text:
    Russell et al. versus Archer.
    1. A rule of court was, that an affidavit of defence should state whether the defence was to the whole or part of the claim, and if to part, to what part; the plaintiff might take judgment for the part confessed to be due, and such judgment, for the purposes of execution, should be final but not a bar to the recovery of any balance due; plaintiff taking judgment for the part confessed, to state whether he accepts it in full, or will proceed for the balance; if he does not so state, the judgment to be deemed final. Held, that the court had power to make such rule.
    2. Plaintiff’s claim was for §1227 ; the defendant in his affidavit admitted §810 to be due, and averred a defence for the remainder. The plaintiff took judgment for §810, complying with the rule; issued execution, went to trial for the remainder and recovered a verdict for §450, “ in addition to judgment for §810.” Held, that the first judgment was interlocutory, except for execution, and the judgment on the verdict was valid.
    3. Apart from the Act of Assembly, the power to make rules is inherent in every court of record.
    4. Brazier v. Banning, 8 Harris 345, distinguished.
    October 23d 1874.
    Before Agnew, 0. J., Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Venango county: Of October and November Term 1874, No. 152.
    This was a scire facias on a mechanic’s lien, issued February 25th 1873, by J. G\ Archer against Alexander Russell and others. The lien was for $1327.75, and had been filed the same day.
    On the 21st of April 1873, the defendants filed an affidavit of defence, admitting $810.11 to be due, and averring a defence for the remainder.
    Rule 16th of the Court of Common Pleas of Venango county, in relation to affidavits of defence, is as follows:—
    “ In all cases where an affidavit of defence is required by these rules, it shall state whether the defence is to a whole or a part of the plaintiff’s claim, and if to a part only, it shall state to what part; and all items of the plaintiff’s claim not traversed or denied, shall be taken as confessed. The plaintiff may take judgment for such part of his claim as may thus be confessed to be due, which judgment, for the purposes of lien and execution, shall be final, but shall not be deemed a bar to the recovery of any balance which may be justly due the plaintiff. He may waive judgment under this rule and proceed to trial for the whole claim. If he take judgment for the part so confessed, he shall state in his praecipe therefor whether he accepts it in full of his claim, or will proceed .to trial for the balance; and if this statement be not filed, the judgment shall be deemed final and in satisfaction of the claim. If he takes judgment and proceeds for the balance, the pleadings shall be in like manner as if judgment had not been taken. If he recover no part of the balance, he shall pay all costs accruing on the proceedings to recover the same.”
    On the 1st of May 1873, the plaintiff’s attorney directed judgment to be entered for tbe amount admitted to be due, and in his praecipe stated, in accordance with the rule of court, that he did not accept said sum in full of his claim, but would proceed to trial for the balance.
    Judgment was entered by the prothonotary, May 3d, for §810.11. On the same day a levari facias was issued, and on the 19th bail for stay of execution was entered. The case was put at issue and was tried March 2d 1874.
    On the trial the defendants’ first point was:—
    “ That the judgment entered against the defendants on the 1st day of May 1873, having been entered by the plaintiff himself, is final and conclusive, arid the said plaintiff is not entitled to another final judgment in the same cause of action.”
    The court (Trunkey, P. J.) answered the point in the negative, and added: “ By rule 16th of this court, the plaintiff had a right to take judgment for the amount confessed to be due for the purposes of lien and execution, and having made the proper statement in his praecipe, as provided by said rule, the said judgment is not final,-except for purposes of lien and execution.”
    The jury found for the plaintiff “for §450, in addition to judgment for §810.11.”
    The defendants took a writ of error, and assigned for error the answer to their point.

      O. W. Maclcey, for plaintiffs in error.
    By issuing execution on the first judgment, the plaintiff treated it as a final judgment, and that ended the suit: Brazier v. Banning, 8 Harris 345. There can be but one final judgment in a suit: O’Neal v. O’Neal, 4 W. & S. 130; Noble v. Laley, 14 Wright 284.

      J. H. Osmer, for defendant in error.
    The judgment taken pursuant to the rule of court was not final: Coleman v. Nantz, 13 P. F. Smith 178. It makes no difference whether the money be paid on an execution or voluntarily: Brazier v. Banning, 8 Harris 345; McKinney v. Mitchell, 4 W. & S. 25. The court had power to make the rule: Vanatta v. Anderson, 3 Binn. 417.
   Mr. Justice Mercur

delivered the opinion of the court, January 4th 1875.

Archer filed a mechanics’ lien against the plaintiffs in error, claiming §1327.75, for work and labor done on an oil-lease. A scire facias was issued, return served personally; defendants, in their affidavit of defence, admitted that they were indebted to the plaintiffs in the sum of §810.11, but set forth a defence to the balance of the claim. Judgment was entered for the sum admitted to be due, and the plaintiff recovered before the jury §450 additional.

This record presents a single question. It is this: Was the judgment first taken a final one ?

The 16th rule of the court below, inter alia, declares that the plaintiff may take judgment for such part of his claim as the defendant in his affidavit of defence may admit to be due, “ which judgment, for the purpose of lien and execution shall be final, but shall not be a bar to the recovery of any balance which may be justly due to the plaintiff. If he takes judgment for the part so confessed, he shall state in his praecipe therefor, whether he accepts it in full of his claim or will proceed to trial for the balance. ” In the affidavit of defence put in by the defendants below, they admitted their indebtedness in the sum of $870.11, and averred a defence to the residue of the plaintiff’s claim. Thereupon the plaintiff below filed his praecipe directing the prothonotary to enter judgment for the sum admitted to be due, but therein further declared, that he did not accept said sum in full of his claim; but that he would proceed to trial for the balance. He did so proceed. On the trial the defendants below interposed the first judgment as a bar to any further recovery against them. The court negatived the point. That answer is assigned as error. The jury rendered a verdict for $450 in favor of the plaintiff below, in addition to the sum previously admitted to be due, and one judgment was entered for both sums united.

Thus, it is shown, the first judgment was taken strictly in accordance with the rule. That rule clearly shows the extent of its finality.

It expressly authorizes the plaintiff at his option to proceed to trial for the recovery of the residue of his claim. The plaintiffs in error deny the right of the court to make and enforce this rule. They further urge that inasmuch as an execution had actually been issued on the first judgment, although no money was made thereon, it barred any further recovery. No question now arises as to the regularity of issuing the execution. The validity of the subsequent verdict, and of the consolidated judgment thereon, are all the questions which now arise.

The case of Brazier v. Banning, 8 Harris 345, is cited in support of the position that the first judgment was final. As there can be but one final judgment in any personal action, O’Neal v. O’Neal, 4 W. & S. 130, the last judgment is said to be invalid.

The case of Brazier v. Banning arose under an Act of Assembly in which there was no provision authorizing the plaintiff to proceed to trial for the residue of his claim after taking judgment for the sum admitted to be due. Nor was that case covered' by any rule of court. This distinction is clearly pointed out in the opinion of the court. Besides, in that case the first judgment had actually been collected on execution. In McKinney v. Mitchell, 4 W. & S. 25, it was held that upon an affidavit to part of a claim, the plaintiff might take judgment for the residue and receive it, and then proceed to issue, trial and judgment for the portion which was disputed. This rested on a rule of court not as specific as tbe one now under consideration.- The latter judgment was there sustained, although the first judgment, together with all costs, had actually been paid to the plaintiff. The court there said the first judgment was in the nature of an interlocutory judgment, although the rule of court made no provision for proceeding to trial after it was taken. In Coleman v. Nantz, 13 P. F. Smith 178, the right of. the-plaintiff to proceed for the recovery of the residue of his claim, after accepting a judgment for the sum admitted to be due, was again affirmed. This, too, was under a rule of court which did not go so far as in express terms to authorize the plaintiff to proceed to issue and trial for the residue of his claim. It was there, as here, urged that the law does not tolerate such an incongruity as the entry of two judgments in the same action. To avoid this incongruity the first was held as interlocutory. Where it is not designed to put an end to the suit, there is no impropriety in so treating it.

The power given • to the Courts of Common Pleas to establish such rules for regulating their practice and for expediting the determination of suits, "causes and proceedings therein, is- full and most ample: Purd. Dig. 233, pl. 136. Apart from this Act of Assembly, the power to make rules is inherent in every court of record.

We see nothing in this rule of court calculated to work injustice. It is designed to expedite the proceedings therein by removing from suits pending such portion of the claim as is not controverted. The first judgment may be final for some purpose and not for all. The offer was made and accepted under the rule which permitted the suit to proceed for the residue of the claim. The first judgment cannot then be said to be final for all purposes. It was substantially interlocutory. We discover nothing in this rule of court, nor in the action of the plaintiff below, in taking the first judgment under it, to preclude his subsequent recovery in the same action. The learned judge was therefore entirely correct.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Sharswood

license: Public Domain

text:
    Seigworth versus Leffel et al.

    1. Defendant bought from plaintiff water-wheels for a mill under a warranty, that they would do specified work or the defendant might rescind the contract, and plaintiff would refund the money paid, pay all expenses and damages. The defendant alleged the warranty had been broken ; he did not rescind the contract, but continued to use the wheels. Held, that the measure of damages was the difference between the value of the wheels as warranted and the real value or market price.
    2. In such case the contract price does not enter into the question as a rule of measurement. ■
    3. Where there was no other evidence of the real value of the article than the contract price, that is presumed to be the real value.

