text:
    Smith et al. versus Hogeland.
    1. Plaintiffs, as agents for Morrison, exposed his property to public sale ; it was'struck down to Robb, who gave a negotiable note for $1000 for the first payment, with defendant as endorser, it being agreed that if Robb failed to comply with the conditions of sale, defendant might take his place in the sale. Morrison endorsed the note as collateral for endorsement for him by plaintiffs; afterwards Robb’s contract of purchase was rescinded. Held. that the fact that defendant was to have the right to take Robb’s place would not affect the bona fides of the transaction.
    2. That the plaintiffs had been the agents of Morrison in the sale to Robb would not affect their rights as holders of the note unless they assented to the rescission of the contract.
    3. The court charged, that the plaintiff stood in the shoes of Morrison, and if there was an agreement between him and Robb to abandon the contract and release each other, the verdict should be for the defendant. Held to be error.
    4. The original parties to commercial paper cannot by subsequent acts compromise the rights of the. endorsees.

      5. If the note were passed without consideration, or as security for an antecedent debt or endorsement, the plaintiffs occupied the same position as Morrison, and were entitled to his rights and no more.
    6. Petrie v. Clark, 11 S. & It. 377, followed.
    March 4th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon and Paxson, JJ.
    Error to the Court of Common Pleas of Bucles county: Of January Term 1873, No. 319.
    This was an action of assumpsit, brought January 26th 1870, by Barclay J. Smith and Owen W. Worstall, trading as B. J. Smith & Co., against Isaac Hogeland. The plea was “ payment.”
    The action was founded on the following note:
    “ $1000. Newtown, Pa. 12 mo. 5th 1868.”
    On the first day of April next after date I.promise to pay to the order of Isaac Hogeland, at the First National Bank of New-town, one thousand dollars, without defalcation, for value received. C. F. Robb.”
    Endorsed, “ Isaac Hogeland, B. J. Smith & Co.”
    This note was given for the first payment of the purchase-money of real estate of Judge Joseph Morrison, which had been struck down to C. F. Robb at public sale, the plaintiffs being the agents of Judge Morrison, and'authorized to make the sale.
    The plaintiffs having given the note in evidence, rested.
    For the defendant and under objection and exception, the defendant’s deposition was read in evidence.
    He testified that he was at the sale in December 1868; the property contained ninety acres; one of the conditions of sale was that ten per cent, of the purchase-money was to be paid down, or a note given for that amount. Robb was there and said that that seemed too much money to pay down ; the property was then being bid at $197 per acre; Robb said that was too cheap; Smith, plaintiff, who was present, said he would make it easier, $1000 instead of $1800. Robb bid $200 per acre, and it was struck off to him. Smith then said that he wanted defendant to go security for Robb on the $1000 note. Smith told defendant he could not lose, because the property was cheap, and if Robb failed to comply defendant might take the property himself; defendant -would not have put his name on the note, if it had not been for that. In the next January Robb told defendant that he would not take the property; in February defendant talked about the matter with Smith, whom he told that he would take the property, and asked about the payment; he agreed to take for the first payment liens, amounting to $5000, which the defendant had on the property; defendant did not then take the property; about the 19th of March he saw Smith, and told him he wanted a deed for the property or his note ;■ Smith said that defendant could have the property; that it had been placed in his hands to sell whenever he could get $200 per acre for it; but afterwards, before they separated, he said he would like to see Judge Morrison first, who he thought would agree to the sale; in two or three days afterwards Smith told defendant Morrison would not agree to let him have it; the day the note fell due defendant told Smith that he understood Morrison held defendant for $1000, and Smith for $800. ' Smith said Morrison had nothing against either of them ; defendants offer to take the place stopped Morrison from getting any damages. On the 13th of March defendant asked Morrison if he would hold him for the $1000 ; Morrison said he would ; defendant then said he would take the place rather than pay the $1000 ; Morrison did not say much to that, but a few days afterwards said witness had no right to take the place.
    Judge Morrison testified, that he did not think the authority of plaintiffs to sell extended beyond the day óf sale, and a few days afterwards he had not given plaintiffs notice that he revoked their authority.
    The defendant gave evidence by several witnesses corroborating his own testimony.
    In rebuttal, Smith, one of the plaintiffs, testified that he had become holder of the note by endorsing a note dated December 8th 1868, and payable on the next 1st day of April, for $650, for Judge Morrison, which he afterward paid — for commission for selling the property, $180, and for government tax, the whole amount being $870.34, with interest from August 23d 1869 ; an the time he endorsed the note he told the judge he would do it and hold the $1000 note as collateral. At the sale, before the property was knocked off, defendant told Robb if he would buy it, he, defendant, would help him with the money; witness did not make any effort to persuade defendant to become Robb’s security ; Judge Morrison, revoked plaintiff’s authority in March; witness, March 13th, asked defendant if he would buy the place if Morrison would consent to sell; he said he would not, and he did not agree to take it until the 19th or 20th of March, upon the condition that his money then in the property should be used for the cash payment, and requested witness to see Morrison; Morrison declined it; said he had rented the property and could not give possession ; defendant declined to take it subject to the lease; Morrison never gave plaintiffs authority to sell between the day of the sale and the maturity of the note. Robb, on the 22d of February, told Morrison that he would not take the property, and Morrison then drew up a writing, which was signed by Robb, declining to take the property and relinquishing all right under the sale to him.
    There was evidence corroborating Smith’s testimony. Also much other evidence on both sides, which was conflicting.

