author: Sharswood, J.

text:
    Spencer et al. versus Darlington.
    1. A lease was for ten years with a stipulation that the improvements erected might be removed at the end of the term. A brick malt-house was erected. The malt-house was personal property liable tobe distrained for rent.
    2. The term could not be sold under a distress for rent.
    3. Bidders at a sale under a distress agreed that one should buy and sell to the other at the price at which he should buy it, after the sale the constable gave a receipt for the purchase-money of “ alease” and the receiver of the tenant, an insolvent, in consideration of the purchase-money beyond the rent and costs conveyed all “ his interest in the, lease” to the purchaser at the sale. Held, that this conveyance did not affect the contract between the two bidders.
    4. The lease stipulated that a transfer of the lease without the written consent of the lessors should be a forfeiture. The receiver of the lessee could not transfer it without the written assent of the lessor.
    October 16th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the District Court of Allegheny county: No. 102, to October and November Term 1873.
    This was an action of assumpsit, brought July 24th 1872, by Harry Darlington against Joseph Spencer, James McKay, Robert Liddell and Robert Watson, trading as Spencer, McKay & Oo.
    The declaration in the first count averred that the defendants had sold to the plaintiff “ certain leasehold premises,” describing them, and a brick malt-house thereon, and agreed to deliver them on the 1st of July 1872, in consideration' of which the plaintiff promised to pay them $1500 on that day. He then tendered to them the $1500, but they would not receive the $1500 nor perform their agreement, by delivering the leasehold premises and the malt-house.
    In the second count he averred that he agreed to purchase from the defendants for $1500 “ the said leasehold premises and malt-house;” the defendants to deliver them to him on the 1st of July 1872, and the plaintiff then to pay the purchase-money; and that defendants refused to comply with their contract.
    . The plaintiff afterwards filed an additional count. He averred that the defendants were the owners and possessed a brick malt-house, and had also the privilege of using and occupying a lot of ground on which the malt-house was érected, subject to the payment of a small rent to the owner of the lot; and in consideration that the plaintiff agreed to purchase from them the malt-house for $1500, to be paid on the 1st of July 1872, “with the privilege of using and occupying the same, &c., upon the aforesaid lot,” they agreed to sell the plaintiff the said malt-house, &c., with the privilege, &c., and deliver him possession on the said 1st day of July 1872, the plaintiff becoming liable to the owner of the lot for the rent of the lot. The plaintiff averred that, having made the contract with the defendants, he obtained from the owner of the lot the privilege of using it as appertenant to the malt-house for a small, rent for a long time from July 1st 1872. The plaintiff averred his readiness to perform his part of the coritract and pay the $1500, which he tendered on the 1st of July 1872; but the defendants refused to perform their part of the contract and deliver the malt-house.
    ■ The lot on which the malt-house was erected belonged to Edward Schenley and wife. On the 3d of March 1866, they leased it to William H. Garrard & Co. for ten years, at an annual rent of $525, payable quarterly, with condition, amongst others, that if the lessees should transfer the lease without the written assent of the lessors, they should forfeit it and the improvements; and also, that the improvements erected by the lessee might he removed at the end of the lease, it bqing further agreed that the buildings and improvements, and other property on the premises, should be liable to “ distraint and sale under warrant in like manner as personal property for rent.”
    Garrard & Co. became insolvent, and George N. Armstrong was appointed receiver of their estate. The rent being unpaid, the lessors made a distress, and, after the sale, executed a bill of sale as follows:—
    “•Received, Pittsburg, July 20th 1871, of Messrs. Spencer, McKay & Co., $893.75 in full for rent to 1st July 1871, on the premises formerly leased by W. H. Garrard & Co., from E. W. H. & Mary E. Schenley, situate, &c., and $28.30 for costs of landlord’s warrant, &c. The said lease and premises being sold by me this day by virtue of said warrant to said Spencer, McKay & Co., they being the highest and best bidders, for the sum of $1500; the balance, say $1077.95, has been paid bver to G. N. Armstrong, receiver of the estate of W. H. Garrard & Co., by appointment of court. John B. Sarber, Constable.”
    The assignee executed and delivered a bill of sale as follows:—
    “Pittsburg, July 21st 1871.
    “For and in consideration of the sum of $1077.95, I, George N. Armstrong, receiver of the firm of Wm. H. Garrard & Co., do hereby assign, &c., all my interest in the lease of a certain premises, situate, &c., together with the buildings and improvements thereon erected, to Spencer, McKay & Co., subject to taxes from the year A. D. 1871, and rent from July 1st 1871. The said property having been sold to said Spencer, McKay & Co. on the 20th day of July, A. D. 1871, by John B. Sarber, a constable, by virtue of a landlord’s warrant, issued by E. W. H. and Mary E. Schenley, for non-payment of rent.
    “ Geo. N. Armstrong,
    “ Receiver for W. H. Garrard & Co.”
    The purchase by the defendants under these bills of sale is what the plaintiff charged in his declaration they had contracted to sell to him.
    The case was tried May 19th 1873, before Hampton, P. J.
    The plaintiff testified that, in July 1871, he bought the malt-house from Mr. Watson, one of the partners, for $1500, to be delivered in July 1872. The defendants “bought the malt-house the same day I bought it from them at constable’s sale. * * * It was sold for rent at constable’s sale. The contract was partially made before the sale. Mr. Watson came to me and wanted to know how much I would give for it. I told him I did not know. * * * Then he asked me if I would rent it to him if I bought it. I told him I would. Then he asked me what I would rent it to him for. I told him I did not know; I would see how much 1 could buy it for; I would have to have an interest that would pay me.- That did not appear to be satisfactory to him. After a while he came back to me, and said if they bought it their firm only wanted to run it one season, and at the expiration of that season, he would deliver it to me at whatever price he would pay for it. The sale went on. The first; bid was $600. I bid $1200, and they bid $1500. I think there was no bid between theirs and mine. * * * Mr. Watson’s proposition was to deliver the malt-house to me at whatever price they paid for it at the end of that season. I did not bid any further than $1200, with the understanding that I would get it at the end of the year. They bid it in. He said they only wanted to run it one season, and would deliver it to me in July 1872. * * * In the month of April 1872, I was at Mr. White’s office, * * * and Mr. Watson drove up and told me he wanted to see me. We went into Mr. White’s office, taking Mr. White in along with us. He asked me if I intended to take that malt-house on the 1st of July. I told him certainly. He says, ‘ I will be ready to. deliver it to you on the 1st of July.’ Said I, ‘ On the price you paid for it?’ He said,' “Yes,’ and said he, ‘I -want John White, Jr., to be a witness.’ * * * Then, on the 1st of July, I went to Mr. Watson’s office, and took with me $1500 IJ. S. money to' pay for the malt-house. He said he could not take the money. I asked him the reason — I told him I had called to pay for the malt-house; whether the price and time was not right. He said, ‘ Yes, sir, it is all right; but my partners will not let me deliver it to you.’ Said I, ‘Mr. Watson, give me a receipt for this money, and I will attend to your partners.’ Said I, ‘I am not a school-boy.’ He said he could not do it. That is all the satisfaction I got. He made no objection as to the money or-the amount. * * * I saw the owners of the ground on which this malt-house is built, prior to the sale of this malt-house. I had the privilege of retaining the malt-house on the ground where it stood. When I bought the malt-house it was to remain there; it' was to be used where it is. * * * This malt-house was sold in 1871, on the premises. There were -several persons there beside myself — Mr. Watson, Liddell, Rhodes, Galloway and Shell were there. I bought the malt-house that day from Mr. Watson; the constable announced what he had to sell; he said he had a malt-house seiked as the property of Garrard to be sold for rent. The terms would be cash, and it would be sold to the highest bidder. He did not say it was real estate. He said he sold that malt-house. That is all I heard him say about it. I bid $1200 that day on the malt-house — he had a paper there and read it; he did not say it was on a landlord’s warrant; he said he sold this property for rent. I did not hear the constable say anything about selling a lease with the malt-house. I did not pay much attention to him, because I had found out all about it before from Mr. Schenley’s agent. He said it had about three years to run, but I might have it ten years if I wanted it. It was on the morning of the sale that I learned this. He did not show me the lease at that time. * * * When I bid on it I was bidding on a malt-honse that I could let stand on that lease ten years if I wanted. I was bidding on it with the knowledge that it was on a leased property from Schenley to somebody else.
    “ I did not see a landlord’s warrant. * * * I had some talk with Mr. Watson prior to the sale. He said he would let me have the malt-house on the 1st day of July 1872, at whatever price he paid for it. I believed him. * * * This was not over half an hour before the sale.' My understanding with Mr. Watson was that if I bought it I was to lease it to him at a fair compensation. If he bought it, he was to sell it to me at what he bought it for. * * * There was nothing said about the price after the sale. He fixed the amount before the sale. After the sale he gave me a friendly tap and said, ‘Now I will give you this next July.’ * * * When I was bidding I knew I was buying a malt-house with the privilege of leaving it there or taking it away. I knew I could have it ten years if I wished it. I knew I was bidding on a malt-house and lease that had three years to run. I bought from Mr. Watson whatever they bought. He only agreed to give me the malt-house. I did not know anything about their lease. I bought all that they bought for $1500.” * * *
    John White testified: “Mr. Darlington and Mr. Watson had a conversation in my office in April or the beginning of May, in regard to this malt-house. They asked me to be a witness that Mr. Darlington would take this malt-house on the 1st of July; that he would give it to him at what it' cost, $1500. Darlington agreed to take the house, and'Watson agreed to let him have the house; that was agreed on. I think Mr. Watson asked me to witness; they both asked me to witness it. There was no difficulty or dispute between them as to the bargain. I understood it perfectly, and they seemed to understand it; it was in April or May 1872. I understood it to he that Garrard malt-house down on Penn street.' * * * There was something said about their having made a bargain about the matter before. They said they had been talking about this malt-house before, and now they had agreed to deliver it, and Darlington had agreed to take it. Mr. Watson spoke about building another malt-house; he said he wanted it understood that day whether Darlington would take this malt-house on the 1st of July, so that he would know-what to do.”