      October 23d 1874.
    Before Agnew, 0. J., Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common.Pleas of Clarion county: No. 27, of October and November Term 1874.
    This was an action of assumpsit, brought March 7th 1872, by Thomas Leffel, Henry Barnett and Samuel McPherson, partners, &c., against George Seigworth, who survived John G. Seigworth, to recover the price of three “ Leffel’s Improved Turbine Wheels.” The pleas were: “ Non assumpsit and payment with leave, &c.” The defence was that the wheels had been warranted to do a certain amount of work, and that upon a test they did not come up to the warranty. The defendant had made a payment at the time of the contract, and had also been at some expense in putting them in; he refused to pay the remainder of the contract price, and claimed damages also for the expense which he had incurred.
    McPherson, one of the plaintiffs, testified that in June 1869, he sold to the Seigworths three turbine wheels, at $260 each, and guarantied that they would “ grind under 24 feet head as much as an overshot using about the same amount of water;” $350 were paid when the wheels were sold; the balance was to be paid as soon as the wheels were started; the wheels were furnished about May 1st 1870, and by agreement with Seigworth, another wheel, at $300, was substituted in place of one of those sent. After the wheels were put in, they were tested, on the 13th of May, in the presence of the defendant, George Seigworth,' and others, and “went off to satisfaction of all present.” They postponed further test until the next morning, that John Seigworth might be present; the next morning the water was almost all gone, there not being enough to make the stream a test, and John Seigworth condemned the wheel at once without making any test. Plaintiff also testified that the streams did not afford the amount of water which Seig'worth had said when the contract was made,that they would; that when the test was made on 13th of May, the wheels did all that he had agreed they should.
    There was other evidence corroborating McPherson’s testimony; also that Seigworth interfered with the workmen in carrying out McPherson’s directions.
    The defendant testified that McPherson guarantied that his wheels would take less water than a 24-feet overshot, give better power and more regular motion; if they did.not, he was to take them away and pay all expenses and damages, the number of wheels was left to McPherson’s option; Jaynes put up the wheels ; plaintiffs sent him; the Seigworths were to pay him; they did pay him.
    The defendant proposed to prove “ that they paid Gabriel Jaynes $313 for putting these wheels in the mill. This for the purpose, in connection with other evidence, of showing damages sustained by the defendants in consequence of the wheels not performing as guaranteed by plaintiffs.”
    Objected to by plaintiffs’ counsel, and testimony excluded, the court saying: “ We do not think the evidence proper at this stage of the case.” A bill of exceptions was sealed.
    The defendant further testified that the wheel worked well, but took too much water; that another mill with less water than their mill did more work; that after the wheels were put in, McPherson said the head was the cause of the failure, and he would put in the other wheel at his own expense; it still did not do, and John Seigworth said he would not pay another cent; that McPherson should take the wheels, and pay all the damages.
    On cross-examination he testified that he had taken one wheel out and put it into a saw-mill, and it ran very well when there was water; that they were still running the grist-mill with the two wheels, and when there was plenty of water they did “ splendidly.” The wheels did everything they had been represented to do, except that they took too much water.
    There was other evidence of somewhat the same character as the testimony of the defendant; but there was no evidence of notice from the defendants of rescission.
    Both parties submitted points, which, with their answers, are as follows:—
    Plaintiffs’ points: 2. If John Gr. Seigworth condemned said wheels without a fair and honest test, according to the terms of the contract between the parties, then plaintiffs are entitled to recover, in the absence of clear and satisfactory evidence of a breach of the contract on part of plaintiff.
    8. Even if there was a contract of guaranty and a breach thereof by plaintiffs, unless the defendants gave the plaintiff notice to remove the wheels, they are liable for the real value of the wheels, if they continued to use them.
    Answer: “ We answer the second and third points of the plaintiffs in the affirmative, but qualify them as in general charge.”
    Defendant’s points : 1. If the plaintiffs guarantied their wheels to perform as well, or better, than a 24-feet overshot wheel and they did not, the plaintiffs cannot recover.
    Answer: “The first point we answer in the affirmative, but qualify it by adding to it, ‘ more than the market value;’ also by general charge.”
    2. If the jury find the facts stated in the last point, the defendants may defalcate all the damages sustained by the defendants from the plaintiffs’ claim.
    Answer: “ The second point we answer in the affirmative, with the qualifications contained in the general charge.”
    3. That if the jury find that the defendant has sustained more damage than the amount of the plaintiffs’ claim, the jury may find for the defendant the difference.
    Answer: “ The third point we answer in the negative.”
    The court (Jenks, P. J.) charged:—
    “ If the defendants purchased from the plaintiffs the wheels in controversy upon a guaranty that they had the capability stated in the testimony, and they had such capability, plaintiffs are entitled to the contract price, with interest upon so much of it as remains unpaid from the time it was payable until this date. If the wheels had not the capability guarantied, and notwithstanding the defendants retained and continued to use them, they would be liable for their real market value. If the difference between their real market value and the contract price was equal to the balance claimed, your verdict ought to be in favor of the defendants, but you cannot certify a balance in their favor. If the wheels had nqt the capability guarantied, and the defendants retained them, and the real market value was greater than the amount paid on them, for such amount your verdict ought to be in favor of the' plaintiffs, with interest from the time the money was to have been paid.”
    The jury found for the plaintiff $577.39.
    The defendant took a writ of error; he assigned for error:—
    1. Excluding the evidence of Seigworth as to the money paid by defendant for putting in the wheels.
    2, 3. The answers to the plaintiff’s 2d and 3d points.
    4, 5. The answers to the defendant’s 1st and 2d points.
    6. The answer to the defendant’s 3d point.

      J. Boggs and J. Campbell, for plaintiff in error.
    Under an entire contract the- plaintiff must prove performance or readiness to perforin, before, he can recover the consideration: Hall v. Rupley, 10 Barr 231; Shaw v. Turnpike Co., 3 Penna. R. 445. The jury could in this- case have certified a balance: Calvin v. McClure, 17 S. & R. 385; Balsbaugh v. Frazer, 7 Harris 95.

      C. A. Jenks and W. L. Corbett (with whom was T. 8. Wilson), for defendants in error.
   Mr. Justice Sharswood

delivered the opinion of the court, January 4th 1875.

This was an action instituted in the court below to recover the contract price of three turbine wheels, known as “Leffel’s Improved Turbine Wheel.” The defence set up was that the plaintiffs had warranted the wheels to do more work than a 24-feet overshot, and a breach of the warranty. Of this some evidence was given. It was also testified by witnesses on the part of the defendants, that they had reserved the right to rescind the contract in case the warranty was broken — in the words of the witnesses, that if they did not perform as warranted, the plaintiffs would take the wheels back and refund the money, and pay all expenses and damages. There was no evidence, however, that the right of rescission had ever been exercised. The defendants might have taken the wheels out or given notice to the plaintiffs to take them away. So far from this, it fully appeared that the defendants had continued to use the wheels without giving any notice of rescission. Under these circumstances, all that the defendants could claim was to set off against the plaintiffs’ demand the damages recoverable on breach of the warranty. In such a case the measure of damages is well settled to be the difference between the value of the articles as warranted and the real value or market price: Sedgwick on Damages 290 ; Borrekins v. Bevan, 3 Rawle 44; Stetson v. Croskey, 2 P. F. Smith 230. It was settled in Cothers v. Keever, 4 Barr 168, that the contract price does not enter into the question as a rule of measurement. In that case, which was an action to recover damages on the warranty of a horse, it was held that the true measure was the difference between the value of the horse, if he had been sound as warranted, and his value in the diseased state. The reason is a conclusive one: if the vendee made a bad bargain, he is not to be reimbursed what he lost by his simplicity as damages for a breach of warranty.

Here, for example, the price claimed for these improved turbine wheels may have been more than their real value, and the rule as laid down by the learned judge below would have been erroneous, had there been any evidence in the cause of. their real value as warranted other than the contract price. In the absence of any such evidence, as against the plaintiffs, the contract price must primá. facie be presumed to be the real value, and it is a rule to which the defendants in this case have no right to object.

In regard to the sixth error assigned, by which the jury were instructed that they could not certify a balance in favor of the defendants, as the jury found their verdict for the plaintiffs, no injury was done to the defendants, even if it was erroneous.

Judgment affirmed.


