidt informing him that he had done so and requesting him to call on Dicken for the money. This note was delivered to Schmidt when he returned to the city, and he did accordingly call on Dicken. Whether Dicken then denied or admitted that he had the money was a matter upon which the evidence was contradictory. It was left to the jury to say, and as it was to some extent the turning point on the question of probable cause, we must conclude from the verdict, that they believed that he had admitted it, but put off the payment for some reason, whether good or bad is immaterial. The defendants immediately commenced a criminal prosecution before the mayor of Pittsburg, took out a warrant; one of them proceeded, in company with an officer, to Harrisburg, there procured a requisition on the Governor of New York, went to the city of New York, where Weidman was arrested, and agreed to accompany the party to Pittsburg without waiting for authority from the Governor of New York. On their arrival at Pittsburg, after a hearing before the mayor, Weidman was discharged.

It is evident from this statement that the learned judge below could not lawfully be required to give his opinion to the jury as to whether Weidman was civilly responsible to Schmidt or Berger or to what extent. Such liability, if it existed to its fullest extent, was not probable cause for instituting a criminal proceeding, nor could the resolution of the legal points presented have borne upon the question of malice, or in any way have assisted the jury in determining the issue. To have affirmed them would in all probability have misled them by turning off their attention from the true questions in the cause. They had all the facts before them, and it might be assumed that the defendants honestly believed that Weidman was liable to the full extent claimed, whether in law he was so or not. That would not show probable cause for the institution of a criminal prosecution for embezzlement, unless there were some facts tending to create a belief that Weidman had embezzled the monev* On the contrary, if a party commences a criminal proceeding merely for the purpose of compelling his debtor to pay a just debt, it is primá, facie evidence both of want of probable cause and of malice, and shifts the onus upon the defendant: Prough v. Entriken, 1 Jones 81. Whether the facts in evidence were sufficient to induce a reasonable man, not actuated by passion, prejudice or other improper motive, to believe that the plaintiff intended fraudulently to apply the money he had collected to his own use, was fairly submitted to the jury by the learned judge below.

The second ground relied on is the answer to the fifth point. The learned judge remarked, after answering the point, that-the repetition of the question whether Weidman retained more than he was entitled to for fees, in so many different ways, in the several points, made it look a little as if the prosecution had been commenced for the purpose of collecting money alleged to be due from Weidman, which he denied. Such a remark is certainly not to be approved. But we cannot see that the defendants could have been damaged by it. The language of a judge in referring to the course of defence is no more to be critically scanned than his comments upon the evidence, provided it sufficiently appears that the questions of fact were fairly submitted to the jury. Now the judge distinctly put it as a question of fact exclusively for them, “ were the defendants actuated by an honest zeal for the public morals, or was it done for the purpose of extorting money, which they alleged was due and improperly held by the plaintiff? Do or do not the facts in evidence show that Schmidt’s sole aim and object was to extort from Weidman the money he had collected ?” If the remark of the judge is open to criticism so was the course of the defence in presenting the same point in so many different forms, a course always embarrassing to a judge called on suddenly to answer. We see no error in this record for which we ought to reverse.

Judgment affirmed.


author: Williams, J. —

text:
    Coleman et al. versus Nantz et al.

    1. Each court is the best judge of its own rules, and the Supreme Court will not reverse for a construction of them which is not palpably erroneous.
    2. A rule of court provided that when a plaintiff filed with his praecipe an 'affidavit stating the amount due, he should be entitled to judgment, “unless the defendant file'an affidavit of defence,”-which “shall state whether the defence is to the whole or part of the claim, and if to a part, it shall state to how much of the claim it extends.” Held, that under an affidavit of defence to part of a claim and tendering judgment for the balance, the plaintiff might take judgment for the part admitted and go to trial for the remainder.
    3. A judgment is not necessarily final so long as there remains any question'Of 'law or‘fact .to be determined. Per Hampton, P. J.