      For’ defendant, John B. Sarber testified : “ I was a constable in 1871; I had a landlord’s warrant from the Schenley estate given to me by Mr. Torrence against the property of William H. Garrard. I sold the malt-house that day. It was on leased ground belonging to the Schenley estate I presume. I sold on that day a malt-house for $1500, belonging to Wm. II. Garrard. I never saw that paper from that day to this. The landlord’s warrant was issued by Schenley against Garrard. Henry B. Hatch is the agent of the estate. I sold it on the premises. * * * I levied on the malt-house. I did not see the lease. I acted under the direction of Schenley’s agent, Mr. Hatch. They directed me to sell the improvements that were on the ground,' and that is what I sold. I did not sell any lease; at least I may have stated that the lease had so long to run, but it was the improvements on the ground that I sold.” * * *
    Francis Torrence testified: “ I have been acting as the agent of Mr. Schenley. This malt-house was sold under my direction. We always directed the constable to sell the improvements, with the understanding at the same time that the lease would be continued to the purchaser. That is the way we always instruct the constable to sell improvements, telling him at the same time that the lease would be continued. I cannot say particularly in this instance, but it has been done in all our cases of that kind.”
    * * * *
    Robert Watson testified: * * * “I had no conversation with Mr. Darlington before the sale, only to bid good-morning to him and to ask him if he was going to buy a malt-house. He said he was. Said I, ‘You will have to pay for it.’ Robert Liddell bid the property in. I had a conversation with Darlington after the sale. * * * After the sale was over, Darlington came running across to me, a little excited, and said, ‘ You fellows has too much money for me. I do not want to buy a malt-house for that price. I did. not want it for a year any way.’ I said, ‘ If you do not want it for a year that puts another shape on the matter. We are talking of building another malt-house up at the other place, and I have no doubt you could get it at the end of a year if Spencer, McKay & Co. builds another one; they do not want to haul malt two miles up there.’ Well, he said he would like to have it at the end of the year. * * * I recollect of having a conversation with him at White’s office, on Penn street. I was at White’s, and Darlington came up along the street and’stopped his horse and came into White’s; him and us generally bought hops there. I says to Darlington, ‘Now Darlington, Mr. White is here and I think we are going to build, and if we build, I would like to know if you are going to take that house, or if we will take it down and haul it up to build the new house with.’ ‘ I am going to take the house,’ said he. ‘ Well,’ said I, ‘ I think it would be better for us to let you have the house than to haul up the bricks, because I would rather have the money to buy new materials than to bother with the old materials.’ I told him if we would build he would get the house. I told him that emphatically, different times. * * * I remember the constable stating the terms of the sale. He put up that house for sale with a lease to run, he said, from that day about four and one-half years. * * * It was the understanding at the time we bought the malt-house at the constable’s sale; and it is the understanding yet that he is to take the house whenever it suits us to give it to him; it was always my understanding. That was the bargain in the presence of Mr. White. I wanted to know if Darlington was still of the same mind about taking the house if we would build, or would we pull the house down and take the material up there. That was the understanding of him and me too, that he was to take the house whenever it suited us to build. That condition was put in at the time Mr. White was appealed to.” * * *
    The defendant’s points which were refused were as follows:—
    1. If the evidence in the case shows that defendants, in the month of July, a. d. 1871, purchased at the constable’s sale the malt-house and lease of the premises on which it was erected, the lease running for five years from April 1st 1871, and on the same day agreed to sell the same premises to the plaintiff, and to deliver the possession thereof on the 1st day of July, A. D. 1872, that would be a parol sale within the Statute of Frauds, and the plaintiff cannot recover the value of his bargain, or the difference between what the malt-house and lease were worth at the time of the breach on the 1st day of July 1872, and what he was to pay for the same.
    2. If at the time of the alleged purchase by plaintiff from defendants, he, the plaintiff, knew he was purchasing a leasehold premises, he was bound to inquire the time the lease had to run, and if the unexpired term had more than three years to run from the time he was to receive the possession of the premises, then the law visits him with notice of that fact, and his purchase is a parol purchase under the Statute of Frauds, and he is not entitled to recover the difference between the value of the premises at the time of either the making or breach of said contract of purchase and what he was to pay for the same.
    3. If the jury believe that the defendants sold the plaintiff a malt-house only, and the plaintiff at the time of the sale knew that the malt-house stood on leasehold premises, and was erected and held under the leasehold title, he, the plaintiff, was bound to inquire the term and terms of the lease, and if it had an unexpired term of over three years from the time he was to get possession, then he cannot recover the difference between what it was worth and what he was to give at the time of the breach of contract to deliver it.
    4. If the alleged contract was for the sale of a leasehold having over three years to run from the breach of contract, with the right to remove a malt-house thereon (which belonged to the leasehold premises) at any time within the term, then the plaintiff cannot recover the difference between what the premises were worth and what he was to give, but only such loss or expenses suffered by him up to the time of the breach of the alleged contract.
    The verdict was for the plaintiff for $700.
    The defendants took out a writ of error, and assigned the refusal of their points for error.

      Bruce and Wegley, for plaintiffs in error. —
    The damages for breach of a parol contract for the sale of land is not to be measured by the value of the land, and a lease for more than three years is governed by the same rule: Harris v. Harris, 20 P. F. Smith 174; McClowry v. Croghan, 1 Grant 309.

      A. M. Brown, for defendant in error. —
    The malt-house and fixtures were the subject of the contract lease of the lot an incident only, the lease being in fact but from year to year: McDowell v. Simpson, 3 Watts 129; Schuyler v. Leggett, 2 Cowen 663. The measure of damages was what the' plaintiff could purchase a similar article for in the market: McHose v. Fulmer, 23 P. F. Smith 365; Bank of Montgomery County v. Reese, 2 Casey 143.
   The opinion of the court was delivered, November 16th 1873, by

Sharswood, J.

— It is not controverted that under the lease from the Schenleys to Garrard & Co., the malt-house erected on the premises was personal property, and a parol contract for the sale of it not within the provision of the Statute of Frauds. It was stipulated that it might be removed at the end of the term, and was made subject to distress and sale by the lessors for rent in arrear. This action was instituted by the plaintiff below to recover damages for the non-performance~of a contract by the defendant to sell and deliver to him the' malt-house. It is true that the declaration as originally filed in both counts set out an agreement for the sale of certain leasehold premises and malt-house, but an additional • count was filed as an amendment, which declared upon a contract for the sale of a malt-house, with the privilege merely of using and occupying the lot of ground upon which it was erected. If there was any contract of sale at all absolute in its terms — a question submitted to the jury and found by them in favor of the plaintiff below — it -was a contract by the defendants to sell what had been distrained upon for rent, and was to be sold by the constable in virtue of his warrant to distrain. This was the testimony of Darlington the plaintiff, and was abundantly confirmed by the witness White, who related an interview between the plaintiff and Watson, one of the defendants, after the sale. In that conversation nothing but tne malt-house was mentioned. The lessors had no authority to distrain upon the term, and they had not done so. Mr. Armstrong, the receiver of Garrard’s estate, says indeed, “ I think I gave Mr. Hatch (who was an agent of the Schenleys) directions to sell it by a landlord’s warrant.” There was no evidence that Hatch acted upon such directions. Without the sanction of the lessors it amounted to nothing. What would have been the effect upon the contract between the parties had the term been sold, it is not necessary to determine. The evidence was direct and abundant that nothing was sold by the constable but the malt-house. So the constable, called by the defendants, expressly testified. “ I sold the malt-house that day. * * * I levied on the malt-house : I did not see the lease. I acted under the direction of Schenley’s agent, Mr. Hatch; they directed me to sell the improvements that were on the ground, and that is what I sold; I did not sell any lease; at least I may have stated that the lease had so long to run, but it was the improvements that were on the ground that I sold.” Mr. Liddell, one of the defendants, examined on their behalf, and Mr. Ray, another of their witnesses, both present at the sale, speak of the sale as of the malt-house, and say nothing of any sale of the lease. Mr. Darlington, the plaintiff, fully confirmed the constable’s statement. “ The constable announced what he had to sell; he said he had a malt-house seized as the property of Garrard to be sold for rent; the terms would be cash, and it would be sold to the highest bidder. He did not say it was real estate, he said he sold that malt-house; that is all I heard him say about it.” Mr. Darlington stated that before the sale he had an understanding with the agent of the lessors that they would continue the lease to him if he bought, and extend it for ten years if he wished. He testified therefore: “ When I was bidding, I knew I was buying a malt-house with the privilege of leasing it there or taking it away. I knew I could have it ten years if I wished it. I knew I was bidding on a malt-house and lease that had three years to run. I bought from Mr. Watson whatever they bought. He only agreed to give me the malt-house. I did not know anything about their lease.” An understanding that the landlord would continue the lease was a very different thing from a sale of the term. If there was any evidence to contradict all this, it was a mere scintilla. Mr. Watson, one of the defendants, said : “He (the constable) put up that house for sale, with a lease to run, he said, about four and one-half years. He said he did not know the exact month or day, but it was about that time; then he said after that that it had four years to run from the next April after it was bought.” Properly considered there was nothing in this inconsistent with what the constable had testified. He admitted that he may have stated that the lease had so long to run. It was information very proper to give to the bidders. If they could arrange with the lessors and lessees, they need not remove the malt-house, but occupy it on the premises. On this state of the testimony there was no sufficient evidence to submit to the jury that anything was actually sold at the sale except what the constable had power to sell for rent. It is plain that the receipt of the constable and the assignment by Armstrong of the lease after the sale were entirely unavailing to change this result. Even if Armstrong had power to sell and assign the term, his assignment could not affect the contract of sale between the plaintiff and defendants, which we have seen related only to the malt-house. The same remark is applicable to the constable’s receipt. It was not a receipt for the purchase-money, hut for the rent and costs as bailiff of the landlord. It recited that the lease and premises had been sold. It is clear that ho had no authority to give such a receipt. Instead of paying the whole bid to the .constable, it appears that the defendants paid the balance, after deducting the rent and costs, to Armstrong, taking from him a transfer of the lease in which the amount of this balance is stated as the consideration. Armstrong was entitled to that amount from the constable if nothing but the malt-house was sold. So far as the lessors were concerned, this assignment of the lease was ineffectual to transfer it; at least it was in their power to avoid it, because it wanted the written sanction by them which the lease made necessary, and declared that in case of a transfer without such written sanction the lease and improvements should be forfeited. Whether they did afterwards sanction it does not appear, and is unimportant. That which was sold by the constable, and was the subject-matter of the contract of sale between the plaintiff and defendants below, was the malt-house, and the malt-house alone. No evidence was given of the value of the term apart from the malt-house. The truth is, as is apparent from the whole evidence, that the ground was let for its full rent, and the term independent of the improvements was therefore worthless, and it did not enter into any person’s mind as of any importance as an element in the sale. It was known that the purchaser might remove the malt-house, or if he wished to occupy the premises the landlord would continue the lease.