      The court, Watson, J., charged:— * * *
    “ It is contended on the part of the defendant that the contract by sale was abandoned and rescinded, by agreement of the parties, before the time fixed for its consummation. * * * You will remember what has been testified upon this subject and determine whether there was such an agreement to abandon the contract of sale and to release each other, by the parties to it. If there was, then all liability of either of the drawer of the note, Mr. Robb, or of the endorser, the defendant, would be extinguished as between him and Judge Morrison.
    “ In this connection, it is proper for the court to advert to the written notice given to Judge Morrison by Mr. Robb that he would not take the property, and relinquished all rights under the purchase ; a copy of this paper has been given in evidence without objection ; it is our duty to construe it, and our construction of it is binding upon you. We say to you that this paper does not of itself import any agreement of the parties to release each other, but it is for you to investigate and consider the testimony as to all the facts and circumstances connected with the giving of it, and what was said and done by the parties in relation to the matter, and to determine whether there was then, or at any other time before the date fixed for the carrying out of the contract of sale, a mutual verbal agreement to abandon the sale and to release each other.
    “ This paper of itself does not show any such agreement. The plaintiffs, however, claim that they are entitled to recover upon the note, even if a valid defence might have been made to it in the hands of Judge Morrison.
    “ When a promissory note is transferred before maturity to an innocent endorsee, for value, and without notice of any legal defence to it, such endorsee takes the note freed from any equities between the original parties, and may recover upon it, notwithstanding a complete defence may exist to its payment if it was in-the hands of the original holder.
    “Are the plaintiffs such innocent endorsees? According to the testimony of Mr. Smith, one of the plaintiffs, they were the agents for the sale of the property; the note was originally given to them as such agents, and has been in their possession or under their control ever since. They then had full knowledge of the consideration and purposes for which it was given, knew of all the circumstances attending it, and had notice of everything that might be set up or arise as a defence to its payment.
    “We therefore say to you, that [if the plaintiffs took the note under these circumstances, then the defendant is entitled to avail himself of every defence which might have availed him if this suit had been brought in the name of Judge Morrison, instead of being brought in the names of the plaintiffs, as it is.] That they did thus take it is admitted and testified by one of their number.
    “The plaintiffs stand in the shoes of Judge Morrison; their right to recover is the same as would have been his — no more and no less. That they held the note as security for a less amount than is due upon it, will make no difference. If entitled to recover at all, they are entitled to recover the full amount of the note.
    [“Your verdict will depend upon your decision of the question: Was there an agreement between Judge Morrison and Mr. Robb to abandon the contract of sale and release each other from it before the time fixed for its consummation?”]
    The verdict was for the defendants. The plaintiffs took a writ of error.
    They assigned for error, amongst others, the parts of the charge in brackets.

      Gr. A. Jenlcs and B. H. Brewster (with whom were N. Q. James and J. M. Shellenberger), for plaintiff in error.
    There was no evidence of the cancellation of the sale and it was error to submit that question to the jury: Snyder v. Wilt, 3 Harris 59; Stouffer v. Latshaw, 2 Watts 165; Miller v. Cresson, 5 W. & S. 301.
    The plaintiffs having taken the note before it was due for a valuable consideration, are entitled to sue for the whole amount and hold the surplus as trustees for Morrison: Byles on Bills 134. The defendant cannot set up want of consideration, nor any equities between the original parties: Appleton v. Donaldson, 3 Barr 381; Lord v. Ocean Bank, 8 Harris 384; Work v. Kase, 10 Casey 138; Struthers v. Kendall, 5 Wright 214; Flanagan v. Farm. & Mech. Bank, 4 P. F. Smith 398. Even if plaintiffs knew what the consideration of the note was when it was given: Goddard v. Lyman, 14 Pick. 268. To destroy his right it must be shown he took the note maid fide: Phelan v. Moss, 17 P. F. Smith 59.

      Gr. Lear (with whom was Gr. Boss), for defendant in error.
   Mr. Justice Gordon

delivered the opinion of the court, March 15th 1875.