      November 9th 1869.
    Before Thompson, C. J., Bead, Agnew, Sharswood and Williams, JJ.
    Error to tbe District Court of Allegheny county: No. 48, to October and November Term 1869.
    This was an action of assumpsit by John Nantz and another, partners as Nantz & Herchenrother, against Columbus Coleman and others partners as Coleman, Forrester & Co. The writ was issued February 28th 1868.
    The plaintiffs filed a claim for lumber sold and delivered, amounting to $192.12.; The defendant’s filed an affidavit of defence to the whole of the plaintiffs’ claim, “ except $122.77, with interest from November 17th 1867, for which judgment is hereby tendered.” On the 12th of June 1868 the plaintiffs’ attorney filed a paper liquidating the amount due under the tender in the affidavit, and directing the prothonotary to “ enter judgment for the plaintiffs against the defendants for $126.77, as liquidated above, being the amount of judgment tendered by defendants in affidavit of defence, without prejudice to plaintiffs’ right to proceed for the balance of their claim.”
    Buie 5 of the District Court provides, that, “ in all cases where an affidavit of defence is required by the rules of court, it shall state whether the defence is to the whole, or part of the claim of the plaintiff; and if only to a part, then it shall state (to the best of affiant’s knowledge and belief) to how much of the claim it extends; and if plaintiffs’ claim be founded on a book account, and copy thereof be filed with the declaration, the affidavit of defence shall state to what items of said account the defendant objects, as incorrect, and all others shall be deemed and taken as confessed.”
    Buie 67 provides that, “ If defendant in his affidavit admit a certain sum to be due, and offers to confess judgment for the same, which is not accepted by the plaintiff, defendant shall be entitled to recover costs from the plaintiff unless he recover a greater sum than the amount offered.”
    On the same day the plaintiffs ruled the defendants to plead. The defendants pleaded specially in bar, the acceptance of the tender of judgment and the entry of judgment thereon. They also pleaded the general issue.
    On the trial of the case there was a verdict for the plaintiff for $204.85, the whole amount of their claim, subject to the reserved question, “ whether the tender and entry of judgment, as aforesaid, will, in law, constitute a bar to their right to proceed for and recover the balance of their claim.”
    The court afterwards entered judgment on the reserved question, Hampton, P. J., after referring to the facts and the rules of court, delivering the following opinion. * * *

      “ These are the only rules 'bearing directly on the question under consideration, and the single point now to be decided is, ■whether the plaintiffs, after the entry of judgment for the amount tendered by the defendants, were debarred from proceeding for the residue of their claim. Our rules of court are made, not to defeat, but to promote the ends of justice. Hence they must be construed according to their spirit, rather than their letter. These rules are necessarily general in their structure — like general laws — and must be so treated; and as the courts are, in this particular, the law-making power, whenever the construction of one of their own rules is even doubtful, as when a sentence might seem to be required, not inconsistent with the spirit or letter of the rule in order to carry out its full intent and meaning, the court ought not to hesitate a moment to supply the ellipsis. In making the rules under consideration, the court clearly had the power to insert a clause similar to that found in the Court of Common Pleas of Philadelphia, which was tested before the Supreme Court as early as 1811: Yanatta v. Anderson, 3 Binn. 497. The rule there provided that “ if the defence be to part only” (of the plaintiff’s claim) “ the defendant shall specify in such case the sum in dispute, and judgment shall be entered for so much as shall be acknowledged to be due to the plaintiff, and the trial shall proceed for the residue of such debt or demand.” This latter phrase is omitted in our rule, but the objection now urged to the plaintiffs’ right to proceed for the residue of their claim, would be applicable if it contained this phrase, viz.: that the former judgment was final, and there can be but one final judgment in a case. This point most relied on here was not even raised in this case, although a number of the most eminent counsel then at the Philadelphia bar were concerned in the cause. If a plaintiff could be prevented from procuring a lien by the entry of judgment for the amount tendered, a defendant in failing circumstances, by tendering a judgment for three-fourths of the demand, might compel him to choose between losing one-fourth or the whole of his claim. No injustice can possibly result to the defendant by entering the judgment, but on the other hand, as we have seen, great injury and loss might be sustained by the plaintiff. But it is contended that this judgment was final, and therefore the plaintiffs were estopped from proceeding any further. The plaintiffs might, if they had thought proper, have so treated it, but they did not. The prothonotary was especially directed to enter the judgment without prejudice to the plaintiffs’ right to proceed for the balance of their claim. The record shows, therefore, very clearly, that they had no intention to accept it as a final judgment. But it is said that in law it is to be treated as such, without regard to plaintiffs’ intention. This is the real question in the cause. A judgment is not necessarily final as long as there remains any controverted question of law or fact to be determined. But when all the law of the case has been decided by the court, and all the disputed facts have been passed upon by tbe jury, tbe judgment entered therein is final and conclusive between the parties, their privies, and all others claiming under them; an interlocutory judgment is one given in the course of a cause, before final judgment. In McKinney v. Mitchell, 4 W. & S. 25, the Supreme Court held that upon an affidavit of defence to part of claim, the plaintiff may take judgment for the residue and secure the money; and proceed to issue, trial and judgment for that which was disputed. This case covers the whole question now before us, and even more, because the amount of the judgment was paid and received. * * * This case has not been overruled, and I trust it will not be, as it is just and equitable, and does no harm to anybody.”
    The defendants took a writ of error, and assigned for error the entry of judgment qn the reserved .question.