text:
    Pittsburg and Connellsville Railroad Co. versus Mt. Pleasant and Broad Ford Railroad Co.
    1. A plea in abatement may be stricken off -when it is irregular, not filed in time, not verified by affidavit or when the pleas are double ; but not on the ground of insufficiency.
    2. A plea in abatement averred the pendency of another suit for the same cause of action, the defendant denying that there was such suit, should have pleaded mil tiel record, or if he admitted the truth of the plea and denied its sufficiency should have demurred.
    3. A railroad was leased to a railroad company, the lessors alleging a breach of covenants by the lessees, declared the lease forfeited and took possession of the road. A bill was filed in the Supreme Court by the lessees to restrain the lessors from interfering with them in the use of the road ; a preliminary injunction was awarded forbidding the lessees to use the road, &e., until the further order of the court. Then the lessees filed a cross-bill, setting out the breaches of the lease, &c., and praying for a decree to reinstate them in possession of the road ; answers were filed to both bills and a master appointed to take testimony. "Whilst the matter was before him, the lessors brought an ejectment for their road on the ground of the forfeiture. Reid, that pending the equity suit the lessors could not institute another proceeding involving the same question.
    4. The Supreme Court had jurisdiction to relieve against forfeiture, on general principles, independently of the Act of April 10th 1869.
    5. The preliminary injunction had the force of a final one until dissolved or made perpetual; and might be pleaded in abatement to the ejectment.
    6. The lessors might have demurred to the bill in equity that the forfeiture was not such as equity would have relieved against, and if decided in their favor, could have proceeded at law.
    October 27th 1874.
    Before Agnew, 0. J., Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1874, No. 246.
    This was .an action of ejectment, brought June 16th 1873, to August Term of the court below, by the Southwestern Railroad Company, lessees of the Mt. Pleasant and Broad Ford Railroad Company, against the Pittsburg and Connellsville Railroad Company “ for the Mt. Pleasant and Broad Ford Railroad, being a tract of four rods in width, beginning, &c., and running, &c., to a point on the Pittsburg and Connellsville Railroad.” On the 18th of August, on motion of plaintiffs’ attorney, the style of the suit was amended by striking off the Southwestern Railroad Company as a party, and rule taken on defendants to plead in ten days.
    The allegations of the plaintiffs were that they had leased their railroad to the defendants for ninety-nine years, upon conditions stated in the charge of Judge Sterrett, hereafter given, that the defendants had broken the conditions, and the lease was therefore forfeited; this ejectment was brought to enforce the forfeiture.
    On the 13th of September 1873, the defendants filed two pleas in abatement, viz.:—
    1. The said defendants, by Maride & McCullough, their attorneys, come and defend the wrong and injury, when, &c., and say that the said plaintiffs ought not to have or maintain their aforesaid action of ejectment against the said defendants, and pray judgment of the said writ of ejectment, because, they say, that before the issuing of the said writ, to wit, on the 29th day of April 1873, at No. 79, of October and November Term, 1873, of the Supreme Court of the State of Pennsylvania, the said the Pittsburg and Connellsville Railroad Company filed their certain bill of complaint against the said the Mt.‘Ple.asant and Broad Ford Railroad Company, wherein and whereby the said the Pitts-burg and Connellsville Railroad Company prayed the said the Mt. Pleasant and Broad Ford Railroad Company might be restrained by injunction from interfering with the possession and enjoyment by the said the Pittsburg and Connellsville Railroad Company, as lessees, of a certain railroad and appertenances, situate in the county of Westmoreland, and from setting up or pretending any forfeiture of the rights of the said the Pittsburg and Connellsville Railroad Company of, in and to said road, and the franchises to run and operate the same, by reason of any alleged causes of forfeiture, which said alleged causes or grounds of forfeiture the said bill averred to be wholly false, to which said bill of complaint the said the Mt. Pleasant and Broad Ford Railroad Company did duly appear to the said bill, and subject themselves to the jurisdiction of the said court, the said court then and still being ho'lden at Pittsburg, in the county of Allegheny, as by the record and proceedings thereof, remaining in the said court, more fully appears. And the said defendants further say, that the parties in this and the former suit are the same, and not other or different persons, and that the supposed causes of action in this, and in the former suit, and. each and every of them, are the same, and not other or different eauses of action; and that the said former suit is still depending in the said Supreme Court of Pennsylvania. And'this the said defendants are ready to verify. Wherefore they pray judgment of the said writ of ejectment in this suit, and that the same may be quashed, &c.
    2. That after the bringing of said action, and the issuing of the said writ, to wit, on the day of , 1873, at No. 79, of the October' and November Term, 1878, of the Supreme Court of Pennsylvania, the said court then and still being holden at Pittsburg, in the county of Allegheny, the said the Mt. Pleasant and Broad Ford Railroad Company impleaded the said the Pittsburg and Connellsville Railroad Company, the said defendants, and exhibited their said bill of complaint against them, and prayed the said court to declare the rights and privileges of possession and enjoyment of that certain tract of land situate in the county of Westmoreland, and fully described in the plaintiffs’ .said writ of ejectment, and whereon is ereeted a certain railroad, as forfeited, and at an end, and that the said the Pittsburg and Connellsville Bailroad Company should be decreed to surrender and yield the possession of said tract of land and railroad unto the said the Mt. Pleasant and Broad Ford Bailroad Company, for the same causes of action and forfeiture as those relied upon in the present suit; and that the said the Pittsburg and Connellsville Bailroad Company duly appeared and responded to said bill, and subjected themselves to the jurisdiction of the s'aid court, as in and by the record and proceedings thereof, remaining in the said Supreme Court of Pennsylvania aforesaid, more fully appears. And the said defendants further say, that the parties in this and tbe said suit in the Supreme Court are the same, and not other and different parties, and that the causes of action averred in the said suit, in the said Supreme Court, and the causes of action wherein this present suit is pending are the same, and not other and different causes of action ; and that the said suit is still depending in the said Supreme Court of Pennsylvania, and this the said defendants are ready to verify, and wherefore they pray judgment of the said writ of ejectment, that the same may be quashed, &c.
    On the 7th of February 1874, the defendants pleaded “Not guilty.” On the 4th of April 1874, the ease came on to be heard on the pleas of abatement and on the motion of plaintiffs’ attorney to strike off the same, and was argued by .counsel, and in consideration thereof, it is ordered that judgment be entered on said pleas in favor of the plaintiffs, * * * and it is ordered that the case be set down for trial on the issue formed by said plea of “Not guilty” for the next special court.
    The case was called for trial June 2d 1874, before Sterrett, P. J., of the Fifth district. The defendants objected to the jury being sworn, and protested against being compelled to go into a trial pending the case in the Supreme Court.
    The objection was overruled and the jury was called.
    There was a large amount of testimony, oral and other, by both parties. Amongst other evidence, the defendants gave in evidence an exemplification of the record in the Supreme Court mentioned in the pleas in abatement, for the purpose of showing that a preliminary injunction had been granted in that case against the plaintiffs in this suit, before it was brought.
    The bill in that case averred a lease dated January 2d 1871, from Mount Pleasant and Broad Ford Bailroad Company (plaintiffs here) to the defendants here upon the terms set out in the bill; that on the 28th of March 1873, the directors of that company declared the lease at an end and displaced portions of the track of their railroad, so as to prevent the lessees’ use and management of it, and had a large force of men to prevent the lessees from using the road, &c., and to interrupt the lessees in restoring the road, &c.; that the directors of the lessors gave as a reason for declaring the lease void, &c., that the lessees had failed to comply with their covenants in the lease and had not paid over the rent reserved ; the lessees averred that these allegations were untrue, set out the condition of the accounts between them and the lessees, and averred that on a settlement there would be a balance in favor of the lessees.
    The prayers were for a preliminary and afterwards a final injunction, to restrain the lessees from interfering with the lessees in replacing the track and restoring their road and in their possession and management of it: for an account, and that the lessees be restrained from asserting their pretended rights to take possession of the railroad, &c.
    On the filing of the bill a preliminary injunction was issued, viz.:—
    And now, May 19th 1873, it is ordered, adjudged and decreed, that a preliminary writ of injunction, without security, be issued against the Mount Pleasant and Broad Eord Railroad Company, forbidding it, its agents and employees, and other persons, to ex-fercise any corporate privileges, or use its own railroad within this state, until the further order of the court.
    The .cross-bill of the Mount Pleasant and Broad Eord Railroad Company, referred to in the second plea in abatement, set out the filing of the above bill and the granting by the Supreme Court of a preliminary injunction on the 19 th of May 1873; and the filing by the Mount Pleasant Company of an answer to the bill. They further averred that in addition to the payment of the stipulated rent, the main inducement to make the lease, as was well understood by the lessees, was that the road should be kept in good repair, and adequate motive power placed on it, it being located through a valuable coal region, and it had been built mainly through the subscriptions of the owners of coal property along it, to furnish an outlet for coal and coke; that the lessees took possession of the road under the lease, in March 1871, and completed it about June 1st 1871, and since then, until March 28th 1873, when the lessors resumed possession, the lessees had wholly failed to comply with any of the three covenants on their part which were the main inducements for making the lease, viz., to furnish the road with motive and rolling stock, to keep the road in repair and to account for and pay to the lessors the rent, &c.
    . The prayer was to dismiss the lessees’ bill of complaint and by decree reinstate the lessors in the possession of the railroad; that the lease be delivered up to be cancelled and the lessees be perpetually enjoined from setting it up, and that they pay for the use of the road, &c.
    The lessees filed an answer to the cross-bill; both bills and their answers were referred to a master, to take testimony and report the same; and the master was still sitting.

      A number of exceptions were taken to the admission of evidence and the charge of the court, which it is unnecessary to particularize. The charge of Judge Sterrett, and the opinion of the Supreme Court, will sufficiently exhibit the points of contention.
    The court charged : * * *
    “ The Mount Pleasant and Broad Ford Railroad Company, as appears from the evidence, under its charter prior to 1871, located and graded the road in question. "When the grading was completed, or nearly completed, they appear to have made an arrangement with the Pittsburg and Connellswille Railroad Company for the laying of the track, and shortly afterwards they entered into the lease of the 2d of January 1871, that has been given in evidence. That lease was to the Pittsburg and Connellsville Railroad Company for the term of ninety-nine years, and contained stipulations which you have heard read. The compensation to be received by the Mount Pleasant and Broad Ford Railroad Company for the use of the road by the Pittsburg and Connellsville Railroad Company, as provided in the lease, was one-third of the gross earnings of the road, and the lease also contains a stipulation, that if the one-third of these earnings does not amount to six per cent, on the capital stock paid in, the lessees shall make up the difference. The minimum amount of the rent is to be six per cent, on the amount of capital stock paid in by the Mount Pleasant and Broad Ford Railroad company, and if the one-third of the gross earnings exceed that, as a matter of course, they are to pay the whole amount.