The note in suit was drawn by C. F. Robb, to the order of Isaac Hogeland, and by him endorsed to Judge Morrison. About the fact that the consideration was one that was good and valuable, there is no dispute. That the endorser was to have the privilege of taking the property, for the purchase-money of which this note was given in part payment, if Robb, the vendee, failed to comply with'the terms of sale, was of no significance whatever, as affecting the bona fides of the transaction. Neither could the fact, that Smith & Co., to whom the note was passed, were the agents of Morrison in the sale of the land, compromise them as holders of the paper, unless it were also shown that they assented to the subsequent rescission of the contract, whereby Hogeland was deprived of the security to which he was entitled. It is therefore certain that the learned judge of the court below was mistaken when he instructed the jury, “ the plaintiffs stand in the shoes of Judge Morrison; their right to recover is the same as his — no more and no less. Your verdict will depend upon your decision of the question, was there an agreement between Judge Morrison and Mr. Robb to abandon the contract of sale, and release each other from it, before the time fixed for its consummation ? If there was not such an agreement, your verdict should be for the plaintiffs for the amount of the note, with interest from its maturity, and costs of protest. If there was such an agreement, your verdict should be for the defendant.”

In this statement of the law of the case, the position of Smith & Co., as boná, fide holders for value, if such they were, is wholly ignored. Such is not the law governing commercial paper. The original parties thereto cannot thus compromise the rights of a subsequent endorsee or holder such paper.

If this note was passed to the plaintiffs by Morrison for some present consideration, as that they should hold it as security for the endorsement of the $655 note, or for advancements then made, the subsequent action of Morrison and Robb could not affect them, and they would be entitled to recover so much of the note in suit, and no more, as would cover their endorsement or advancement. If, on the other hand, it was passed to them without consideration, or as security for an antecedent debt or endorsement, they would occupy no better position than Morrison ; they would be entitled-to his rights and nothing more: Petrie v. Clark, 11 S. & R. 877. These were questions for the jury, and should have been submitted for their consideration. The other exceptions are not sustained.