      S. S. Greyer, for plaintiffs in error. —
    There can be but one final judgment: O’Neal v. O’Neal, 4 W. & S. 131. The judgment on the affidavit of defence is final: Williams v. McFall, 2 S. & R. 282. The plaintiffs could have issued execution on that judgment: Brazier v. Banning, 8 Harris 348.

      A. M. Brown, for defendants in error. —
    The first judgment was interlocutory, and according to the established practice in the District Court: Doddson v. Blackstock, 1 Pitts. Leg. Jur. (1853) No. 15; McKinney v. Mitchell, 4 W. & S. 25; Clarkson v. De Peyster, Hopkins 274. The court had authority to make these rules: Vanatta v. Anderson, 3 Binn. 417. The Supreme Court will not, unless when the mistake is obvious, reverse for a construction put upon its own rules by a lower court: Dailey v. Green, 3 Harris 128.
   The opinion of the court was delivered, July 7th 1870, by

Williams, J. —

If we had 'more doubt than we have, as to the meaning of the rules under which the judgment for the amount admitted to be due in this case was entered, we should hesitate to overturn the construction which has been given to them by the. court below, and to disturb the practice which has prevailed under it for so long a period. Each court is the best judge of its own rules, and, as we have often said, we will not reverse for any construction given to them that is not palpably erroneous. ■ It is true that the rules, under which the judgment was entered, do not, in express terms, authorize the plaintiff to take judgment for the amount admitted to be due, and to proceed to issue and trial for the residue of his claim; but this has been the construction given to them by the District Court, and the practice has been in conformity therewith. The case of McKinney v. Mitchell, cited in the opinion of the court below, fully sustains this construction of the rules, and is an authority for the course pursued in this case. There, under a rule of the Common Pleas of Union county, providing that “ the plaintiff shall be entitled to judgment * * * * * unless an affidavit be filed on or before the application for judgment, setting forth that the defendant verily believes he has a just defence to the whole or part of the plaintiff’s demand, as the case may be, and if to part, specifying how much,” it was held, upon an affidavit to part of the claim, that the plaintiff might take judgment for the residue, and receive it, and proceed to issue, trial and judgment for that which was disputed. In this case the rules of the District Court provide, that “when the plaintiff shall file with his praecipe an affidavit, stating the amount verily believed to be due from the defendant, he shall be entitled to judgment, as for want of appearance, unless the defendant file an affidavit of defence with his appearance,” and “in all cases where an affidavit of defence is required by the rules of court, it shall state whether the defence is to the whole, or part of the claim of the plaintiff; and if only to a part, then it shall state, to the best of affiant’s knowledge or belief, to how much of the claim it extends.”' -As will be seen by a comparison of the rules, there is no substantial difference in their provisions. Why, then, should they not receive the same construction? No injustice is done the defendant by permitting the plaintiff to take judgment for the amount admitted to be due, and to proceed to trial for the residue of his claim; and there is no such inconvenience in the practice as to forbid it. But it is said that the simplicity of the common law does not tolerate such an incongruity in its forms, as the entry of two judgments in the same action. There would be great force in this objection, if the judgment for the amount admitted to be due is to be regarded as final. But, treating it as interlocutory, as we properly may, for it was not intended to put an end to the suit, why should it be considered an insuperable objection to the entry of a final judgment for the amount that may be found by the jury, whether it be for the whole of the plaintiff’s claim, or only for the sum admitted to be due and included in the interlocutory judgment ? The verdict can be moulded without inconvenience, and judgment can be entered thereon, with costs for the plaintiff or defendant, as provided by the rule regulating costs, so as to reach the merits of the case, and do substantial justice between the parties. But we need not enlarge. The construction given to the rules by the court below is so well vindicated in the opinion of the learned president judge, by whom the reserved question was decided, that we are relieved from the necessity of any further discussion of the subject.