      “ Then the lease, contained other covenants, specifying what the lessees were to do, and what should be the consequences in the event of their failure to perform the covenants. I will read a portion of the lease: ‘ For and in consideration of the foregoing demise, do hereby covenant and agree with the parties of the first part, that they, the said parties of the second part, * * * shall and will account for, and pay unto the -said parties of' the first part, semi-annually, on the 1st days of January and July, during the continuance of the said term, one-third of the gross earnings of the said railroad, so as above demised, from all sources whatsoever derived, &c., * * * that they, the said parties of the second part, do covenant and guarantee that the amount of the said one-third of the gross earnings, so as aforesaid payable unto the said parties of the first part, shall not be less than six per cent, per annum on the capital stock paid in of the said parties of the first part, and that they, the said parties of the second part, shall and will make good any deficiency, so that the share of earning of the said parties of the first part shall always equal said six per cent, on their stock.’
    “ Now here come the provisions that are complained of more particularly.

      “ ‘ That they, the said parties of the second part, will furnish said road, demised to them as aforesaid, with an adequate amount of motive power and rolling stock ; and they will renew and increase the same from time to time, as increase in the trade and travel may render necessary; that they will at once, upon the completion of said road, put on and maintain at least one train each way per day on said road, and put additional trains thereon as soon as and whenever the same are rendered necessary by the trade, travel and business of said road. * * * The said parties of the second part do further agree to keep the said railroad hereby leased in good repair, order and condition, during the continuance of said lease, and surrender the same at the end thereof in like good order and condition.’ * * * Now comes the provision for the failure to comply with the provisions I have just read: ‘ In case of the failure of the said parties of the second part to comply with their covenants herein contained, and to pay over the rent herein-before reserved, for a period of sixty days from and after the same, or any instalment thereof, shall have become due, then such failure may, at the option of the said parties of the first part, be deemed and treated as good cause for forfeiting and determining said lease and term, and the said parties of the first part may take possession of the railroad, so as aforesaid demised.’ That is all that is material in the lease. You will observe that it was a long one —for a period of ninety-nine years — and that whether it. was remunerative to the lessors or owners of the road or not, depended upon whether the road was properly stocked with rolling stock and motive power and kept in good repair, order and condition. Hence these covenants in the lease: E-irst, that the lessors will keep the railroad in good repair, order and condition; that they will furnish it with an adequate amount of rolling stock from time to time as the demands of trade may require. Inasmuch as the amount of the one-third of the gross earnings depended upon the successful operation of the road and the accommodation of the trade and traffic upon the road, of course it was important that these stipulations should be in the lease. It was right that the lessors should insert these provisions for their own benefit as well as in the discharge of a duty they owed to the public. They were incorporated for the purpose of constructing a road to accommodate the public as well as to be remunerative to the stockholders. These stipulations are' then all contained in the lease, and as a penalty, as a means of enforcing the performance of the conditions, they have provided the right to repossess themselves of the road, and that a failure to perform these covenants shall work a forfeiture and termination of the lease. That is what is asserted here by the plaintiffs. This lease was entered into by the parties named for their mutual benefit and advantage. The plaintiffs are here asserting that this lease has been broken in three respects, that three of the covenants have been violated, and they claim that under the terms of the lease a forfeiture has ensued, and they have the right to the possession of the road, and not the lessees. This action of ejectment is brought for the purpose of determining that right of possession. * * * It seems to be admitted that on the 28th of March 1873, the lessors took possession of the road and continued in possession of it some fifty-one days. Shortly after the lessees resumed possession of the road again, this action of ejectment was brought. * * *

      “ As I said, the plaintiffs allege a forfeiture of the lease on three grounds. The first is, that the defendants did not account for and pay over to the plaintiffs the semi-annual instalment of rent, due January 1st 1873, at the time the same was due and payable, nor within sixty days thereafter. The second is, that the defendants did-not keep the leased road in good repair, order and condition during the continuance of the lease. The third is, that the defendants did not provide the leased road from time to time, as the increase in’the trade and travel rendered necessary, an adequate amount of rolling stock and motive power. The plaintiffs claim that if there was a breach of the covenants on the part of the lessees — the defendants in this case — in either of these respects, they are entitled to recover.
    “ With regard to the first breach asserted, that is, the non-payment of the rent at the time it was due and payable, or within sixty days thereafter, according to the stipulations of the terms of the agreement, that is a matter against which, perhaps, equity would relieve. But it is not necessary to consider that aspect of the case at present. * * *
    “ With regard to the other forfeitures, however, there 'are some against which courts of equity do not grant relief. They become absolute forfeitures at law, and it is claimed that such is the case in regard to the second and third grounds alleged by the plaintiffs in this action; that, however, is a matter with which you have nothing to do. It is a matter with which the court has to deal after you may have rendered your verdict.
    “The questions, then, upon which you are here to pass arise under these three propositions. The plaintiffs assert a forfeiture of. the lease, and their right to be restored to the possession of the railroad on each of the three grounds I have stated; of course the burden of proving a breach of the covenants on the part of the lessees, is upon the plaintiffs. They assert a breach of the covenants and the burden of making the proof is upon them. It will be for you to consider carefully the evidence that has been offered on the one side, as well as on the other, and after carefully considering it, say for yourselves whether these propositions are or are not established. If the preponderance of proof is in favor of the proposition asserted by the plaintiff's, then you ought so to find. If, on the other hand, the weight of the testi mony is with the defendants (or is not with the plaintiffs, rather), your verdict, so far as each proposition is concerned, ought to he in favor of the defendants, and in order that if you find in favor of the plaintiffs, under the instructions we give, we desire you to specify upon which of the grounds, if not upon all, you find in favor of the plaintiffs; that is to say, if your verdict is in favor of the plaintiffs in this case, we wish you to say whether it is upon the first, second or third proposition, that we may have upon record, in connection with your verdict, the ground of yoiir finding, whether you find on the ground that all the covenants alleged to have been broken, were broken, or, if any one was broken, "which one. If you find that neither of the covenants, alleged to have been broken by the defendants, were broken, then, of course, your verdict will be for the defendants, without saying more. You will inquire, in the first place (or in any other order you choose), whether the defendants did or did not account for and pay over to the plaintiffs the semi-annual rent due January 1st 1873, at the time the same was due and payable, or within sixty days thereafter. On this point I think there is no dispute as to the fact. * * *
    “The second ground of forfeiture alleged, is that the defendants did not keep the leased railroad in good repair, order and condition, during the continuance of the lease. That is a question of fact for you, gentlemen, to find under the evidence. If you are satisfied from the evidence that the defendants did not keep the leased road-in good repair, order and condition, during the continuance of the lease, then you will find for the plaintiffs on that ground. The third ground asserted is, that the defendants did not provide the leased road from time to time," as increase in the trade and travel rendered necessary, with the adequate' amount of motive power and rolling' stock. From the weight of the evidence, if you believe that proposition is sustained, you will find for the plaintiffs on that ground, and as I have.already said, if you find for the plaintiffs on either of these grounds, you will specify on which one; and if upon all, you will say upon all.” * * *
    The court then answered the points of defendants.
    The jury found for the plaintiffs, and further said they so found on the following grounds:—
    1. That the defendants did not account for and pay over to the plaintiffs the semi-annual instalment of rent, due January 1st 1873, at the time the same was due and payable, nor within sixty days thereafter, and that the balance, as claimed by the defendants, of said instalment, was not paid until the 15th day of August 1873, and then .received without prejudice.
    2. That the defendants did not provide the leased road from time to time, as increase in the trade and travel rendered necessary, with an adequate amount of motive power and rolling stock.

      The defendants took a writ of error, and assigned a number of errors, not necessary to specify to the understanding of the opinion of the Supreme Court.

      Gr. Shiras, Jr. (with whom were I). Maine and Markle McCullough), for plaintiffs in errpr.

      F. Cowan and M. F. Foster, for defendants in error.
    The right being a legal one, the Supreme Court had not jurisdiction to try the issues on a bill in equity or a cross-bill. The bill was not to restrain the defendants from proceeding at law, but from proceeding by force. The Act of April 10th 1869, Pamph. L. 25, 2 Br. Purd. 1228, pl. 77, &c., if it designs to give equity power to try a legal right, is unconstitutional, as taking away trial by jury: North Pennsylvania Railroad Co. v. Snowden, 6 Wright 488. If a tenant refuse to yield possession, the landlord must proceed by legal measures : Comyn on Land. & Ten. 281; Penn v. Devellin, 2 Yeates 310; Black v. Hepburne, Id. 331. Ejectment lies to enforce a condition in a deed: Bear v. Whisler, 7 Watts 144; Kline v. Johnston, 12 Harris 72; Clark v. Everly, 8 W. & S. 230 ; Newman v. Rutter, 8 Watts 51.
   Mr. Justice Sharswood

delivered the opinion of the court, January 4th 1875.

There are several questions raised by the assignments of error upon this record, which we deem it unnecessary to discuss, as we are of opinion that there was substantial error in the judgment entered in the court below on the pleas in abatement.

That the judgment was technically wrong there can be no doubt. There was no issue, either of law or fact, upon either of the pleas. A motion was made to strike them off. Such a course is proper when the plea is irregular — not filed in time — not verified by affidavit; or when the pleas are double, leave of court never being granted, under the Statute of Anne, to file more than one dilatory plea, or when it is filed after a plea in bar: Stephens on Plead. 276. Had the motion been granted, and the plea stricken off, it might have been all right on some of these grounds. But this course cannot be resorted to when the objection to the plea is its insufficiency: Ralph v. Brown, 3 W. & S. 395. The plaintiffs ought to have replied nul tiel record, or have demurred; and then, if the record when produced did not support the plea, or if it was insufficient, admitting its truth, the judgment of the court would properly have been for the plaintiffs quod respondeat ouster.