Judgment reversed, and anew venire ordered.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Haverly versus Mercur.
    1. Evidence to change a contract relation between plaintiff and a third party and to prove a promise to pay the debt of another as a new and original undertaking and not a contract of suretyship, must be clear-and satisfactory ; otherwise it will fall within the Statute of Erauds.
    2. On a judgment of nonsuit the court below being better able to judge of the force of the evidence, the necessity of a clear and preponderating weight of evidence in favor of an absolute, original and personal promise, is greater where the court of error is called upon. to. reverse the judgment of the lower court; it should plainly appear that the plaintiff had a case that should have gone to the jury.
    3. The evidence in this case not sufficient to go to the jury on the question whether the promise of defendant was a personal undertaking and not within the Statute of Frauds.
    4. Where a nonsuit is entered in the court below, a writ of error lies only to the refusal of 'the court in banc to take it off. A writ of error directly to the judgment of nonsuit will be quashed.
    5. Eshleman v. Harnish, 26 P. F. Smith 97, followed. Jefferson Co. v. Slagle, 16 P. F. Smith 202, distinguished.
    March —1875.
    Before Agnew, C. J., Sharswood, Williams, Gordon, Paxson and Woodward, JJ. Mr. Justice Mercur, being related to defendant, did not sit.
    Error to the Court of Common Pleas of Bradford county; Of January Term 1874, No. 210.
    This was an action of assumpsit, brought November 7th 1870, by Amasa Haverly against Mahlon C. Mercur. The plaintiff’s claim was as follows :—
    The firm of Whittenhall & Co., composed of Whittenhall and Andrews, were contractors to build the Sullivan and Erie Railroad, in the counties of Sullivan and Bradford; the defendant was president of the railroad company; the plaintiff was a sub-contractor for the construction of two sections of the road. His allegation was that Whittenhall & Co. had not paid him the estimates when they became due; that he complained to the defendant that he was unable to carry on the work because the prices were too low, and because he was not paid, and that he would be compelled to discharge his hands and abandon his contract; the defendant told him to continue at the work and finish the sections and he would see him paid; that in consequence of this promise he did continue at the work and finish the sections, but the defendant had refused to pay him.
    The promise was not in writing; the question was, whether under the facts in the case, it was within the Statute of Frauds.
    The case was tried December 9th 1873, before Streeter, P. J.
    The plaintiff testified that he commenced work under his contract with Whittenhall & Co., and continued for three or four months, as long as he had the means. In February he told the defendant that it did not pay, and he was not getting any money; defendant said he had better keep on; he afterwards heard that Whittenhall was good for nothing ; he told defendant, and said he would not work any longer under him, and should quit. Defendant told him that he was living there, raising his own provisions, and had better go on and build the road. Defendant said, “ he would tell me what to do, I should go to work, keep a strict account of everything I put on the road, and return it to Everett (the superintendent of Whittenhall & Co.), and he, defendant, would pay me or see that I had my pay. He said I should not lose one cent by it; told me this was confidential. * * * I -went back and went to work on the road again; I completed the job about December 1st 1869. I had the conversation with Mr. Mercur when I agreed to go on in March 1867. * * * There was due me about $12,000. * * *
    “I had a conversation at the bridge when I had got the abutments pretty well along; he thought I was getting along well; I told him the men were dissatisfied at not getting their pay, and were leaving me. He said he had told me that I should lose nothing, and told the men they should not be afraid of me, as I was the only man that could pay gold. * * * Had a conversation with Mercur in the latter part of November or first of December 1867. I was in the stage going down to see Mercur., Others were stop-, ping work, and I was going down to see if I had not better quit. I told him I was going down to see him to know if I had not better stop work. * * * He told me it would not do to stop work on the rock job. I told him I could not carry it on, as my resources were exhausted. He told me to come down with a team and he would see about getting a load of provisions; I did so. He -went with me to Mix &'McOabe’s, and told them to let me have a load of provisions, and he would see that they had their pay. I got provisions there at different times nearly all winter. * * *
    “ He told me to keep my charges for expenses as I had done; I told him I had done so except for ox-team work. He told me at different times to get all I could out of Mr. Andrews, and that it would not hurt me. He wanted this to be kept confidential, because others would be trying to get him to secure them. This account includes charges for my own time, except for about three or four months. I put in my own time, because he told me to keep a strict account of everything. This account is a correct one.
    On cross-examination he said : * * * « J signed receipts when I got the money of Whittenhall & Co. I received money from them a good many times ; sometimes once a month, sometimes once in two or three months, as long as I worked there. * * * It was estimated that, my whole work would come to $35,990.70. They could not make an estimate of the amount of work done by me after the slide. I presumed that Everett and Dodd informed me after the slide that they would have to estimate the amount of work by the quantity each man done daily. After this occurred they paid me from my pay-rolls. I returned my pay-rolls to Mr. Everett every month. I continued to get money from him from time to time as long as I worked there. * * * I might have seen Andrews in Mercur’s new bank ; I dunned him every time I saw him. I bid off earth work at 35 and rock at 90 cents. My contract was executed at that price. I worked at that price till I made the arrangement with Mr. Mercur. I can’t tell when the price was increased to 40 cents and $1. I did not have any estimates, and did not receive my pay at that price. The engineers made measurements nearly every month. After these measurements were made, I went to Mr. Everett to get my pay. I think I did make frequent complaints to Mr. Everett that Andrews did not pay me regularly and better. I did make complaints to Mercur that Andrews did not pay. Mercur has judgment against me for $600. I gave the note on the 15th of February 1870. This was given in part for money at the time I gave the note, about $200 ; the balance was for money I had had previous to that time. I gave him Andrews’s draft for the money got before draft for $375. This draft and the $200 made the $600 note. * * * In March 1867; I had the conversation with Mr. Mercur, when he told me to keep an account, he told me at that time that he would pay me or see me paid. I have done all I could to get my pay from Andrews. I think the last time I saw Andrews was in 1868. They owed me $6000 or $7000 at that time. The contract with Mercur was made just after the first slide into the thorough cut. Commenced keeping an account of my own time the 1st of June 1867. * * * I asked Mr. Everett for a statement of the amount that had been paid’me. I understood the statement to be correct. * * * The amount paid by Everett to Mix & McCabe was figured in. It was about this time we first talked; he, Mercur, told me to get all I could out of Andrews and he would pay the balance. It was in the same conversation that he said I should keep on teazing him. I asked him to put it in writing, and he refused to do it, because if he did he would have to secure others. During the progress of this work I asked Mr. Mercur to pay me at different times. He said money was very tight; said that Andrews was slow about selling bonds. I frequently complained to Mercur about Andrews or Whittenhall being slow to pay. In the fall or winter of 1867 I looked over the accounts with Mr. Everett; there was some $8000 due me. Mercur wanted me to take bonds; he did not tell me at what price Andrews would let me have the bonds. Mr. Everett thought there would be money to pay with in the spring. Mr. Mercur told Mix & McCabe that if they would let me have a bill of goods he would see it paid. Mr. Everett paid that bill. It was some time after we made the bargain that Mercur refused to put it in writing.”
    On re-examination he said. * * * “ I recollect going up to Mercur’s house with George Neal. When coming down I was complaining of Whitten hall’s being a miserable fellow. He said I should keep teazing him, it would not hurt me. He said he had told me before that I should make out an account of my expenditures ; I did make it out and handed it to Mr. Mercur sometime afterwards. * * * I told Mr. Mercur that some people said that a promise to pay was of no avail unless it was put in writing. Said he thought his word was good. If he put it in writing the the rest would want him to do it for them.”
    George B. Neal testified: “ I recollect the conversation between Mr. Mercur and Mr. Haverly, as mentioned by him. I heard Mr. Mercur ask Mr. Haverly if he had made out that bill. Mr. Haverly said he had not entirely. Mr. Mercur told him to make out an itemized bill and hand it in so that he could carry it before the board. Mr. Mercur has told me that he would rather see Amasa paid than any of the rest of the contractors.”
    Charles Chilson testified: “ I had a talk with Mercur about the work of Haverly. He asked me if I saw anybody at work there. I told him I did see a few there. I told him the report was that Haverly had got to quit. He said he told him to go on and he should lose nothing. This was in the spring of 1867.”
    J. S. Campbell testified: “ I heard a conversation between Mr. Mercur and Haverly in the bank. It was after they commenced working on the railroad. Mr. Haverly came into the bank and complained to Mr. Mercur that he would have to stop; that he had no provisions. Mr. Mercur told him that he must not stop ; that he would get him a load of provisions; asked him if he had a team there. He said that he had a team, and Mercur ordered him to take it around to McCabe & Mix’s. During the conversation Mr. Mercur said he would pay him or see him paid, I am not certain which. That was when urging him not to stop. He expressed much anxiety not to have him stop.” * * *
    William Burdick testified: “ I was driving the stage. I recollect when driving of meeting Mr. Mercur at the watering-trough near Wilcox’s. Mr. Haverly said to Mr. Mercur that he must have some money or he would have to stop his work. Mr. Mercur told him he must not stop the work, but must keep on and he would pay him or see he had his pay for all he did. I heard a short conversation in the bank between Mr. Mercur and Mr. Haverly. Mr. Haverly told him he must have some money, and Mercur told him he must keep on and he would see that he had his pay.”
    William Northrup testified: * * * “ I was in the bank one day, I think in 1868, in the fore part of November. Mr. Haverly said he had used up all the money he had and he must quit if he could not get means to carry it on. Mercur told him he must not quit, that cut must go on. He told him they wanted to go to laying iron in the spring and that cut was going to bother them, and it must go on. He said he would see that he had his pay or would assist him in getting it.”
    A. J. Gorsline testified: “I recollect of riding with Mr. Bur-dick in the stage in November or December 1867. We met Mr. Mercur near by Wilcox’s mill, on the turnpike. * * * Haverly got out of the stage. Mercur asked Haverly how he got along. He said very slow and poorly, and he would have to stop if he did not have some pay; said he had no money to pay the men and the men would not go on without money. Mercur said, ^No, don’t stop, the work must go on, Mr. Haverly, and I will pay you or see you paid.’ He told him he should not lose a cent, and that he would he responsible, or words to that effect.” * * *
    John Sullivan testified: “ I heard Mercur say that Haverly said he could not go on with the work. He said Haverly must not quit, but he would see him paid. He furnished a load of provisions.” * * *
    There was other evidence of much the same character as the foregoing; there was evidence also of payments by Everett on behalf of Whittenhall & Co. to the plaintiff, or on his account, during the time the work on the contract was progressing, and after the alleged promise by the defendant.
    The plaintiff having closed his case, the defendant moved for a nonsuit for the reason':—
    “ That the evidence on the part of the plaintiff shows that the undertaking of the defendant set forth in his declaration was a collateral undertaking (not in writing) to plaintiff’s contact with Whittenhall & Co., and is within the Statute of Frauds and Perjuries, and the plaintiff cannot recover.”
    The defendant’s motion was allowed, and a judgment of nonsuit entered by the court. The plaintiff excepted to the decision of the court ordering the nonsuit; but no motion to take off the non-suit was made to the court in banc.
    The plaintiff took a writ of error, and assigned for error the entering of judgment of nonsuit.