Judgment affirmed.


text:
    Evans’s Appeal. Porter’s Estate.
    1. A testator directed certain of his real estate to be sold, the proceeds to be applied to a charitable use, and having died within a month of the date of his will, it was decided that the gift was void. Held, notwithstanding, i that the order to sell was a conversion.
    2. The parties who are to take the proceeds of land ordered to be sold, ! take no estate in the land.
    3. A judgment against a person entitled to the proceeds of land ordered to be sold will not bind his interest.
    4. An election to take land ordered to be sold, as land, must be by an unequivocal act, and all interested must join in it.
    November 9th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court of Common Pleas of Allegheny county. In Equity. Of October and November Term 1869. In the estate of John M. Porter, deceased.
    To March Term 1869, of the Court of Common Pleas of Allegheny, John M. Porter and others, part of the next of kin of John M. Porter, deceased, filed a bill against William Y. Evans and others, executors, &c., of the decedent, setting forth that by his will he had directed certain real estate to be sold, and given $56,000 to be expended in the establishment of acollege, &c.; that the will having been made within one month of the testator’s death, and the devise being declared by the Supreme Court to be for a charitable use, it was decided to be void : that the said real estate therefore vested in the plaintiffs, and the executors had no right to sell, and that they had already sold enough real estate to satisfy all the other devises : the prayer was that the executors might be restrained from selling any real estate.
    The will was dated November 30th 1865, and contained the following provisions, besides others: “I direct that my land and property, lying in Burrell township, in the county of Westmoreland, shall be divided (as per accompanying draft) and sold in the manner following* * *
    “And I also direct that all of my lands lying above, on the Allegheny river, in said township, shall be divided into l6 lots, (as per accompanying draft.) Lot No. 1, being the one purchased of W. Kennedy, Esq., being sold with the coal privilege — the disputed coal privilege, (back of the remaining lots,) to be sold by itself. All of the above lots of land and coal privilege to be sold to the highest and best bidder, to the best advantage of the estate, upon such terms, and at such prices and payments as my executors may deem best for the estate. Also, I direct that the farm, &c., shall be sold as to terms and payments (allowing William Irwin, the present tenant, three years’ occupancy of it subsequent to my death, to give him time to find elsewhere a place). Provided, he pays regularly the rent agreed upon between us, viz.: the one-third. All of said lots, coal privilege and farm to be sold as soon as proper advertisement of them is made to the public, on such terms and prices as my executors may deem best, they acting to the best advantage of the estate.
    “ I also direct that the farm purchased of J. P. Yantine, now .occupied by E. Burchfield, be sold by my executors, in as full and as large a manner as I could do myself if living, and the proceeds of the sale to be given and applied to the academy or college hereinafter mentioned, to be expended in the extension of the library, or improvements to the building, as the trustees may deem best. I also direct that the farm adjoining said Burchfield, and occupied by HezeMah Irwin, shall be sold in like manner as the farm occupied by his father, as before directed. Also, I direct that the Martin farm be sold, as above stated in respect of the Yantine farm, and the proceeds applied as therein directed. And it is my wish that the said Hezekiah Irwin and E. Burchfield be permitted to stay in the places for three years after my death, upon their regularly paying their rents, respectively, as agreed upon, namely, the one-third, &c. * * * My interest in the Horse Creek and Tarentum Oil Company, I direct to be sold to the best advantage, giving the preference to the Company, &c. I also direct that my interest in the Himelwright property be sold by my executors, in as full and as large a manner as I could do myself, if living, and the proceeds to be applied as hereinafter directed. I also direct that the Walnut Bend property, &c., to be sold, and the proceeds be applied as hereinafter directed. Also, I direct that all my interest on Hickory be sold, namely, eleven lots, engines, tools, &c. Also, my interest in the Widow McOlintock farm; also, my interest in the Fleming farm, being my interest in about nine and a half acres. Also, I direct that my interest in one thousand acres of land, in Lewis county, Kentucky, be sold in as full and large a manner, and for the best price that can be obtained by my executors. Also, I direct that my interest in the Porter, Donnell & Co. property, in Ohio, be sold, both real and personal, in as full and large a manner, and for the best price that can be obtained by my executors. I now give, devise and bequeath to Nancy Jane Porter McCall, my adopted sister, the house and lot I now live in. Also, the lot which I bought from John Adams, immediately on the west side of the lot on which the dwelling-house now stands, for and during her natural life, together, &c. * * *