In this view of the case the plaintiff in error has no just ground to complain of the refusal of the learned judge below to affirm his points as requested, and this refusal is all that is assigned for error. It is unnecessary, therefore, to consider what would be the effect of the Statute of Frauds in the case of a parol agreement for the sale of a term of more than three years.

Judgment affirmed.


source: Caselaw Access Project

author: Mercur, J. —

license: Public Domain

text:
    McMarlan versus English.
    1. Where the transfer of possession of chattels corresponds with the nature of the property sold and the relation of the parties, the sale will be valid unless fraudulent in fact.
    2. Where there has been an actual and continued change of possession the court cannot pronounce the sale fraudulent in law.
    3. The separation of the property from the possession of the vendor must be at the time of sale or a reasonable time afterwards: and may be made by surrendering the power over it to the vendee.
    4. The question of fraudulent sale under the facts in this case for the jury.
    5. Billingsley v. White, 9 P. IT. Smith 464 ; McKibben v. Martin, 14 P. ]?. Smith 352, recognised.
    October 17th 1873.
    Before Rea», C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the District Court of Allegheny county: No. 11, to October and November Term .1873.
    This was a feigned issue, under the Sheriff’s Interpleader Law, in which Hugh 0. English was claimant and plaintiff and William D. McMarlan defendant. The issue was formed March 17th 1873. The goods in controversy were seized under an execution, issued January 8th 1873 by McMarlan against Andrew B. English, who was a brother of.the claimant.
    The cause was tried May 12th 1873, before Hampton, P. J.
    The plaintiff testified that he had been store-keeping since April 1st 1872. He purchased the store from A. B. English, on the Saturday before the 1st of April; they commenced taking stock on the 1st of April; made an invoice of everything about the store. It was signed by Andrew a short time afterwards. Andrew owed rent and a bill of goods to A. Craig, which plaintiff paid. He paid in cash $180.70; also a note for Andrew’s debt to Spencer & Willison for $125, which he paid; also a note due by Andrew to Campbell & Co., for $206; and to close the account, plaintiff gave Andrew a note for $117.04, which he afterwards paid. Plaintiff paid “the purchase-money in full for everything.”
    The “ invoice” was in the form of a bill, and was given in evidence. It was dated April 1st 1872, and headed “ Hugh C. English bought of A. B. English.” It amounted to $644.44. At the bottom was written :—
    “ The above invoice of stock is settled in full to the above dates.
    “Andrew B. English.
    “Witness present — John English.”
    The plaintiff gave in evidence his own note for $117.06; note to Campbell & Co. and note to Spencer & Willison. Plaintiff did all the buying at the store after April 1st 1872. Andrew and his wife assisted in making out the invoice. The invoice was six or eight weeks after the invoice was made out. All the goods in the store levied on, except some old goods, had been purchased by plaintiff since April 1st 1872. The goods were purchased, sold and removed in the ordinary course of business.
    Elizabeth English, wife of Andrew, testified, corroborating the plaintiff’s statement as to invoice, &e.; also as to the possession by him since April 1st 1872, and that her husband had had no interest in the store since that time.
    Joseph Craig testified that the plaintiff had paid him a claim which Andrew owed him; also that plaintiff had been conducting the store since April 1st 1872, and had been dealing in his own name with plaintiff.
    Other witnesses testified that the business at the store had been conducted by plaintiff since April 1st 1872.
    The defendant testified that Andrew had had the store in his possession for two years or more before it had been- transferred to plaintiff. Plaintiff was there through 1871; was there as often as Andrew, who was about the store attending it. The defendant saw no change in the management after April 1st 1872. He saw Andrew there. Plaintiff said ho had paid $370 for the store. Andrew lived up to June in the house in which the store ivas. The evidence was that after May or June 1872, Andrew moved with his family to his father’s house, about four miles distant from the store.
    George Wallace testified that there never had been any sign at the store. Andrew lived over the store from April 1st till about May. In going from the kitchen up stairs they had to pass through the store. Andrew moved away about May 1872.
    There -was similar evidence as to Andrew living in the same building in which the store was; as to Andrew being engaged about the store after the sale as before ; evidence of the plaintiff’s want of means, and other facts, for the purpose of showing that the sale was colorable and fraudulent.
    The defendant submitted eight points, amongst which were the following, with their answers :—
    1. The evidence shows that there was not such a delivery of the possession of the property in dispute as the law requires, and the jury must therefore find for the defendant.
    The answer was : “ The court refuses to affirm this point, hut submit the question to the jury to determine from all the evidence, whether this was an honest, fair and boná, fide sale, or whether it was made for the purpose of hindering, delaying or defrauding Andrew’s creditors. If it was so made, the plaintiff cannot recover, and your verdict should be for the defendant. But if it was fair and honest, and not made for the purpose of cindering, delaying and defrauding the creditors of Andrew, then the plaintiff would be entitled to vour verdict.”

      2. In this case the plaintiff must satisfy the jury that the sale in question was honestly made, and'that it was founded on a valuable consideration, and if he has failed so to satisfy you, your verdict should be for the defendant.
    The answer was: “ This point is sufficiently answered in our answer to the first point.”
    3. If Andrew B. English sold the property in question to Hugh C. English, and then remained with his wife for some time thereafter in the store, helping in the business of the store as they had done before, the sale was fraudulent as against creditors, and your verdict should be for the defendant.
    .The answer was: “It is settled law that a voluntary sale of chattels must be accompanied by an actual change of possession. * * * A merely formal or constructive delivery will not defeat an execution. When such delivery does not attend a sale, it is fraudulent.”
    4. Unless the evidence satisfies you that the sale was not made to hinder, delay or defraud the creditors of Andrew B. English, your verdict should be for the defendant.
    The answer was: “ This point is affirmed with this addition, that the party who alleges fraud must prove it.”
    5. If the sale was an honest one, the evidence must satisfy you that there was an actual, 'open, notorious delivery of the possession of the property by the vendor to the vendee, and that that possession was continued by Hugh, exclusive in him and not concurrent with Andrew.
    The answer was: “The possession under a sale of personal property must be as complete, actual and exclusive, as the nature and situation of the property will permit. And if there is not such a delivery, it is such evidence as the jury may take into their consideration in determining the question whether the sale was fraudulent or not.”
    The verdict was for the plaintiff.
    The defendant on a writ of error sued out by him assigned the answers to the foregoing points for error.

      A. Blakeley, for plaintiff in error. —
    Under, the evidence the court should have decided as matter of law that the sale was fraudulent: McKibbin v. Martin, 14 P. F. Smith 352; Bentz v. Rockey, 19 Id. 77; Miller v. Garman, Id. 134; Redfield & Rice Manufacturing Company v. Dysart, 12 Id. 62.

      J. W. Kirlcer, for defendant in error. —
    The facts in this case presented the question whether there was actual fraud in the sale, —this was a question for the jury: Dornick v. Reichenback, 10 S. & R. 90; McKibbin v. Martin, 14 P. F. Smith 356. Whether the change of possession is actual and boná, fide is for the jury: McVicker v. May, 3 Barr 224; Forsyth v. Matthews, 2 Harris 100; Hugus v. Robinson, 12 Id. 9; Dunlap v. Bournonville, 2 Casey 72; Bastian v. Dougherty, 3 Phila. R. 30.
   The opinion of the court was delivered, November 22d 1873, by

Mercur, J. —

About the 1st of April 1872, Hugh C. English purchased and took possession of the property' in question. It consisted mainly of a small stock of goods. He continued in possession thereof down to the time they were levied upon as the property of Andrew B. English. That levy was made March 7th 1873. The plaintiff in error, however, claims that Andrew retained a concurrent possession with Hugh until about the 1st of June 1872. There is some evidence to sustain that allegation. It is shown that in the months of April and May 1872, Andrew and his wife were occasionally in the store, and sold a few goods to customers.

An explanation was given of these acts, which otherwise might have been stronger evidence of Andrew’s concurrent possession. Before and at the time of the sale Andrew resided, with his family, in a part of the same building in which the stock of goods was kept. Hugh was unmarried, and during the winter previous to the sale made his home with Andrew, and occasionally assisted in the store. Andrew continued to reside in the house until some time toward the latter part of May 1872. In going from the kitchen to other rooms which he occupied as his dwelling, it was necessary to pass through the store-room. As Hugh had assisted while Andrew owned the goods, so Andrew assisted after Hugh purchased them. After Hugh’s purchase he claimed and exercised exclusive ownership over the property. He held himself out to the world as the sole owner. He replenished the stock from time to time. Andrew did not act, and made no claim inconsistent with Hugh’s right and possession. Nevertheless, if the execution had been issued while Andrew continued to reside in the building, the case would not have been entirely clear of difficulty, and the concurrent possession should have been submitted to the jury. It is well settled where the transfer of. possession corresponds with the sale and the nature of the property sold, and the relations of the parties, the sale will be valid unless fraudulent in fact. Hence it was held where two brothers in failing circumstances sold the stock in trade of a coach manufactory to a third brother, who went into possession, and the two vendors remained in his employ, superintending a particular part of the work for wages, that-there was such a change of possession as to make it improper to decree the sale a fraud, as matter of law: Dunlap v. Bournonville, 2 Casey 72. Where there has been an actual and continued change of possession, the court cannot pronounce the sale fraudulent in law. The vendor must make such an actual delivery only as the nature of the property and circumstances of the case will reasonably admit. The separation of the property from the possession of the vendor must be at the time of the sale, or within a reasonable time afterwards. That separation may be made by the vendor’s surrender and transfer of his power and control over it to the vendee: Billingsley v. White et al., 9 P. F. Smith 464. In this case just cited one of the vendors continued in the store as a clerk, yet it was held that the sale was not fraudulent in law. The same doctrine was recognised in McKibben v. Martin, 14 P. F. Smith 352.