      WatJcins Sy Smith, for plaintiff in error.
    The promise of defendant was to pay his own debt under a contract which he himself made with plaintiff; it was not to pay a debt of Whittenhall & Co.: Weyand v. Crichfield, 3 Grant 113; Malone v. Keener, 8 Wright 107; Brown on Statute of Frauds 165; Johnson v. Gilbert, 4 Hill 172; Arnold v. Stedman, 9 Wright 186; Whitcomb v. Kephart, 14 Id. 90; Jefferson County v. Slagle, 16 P. F. Smith 202.

      Patrick, Overton Plsbree and Peet ¿y Pavis, for defendant in error.
    The uniform construction given to the Statute of Frauds is to bring every promise made for the payment for the debt or default of a third person within the statute, except where the promissor has made the promise upon a consideration to himself, or upon the receipt of some fund or other security, either from the debtor or the creditor, charged with the payment of the debt, so that a trust or duty was created thereby to pay the debt, so that in making the payment of the debt he was fulfilling an obligation of his own: Williams v. Leper, 3 Burr. 1886; Edwards v. Kelly, 6 M. & S. 204; Castling v. Aubeet, 2 East 325; Bampton v. Paulin, 4 Bing. 264; Walker v. Taylor, 6 Carr. & Paine 752; Stephens v. Pell, 2 Cr. & Mees. 710; Birkmyr v. Darnell, Salkeld 27. While the old debt remains, the new must be regarded as not an original undertaking, and therefore within the statute: 1 Saunders 211, note 1; Goodman v. Chase, 1 B. & A. 297, unless it be an extinguishment of the liability of the original party; Mallory v. Gillett, 21 New York 312.
    The consideration must move to the party making the promise, or it is within the statute: Farley v. Cleavland, 4 Conn. 432-439; Nelson v. Boynton, 3 Met. 486; Kingsley v. Balcom, 4 Barbour 131.
   Judgment was entered in Supreme Court March 22d, 1875,

Per Curiam.