It is evident, however, that the court proceeded as if there had been a demurrer; the objection below, as well as in this 'court, having been exclusively to the sufficiency of the pleas. The two pleas were really only one. What is set up separately in the second plea, the cross-hill of the plaintiffs in the equity proceeding, was really only a branch or part of the original cause instituted by the defendants. It' was all one and the same- proceeding: Brightly’s Equity, s. 5, 71; Story’s Equity Pleading 5, 899.

Let us consider, then, the objection made below and in this court to the pleas. It is that the Supreme Court has no original jurisdiction to try and determine the issues in this action upon a bill in equity or upon a cross-bill. It is to be observed in passing, that the plaintiffs below, the defendants in the equity proceeding, did not demur for want of jurisdiction, but made answer, and filed their cross-bill, to which the defendants answered, issue was joined, and the case went to a master to take the testimony and report the same. It may be doubted whether it is competent for the defendants filing the cross-bill to question the jurisdiction of the court to grant the relief for which they have themselves prayed. But, without relying upon this, it is to be remarked that substantially the bill of the Pittsburg and Connellsville Railroad Co. was to be relieved from an alleged forfeiture set up by the Mt. Pleasant and Broad Ford Railroad Co., upon the footing of which they had taken forcible possession of the road. It is true that one immediate .object of the bill was to obtain a preliminary injunction, to prevent this forcible possession, but the injunction so obtained was interlocutory only, which would stand until final decree, by which it would either be dissolved or made perpetual. It is true also that the plaintiffs in that bill denied that any forfeiture had occurred, or been legally declared, but still, as the pretence set up on the other side was to the contrary, nothing seems to be clearer than that the Supreme Court had jurisdiction in this case on general principles, without resorting to the Act of April 10th 1869 (Pamph. L. 25). To relieve against forfeiture is one of the oldest and best established functions of a court of equity: Story on Equity Jurisprudence 5, 1315. But, as it is earnestly contended now, that if the bill of the plaintiffs in the equity cause were dismissed, after final'hearing, that court would not, upon the cross-bill, proceed to enforce the forfeiture and put the lessor in possession, but leave him to his common-law remedy, does it follow that he is not bound to wait until the final decree is entered ? Is it possible that there must be such a conflict of jurisdiction as must result, if the determination of the court of equity shall finally be, that the lessees are entitled to be relieved from the alleged forfeiture and maintained in the peaceable possession ? After such a decree, shall a sheriff come with a habere facias possessionem and put them out ? Could not such a decree be pleaded or set up in bar of the common-law action ? If it could, surely the pendency of the proceeding may be pleaded in suspension or abatement. It is by no means clear that the decree awarding a preliminary injunction might not have been pleaded or set up in bar. Such an injunction has all the force of a final one temporarily, until it is either dissolved or made perpetual. It is to be enforced while it lasts by all the power of the court in an attachment for contempt. It is to be remembered that the question is not whether the forfeiture here set up is such an one as a court of equity would relieve against. The defendant in the equity case might have brought that question to a speedy determination by demurring to the bill, and if it had been in their favor, would have been free to proceed with their common-law remedy. The question is one of jurisdiction in the court of equity, and if that jurisdiction existed and had been invoked, it necessarily precluded the party during its pendency from instituting a proceeding in another form involving the same question. Judgment reversed.


author: Mr. Justice Gordon

text:
    Waring versus Pennsylvania Railroad Co. for use.
    1. The gist of the action of trover is the wrongful'conversion, although the taking may have been lawful.
    2. Where one has the lawful possession of the goods of another, and has not converted them, trpver will not lie, until there has been a refusal to deliver after demand.
    3. Where goods have been converted by a bailee, it is presumed to be wrongful, and trover may be maintained without a previous demand; such presumption may be rebutted by showing permission of the plaintiff to convert the property.
    4. The plaintiff, a railroad company, delivered to the defendant by mistake of plaintiff, three cars of oil, which the defendant converted to his own use. The defendant might prove that he received the oil unwittingly, and that he had received from the plaintiff no more oil than he was entitled to receive, and that if there was a mistake it was the plaintiff’s.
    5. If the defendant knowingly took advantage of the plaintiff’s mistake and appropriated the oil of another to his own use, it would be a wrongful conversion.
    November 6th 1874.
    Before Agnew, C. J., Sharswood, Williams, Merour and Gordon, JJ.
    Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1874, No. 213.
    This was an action of trover, commenced October 8th 1868, by the Pennsylvania Railroad Company against Edward J. Waring who survived Robert Lafferty, partners, &c. The style of the action was afterwards amended by adding to plaintiffs’ name, “ for the use of the Allegheny "Valley Railroad Company.” The defendant pleaded, “ Not guilty.”
    The action was brought for the value of three car loads of crude oil, delivered by the Pennsylvania Railroad Company by mistake in August 1868 to Waring and Lafferty, who were oil refiners on the West Pennsylvania Railroad, about three miles from Allegheny city. The oil belonged to other persons. It was delivered by the plaintiffs by running a train of tank cars into the siding of Waring & Lafferty at the refinery, and leaving the ears intended for them without further notice. The cars were, as soon as could be, unloaded by pumping them into the refiners’ tanks. There were no marks on the cars indicating to whom the oil was consigned. The oil had been received from the consignors by the Allegheny Railroad Company, the use-plaintiffs, and they had paid the owners of the oil for it upon ascertaining that it had not been delivered to them.
    The case was tried June 2d 1874, before Collier, J.
    The foregoing facts appeared in evidence and were found by the jury. There was no evidence of demand before suit; but after suit the defendant said to Creighton, the general superintendent of the plaintiffs, that “ those three car loads of oil made us whole, as we are short three other cars.”
    The evidence for the plaintiffs, was almost altogether to establish the delivery of the oil to Waring & Lafferty.
    The defendant made the following offers of evidence, which were rejected and several bills of exceptions sealed.
    1. “ To prove the custom of the railroad company in delivering oil at defendant’s works, viz., that the railroad company run upon the siding of oil works, detach and leave the cars, which they intend refiners to pump out; that they give no other notice to refiners ; that there are no cards on the cars; and that they (railroad company) expect and require refiners to pump the oil out at once, so that they can get the cars; to be followed with evidence on part of defendant, that they acted always on said custom, received and pumped out any car loads of oil then left at the siding, with the knowledge, consent and approval, and at the instancé of the railroad officials.”
    2. “To show, that if defendant received the oil in dispute at all, it must have been received by defendant unwittingly, and through a mistake of the plaintiffs, and that in the matter of receiving it, the defendant was but passive, only doing what the plaintiffs’ officers and the custom of the track required of them ; also, that within five minutes after receiving the said oil, it was, by being pumped into tanks containing other oil of defendant, so mixed as to put it out of defendant’s power to return to plaintiffs ; and that plaintiffs were well aware of this, and that weeks had elapsed before plaintiffs discovered or claimed that a mis-delivery had been made.”
    3. “ To show that mistakes, on the part of plaintiffs’ officers, in delivering the wrong cars, or in delivering cars to the wrong persons, were frequent and notorious in 1868.”
    4. “ To show, that defendant in August 1868 (whether they received the three car loads in dispute or not), received from plaintiffs the exact number of cars, which defendant was entitled to receive, no more and no less; and that that has been the state of accounts, so far as car deliveries are concerned, between the plaintiffs and the defendant, since August 1868, up to the present time.”
    The following are points of the defendant and the answers:
    2. “ If the jury believe and find from the testimony, that the plaintiffs (whether by mistake or otherwise), on or about the day of August 1868, according to the usual custom of the West Pennsylvania Railroad, through its agents and employees, ran into the defendant’s siding, the three ear loads of oil in dispute, for the purpose, and so that the defendant might pump the same out into his, the defendant’s tanks, as if the said oil were his own and had been consigned to him, and that the defendant did pump the said oil into his tanks, along with other oil, the said receipt and pumping of said oil by defendant was under and by a license from the plaintiffs, and the conversion of the same was not tortious, but justifiable.”
    This point was refused.
    3. “ If the conversion, at the time it took place, was not tortious, but justifiable; and if afterwards a demand was made by plaintiffs, which the defendant could not comply with, by reason of not having the oil in his possession, the action of trover will not lie, and the plaintiffs cannot recover in this suit.”
    Answer: “The question of wrongful conversion is for the jury. If wrongful, no demand was necessary.”
    5. “ If the jury find the three car loads of oil in dispute were actually delivered by plaintiffs to the defendant in August 1868, and that such delivery only and fully, and no more than made up the number of car loads of oil and quantity of oil, which the defendant ought to have received at the time and place of delivery, from the Allegheny Valley Railroad Co., the plaintiffs cannot in this case recover.
    6. “ The plaintiffs in this case, under the evidence, can only recover, in the event of the jury finding that the defendant actually received and took from the Allegheny Valley Railroad Co., the West Pennsylvania Railroad Co., or the plaintiffs, in the fall of 1868, three car loads of oil more than was coming to him.”
    Both these points were refused.
    7. “ Even if the three car loads of oil involved in this suit were not the property of defendant, and actually came into the hands of defendant and were converted by the defendant, the plaintiffs cannot recover, 'unless they show a demand made prior to the inception of this suit.”
    Answer: “ Demand is not necessary, if the jury find a wrongful conversion.”
    The court charged: — • * * *
    “ The first step for you is to find whether the oil belonged to the plaintiffs, and under the evidence, if you believe it, the property would be sufficiently laid in them. They had charge of it as carriers, as bailees, allege that they delivered it and had to pay for it; and if you 'find that this is the fact, it would be sufficient title in law, if the other requisites are made out, which are more important. The next and the most important question for you to decide, is whether the defendant got this oil. If'it was delivered to him, did he get it ? did it belong to somebody else, and did he convert it to his own use. Unless the -defendant got that oil, it not being his, and converted it to his own use, took it, he could not he held liable in an action of trover, because it all turns on the wrongful conversion of the oil. That he took it, it not being his property — on that point, you have evidence on both sides. The evidence of the plaintiffs follows the three cars of oil down on to the siding of the defendant; and Mr. Creighton testifies that he had a conversation with Mr. Waring, in which Waring said that these three car loads of oil, referring to these missing cars, just made them whole; that they were three cars short. That is the testimony of the plaintiffs in brief, and that' testimony must satisfy you that the cars were put there by mistake, and that the oil was converted, taken and used up, by the defendant, it not belonging to him. On the other hand, Mr. Waring testifies that he did not get that oil, that he was at the works almost every day, or every day in the month, it is alleged to have been delivered: that he had bills of lading or consignments, and that none of these car numbers were on those bills; that although he may have gotten three cars, he did not get these. That is the testimony in brief on both sides, and you will have to determine on which side the weight lies.
    “ Mr. Waring, does not, it is true, testify positively that these identical cars were not received. He testifies that he got none of these numbered cars, as far as the record he kept shows. You are to take this testimony and say which way you think the weight of it lies, if you -find from the weight of the evidence, that the defendant did not take these cars, did not convert the oil, you find for the defendant; but if the weight of the evidence should satisfy you that the defendant did get that oil by mistake, did convert it to his own use, you find for 'the plaintiffs, for the market value of the oil at that time.
    “ The learned counsel for the defendant has asked me to charge you that there must have been a demand made, before the suit was brought, or the plaintiffs cannot recover.
    “ That question I have reserved: I am of opinion now, that if you find there was an actual conversion, a wrongful conversion, a demand is not necessary, that that is one of the exceptions. However, I have reserved that question, in case you should find for the plaintiffs. In this case the action is trover, tort. Under the law of tort, you have to find whether the plaintiffs had a title, whether the oil was delivered by mistake, and whether the defendant wrongfully converted it to his own use. If it was not consigned to him and he con veiled it he would have to pay the market value, and any claim he had, would have to be disposed of in another suit.” * * *
    The verdict was for the plaintiffs for $2354.22.
    The court afterwards entered judgment for the plaintiffs on' the verdict, on the reserved point. The defendant took a writ of error and assigned for error, — the rejection of his offers of evidence, the answers to his points and entering judgment on the reserved point.