Whether Hugh had such an exclusive possession in April or May 1872, as to make his purchase good against creditors of his vendor, does not control this case. The evidence is uncontradicted, that in May, Andrew moved away, and to a house some four miles therefrom, and ivas not again in the store, before the levy was made. So in fact Andrew had no possession or color of possession for more than nine months previous to the property being seized in execution.

It may be conceded that the learned judge erred in his answer covered by the fifth assignment of error. The first part of the answer is correct. The latter part is not responsive to the point. It fails to discriminate between fraud in law and fraud in fact. We have shown, however, that the facts would not have sustained a verdict on the ground of fraud in law. The facts would not admit of the application of the rules of law prayed for. Hence ■we will not reverse for an answer which caused the plaintiff in error no injury: Childs et al. v. Digby, 12 Harris 23; Deakers v. Temple et al., 5 Wright 234. We discover no other error in the record, therefore judgment affirmed.


author: Mbrcur, J. —

text:
    Duff versus Wynkoop et al.

    1. A judgment was entered in one county, transferred to another, and to a third by transcript from the second. Land was sold under a judgment obtained in the last county on scire facias. The first judgment in the last county was held to be void and that with the judgment on the scire facias struck off. Held, the title of the purchaser at sheriff’s sale was not affected.
    2. A judgment on a scire facias on a judgment is quod recuperet; not a mere award of execution.
    3. A defendant whose land was sold under an execution and who has received part’of the proceeds of the sale is estopped from denying the validity of the sale, although under a void judgment.
    4. The acknowledgment of a deed in open court by a county treasurer, is an official act and ratifies his signature although made by another.
    5. Parol testimony is inadmissible to contradict the record of a treasurer’s deed or to impair its validity.
    6. Dorrance v. Scott, 3 Wharton 309, remarked on and distinguished.

      October 20th 1873.
    Before Bead, 0. J., Agnew, Sharswood, Williams and Mbrcur, JJ.
    Error to the Court of Common Pleas of Forest county: No. 108, of October and November Term 1873.
    This was an action of ejectment, brought May 17th 1866, by Samuel Duff against L. C. Wynkoop, James W. Guthrie, Milton Wynkoop and W. S. Wynkoop, for six hundred acres of land, known as the “ Nelson Strong” tract. John Heath was afterwards admitted as a co-defendant.
    The case was tried September 27th 1870, before Campbell, P. J.
    The plaintiff gave in evidence a judgment, Thomas Mellon, for the use of Samuel Duff, against James W. Guthrie and Jacob McFadden, entered in the Court of Common Pleas of Forest county, to December Term 1861; debt, $3953.42. Scire facias to same term returned “nihil;” alias scire facias to February Term 1862 returned “nihil.” Judgment May 26th 1862, liquidated at $5248.16. Fi. fa. to September Term 1862; levy on two tracts of real estate — one of four hundred acres, in Millstone township, in the name of Nelson Strong. Vend. ex. to December Term 1862; “stayed.” Alias vend. ex. to February Term 1863; “stayed.” Pluries vend. ex. to May Term 1863 ; sold to Samuel Duff for $375. Deed, William Fox, sheriff, to Samuel Duff, for four hundred acres, being the Strong tract, dated May 26th 1863, and acknowledged in open court on the same day.
    The Mellon judgment had been originally entered in Clarion county and certified to Jefferson county; Forest county was separated from Jefferson for judicial purposes in September 1857, and the judgment was entered in Forest county by a transcript from Jefferson county. After the above-stated proceedings under it, the Court of Common Pleas of Forest county struck off both the judgment on the scire facias and the original .entry in that county on the Jefferson county transcript. On error the Supreme Court affirmed the order of the court below (1 P. F. Smith 116).
    The plaintiff gave evidence of sale for taxes of tract of six hundred and fifty acres, in Millstone township,In the name of Nelson Stoong, to Elizabeth Wynkoop. Deed to her from the treasurer of Forest county, dated October 27th 1862; acknowledged December 23d 1862; assignment, August 13th 1864, endorsed on treasurer’s deed, Elizabeth Wynkoop to Samuel Duff; acknowledged the same day. He also gave in evidence affidavits of J. W. Guthrie to open the Mellon judgment, to show that he claimed a portion of the proceeds of the sheriff’s sale.
    The plaintiff rested.
    The defendants gave in evidence deed of Charles J. Fox, county treasurer, dated December 28th 1850, to Paul Darling, for the land in dispute ; assignment, Paul Darling to John Heath, December 26th 1860; endorsed on deed. Deed, October 1st 1865, John Heath to L. C. Wynkoop. Deed, September 25th 1866, John W. Miller’, treasurer, to R. G. Wright, for same land, sold for taxes of 1864, 1865; acknowledged in open court the same day; assignment, dated October 15th 1868, R. G. Wright to W. S. Winkoop; acknowledged same day. They gave in evidence treasurer’s deed-book, showing erasures in the record of the sale to E. Wynkoop ; it was marked “ Sold by mistake,” and a pen drawn over “ E. Wynkoop. ’ Also in unseated land-book: “ June 10th 1862, $650, Wynkoop E.; paid by L. C. Wynkoop, for 1860 and 1861.” Also in treasurer's deed-book, kept by prothonotar-y at the record of deed to E. Wynkoop was: “ This deed not acknowledged — error.”
    Defendants gave evidence that Jonathan Hays was the treasurer of the county when the deed to Elizabeth Wynkoop was made, and that the signature “Jonathan Hays” was not in his handwriting, but in that of his deputy. There was much evidence given as to irregularities and errors in the entries of the records of the tax-sales; also evidence for the purpose of showing fraud by both parties in relation to their respective titles to the land. What has been given, with the instructions of the court below, will sufficiently present the questions decided by the Supreme Court.
    The following are points of the plaintiff, with their answers:—
    1. If the jury believe that J. W. Guthrie claimed and obtained a credit on the Mellon judgment, for the proceeds of the sheriff’s sale of the tract in dispute to Samuel Duff, all the title that Guthrie had in the premises passed by the sheriff’s sale to Duff, and so far as Guthrie is concerned the plaintiff would be entitled to recover.
    Answer: “ We answer the plaintiff’s first point that if J. W. Guthrie, by his own act, claimed and received the proceeds of the sheriff’s sale, or any part of it, or even with his own consent received a credit on a judgment against him, the law would be as stated in this point. But if the sale was made, the money paid in and distributed by the sheriff, without any agency or assent of Guthrie, he would not be estopped from controverting the title in the sheriff’s vendee; and if he was the plaintiff in the judgment on which the sale was made, in that event we instruct you that the sale would be void.”
    8. The jury should disregard all parol evidence tending to show that the treasurer’s deed to Elizabeth Wynkoop was not executed and acknowledged by Jonathan Hays, treasurer ; as it is not competent thus to contradict the certificate of acknowledgment upon the face of the deed, under the seal of court, as said certificate is not itself impeached.
    Answer: “ We refuse to answer this point as requested.”
    The defendants’ second point and its answer were:—
    As against the title derived by Heath and L. C. Wynkoop from Paul Darling (the treasurer’s vendee of 1858), the plaintiff has shown no title outside of the treasurer’s title to Elizabeth Wynkoop ; and if the jury believe from the evidence either that Jonathan Hays, the treasurer, did not execute that treasurer’s deed, or that it was not properly acknowledged, or that the land was not sold at public sale, as required by the Act of Assembly, or that the transfer from Elizabeth Wynkoop was not a sale, but a redemption, or procured by Duff by fraudulent representations — in either case they must find for the defendants.
    Answer: [“ We answer this point that if Jonathan Hays, the treasurer, did not make the deed to Elizabeth Wynkoop, if it was signed by some one else writing his name to it, his acknowledgment of it in the Court of Common Pleas would not make it valid;] that if the sale was not made at a public Sale, as provided by Act of Assembly — if the deed -was made out to Elizabeth Wynkoop without a public sale, or if it was sold after the taxes were paid and a receipt for them on the treasurer’s land-book — the treasurer’s sale would be void and would vest no title in the purchaser. If Duff procured this deed fraudulently, or used it for a purpose in fraud of his agreement with Wynkoop,.it would be invalid to enable him to hold the land in fraud of his agreement. This evidence is for you, and as the alleged contract is somewhat remarkable, you will examine it carefully. Thus far we answer this point in the affirmative.”
    The verdict was for the defendants.
    The plaintiff took a writ of error, and assigned for error — ■
    1. The answer to his first point.
    5. The answer to his eighth point.
    6. The answer to that part of defendants’ second point in brackets.