It was held at Harrisburg last year, in the case of Eshelman & Herr v. Beecher & Harnish, 26 P. F. Smith 97, that the evidence to change an existing contract relation between the plaintiff’ and a third party, and to prove a promise by the defendant to pay the debt of another, as a new and original undertaking, and not a contract of suretyship, must be clear and satisfactory ; otherwise, the case will fall within the operation of the Statute of Frauds, requiring the promise to be in writing. This is a wholesome rule, without which the statute may be easily evaded, especially since the law has made the plaintiff a witness in' his own behalf. Doubtful expressions can easily be made the foundation of a promise and the conscience of the party thus relieved from a conviction of distinct perjury.

Viewing this case in the light of these salutary principles, the evidence is entirely insufficient to raise a promise binding on the defendant without a writing. The plaintiff, a farmer near at hand, had a sub-contract with certain contractors to build two sections of railroad of the Sullivan and Erie Railroad Company, of which the defendant was the president. He had worked under his subcontract for some time, until he found the contractors failing in payments, and in doubtful circumstances, He mentioned this to the defendant Mercur, who told him he had better not quit; that he was living there and raising his own provisions, and he had better go on and build the road. Mercur took a chair beside him, and said he would tell him what to do — to go on, build the road, keep a strict account, and return it to Mr. Everett, and he (Mereur) would pay him, or see that he was paid, that he should not lose a cent by it — said this was confidential. Haverly continued and finished his work. In so doing he kept on precisely as before ; made returns to Everett, who was the agent or superintendent of the contractors, and received his estimates as before, to the amount of $27,392.63, of which only $3000 were paid under the contract before the alleged assumption of Mercur. The entire work was estimated at $39,882.08. The engineers made the regular monthly estimates resorting (after the land slides) to the pay rolls kept by Haverly, instead of actual measurements. During all this time, the plaintiff, Haverly, pursued Andrews, the assignee of the original contract, incessantly for money; and on one occasion borrowed money of Mercur, giving him his judgment note in $600, to pay a draft of $375 on Andrews, and the remainder in cash, to carry on the work.

Without further detail, it may be said that there was no evidence of abandonment of the plaintiff’s sub-contract with the contractors, but he continued to work under it, receiving payments to a large amount under it, and in no single instance receiving payment from Mercur. On one occasion Mercur assisted him to procure a wagon load of provisions, which the evidence shows was not paid for by Mercur, but through Andrews’s checks. He complained to Everett that Andrews did not pay him, and told Mercur that Andrews was slow. Mercur said money was tight and Andrews was slow in selling bonds, “ and wanted Haverly to take bonds,” but, says' Haverly, Mercur did not tell me at what price Andrews would let me have the bonds, indicating the understanding of both parties that the money was to come out of the sales of the bonds of the railroad company, and not from Mercur personally. The entire evidence shows that Haverly had not changed his relation under his sub-contract, and that what Mercur did was as president of the company, in endeavoring to push the work to completion, and in this relation to secure Haverly in the fruits of his labor.

When we come to the evidence of the promise, we find it wholly doubtful and unsatisfactory. Haverly, who ought to state clearly, if it were made as claimed, says, he promised “ to pay me, or see that I had my pay.” Which was it? The subsequent conduct of Haverly clearly indicates the latter. Nor is this an isolated form of expression, for it is several times repeated. Besides, the proof by six witnesses of the plaintiff was in the single form only, to wit, that Mercur would see him paid. Then we have Haverly’s own interpretation, the result of consultation with others, for he told Mercur that some people said that a promise to pay was of no avail, unless it was put in writing. Mercur declined, and said if he put it in writing the rest would want him to do it for them; “ if he secured one in writing the rest would want him to do the same thing.” As corroborative of this, the promise to the merchants who furnished the wagon load of provisions was, that he would see them paid, and they were in fact paid through Everett’s checks. In all this there is no evidence, either clear or satisfactory, of an absolute promise by Mercur to pay himself, except by way of suretyship. This being the case of a nonsuit, in which the court below were better able to judge of the force of the evidence, the necessity of a clear and preponderating weight of evidence in favor of an absolute, original, personal promise, is greater when we are called upon to reverse the judgment of the court. It should plainly appear to us that the plaintiff had such a case as ought to have gone to a jury. That Mr. MercUr promised the plaintiff to see him paid, and became surety for the railroad company, is beyond a doubt, but that he undertook to bind himself to pay absolutely,as of his own original, personal obligation, does not appear. The statute is therefore a bar to the action. We are referred to the late case of the County of Jefferson v. Slagle, 16 P. F. Smith 202. But that case has not a feature resembling this. There the Slagles refused to let Dickey, the contractor for the court house, have the bricks. They gave evidence that in consequence of this, the county commissioners, in order that the building might go on, and the hands not stand idle, promised the plaintiff absolutely to pay them for the bricks, and that they had a fund of $19,000, held back from Dickey as security for performance, and to which the county could resort. The evidence of several witnesses for the plaintiff was of an absolute promise to pay for the bricks, if the plaintiff would deliver them. This was met by contradictory evidence on the part of the commissioners, and the judge expressly instructed the jury that there could be no recovery, unless the commissioners, as such, expressly promised to pay, and the plaintiff delivered on this promise. The jury found the fact of the absolute promise on behalf of the county, and when the case came into this court, it was said in the opinion, “ The contract, as averred in the declaration and found by the jury under the evidence, was not a contract to answer for the debt or default of the contractor, but a direct promise on part of the commissioners to pay for the bricks, in consideration of which the plaintiff agreed to deliver them.” In the case before us we have seen there was no abandonment of the original sub-contract, or refusal to go on under it, but a continuation of the work as before, and payments to a large amount made under it, and that there was no clear and satisfactory evidence of an intention to bind Mereur personally, except by way of surety-ship, and no sufficient evidence of an absolute contract, or that the plaintff went on with the work, in consideration of such an absolute liability.