      W. S. Purviance, (with whom was S. A. Purviance), for plaintiff in error.
    Trover does not lie when by mistake of the plaintiffs chattels not the defendant’s are delivered to him and mixed with his own so as to be undistinguishable and inseparable, and so that when demanded by the plaintiffs they can not be delivered. The act of defendant not being tortious, trover will not lie: 9 Bacon’s Abridgment 629; Stephen on Pleading 137 ; Youl v. Harbottle, Peak’s N. P. 49; Stephenson v. Hart, 4 Bing. 476 ; Packard v. Getman, 4 Wendell 613; Rushworth v. Taylor, 3 Ad. Ellis N. S. 699. Where one coming lawfully into possession of the property of another parts with it before a demand, he is not liable in trover: 1 Hilliard on Torts, 592, 693 ; Boobier v. Boobier, 39 Maine 406; Kelsey v. Griswold, 6 Barbour 436.

      J. Dalsell, (with whom was J. H. Hampton), for defendants in error.
    Trover will lie although the conversion is the result of a mistake : Forsyth v. Wells, 5 Wright 294,2 Troubat & H. Prac. 49. Eyery assumption of property in, or exercise of authority over, the goods of another, inconsistent with the title of the rightful owner, or in exclusion of his right, is a conversion: Bristol v. Burt, 7 Johns 254. The question as to the right of a claimant to have his property again in its original state, or improved in character, did not arise in this .case. If it had, it could not have affected the question of the form of remedy, but only of the measure of damages, and the question of intent would then have become material: Salisbury v. Coon, 3 Comstock 379. Evidence of conversion in an action of trover is matter of fact for the jury, and although the evidence be not strong, the judgment will not be reversed because the jury found that fact: Harger v. McMains, 4 Watts 418. Demand and refusal are only evidence of conversion, and if conversion be shown otherwise, they need not be proved: Horsefield v. Cost, Add. 153; Kelsey v. Griswold, 6 Barbour 440; Jacoby v. Laussatt, 6 S & R. 300.
    Evidence of set-off is not admissible in an action of tort. Evidence therefore that the defendant had not received his exact number of cars was irrelevant: Neiler v. Kelly, 19 P. F. Smith 403; Work v. Bennett, 20 Id. 484; Fowler v. Gilman, 13 Metc. 267; Chamberlin v. Shaw, 18 Pick. 283; McCombie v. Davis, 7 East 5; Doane v. Russel, 3 Gray 382; Romig v. Romig, 2 Rawle 249.
   Mr. Justice Gordon

delivered the opinion of the court, January 4th 1875.

Lord Mansfield defines the action of trover to be, “ a remedy to recover the value of personal chattels wrongfully converted by another to his own use 1 Chit. Plead. 146. The talcing may have been lawful, hence the gist of the action lies in the wrongful conversion. Where one has the lawful possession of the goods of another, and has not converted them, this action will not lie until there has been a refusal to deliver them upon demand made. Ordinarily where such goods have been converted by the bailee, the law presumes it to be wrongful, and the action may be brought without a previous demand; but such presumption may be rebutted, showing a permission from the plaintiff to convert the property. So we may suppose a case of this kind: A. purchased a ton of wheat flour from B., a miller, B. delivers to A. a ton of wheat flour belonging to C., and A. converts it to his own use. Now it cannot be that B., as bailee of C., can maintain trover against A., without first explaining to him the mistake, and demanding of him a return of C.’s flour; for here the conversion is not wrongful, but permissive, there being nothing in the transactions which would lead A. to suppose that he had gotten any but his own property.

This example will apply to the case in hand. The defendant offered to prove that he had received from the railroad company no more car loads of oil than he was entitled to. This, as we understand the offer, not by way of recoupment, which was not permissible, but to show that he received the oil in good faith, supposing it to be his own. By his subsequent offers, he proposed to prove, that if he received the oil in dispute at all, it was by a delivery from the plaintiffs’ agents; if there was an error, it was produced by the plaintiffs, and finally that the defendant received the property “at the instance and request of the plaintiffs.”

The offers should not have been overruled. Had the proof therein proposed been produced, it is clear the plaintiffs had no case.

On such showing the defendant did no wrong, there was no wrongful conversion, and the action of trover would not lie. We observe no error in the charge, or in the answer to the points. Under the evidence, as admitted, they were correct. A wrongful conversion of the oil in question by the defendant, would sustain the action, and if he, or the firm of which he was a member, knowingly took advantage of the mistake of the plaintiffs’ agents, and appropriated the property of another to the use of the firm, it wmuld be such a conversion. This is the substance of the charge, and is, so far as it goes, a sound exposition of the law.

The judgment reversed, and a venire facias de novo awarded.


text:
    Evans et al. versus Bidwell et al.