      L. B. Buff and B. J. Beicl, for plaintiff in error. —
    Judgment on a scire facias on a void judgment is not void: Buehler v. Buffington, 7 Wright 279; Hays v. Shannon, 5 Watts 549; Feger v. Kroh, 6 Id. 294. A purchaser at a sale on a judgment regular on its face is protected by Act of 1705, sect. 1, 1 Smith’s L. 32, 1 Bright. Purd. 651, pl. 84: Caldwell v. Walters, 6 Harris 85; Irwin v. Nixon, 1 Jones 419; Warder v. Tainter, 4 Watts 270. Where the defendant ratifies the sale by claiming credit for the fruits of it, he is estopped to deny its validity: Stroble v. Smith, 8 Watts 280; Wilson v. Bigger, 7 W. & S. 111; Benedict v. Montgomery, Id. 238; Smith v. Warden, 7 Harris 430; Warden v. Eichbaum, 3 Grant 42. The statutory authority for acknowledging treasurers’ is the same as for sheriffs’ deeds: Acts of June 16th 1836, sect. 94, Pamph. L. 778, 1 Bright. Purd. 658, pi. 119; March 13th 1815, sect. 1, 6 Smith’s L. 299; April 3d 1804, sect. 2, 4 Id. 201; April 4th 1809, sect. 1, .5 Id. 73, 2 Bright. Purd. 1444, 1445, 1446, pl. 14, 18, 19. The acknowledgment of a sheriff’s deed is a judicial act: Bellas v. McCarty, 10 Watts 23; McMicken v. Commonwealth, 8 P. F. Smith 214.

      Gordon (with whom were G. A. Jenks and A. L. Gordon), for defendants in error. —
    A sale on a void judgment is void: Dorrance v. Scott, 3 Whart. 309; Hoffman v. Strohecker, 7 Watts 86; Fetterman v. Murphy, 4 Id. 424; Camp v. Wood, 10 Id. 118; Caldwell v. Walters, 6 Harris 82. A treasurer’s deed is not the act of the court as a sheriff’s deed: Hoffman v. Bell, 11 P. F. Smith 450.
   The opinion of the court was delivered, January 5th 1874, by

Mbrcur, J. —

The plaintiff claimed title to the land in question, first under a treasurer’s sale and deed in 1862, and secondly under a sheriff’s sale made upon a judgment in 1863.

The fifth and sixth assignments of error relate to the execution and acknowledgment of the treasurer’s deed. The deed purported to have been signed by the treasurer. It was duly acknowledged by him in the Court of Common Pleas of the- proper county, and so certified on the face of the deed by the prothonotary, under the seal of the court. The defendants gave evidence that the signature to the deed purporting to be that of the treasurer was not his handwriting, but was that of his son and deputy. The court, in answer to a point submitted, said, “ We answer that if Jonathan Hays, the treasurer, did not make the deed to Elizabeth Wynkoop, if it was signed by some one else writing his name to it, his acknowledgment of it in the Court of Common Pleas would not make it valid.”

In so answering, we think the learned judge erred. It is not claimed that any fraud or deceit was practised upon the treasurer by his deputy. No evidence was given that the deputy signed the treasurer’s name to the deed without authority. By the appearance of the treasurer in open court and acknowledging the instrument to be his official act and deed, he ratified and confirmed the signature thereto which purported to be his own.

The Act of April 3d 1804 authorized the sheriff of the proper county to make sale of unseated lands for the non-payment qf taxes, “ and to make and execute a deed or deeds in fee simple, to the purchaser or purchasers of any unseated lands so sold, and the same in open Court of Common Pleas of the proper county, duly to acknowledge.”

The Act of April 4th 1809, transferred to the county treasurers respectively, all the powers vested in sheriffs and duties enjoined on them under the former act. Thereupon and thenceforth it became the duty of the treasurer to acknowledge in open court, in like manner as the sheriff had previously done, all deeds for lands which he might sell. The acknowledgment of a sheriff’s deed is a judicial act, conducted with all the solemnities of a court of record. It is an official proceeding of a court of record acting judicially in relation to the matter before it: Hoffman v. Coster, 2 Whart. 453; Bellas v. McCarty, 10 Watts 13. As parol testimony is inadmissible to contradict the record of an acknowledgment of a deed made by the sheriff, so we think it should not be permitted to impair the record of an acknowledgment made by a treasurer. The fifth and sixth assignments are therefore sustained.

The first assignment of error appears to be predicated on the assumption that the judgment had not sufficient validity to support the sale. The original entry of the judgment in Forest county was by filing an exemplification of an exemplification. A sci. fa. issued upon this judgment: it was revived by default. Execution issued on the revived judgment by virtue of which the land in controversy was- sold. After the sale the revived judgment, as well as the original judgment in Forest county, were stricken from the record: Mellon v. Guthrie, 1 P. F. Smith 116.

The Act of 1705 provides, “if any of the said judgments which do or shall warrant the awarding of the said writs of execution, whereupon any lands, tenements or hereditaments have been or .shall be sold, shall at any time hereafter be reversed for any error or errors, then, and in every such case, none of the said lands, tenements or hereditaments so as aforesaid taken or sold, or to be taken or sold upon executions, nor any part thereof, shall be restored, nor the sheriff’s sale or delivery thereof avoided; but restitution in such case only of the money or price for which said lands were or shall be sold : 1 Purd. Dig. .651, pi. 84.

A sale of land upon a judgment recovered upon a mortgage was held to confer a good title upon the purchaser, although the defendant ivas dead when the first writ of sci. fa. issued, and the sheriff returned that there were no terre-tenants: Warder v. Tainter, 4 Watts 270. This Act of 1705 applies to cases of judgments reversed for errors of fact as well as errors of law: Id. It extends to cases where the judgment and all subsequent proceedings were set aside after the sale: Hays v. Shannon, 5 Watts 548. So where the original judgment was void, but it had been revived by the issuing of two writs of sci. fa. post annum et diem, each of which was returnedmM, anda sale of land made thereon, it was held to pass a good title to the purchaser: Feger v. Kroh, 6 Watts 294. A judgment regularly revived by sci. fa. is not void, even if the original judgment was void. A sci. fa. is a substitute here for an action of debt elsewhere ; the judgment on it is quod recuperet instead of a bare award of execution, it therefore' warrants the awarding of the execution : Hays v. Shannon, supra. The last judgment cannot be considered invalid, although it was entered on a sci. fa. issued on a previous judgment that was void.: Buehler’s Heirs v. Buffington et al., 7 Wright 278. The new judgment being regular upon its face and voidable only, has a sufficient vitality to support the sale.

The case of Dorrance v. Scott, 3 Whart. 309, is not in entire accord with the other cases cited, yet it is distinguishable in two particulars. The original judgment was entered upon a bond executed by a married woman and therefore absolutely void; and the revived judgment was. upon a sci. fa. quare executionem. I may further add, that it was not an action to recover the land from the purchaser at sheriff’s sale, but was one of lien and the distribution of the proceeds of the sale. The protective Act of 1705 does not appear to have been referred to by either the counsel or the court.

The answer covered by the first assignment is somewhat obscure. The record showed the equitable plaintiff in the judgment to have been the purchaser at the sheriff’s sale. That fact was unquestioned. The court should therefore have answered in more specific terms that, if Guthrie claimed and received the proceeds of the sheriff’s sale, or any part thereof, he was estopped from controverting the validity of the sale, although'the plaintiff in the judgment was also the purchaser.

This rule applies whether the sale was void or only voidable : Smith v. Warden, 7 Harris 424.

The other assignments are not sustained.

Judgment reversed, and a venire facias de novo awarded.


author: Sharswood, J. —

text:
    Follansbee versus Walker et al.

    1. An action was “ Follansbee v. Walker,” and judgment for defendant; another action was brought “ Follansbee & Walker to the use of Follansbee a. Walker.” Held, under a plea of former recovery, that the record in the first suit was evidence in the second.
    2. The presumption was that the merits were passed on in the first ■ease, the legal plaintiff in the one being the equitable plaintiff in the other.
    3. A plaintiff having been defeated on the merits cannot try the same question in another form.
    4. In the second action the plaintiff might prove by jurors in the first, •that the jury passed only the question whether the transaction was with the firm or Follansbee alone.
    5. The charge of the judge filed of record in the first case was evidence to show the questions submitted to the jury.
    6. Parol evidence when it does not contradict the record, is admissible to show that a former recovery was not on the merits but on a technical objection.
    7. Carmony v. Hoober, 5 Barr 305 ; Ilaak v. Breidenbach, 3 S. & K. 204; Leonard v. Leonard, 1 W. & S. 342, followed. Oluggage v. Swan, 4 Binney 150, distinguished.
    October 21st 1873.
    Before Read, C. J., Agnew, Sharswood, Williams .and Mercur, JJ.

      Error to the Court of Common Pleas of Erie county: Of October and November Term 1873.
    This was an action brought May 18th 1871, by Joshua Follansbee and William Walker, trading as Walker & Follansbee, for the use of Joshua Follansbee, against John W. Walker and H. N. Armstrong, trading as Walker & Armstrong.
    The plaintiffs filed a narr. in assumpsit in the common counts, and also the following claim: — •
    October, 1866. Walker & Armstrong, Er.

    To 564 tons coal at $8.25 . . $4484.17
    Credit by cash, • . $1500.00
    By price of one-half interest in coal-yard, fixtures, &c., 1598.73
    $3098.73
    $1685.44
    Add interest.
    The defendants pleaded “ non assumpserunt,” and also a special plea, that Joshua Follansbee to No. 92 of November Term 1868, in Court of Common Pleas of Erie county, impleaded the defendants for not performing the identical promises and undertakings mentioned in the declaration in this case, that the case was tried by a jury on the 28th of March 1871, and a verdict rendered for the defendants upon which, judgment was afterwards entered in favor of the defendants, which remains unreversed, &c.
    The plaintiffs replied : that the suit of No. 92 of November Term 1868 was brought on promises alleged in the declaration in that case to have been made to Joshua Follansbee alone; that therefore neither the parties nor the promises are the same: and further, the defendants in that suit alleged that the promises were made by them to Joshua Follansbee and William Walker jointly, and the consideration for the promises was received by Walker & Follansbee from their joint property, and the defendants supported their defence on that ground, and testified as witnesses on the trial of the case that the promises mentioned in the declaration in that case were to Follansbee & Walker jointly, and not to Follansbee alone, and requested the court to charge the jury that if they believed the testimony of the defendants, Follansbee could not recover; and the court did so charge, and further charged that by finding a verdict for the defendants, on the ground of the nonjoinder of the said William Walker as plaintiff, Walker & Follansbee would not be precluded from recovering in a joint action, and the verdict was found on that defence and on no other ground whatever.
    This case was tried April 15th 1873, before Wetmore, P. J.