This case having been fully argued before us on the merits, without objection to the state of the record, we have discussed it in order to show that it is not taken out of the operation of the Statute of Frauds. But having discovered that the record is not legally before us, it is proper to say that we cannot countenance so loose a practice. The act relating to the District Court of Philadelphia (1 Bright. Dig. 498), requires a motion to set aside the judgment of nonsuit to be made to the court in banc; and a writ of error lies only to the refusal of the court to set it aside. The purpose is to give the court an opportunity of reconsidering the evidence before the case is removed into this court. The same powers as to nonsuits are extended to the courts of Common Pleas throughout the state, subject to the same regulations as to writs of error: 2 Bright. Dig. 1168, pi. 28.

No motion to set aside the nonsuit having been made, this writ of error was prematurely taken, and must be quashed.

Writ of error quashed at the costs of the plaintiff.


author: Mr. Justice Panson

text:
    Gilbert’s Appeal. Johnson’s Estate.
    1. The finding of an auditor on the facts should not be disturbed unless for clear error.
    2. After the death of a partner, two of the administrators sold the decedent’s interest in the firm at private sale to a surviving partner, who was also an administrator, at a price less than the value. Held, that the sale was voidable at the election of any party in interest, and all the administrators were chargeable with the actual value.
    3. That the administrators acted in good faith and under the advice of counsel, would not justify the transaction.
    4. One of the administrators mingled the funds of the estate with his own and used them in his business. Held, that the accountants were chargeable with interest on the funds of the estate thus treated.
    March 5th 1875.
    Before Agnew, 0. J., Sharswood, Williams, Mercur, Gordon and Paxson, JJ.
    ■Appeal from the decree of the Orphans’ Court of Berks county: Of January Term 1875, No. 172. In the estate of I-Ienry W. Johnson, deceased.
    The decedent died in June 1863, intestate, leaving a minor son, Edward N. Johnson, who had for his guardian N. Jacoby. Administration of his estate was granted to Peter Y. Brendlinger, W. K. Grim and J. B. Rhoads. Brendlinger and Grim, two of the administrators, having settled an account February 17th 1865, William M. Baird, Esq., was appointed auditor to examine and adjust it upon exceptions filed, and to report distribution. He reported that the balance due the estate was $2502.56. This report was referred back to him October 5th 1867. On the 21st of May 1870, at the request of Mr. Baird, the court relieved him from his duties as auditor, and on the 21st of November 1871 Edwin Shalter, Esq., was appointed auditor for the same purposes.
    The decedent, at the time of his death, ivas in partnership -with J. B. Rhoads, one of the administrators, and Washington Deysher, in the Great Western Hotel, Philadelphia, the decedent and Rhoads each having an interest to the extent of one-fourth ; the decedent had other property also.