    1. Kemp, in 1825, entered on a warranted tract as vacant, made improvements and retained possession ; in 1839, Stewart obtained a patent and iraudulently induced Kemp to accept a lease at a nominal rent; Kemp held possession for thirty years more, claiming to own the land, no rent being demanded and he paying none, Stewart having in the meantime admitted that Kemp owned the land. Stewart sold the land ; under the circumstances it was incumbent on the purchaser to make inquiry as to Kemp’s title.
    2. The rule, that one holding under a lease shall not dispute his lessor’s title, does not apply where one having no title, by trick or artifice induces another in possession to take a lease.
    3. Ordinarily producing to a vendee a lease to one who has possession of the land, determines how he holds it; inquiry of him by the vendee of the lessor for secret frauds or equities is not necessary; the presumption is that he holds under the landlord’s title and according to the lease.
    4. If the lessor had title, although inchoate or defective at the execution of the lease ; inquiry by a bonS, fide purchaser would not be a duty.
    5. The facts as alleged in this case sufficient to put a purchaser from the lessor upon inquiry as to the lessee’s title and were for the jury.
    November 17th 1874.
    Before Agnew, C. J., Sharswood, Mercur and Gordon, JJ.
    Error to tbe Court of Common Pleas of Fayette county: Of October and November Term 1874, No. 156.
    Tbis was an ejectment, brought July 27th 1870, by De Witt C. Bidwell, James Millinger and tbe heirs of James R. Hendrickson, deceased, against Susan Evans and others, for a tract of 306 acres of land in Stewart township. Tbe defendants were tbe widow and heirs of James Kemp, deceased.
    Tbe case was tried April 29th 1874.
    Tbe plaintiffs gave in evidence, patent February 2d 1839, to Andrew Stewart, on warrant to Reader, dated 1796; deed from Stewart, dated December 15th 1854, to Hendrickson, Sterling, Curry and Larimer, recorded July 8th 1867; deed June 6th 1865, from Sterling’s executors to James Millinger, for an undivided half, &c.; deed December 12th 1866, from Millinger to Bidwell, for an undivided fourth; deed Mellon assignee of Larimer, to Gearing, dated February 5th 1867; deed Gearing to Bidwell, dated April 20th 1870; deed Curry to Millinger, dated March 15th 1856; will of Hendrickson, proved May 8th 1869.
    Stewart testified that he bought the Reader warrant in 1824, and bought several tax titles for the same tract. In 1839 he with others went to run the lines of the tract, and came to James Kemp’s house, which was on the tract; Kemp went with them and said he had settled there, thinking the land was vacant; Kemp wanted a lease, he came to Unióntown on the 25th of January 1840; and witness gave him a lease for 396 acres and allowance for- one year, from April 1st 1840, for taxes, repairs and one dollar rent; he remained in possession under the lease, until witness sold the land' to Larimer and others, to whom he gave the leases; Kemp nevei claimed the land as his own ; he built a barn there, thinking it vacant land. Witness never asked him for rent, and he never paid any.
    W. Shipley testified that Kemp had lived on the tract thirty-eight or forty years and died on it, four or five years before the trial.
    For defendants, J. Lindeman testified that Kemp went on the land forty-eight years before and lived there till he died; he made improvements, cleared some of it and raised a family on it, built a house and a sort of a barn ; his widow and family continued there. Kemp farmed the land as his own before 1840; he put the house up and did the clearing before that time.
    Susan Evans, the widow of Kemp, testified that they had lived on the land forty-nine years; they went on to the place as vacant land; Kemp was in peaceable possession for many years, paid the taxes, and she paid them after his death. She knew of the lease; Stewart came to their house afterwards. She said, “ Mr. Stewart, I understand you have been trying to sell my house.” He said, “ No madam; I had thought, if you and Mr. Kemp would agree, I would trade you another piece of land for this, and if you are not agreed, it is all right.”
    Gr. F.'Cook testified that he had lived on a tract of Stewart’s adjoining the Kemp tract; that in 1851, needing timber for fences, and supposing that Stewart owned that tract, he proposed to get timber from it, and spoke to Stewart about it; he said the property Kemp lived on was not his. Witness then spoke to Stewart about Kemp accepting a- lease from him. Witness further testified:— “ He then gave me a short account of this affair between him and Kemp; he stated there was some debt against Mr. Kemp, against this property for which the property was about being sold, and he said he advised Kemp to give him this lease and save the sale of the property. He made this remark: ‘ It was not a bond; fide lease;’ he said, ‘ Sir, I have no more right to give you a rail tree of that timber than I have to give you one off James Morrison’s land.’ He sent me to Kemp, and told me if he would sell me what would repair the fences at twenty-five cents a tree, to get it and he would pay for it. I went to Kemp to get the timber and he refused to let me have it at that price; I then wrote a letter to Stewart, stating that I had failed to get the timber at that price, and he wrote me a letter to repair the fences till he could come up and see Kemp himself. He came up the latter part of the same summer; I was not at home, but met him at Mr. Kemp’s; he said, ‘ I can’t agree with Mr. Kemp about this timber;’ .about this time Mrs. Kemp came out and introduced the subject .ef this lease and a deed she claimed Stewart promised to make them ; said she, ‘ I have sometimes thought that you would take .advantage of that lease Jim gave to you, and sell the property from us, and that you would not make us the deed as you have heretofore agreed.’ Stewart said to her, ‘I never intended to take any advantage of you or your husband in this property; I intend to make you a deed for it, as I told Mr. Cook when he was over last spring, and I will make it and send it up to James next week.’ I have frequently talked with Kemp; he claimed to have come there in a very early day; set upon it when it was vacant land; he worked and labored, built a house, set out trees, and did generally what a man would do on a little farm.”
    Lemuel D. Kemp, son of James Kemp, testified: * * * “ Father claimed this place by possession, and used it as his own. Heard a conversation about this lease. It might have been eighteen years ago. My mother and father and Mr. Stewart were there; this lease came up, and my mother said to Stewart ‘ she understood that he was going to try to cheat them out of the property;’ he said: ‘not at all Mrs. Kemp,’ he said he did not claim it.”
    The defendants gave in evidence the record of a judgment to December Term 1839, Miller against Kemp ; fi. fa. to the same term ; levy on the land in dispute; inquisition June 24th January 1840 and land extended.
    The plaintiffs submitted the following points, which were affirmed :
    1. If the lease of James Kemp, of January 25th 1840, offered in evidence by plaintiffs and admitted by the defendants, to have been executed by James Kemp, under whom they claim, was handed over (if the jury believe the evidence of Andrew Stewart in his deposition) to the purchasers of the John Reader tract, at the time when he (Stewart) executed the deed for it, relieved those purchasers from the necessity of going to the land to inquire concerning the title, and estops James Kemp and those claiming under him from alleging anything contrary to the terms of that lease, which was not made known to those purchasers before the said purchase from Stewart.
    2. The deed of Andrew Stewart to James R. Hendrickson, Mark Sterling, William B. Curry and William Larimer, Jr., for the John Reader tract, being the land in dispute, dated the 15th day of December 1854, passed a perfect title to the said land, unless Hendrickson, Sterling, Curry and Larimer, the grantees of the said land, had actual notice of the fraud alleged by the defendants in connection with the lease of January 25th 1840, before the purchase by them of the said land.
    3. Each subsequent purchase of any interest in the said land in dispute by a bond, fide purchaser for value, without actual notice of said alleged fraud, conveyed to such purchaser a perfect title to such interest in said land.
    4. If the evidence offered by the defendants shall be believed throughout, there is no evidence in this case showing actual knowledge of any fraud by any of the plaintiffs before the times of their respective purchases, and -therefore the verdict must be for the plaintiffs.
    The defendants’ points and answers were:—
    1. By the plaintiffs’ admission, the defendants have a good title to the land in dispute, unless they are estopped from setting up the same by the alleged lease from Andrew Stewart to Kemp, of the 25th of January 1840.
    Answer: “ This is a fact as you heard the same stated, in open court, before you.”
    2. If said lease was made, not for the purpose of creating the relation of landlord and tenant, but for some other purpose, it cannot operate to estop the defendants from setting up title against the lessor or those claiming under him.
    This point was refused.
    3. Said lease will not estop the defendants from setting up title against the lessor or those claiming under him, unless possession was obtained and taken under the lease.
    Answered in general charge that plaintiff under the evidence is entitled to recover.
    4. If James Kemp was in possession of the land at the time of the making of said lease, claiming it as his own, and had cleared a part of it and made improvements thereon, and if Stewart had no title to said land, the jury will be justified in concluding that Kemp was induced to take said lease by deception, fraud, misrepresentation or ignorance of his right; and if so, he and those claiming under him will not be.estopped from setting up title against the lessor.
    This point was refused.
    5. The possession of the land m dispute by tfie defendants, at the time of the sale'by Stewart, was notice to his vendees of title in the defendants; and they were and are at liberty to set up any manner of title, and any kind of defence to any claim which Stewart or his vendees might set up.
    Answer: “ Our instruction that the plaintiffs are entitled to recover under the evidence in the case, sufficiently answers all the foregoing points.”
    The verdict was for the plaintiffs.
    The defendants took a writ of error. They assigned for error:—
    1-4. The answers to the plaintiffs’ points.
    5-9. The answers to the defendants’ points.
    10. Instructing the jury to find a verdict for the plaintiffs.

      I). Kaine (with whom was O. JE. Boyle), for plaintiffs in error.—
    The purchaser of land in possession of tenants is chargeable with notice of their interest, for he is bound to inform himself of the condition of the lease: Hood v. Fahnestock, 1 Barr 474; Jacques v. Weeks, 7 Watts 276; Woods v. Farmere, Id. 884; Maul v. Rider, 9 P. F. Smith 167; 4 Kent's Com. 179.

      Campbell and Howell, for defendants in error,
    cited Leach v. Ansbacher, 5 P. F. Smith 85.
   Mr. Justice Gordon

delivered the opinion of the court, January 4th 1875.

The court should have permitted the jury to pass upon the evidence as presented by the parties to this action. According to the allegations of the defendants, they and their ancestor, James Kemp, had the undisputed possession of the premises in dispute from the year 1825 down to the bringing of this suit. Some fourteen years after Kemp’s settlement upon the land, the lease in question was obtained from him by Stewart, without consideration and through a fraud practised upon him under the garb of friendship. For thirty years after its date Kemp and his family were permitted to remain in undisturbed possession, under claim of adverse right, and without payment of any rent whatever. So, according to the testimony of G. F. Cook, Stewart told him in 1851, that the lease was not bond; fide, and that he had no title to the land. If indeed the jury should believe this testimony, we see no reason why the defendants should not have their verdict. It is said the tenant may not dispute his landlord’s title. • This is so; and if the jury should believe the evidence of Andrew Stewart, that the lease was taken in good faith, he then being the owner of the land, this rule would apply. In such case the defendants have no title; their defence is a fraud, and they should receive no consideration. But where one having no title, by trick or artifice, induces one who is in the possession of land to take a lease from him, the rule'is different. In such case the lease is a mere nudum pactum, and avails the lessor nothing.

The question of the effect of the exhibition of this lease upon the title of the plaintiffs, who are vendees of Stewart, is also for the jury. Ordinarily the production of a lease from one who has the possession of land, will settle the question of how he holds. Inquiry of him, by a bond, fide vendee of the lessor, for secret frauds or equities, is not necessary, for it is presumed that he holds under the landlord’s title and according to the terms of his lease. But should it appear that the lessor had no title other than the tenant’s possession; that the lease was taken many years after the occupancy was begun; that it still continued years after the lease had.expired, and that no rent had ever been paid, especially when these things are connected with the circumstance of a hostile claim of nearly thirty years’ standing, there is certainly enough in the case to put a prudent man upon inquiry. Inquiry thus becoming a duty, the buyer who neglects it buys at his own risk. On the other hand, if the landlord had title, though inchoate or defective at the time of the execution of the lease, inquiry, upon part of a bond, fide purchaser for value, would not be a duty. In that case he would take the title free from the secret equities of the tenant, of which he had no actual notice.