      The plaintiffs gave evidence of their claim as filed and rested. It was admiited that the claim presented in this suit is the same as that given in evidence in the former suit.
    The defendants then offered in evidence the record in the former suit. The plaintiffs objected to the offer on the ground that the parties are not the same, and that the jury in that case passed on the question whether Eollansbee had a right to sue, and not on the merits. The offer was admitted and bill of exceptions sealed.
    The record showed an action in assumpsit, “Joshua Eollansbee v. Walker & Armstrong,” of the number, &c., set out in the special plea; copy of claim filed; judge’s notes of testimony, which amongst other things contained evidence that the contract of sale was with the firm of Eollansbee & Walker; the charge of the judge who tried the case, in which he said to the jury that there was a preliminary question for them to decide, viz.: whether the transaction was with Eollansbee alone, for if the transaction was with Eollansbee & Walker, the plaintiff could not recover in his name alone. The verdict then was for the defendant.
    The defendants here rested.
    The plaintiffs in rebuttal offered to show by members of the jury who were impannelled in the case of Eollansbee v. Walker & Armstrong, No. 92, Nov. Term 1868, that the jury decided only on the preliminary question submitted by the court, whether or not the transaction was with a firm called Walker & Eollansbee, or with Eollansbee alone, and that they did not pass on the accounts between the parties submitted to them in a subsequent part of the charge.
    The offer was objected to by the defendants, rejected by the court and a bill of exceptions sealed.
    The verdict was for the defendants. The plaintiff, Eollansbee, took a writ of error and assigned the decisions of the court on the offers of evidence, for error.

      J. Benson (with whom was B. Babbitt), for plaintiff in error.—
    The judgment of a court to be good, as a plea in bar, must be between the same parties upon the same matter directly in question and upon the merits. If the trial went off on a technical defect, or because of a temporary disability of the plaintiff to sue, or the like, the judgment will be no bar to a future action: 1 Greenleaf Ev., sects. 528, 530; Dale v. Rosevelt, 1 Paige 35; Kauffelt v. Leber, 9 W. & S. 93. Follansbee, who had no right to sue, is not the same party as Walker & Eollansbee who had the right: Kelley v. Eichman, 3 Whart. 419; 1 Chit. Plead. 1, 13.
    It is not necessary to the validity of a judgment that the name of the assignee of the claim should appear on the record: Reigart v. Ellmaker, 6 S. & R. 44; Paul v. Whitman, 3 W. & S. 407; Montgomery v. Cook, 6 Watts 238; Blanchard v. Commonwealth, Id. 309; Miller v. Manrice, 6 Hill 114.

      Whenever a judgment in a former ease is relied upon as conclusive in another, it may he shown by parol evidence not inconsistent with the record, that the particular point relied on was not adjudicated, if in law the judgment could have been rendered on any other: Hall v. Breidenbach, 3 S. & R. 204; Coleman’s Appeal, 12 P. F. Smith 252. A juror may testify what claims were allowed under the plea of payment: 6 Ohio Rep. 232; Converse v. Colton, 13 Wright 346; Carmoney v. Hoober, 5 Barr 305.
    The plea of judgment recovered is mixed matter of record with matter of fact: Lytle v. Lee, 5 Johns. 112; Thomas v. Rumsee, 6 Id. 33.

      J. 0. Marshall, (with whom was F. F. Marshall), for defendants in error. —
    Those are parties who have a right to control the proceedings: 1 Greenl. Ev. sect. 535; Calhoun v. Dunning, 4 Dallas 120; Rogers v. Haines, 3 Greenl. R. 362; Coates v. Roberts, 4 Rawle 112; Chambers v. Lapsley, 7 Barr 24; Kinnersley v. Orpe, Douglass 56; Castle v. Noyes, 4 Kernan (N. Y. ) 329; Washington Packet Co. v. Sickles, 24 Howard 343; s. c. 5 Wallace 592.
   The opinion of the court was delivered, October 27th 1873, by

Sharswood, J. —

There was no error in the admission of the record of the former judgment. The parties in that suit and in the action tried below were substantially the same. In the former, Joshua Follansbee was the legal, in the latter, he is the equitable plaintiff. The- subject-matter of the two suits appeared by the record to be identical. -The presumption would be upon the issues, that the merits had been passed upon in the former proceeding. Such being the case, if no technical objection appeared to have been raised upon the record to the right of Joshua Follansbee to maintain the action as legal plaintiff, the judgment in that action would be a bar to a subsequent action by him as equitable plaintiff. If it appeared that only the equitable, not the legal right, was in Joshua Follansbee, it would be presumed that the defendant had waived that' purely technical objection. It would be very unreasonable and contrary to the settled rules upon the subject, to permit the plaintiff having once been defeated on the merits, to try the same question over again in a different form : Calhoun’s Lessee v. Dunning, 4 Dall. 120; Marsh v. Pier, 4 Rawle 273; Chambers v. Lapsley, 7 Barr 24.

But we are of opinion that the learned judge below fell into an error in excluding the evidence offered by the plaintiffs, the rejection of which forms the subject of the second assignment. That offer was to prove by members of the jury impannelled on the trial at the first suit “ that the jury, decided only on the preliminary question submitted by the court, whether or not the transaction was with the firm of Walker & Eollansbee, or with Eollansbee alone, and that they did not pass upon the accounts between the parties submitted to them in a subsequent part of the charge.” This was objected to for the reason that the evidence was incompetent and irrelevant. In strictness this was not an objection to the competency of the witnesses, but only to the competency of the evidence. Waiving that point, however, we will consider both questions.

The charge of the judge as filed of record in the first case, showed conclusively that both the questions referred to in the offer were submitted to the jury. In Carmoney v. Hoober, 5 Barr 305, the charge of the judge so filed of record was considered as sufficient to establish on what point a former recovery had passed. Nothing seems better settled than that the evidence thus offered was competent. It did not contradict the record, but was entirely consistent with it. On the general issue under the pleas of non assunvpserunt, the defendants could have defeated the plaintiff by showing that the contract was not made with him, but with a firm of Eollansbee & Walker. Non-joinder of plaintiffs in an action ex contractu may be taken advantage of under the general issue: 1 Chitty’s Pleadings 13. Whenever it does not contradict the record, parol evidence may be given to show that a former recovery was had, not upon the merits, but upon some technical objection to the form of action or otherwise. The cases upon this subject are too numerous to cite ; it will be sufficient to refer to some of our own decisions: Zeigler v. Zeigler, 2 S. & R. 286; Haak v. Breidenbach, 3 Id. 204; Wilson v. Wilson, 9 Id. 424; Cist v. Zeigler, 16 Id. 282; Leonard v. Leonard, 1 W. & S. 342; Fleming v. The Insurance Co., 2 Jones 391; Carmoney v. Hoober, 5 Barr 305; Coleman’s Appeal, 12 P. F. Smith 252.

It is equally clear that the jurors were competent witnesses. In Haak v. Breidenback, and Leonard v. Leonard, supra, the parol evidence was given by jurors, and in the latter case under a special objection and exception; yet the judgment was reversed for the rejection of the evidence. There is no principle of law or rule of policy which in such a case ought to exclude them. It is entirely different from where they are called to impeach a verdict on the ground of their own misbehavior or that of their fellows : Cluggage v. Swan, 4 Binn. 150, though even that has been since questioned : Ritchie v. Holbrooke, 7 S. & R. 458.

Judgment reversed, and venire facias de novo awarded.


text:
    Wolford versus Herrington.
    1. If one having an interest in land, is induced to confide in the verbal promise of another that he will purchase at' sheriff's sale for the benefit of the former and in consequence the other is allowed to obtain, the legal title, his denial of the confidence is such fraud as will make him a trustee ex maleficio.

    2. An execution was issued against "Wolford, his wife holding an unrecorded deed for land levied on as his ; on the eve of the sheriff's sale, Herrington knowing of the deed, told the wife, that her title was doubtful and if she would allow him to buy the land at sheriff’s sale he would execute a writing before the property was struck off, declaring he bought for her. He bought the property, but refused to execute the writing. Held, that he was trustee ex maleficio for the wife.
    3. He would, be such trustee although Mrs. Wolford had had no interest in the land.
    3. When it is part of the agreement that a trust shall be declared in writing or the trust be not inserted in a deed in accordance with a stipulation, a fraudulent intent at the time of making the agreement need not be shown.
    5. Overton u.,Tracey, 14 S. & R. 326 ; Thomson v. White, 1 Dallas 447, followed.
    October 22d 1873.
    Before Bead, 0. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Oommon Pleas of Crawford county: Of October and November Term, No. 52.
    This was an action of ejectment for 25 acres of land brought October 10th 1872, by Dewitt 0. Herrington against John Wolford.
    The case was tried March 7th 1873, before Lowrie, P. J.
    The plaintiff gave in evidence a judgment in favor of F. W. Ellsworth against John B. Wightman and John Wolford, and sale of the land in dispute on an execution upon the judgment to Edward Herrington. Sheriff’s deed acknowledged September 20th 1867. Edward Herrington having died, his heirs conveyed the land to the plaintiff.
    For the defendant, Mrs. Wolford his wife, under objection by the plaintiff and exception, testified that she had an unrecorded deed for the land in controversy, and Edward Herrington knew of it three or four days before the sheriff’s sale.
    He came to her house and asked her if she knew that it was to be sold; that she said they could not sell it for she had a deed; he said there might be some trouble and she had better let it be sold and let him buy it in for her; she said that in that case she could get the money from Mr. Randolph; he said Randolph would need the money before he would ; that he would bid it in and pay the money and allow her two years to pay him back the money, with interest; that Herrington came again on the day before the sale and this agreement was repeated; Mr. Wightman was present; that boon after the sale Herrington said he had bought it for her; the witness further said she had a deed from P. K. Muse, and that her husband’s deed was from Joseph Muse.
    Samuel Stowe testified that Herrington told him in 1868 that he had bought the land for Mrs. Wolford, providing he got his money in a certain time, and interest; that he was not particular about the time — two or three years.
    John Wightman testified that he met Herrington at Wolford’s; that Herrington came there and offered his services and wanted to buy the land, for Mrs. Wolford and give her two years to pay the money and interest. He was to give a writing to that effect before he bid the property off. In Meadville witness was anxious for him to give the writing, and he said it was no matter, he would get his lawyer to write it after the bidding. It was written and then he refused until the deed was acknowledged. Witness tendered him the interest at the end of six months. He refused unless witness would pay it as rent. Witness refused that. Witness often offered the interest and he refused. About twenty-one months after the sale witness tendered him $700. He refused, and said he would not do it unless witness would pay his lawyer. * * *
    F. W. Ellsworth testified that the land was sold on his execution. Immediately after the sale Wightman said let us have an understanding. Herrington said if they pay me my money, with twelve per cent., in one year, I will let them have the land.
    H. T. Colt testified that he was present at Wightman’s tender of about $700. Herrington would not accept it unless Wight-man would pay his lawyer $50 ; saw no money counted; saw him have the money.
    H. H. Wolford testified that four or five months after the sale Herrington said he had bought the land for Mrs. Wolford, and all he wanted was his money and interest; thought the land at time of sheriff’s sale worth $1500. There was evidence that the piice paid for the land by Herrington was much below its value.
    The court being of opinion that the evidence was insufficient to create a title to the land, directed the jury to find for the plaintiff The jury so found.
    On a writ of error by the defendant, he assigned the instruction of the court for error.