      “ I also give, devise and bequeath to Robert Porter, the dwelling-house he now occupies, in connection with the piece of ground enclosed by fence, containing some two or three acres, and running to the Allegheny river, provided that when my executors come to sell the property adjacent, and should find that the disposition made to Robert Porter would injure the sale of the residue, then I direct it to be sold, and property purchased by my executors of an equal value to the aforesaid house and lot described, and conveyed to the said Robert Porter by my executors. * *
    “ I also direct that from three to five thousand dollars be expended in the improvement of the burial lots belonging to me in the Prospect Cemetery, in building a cut-stone wall, &c.
    “ I also give and bequeath the sum of fifty, thousand dollars to be expended in the purchase of a lot or lots, and the erection of a college or university, with library rooms, &c., to be located in or near Tarentum, together with my library, and six thousand dollars additional to be expended in the purchase of useful books for the library, and it is my wish that the said college or university be known as the Porter University or College. And I do hereby appoint Rev. Joseph Horner, &c, trustees to purchase said lot or lots, and for the erection of the buildings, procuring a charter and library, with the general management of the whole concern; with power, if necessary, to add to their number, and devise suitable ways for the election or appointment of their successors. * *
    “It is my wish and intention, and I also direct that, after my real estate is sold and conveyed, the several bequeathments by me be made from my estate paid, that there be a proportionate amount expended in the further improvement of the cemetery lots before mentioned, and also a proportionate amount expended in the college or university buildings, library, &c.
    “ Also, I direct that, after the death of the said N. J. P. McCall, that the house and lots bequeathed to her for and during her natural life, be sold and conveyed by my executors, proceeds of such sale be applied to the benefit of the said college or university, including the library in and for the use of said university.” * * *
    The will contained other bequests, but no residuary clause.
    The defendants answered, averring that the directions of the will worked an absolute conversion of the real estate; they denied that the decision of the Supreme Court mentioned in the bill, interfered with their right to sell the real estate, and that enough property had been sold to meet the divises of the will. The court decreed the injunction prayed, for which, on appeal by the executors to the Supreme Court was assigned for error. The only question discussed in the Supreme Court, was as to whether there was an absolute conversion under the directions of the will.