The judgment is reversed, and a venire facias de novo is' awarded. L


text:
    Modes’s Estate. Canfield’s Appeal.
    1. The Act of April 8th 1872 (Lien of Laborers’ Wages), does not give lar borers a preference for their claims over an execution-creditor, whose judgment was on a contract made before the passage of the act.
    2. Such laborers, &c., do not, under the Act of 1872, occupy the position of execution-creditors.
    3. Canfield, in December 1871, agreed that he would furnish Modes with materials for the manufacture of glass, and advance him money to assist him in carrying on his business, Modes agreeing to give Canfield a lien, by way of security, on all the products of the glass works, Canfield to have a right to sell the goods if he should desire and retain the proceeds to apply to the indebtedness, and if Modes should sell, Canfield to have the avails, and upon settlement Canfield to pay to Modes any over-payment. Held, that the contract was good between the parties, but invalid as to execution-cred-tors who levied before Canfield took possession of the goods.
    4. The laborers’ claim being after the contract their preference would impair Canfield’s contract to their amount, and were to be disallowed, on a distribution of the proceeds of sale of Modes’s property under executions, although the execution-creditors not entitled to a preference would take the fund and Canfield receive nothing.
    November 19th 1874.
    Before Agnew, C. J., Sharswood, Mercur and Gordon-, JJ.
    Appeal by John B. Canfield from the Court of Common Pleas of Beaver county: Of October and November Term 1874, No. 119. In the distribution of the proceeds of the sheriff's sale of the personal property of William Modes.
    Canfield and Modes had entered into the following agreement:—
    “ Said Canfield to furnish soda-ash and other materials to said Modes, advance money to him, accept his drafts, and otherwise become liable on his paper for his accommodation, for the purpose of assisting and enabling the said Modes to carry on said business.
    “ Said Modes, in consideration of this agreement and assumption on part of Canfield, to give to Canfield a lien, by way of security therefor, upon all the products of the glass works of him, the said Modes, as the same may be manufactured, at the rate or in the proportion of one dollar in value of said goods for every seventy-five cents of material furnished, moneys advanced, and liabilities incurred by said Canfield, as aforesaid. The said Canfield to have the right to sell any or all of said goods, if he should so desire, and in that case to retain the proceeds, to be applied to said indebtedness ; or, if the said Modes should sell the same, then the said Canfield to receive the avails thereof, -whether in money or paper, given by the purchaser or purchasers thereof.

      “ If, on final settlement, it should be found that out of said goods and securities, the said Canfield should, have received more than enough to satisfy the said indebtedness of said Modes to him, the surplus then to be paid over to Modes.
    “ This agreement to commence and take effect on the 15th Dec. 1871.”
    Afterwards Henrici & Lenz, trustees, &c., issued executions, No. 35 and 36 to March Term 1873 of the Court of Common Pleas of Beaver county against William F. Modes and others. Doninick Betchetter issued execution No. 37 to the same term against William F. Modes; John Miller issued an execution No. 38 to the same term against William F. Modes. These executions were all put into the hands of the sheriff at the same hour and a levy made on the real and personal property of the defendants.
    John B. Canfield issued an execution against “ William F. Modes as Beaver Falls Glass Company,” No 82 to the same term. On the 8th of January 1873 a levy was made on Canfield’s execution on the same property that had been levied on under the previous executions subject to those levies. The personal property was sold on the 29th of January 1873, under the executions for $14,866.66.
    Joseph Ledlie, Esq., was appointed auditor to report distribution of the fund arising from the sheriff s sale.
    He reported:
    “ It is conceded that William F. Modes was doing business as the Beaver Falls Company, and that he was insolvent on the 18th day of December 1872.
    “ The executions of Henrici & Lenz, Dominick Betchetter and John Miller, were, it appears, by the endorsement of the sheriff on said writs, received by him on the 18th day of December 1872, at five minutes after two o’clock in the afternoon. The next execution in the order of time is that of J. B. Canfield, which, it appears, was received by the sheriff on the 8th day of January 1873, at 12 M.
    “ The proceeds of sale are claimed by Henrici & Lenz, Dominick Betchetter and John Miller, by reason of their several executions having been first issued and placed in the hands of the sheriff. An effort was made to show that Henrici & Lenz, through their agent and attorney, Mr. Hice, had made an agreement or arrangement with W. F. Modes the defendant, not to enforce the collection of their judgments against him ; and that in pursuance of that agreement, John B. Canfield had endorsed notes and made advancements to Modes, and that the executions of Henrici & Lenz were issued in violation of that agreement, and were postponed.
    “ It appears, by an article of agreement between John B. Can-field and W. E. Modes, offered in evidence, that Canfield was to furnish soda-ash and other material, advance money, accept drafts, and otherwise assist him in carrying on his business in the glass works, and in consideration therefor, the said Modes was to give Canfield ‘ a lien, by way of security therefor, upon all the products of the glass works, at the rate of one dollar in value of said goods, for every seventy-five cents of material furnished, money advanced, and liability incurred by Canfield.’ * * *
    The auditor stated the evidence of the agreement between Henrici & Lenz and their attorney and proceeded :—
    “ In view of these facts, the auditor is of the opinion that the alleged agreement between Mr. Hice and W. E. Modes is not sustained, and therefore the auditor is relieved from any inquiry as to its effect.
    “ The property of W. F. Modes, consisting of manufactured glassware, material, &c., sold by the sheriff on the above-recited writs of fi. fa., for the sum of $14,866.66, which is the fund for distribution in this proceeding, and is, in the opinion of the auditor, liable for the claims for wages of clerks, mechanics and laborers in the employ of said Modes, for labor and services which accrued within a period of six months prior to the date of the levy and sale by the sheriff, not exceeding two hundred dollars each. It appears from the testimony, that the employees of W. F. Modes were generally paid to November 1st 1872, and that more than two hundred dollars of those not so paid accrued within six months prior to the date of the levy. * * * The auditor holds that the fund is applicable, first, to costs and expenses of audit; second, to claims of the laborers, mechanics and clerks, and third, the balance is applied to fi. fas. Nos. 35, 36, 37 and 38, of March Term 1873, pro ratá; said writs having all been placed in'the hands of the sheriff at the same time, and the fund not being' sufficient .to pay them in full.”
    The auditor, in accordance with the principles of his report, after deducting expenses, &c., awarded to the laborers, the amount of their claims, viz., $9926.30, and the remainder pro raid to executions No. 35, 36, 37 and 38.
    Exceptions were filed to the report.
    The court overruled the exceptions, confirmed the report and decreed distribution accordingly. Canfield appealed from the decree of the court. He assigned for error, decreeing to the laborers, &c., the amount of their claims, awarding to Henrici & Lentz any part of the fund; and not awarding the fund to Canfield. •
    The claim of laborers for preference in the distribution was under the Act of April 9th 1872, sect. 1, Pamph. L. 47, 2 Br. Purd. 1464, pi. 1. It provides that the wages of any laborer, &c., for any period not exceeding six months immediately preceding the sale, &c., of works, mines, manufactories or business, &c., shall be a lien upon such manufactory, &c., and shall be preferred and first paid, not exceeding $200 out of the proceeds of the sale of such manufactory, &e., “ provided that this act shall not be so construed as to impair contracts existing or liens of record vested prior to its passage.”

      D. F. Patterson and Wilson (with whom was T. 0. Lazear), for appellant.
    Under the agreement Modes was only bailee to sell for Canfield: McCullough v. Porter, 4 W. & S. 177; King v. Humphreys, 10 Barr 217; Rowe v. Sharpe, 1 P. F. Smith 26; Becker v. Smith, 9 Id. 469.

      F. JR. Dougherty (with whom were F. Wilson, J. F. Dunlap and S. JR. Moore), for appellees, as to the claim of the laborers
    cited Reed’s Appeal, 6 Harris 235 ; Vastine’s Appeal, 2 Wright 164.
   Mr. Justice Gordon

delivered the opinion of the court, January 4th 1875.

In confirming the auditor’s report, the court did not properly consider the proviso to the Act of April 9th 1872.

That act, in providing for the liens of- mechanics, laborers, &c., upon the property of the employer, especially provides that it “ shall not be so construed as to impair contracts existing, or liens of record vested, prior to its passage.” The contract between Canfield and Modes was made in 1871.

By its terms Canfield was to supply Modes with material and money with which to conduct the business of manufacturing glass, to the amount of seventy-five per cent, of the wares turned out; these, as they were manufactured, were either to be delivered to Canfield, or sold for his benefit; in other words, he was to have a lien upon the goods until his advancements were paid. This contract was perfectly good between the parties, though invalid as to execution-creditors, who might levy on the goods before they passed into Canfield’s possession. But mechanics and laborers do not, under the Act of 1872, occupy the position of execution-creditors. Their lien is dependent upon the act, and subject to its provisos. It, however, provides that such liens shall not impair contracts existing before its passage.

The money in court for distribution was raised from the wares which were to furnish Canfield’s security, and the amount so raised is insufficient, were it paid over to him, to meet the amount he advanced to manufacture those wares. Now treating the intervening executions as out of the case, it is clear that if we prefer the liens of these laborers, we impair Canfield’s contract just to the extent of the money it will take to satisfy them. The apparent difficulty is, that parties, not preferred by the Act of 1872, are thus let in upon the fund which they otherwise might.not reach. This, however, is Canfield’s misfortune. Were it not for these he would take the whole fund. We cannot see, therefore, that the laborers are at all prejudiced by this condition of affairs. We perceive no other error in the proceedings of the court below, and upon a redistribution of the fund, the only material alteration of the auditor’s report will be the omission therefrom of the $9926.80 awarded to the liens of clerks, mechanics and laborers.

The decree of the court is reversed, and it is ordered that the record be remitted, and redistribution be made of the fund in said court, also that the appellee pay the costs of this appeal.