      W. JR. Bole (with whom was J. W. Smith), for plaintiff in error. —
    The facts in this case warrant the conclusion that Herring-ton intended, from the beginning, to possess himself of the land in question, by artifice and fraud, he is therefore a trustee ex maleficio: Beegle v. Wentz, 5 P. F. Smith 369; Boynton v. Housler, 23 P. F. Smith 453; Sheriff v. Neal, 6 Watts 534; McCullough v. Cowher, 6 W & S. 427; Miller v. Pearse, 6 Id. 97; Morey v. Herrick, 6 Harris 123; Plumer v. Reed, 2 Wright 46; Seichrist’s Appeal, 16 P. F. Smith 237.

      M. P. Davis (with whom was S. N. Pettis), for defendant in error,
    cited Todd v. Campbell, 8 Casey 250; De France v. De France, 10 Id. 385.
   The opinion of the court was delivered, October 27th 1873, by

Sharswood, J. —

Upon this writ of error we have nothing to do with the competency of the witness, Mrs. Wolford. Her testimony was admitted, and forms part of the evidence. Had it been rejected, non constat that the defendant would not have strengthened his case by other testimony. He might have proved aliunde that she had a deed for the property, or he might have produced and offered the deed itself. He had a perfect right when the evidence was in, to rely upon it. Her testimony alone, if believed by the jury^-and there was no contradiction of it — showed a clear case of fraud on the part of Herrington within our late decisions of Beegle v. Wentz, 5 P. F. Smith 369, and Boynton v. Housler, 23 Id. 453. She had a claim to the land in her own right by an unrecorded deed — whether good or bad, conveying a good title or not, is unimportant — and these cases settle, that where one having any interest is induced to confide in the verbal promise of another that he will purchase for the benefit of the former at a sheriff’s sale, and in pursuance of this allows him to become the holder of the legal title, a subsequent denial by the latter of the confidence is such a fraud, as will convert the purchaser into a trustee ex maleficio.

But we are of opinion, also, that if the testimony of John Wightman — a clearly competent witness, admitted without objection — is believed, it was sufficient to make Herrington a trustee ex maleficio, independent of any interest in the land in Mrs. Wolford. He testified that at the time of the verbal contract Herrington distinctly agreed that he would execute a writing declaring the trust before he bid the property off. At the time of the sale he did not deny but evaded the performance of this promise, by saying he would get his lawyer to write it after the bidding. It was written, and then he refused until the deed was acknowledged. In one of the earliest cases on this subject in Pennsylvania, Thomson’s Lessee v. White, 1 Dali. 447, decided in 1789, where a husband and wife, having no children, conveyed the estate of the wife to a stranger, who reconveyed to them as joint tenants in fee, under a parol agreement between the husband and wife that the husband should settle the fee upon the wife’s heirs, and the husband died without making the settlement, it was held that the parol evidence was admissible to establish the agreement. Mr. Chief Justice McKean said: “ Where a party is drawn in by assurances and promises to execute a deed, to enter into a marriage, or to do any other act, and it is stipulated that the treaty or agreement should be reduced to writing, although this should not be done, the court, if this agreement is executed in part, will give relief.” When this case was cited before the same eminent judge soon after, in Plankinhorn v. Cave, 2 Yeates 370, he said: “ The case of Thomson v. White was that of a fraud and an exception to the general rule.” So it has been classed in the numerous subsequent cases in which it has been cited with approbation in the opinions of this court: Wallace v. Baker, 1 Binn. 616; Drum v. Lessee of Simpson, 6 Binn. 482; Cozens v. Stevenson, 5 S. & R. 426; Overton v. Tracey, 14 S. & R. 326; Oliver v. Oliver, 4 Rawle 144; Robertson v. Robertson, 9 Watts 34; Pugh v. Good, 3 W. & S. 58; Miller v. Pearce, 6 Id. 100: Morey v. Herrick, 6 Harris 128. In short, the principle settled in Thomson’s Lessce'w. White is a landmark of our law, and is well generalized by Mr. Justice Duncan, in Overton v. Tracey, supra: “ If one of the contracting parties insists on a certain stipulation, and desires it to be made a part of the written agreement, and the other by his promise to conform to it, as if it was inserted in the written agreement, prevents its insertion, this is a fraud, and chancery will enforce the agreement as if the stipulation had been inserted. Having no court of chancery, our common-law courts have constantly acted upon this principle from Thomson v. White, 1 Dall. 424, to Christ v. Diffenbach, 1 S. & R. 464, in a succession of decisions, varying in their circumstances, but all bottomed upon this principle.” The case before us is much stronger than Thomson v. White, for there was no evidence to show there that when the party made the promise he did not mean to comply with it in good faith, but circumstances evinced the contrary. The fact was that he had procured a settlement to be drawn by a conveyancer, which his wife refused to sign, because it contained a remainder to the “ issue of the bodies of her three half sisters,” one of whom was unmarried, which she thought an iudelicate expression; and on his death-bed he expressed great uneasiness at not having made a will, and soon after the declaration lost his reason. In noticing the case in Oliver v. Oliver, supra, Mr. Justice Rogers said: “ It has never been doubted that he entered into the contract in good faith.” In the ease before us, from Herrington’s evasion of his promise at and after the bidding, and his final refusal, there was reason to infer that when he made the agreement he did not mean to perform it, and that the whole arrangement was sought by him for the very purpose of deceiving and defrauding the Wolfords, and becoming the owner of their property at a price below its true value. When, however, it is a part of the agreement that the trust shall be declared in writing, or it is shown that the trust was not inserted in the deed under a stipulation to that effect in consequence of the verbal promise to perform it, such fraudulent intent at the time of the agreement need not b.e shown in order to establish the trust. The fraud consists in the fraudulent use of the instrument, as was decided in Oliver v. Oliver. It is true that it has been since held in Jackman v. Ringland, 4 W. & S. 149, that where there is nothing more in the transaction than is implied from the violation of a parol agreement equity will not decree the purchaser a trustee, which was affirmed in Barnet v. Dougherty, 8 Casey 371; Kellam v. Smith, 9 Id. 158, in the latter of which Mr. Justice Strong said: The fraud which will convert the purchaser at a sheriff’s sale into a trustee ex maleficio of the debtor, must have been fraud at the time of the sale.” But in none of these cases did the element exist of a promise at the time to execute a declaration of trust in‘writing, upon the faith of which the purchase was made. In Jackman v. Ringland, the opinion was by Mr. Justice Rogers, who does not even refer to his own opiniou in Oliver v. Oliver, and evidently did not suppose that there was any conflict. In Kellam v. Smith, Mr. Justice Strong cites Robertson v. Robertson, 9 Watts 32, in the opinion ip which, by Mr. Justice Rogers, Thomson’s Lessee v. White is cited with approbation as a ease of fraud. He would undoubtedly have noticed it if he had supposed the opinion he was then pronouncing overruled it. Thomson’s Lessee v. White, and Oliver v. Oliver, have never been shaken or overruled. These decisions are founded upon sound reason. Where it appears that the-understanding at the time of the verbal promise was by a writing to comply with the provisions of the Statute of Frauds, it is something more than a mere verbal promise. The opposite party relies upon the special stipulation to reduce it to writing and thus make him secure. A chancellor would decree its specific performance. If in confidence that such writing will be executed the legal title is acquired, it is a fraud in the purchaser to refuse to do what was promised, and claim to hold discharged of it, which will constitute him a trustee ex maleficio. We are of opinion that the case below should have been submitted to the jury. Some difficulty may arise, perhaps, upon another trial, though it was not suggested or argued before us, growing out of the fact that John Wolford, the defendant below, was the defendant in the execution. It may be well for the counsel to consider the propriety of applying to the court to permit Mrs. Wolford also to be made a defendant.

Judgment reversed, and a venire facias de novo awarded.