      S. A. ¿f M. Purviance, for appellants,
    cited Shippen v. Clapp, 5 Casey 265; Chew v. Nicklin, 9 Wright 88; Hutchins v. Mannington, 1 Vesey, Jr. 367; Elwin v. Elwyn, 8 Id. 556; Brolasky v. Gally, 1 P. F. Smith 509; Allison v. Wilson, 13 S. & R. 330; Bleight v. The Bank, 10 Barr 131; Parkinson’s Appeal, 8 Casey 455; Anewalt’s Appeal, 6 Wright 414.

      T. M. Marshall (with whom were Shafer f Brown), for appellees.
   The opinion of the court was delivered, January 3d 1870, by

Read, J. —

When the will in this case was before the.court (in 3 P. E. Smith 292) the bequest “ to be expended in the purchase of a lot and the erection of a college or university with library rooms, &c., together with my library and $6000 additional to be expended in the purchase of useful books for the library, and it is my wish that the said college be known as the Porter University or College,” was held to be a charitable use, and the will, having been made within one calendar month before the decease of the testator, to be void by the eleventh section of the Act of April 26th. 1865. There being no residuary legatee named in the will, all the property, excepting the devises and legacies to particular individuals, goes to the heirs or next of kin, according to law.

The power given to his executors to sell his real estate is in the most positive and direct terms, and converts it absolutely into personalty, according to all our authorities.

Judge Bell, in Willing v. Peters, 7 Barr 287, states the law on this subject very clearly. “Now,” says the learned judge, “by the well settled rule in equity, land or money directed to be converted by a last will or other instrument is impressed with the character of the particular species of property into which it is to be transmuted. Thus land ordered to be sold is regarded as money for every purpose necessary to effectuate the intent of the devisor or donor. The parties to whom the proceeds are to be paid, whether heirs at law or strangers, take no estate in the premises which are to be the subject of the sale, as has more than once been held by this court after the most solemn and deliberate consideration. Thus it has been decided that a judgment recovered against one of several legatees, among whom the fund when made was to be distributed, will not bind his interest therein, for he is seised of no estate in the land which can be made the subject of alien, and consequently, that a sheriff’s sale of the legatee’s supposed interest in the land passes nothing to the purchaser: Allison’s Executors v. Wilson’s Executors, 13 S. & R. 333; Morrow v. Brenizer, 2 Rawle 185. The principles upon which these decisions are based are familiar wherever the English system of equity prevails, and have been since frequently recognised by this court: Burr v. Sinn, 1 Whart. 265; Smith v. Starr, 3 Whart. 65; Rice v. Bixler, 1 W. & S. 445. It is very true the parties interested- in the fund may elect to accept the land unconverted, and if they do so, will immediately acquire an estate therein. But this must be some unequivocal act, and when there are more than one entitled, all of them must join in the act of election, otherwise it is nugatory.”

The bill in the present case is filed by one or more persons as heirs of the testator, who are, however, only a portion of the persons entitled as heirs or next of kin, and who of course, have no right to elect to accept the land unconverted. The court below awarded a perpetual injunction, restraining and enjoining the executors, defendants in said bill, from proceeding to sell the real estate of their testator. In this we think the court were in error, for it is directly in the face of the positive directions of the will, and there are several legacies to be paid as well as debts, and money to be expended in the improvement of the burial lots belonging to the testator in the Prospect Cemetery. Some of the land is in other states, and it appears to have been the intention to turn all his property into money and to have it brought into the state of Pennsylvania. We therefore are of opinion that the executors have full power to sell the real estate and to distribute it to those persons who are entitled thereto by the laws of Pennsylvania.

The executors, in the discharge of their duties, will of course be under the control of our judicial tribunals, who will take care that the distributees will receive the amounts coming to each of them.

It is therefore ordered, adjudged and decreed that the decree below be reversed and the bill dismissed, at the cost of the estate of the testator.