Agnew and Williams, JJ., dissented.


text:
    The Oil Creek and Allegheny River Railway Co. versus Keighron.
    1. Connected with a railroad was a branch on which were oil stations where the main company left their cars to be filled by the owners of the oil and then moved them. Two cars coupled together were placed at a station on a steep grade under charge of the oil company’s superintendent, none of the railroad company’s servants being there. The superintendent having filled one car, detached it to fill another : the first car ran down the grade, and collided with a locomotive which set fire to the cars and burned a neighboring house. In a suit against the company for burning the house : Held, that as between the company and third persons, they were liable for the negligence of the superintendent as their servant.
    2. Damages to be recovered must be the natural and proximate consequence of the act complained of.
    3. Under the circumstances of this case the cause not too remote.
    4. Penna. B. B. v. Kerr, 12 P. P. Smith 353, referred to.
    October 23d 1873.
    Before Read, C. J., Agnew, Sharswood and Mercur, JJ.
    Error to the Court of Common Pleas of Venango county: No. 82, to October and November Term, 1873.
    This was an action on the case for negligence, brought August 7th 1871, by Timothy Keighron against the Oil Creek and Allegheny River Railway Company. The injury complained of was the burning of a house of the plaintiff with its contents, by the collision of an oil-car of the defendants with a locomotive, by which the car and locomotive were fired, and the fire communicated to plaintiff’s house.
    The house was situated within about twenty feet of the Cherry Run Branch of the defendants’ road; the branch was used for running supplies to the oil-wells on Cherry Run, and taking oil thence to the main track; the empty tank cars were taken up and left at the different oil stations; they were then collected into a train and run down to the main track.
    The cause was tried November 13th 1872, before Trunkey, P. J.
    E. W. Hines testified that he was superintendent of the Union Petroleum Company, on Cherry Run: about 23d of April 1868, two cars coupled together were left on the track by the company for him to fill; he filled one; in order to load the second car, it was necessary to move it further down; he could not do so without disconnecting them; he could not “drop ” both at once; he disconnected them and then loosened the brake; the car would not start, and he jarred it till it started; he tried to tighten the brake and fell off; he drew himself up and tried to set the brake, bearing on it as hard as he could, but could not stop the car; the car got to going so fast that he jumped off; the brake shoved on one side so that it would not operate on the wheel; he first discovered this when he got off the car. The car ran into a locomotive standing on the track; it burned the car of oil, the locomotive and one or two other cars. The house also was burned. The persons in the employ of the defendants put the cars into his charge. Witness was not a practical railroad man; he did not know the brake was insufficient before he took off the coupling.'
    On cross-examination, witness said that he was not an employee of the road; the cars were placed there for him to fill, that was all he had to do with them; the car would not have started had he not disconnected them; he shipped the oil; it was necessary the cars should be on the track that he might fill them; on the other car the brake was in good order; his company had no sidings and the cars were loaded on the track.
    There was evidence that the locomotive with two or three cars had been standing in front of plaintiff’s house for three-quarters of an hour before the accident; that the collision and the cars and the house all took fire at once; there was no one with the locomotive during that time.
    For the defendants, Michael Silk, the conductor of the train testified that he had put the cars at the place of business of the Union Petroleum Company to be loaded with oil, with brakes on them securely coupled; one good brake would hold two cars; there was a good brake on each car; there was no necessity for uncoupling the cars. Hines had no authority or right to uncouple or interfere with the cars; the brake of the lower car was good except the dog; it was manageable by any one who knew anything about a brake; where one did not understand, the dog would slip up; all that was to do was to hold.the dog down with the foot. The defendants used the Cherry Run branch as a switch and main track both; there were three cars to the locomotive; the end of the second car was opposite plaintiff’s house; “ after the car struck the engine, the engine and three cars were in a blaze as quick as could be;” witness noticed the house on fire fifteen or twenty minutes afterwards; the grade from the cars at the Union Petroleum Company’s station to locomotive, was seventy feet to the mile, and the distance about half a mile; there was a curve which prevented them from seeing more than three hundred feet from the engine. Witness said that Hines had no experience as a railroad man. '
    There "was other evidence of the same character as that of Silk: also that after the car was seen coming down the track there was not time to move the locomotive ; that the hands would have been burned up, if they had remained on the locomotive; that the cars left at the Union Petroleum Company’s station were securely fixed.
    The following are points of the defendants with their answers:—
    2. If the jury find from the evidence that the defendants’ servants were guilty merely of general negligence in the management of their ears, and that the act of a third party contributed directly to the accident, the defendants are not liable, not being the proximate cause of the fire or accident.
    “ Answered in the affirmative ; but if you also find, in connection with the facts assumed, that there was particular negligence by defendants’ servants in reference to the particular car which caused the collision, and which contributed directly to the a'ccident, then the principle stated in this point does not apply.”
    The court charged: — -
    “ The defendants had a lawful right to use the road as their business or convenience-required. That they left a train standing on the track, and left cars at various places for the purpose of delivering or receiving freight, is no cause for complaint. There was nothing wrong in leaving two cars at the place of the Union Petroleum Company to be filled with oil. Unless the plaintiff has proved negligence on the part of defendants’ servants, he cannot recover. The burden of proof is upon him to show such negligence as directly contributed to and caused the loss.

      [“ The plaintiff alleges that when the cars were left the brake upon one of them was out of order and known to be out of order by the conductor who left them; that they were left to be loaded with oil by Mr. Hines, superintendent of the Union Petroleum Company, and left in his charge while there ; that no notice was given to Mr. Hines of the bad condition of the brake, and that he had no knowledge of it till the accident occurred; that he loaded the car with oil, when he attempted to move it so that he could load the other in the usual mode, and having started the car, by reason of the bad condition of the brake he could not stop it, and it ran down the grade, struck the standing locomotive, and directly set fire to the house. Does the evidence affirmatively satisfy you of the facts so alleged ? If so, then there was negligence on the part of the defendants. But, if the cars were left in good order, or if reasonable care had been used and there was no defect discovered by or known to the defendants’ employees, there was no such negligence as renders the defendants liable for damages to the plaintiff.”]
    4. If the jury find from the evidence that the fire originated on the engine, and spread from thence to the other cars and from thence to the building, the cause would be too remote, and the plaintiff could not recover.
    “ Answered in the affirmative: but if the cars were attached to the engine when the fire broke out and quickly ignited and burnt with the engine, the whole being a connected train upon the track, and the burning mass directly, without any intervening agency, set fire to and destroyed the plaintiff’s house, the cause was not too remote, and if the plaintiff has made out his case in other respects, he may recover.”
    5. Under the evidence in this case, the plaintiff is not entitied to recover, and the verdict of the jury must be for the defendants.
    Refused.
    The verdict was for the plaintiff for $750.
    The defendants took a writ of error and assigned for error the answers to their points and the charge of the court in brackets.

      W. McNair, for plaintiffs in error. —
    Unless Hines was the defendants’ servant acting within the scope of his authority, they are not liable: Kerns v. Piper, 4 Watts 222; Bard v. Yohn, 2 Casey 487. To constitute Hines their agent they should have some control over him or right to discharge him: Shearman & Redfield on Negligence, sect. 73.
    A man is answerable for the consequences of a fault only so far as they are natural and proximate and may he foreseen by ordinary forecast; and not for those which arise from a conjunction of his fault with other circumstances that are remote and extraordinary : Morrison v. Davis, 8 Harris 175; Scott v. Hunter, 10 Wright 192; Pennsylvania R. R. Co. v. Kerr, 12 P. F. Smith 353; Ryan v. New York Central R. R. Co., 35 New York 210; Penna. R. R. v. Beale, 23 P. F. Smith 506; N. Penna. R. R. v. Heilman, 13 Wright 60.

      J. H. Osmer (with whom was A. W. Govitt), for deiendant in error,
    cited Empire Transportation Co. v. Wamsutta Oil & R. Co., 13 P. F. Smith 14; Johnson v. Bruner, 11 Id. 58.
   Thé opinion of the court was delivered, January 5th 1874, by

Mercur, J. —

Two tank-cars, coupled together, were placed by the defendant below upon its track, at the Union Petroleum Company’s place of business. Hines was the superintendent of the petroleum company. The cars were placed there to enable him to fill them with oil. They were put in his charge for that purpose. While thus loading, Hines had the exclusive charge of the cars. The railway company left none of its regular employees in charge or control of them. The mode of filling the cars is to insert a pipe, connected with the tank in which the oil is stored, so that the oil may flow into the top of the car, and turn the stopcock into the pipe. After the front car was filled, it was necessary to move it in order to advance the rear car sufficiently near to the • tank to connect with the pipe. The probable necessity of .this movement of the cars must have been known to the defendant below, yet it furnished Hines with none of its other employees to assist therein. Hines had had no experience in handling cars. The down grade towards the place of collision, and of the burning, was seventy feet to the mile. Where the cars stood, they were securely held by brakes. Hines found himself unable to start both cars together. He therefore disconnected them, and started the front car. It appears the brake upon this car was not in good condition. The dog would slip up, loosening its grasp. Hines was ignorant of its defective condition, and was unable to tighten the brake, or stop the car. It ran into a locomotive standing on the track. The collision caused the car of oil, locomotive, one or two other cars, and the house of the plaintiff below, to burn.

It is claimed, by the defendant below, that Hines should have moved the two cars together; that the brake upon the rear car was in good condition, and sufficient to have stopped and held both cars; and that he had no authority to uncouple them. They, therefore, deny any liability for his unauthorized act.

The cars, however, were at the time of the injury subject to the control and management of Hines, for the purposes aforesaid. His authority was general within the limits of the special purpose. That purpose was, to fill the cars with oil; that was the general object for which the cars were intrusted to him. It was within the general scope of his powers so to use and move the cars, as to facilitate the loading thereof. As to third persons, he was clearly the agent of the railway company, and it is liable for his acts.

The other branch of the defence was, that the injury was too remote. To this the court answered : “ If the cars were attached to the engine when the fire broke out, and quickly ignited and burned with the engine, the whole being a connected train upon the track, and the burning mass directly, and without any intervening agency, set fire to and destroyed the plaintiff’s house, the cause was not too remote.”

The rule undoubtedly is, that the damages to be recovered must be the natural and proximate consequence of the act complained of. This, I understand to be, that the cause alleged produced the injury complained of, without any other cause intervening. The distinction between remote and proximate cause will be found fully discussed in Ryan v. The New York Central Railroad Company, 35 N. Y. 210; and in Pennsylvania R. R. Co. v. Kerr, 12 P. F. Smith 353.

We think the answers of the learned judge were correct, and discover no error in the charge.

Judgment affirmed.