      There were two questions which were mainly considered in the case.
    1. Whether the accountants were chargeable with interest' on money of the estate which had passed into their hands, and had been mingled with the money of one of the administrators and used in his business.
    2. As to the amount with which they should be chargeable on account of the decedent’s interest in the Great Western Hotel.
    The auditor found that previously to May 1864, Brendlinger kept a private account in the Pottstown bank; after that time he mingled the money of the estate with his private account; he kept after that time no bank account as administrator. A considerable amount of money came into his hands as administrator; he also made payments on account of the estate; the- amounts drawn from the bank or mingled with his own funds were far in excess of the payments he made for the estate, and there was no evidence that the money was used for the benefit of the estate.
    As to the second question: By the inventory filed July 2d 1863, the interest of the decedent in the Great Western Hotel was appraised at $1500. On the 2d of September 1863, under the advice of the counsel of the administrators, another and ex parte appraisement was made, fixing the amount of the decedent’s interest at $113.88. Subsequently this interest was sold at private sale to J. B. Rhoads, one of the administrators, for $150, and with that amount, instead of $1500, the administrators charged themselves in their account.
    On the hearing before the auditor, the testimony of Rhoads and Brendlinger was taken. There was other testimony taken by him in relation to the value of the decedent’s interest in the hotel.
    Deysher, the other partner, testified that he supposed the hotel property would have brought $3500 at public sale; that he would have given $1000 for the decedent’s interest in the concern ; that he was waiting to buy it and had the money ready; in November 1863., Rhoads sold his own fourth and that of the decedent for $2000.
    F. R. Baugh testified that the hotel books had been put into his hands to ascertain how the money matters stood; he examined the books and found the profits of the firm during its continuance to be $5349.73.
    The counsel of the administrators testified, that upon consultation with the guardian of the minor, they thought it best to sell the interest in the firm to Rhoads for $150, upon his assuming the liabilities of the firm, as Deysher and Rhoads, the surviving partners, were not responsible, and they would have the settlement of the firm accounts.
    The auditor reported that from the testimony outside of that of Rhoads and Brendlinger, the interest of the decedent in the hotel was worth much more than it had been sold for; that their testimony should not be taken into consideration, the one being administrator and the other partner as well as administrator. Taking the testimony of Baugh and Deysher, he found that the interest of the decedent was worth $2837.45. He therefore charged the administrators with that sum and interest. He also, by various schedules accompanying his report, showed the amount of money received from the book accounts of the hotel concern, the money received generally on account of the estate, interest on the money of the estate mingled with the accountant Brendlinger’s own funds and other interest. Interest was charged to April 23d 1873. As the result of the whole, he found that there was due from the administrators to the estate $8648.15, after allowing $1200 compensation to the accountants and deducting the costs of the audit; this sum he awarded to the minor.
    Exceptions were filed to the report. They related to the surcharges in the account, and also that the auditor erred in not considering the testimony of Rhoads and Brendlinger.
    The court (Woodward, P. J.) held that their testimony was competent, and without deciding any of the other questions raised by the exceptions, referred the report back to the auditor for re-examination, in view of the rejected testimony of Brendlinger and Rhoads.
    The auditor made a second report, in which he said that after a careful examination of the whole testimony he was of opinion that the testimony of Baugh, Deysher and other disinterested witnesses, should outweigh that of the administrators, who were interested. He therefore reported as he had before done.
    Exceptions were filed to the report, principally as to the findings of the facts.
    The exceptions were argued before the lay associate judges only.
    The opinion of the court as delivered by them was as follows :
    The correctness of Mr. Baugh’s finding in his examination of the books, as being the profits of the firm, to wit, $5349.73, is made questionable by other testimony,' and besides, there being no evidence that the administrators received their proportion, to wit, $1337.43, or any part thereof, we think that the auditor erred in charging them with it, as well as the $1000 charged to them for the interest of the estate in the property of the firm, when the proof is that they sold it to Mr Rhoads, one of the administrators, for $150. The law forbidding a decedent’s property to be purchased by the administrator, it therefore does not recognise such a purchase, and compels us to disregard it. But from the well-known character of the administrators, we are induced to believe that they acted in good faith towards the estate, and in obedience to the advice of their counsel. We must therefore take the amount sold for, to wit, $150, as denoting their estimate of its value, no doubt based upon the report of the appraisers and their own judgment. And then, if we take other testimony as to its value, to wit, $1000, the average will be $575, which amount, with interest, to wit, $327.75, will amount to $902.75, which amount the administrators should be charged with, in lieu and instead of $2337.43, and $1332.20 interest thereon. And in view of the fact that administrators cannot always safely invest various amounts received from time to time, they should not, we think, be held as rigidly as the auditor has, to the payment of interest, to wit, 6 per cent., computing it from six months after they received those amounts, and a deduction therefore of one-third of the amount, to wit, $1090.93, leaving that item $2181.87.
    “ And after the aforesaid corrections of and deductions from the amounts found due the estate in Mr. Shalter’s report are made, said report is confirmed absolutely.”
    The sum by these corrections decreed to be in the accountant’s hands was $4790.34.
    E. W. Gilbert, who had been appointed guardian in the place of N. Jacoby, appealed to the Supreme Court, and in a number of specifications assigned for error, that the court did not confirm the report of the auditor.

      I). $ J. N. JSrmentrout, for appellants.
    The report of an auditor on facts should not be corrected, except for plain mistake : Brua’s Appeal, 5 P. F. Smith 297; Stehman’s Appeal, 5 Barr 414; Hernstead’s Appeal, 10 P. F. Smith 428 ; Wistar’s Appeal, 4 Id. 60. One mixing his goods with those of another, so that they cannot be distinguished, must be the sufferer: Kisterbock’s Appeal, 1 P. F. Smith 486. A trustee must neither mingle nor deposit the assets of the trust with his own: Beck v. Uhrich, 4 Harris 503; Robinett’s Appeal, 12 Casey 174; Perry on Trusts 428 ; 2 Wms. Ex. 1566-70. An administrator selling at private sale is responsible for the full value of the property, irrespective of the price he received: Lothrop v. Wightman, 5 Wright 302.

      F. L. Smith, for appellees.
    Accountants are not chargeable with interest during the pendency of litigation on exceptions: Hoopes v. Brinton, 8 Watts 73 ; Kelsey v. Murphy, 6 Casey 341: Dietterich v. Heft, 5 Barr 94; McElhenny’s Appeal, 10 Wright 350.
   Mr. Justice Panson

delivered the opinion of the court, March 15th 1875.

The finding of an auditor upon the facts should not be disturbed unless for clear error. The reasons for this rule are substantial and have been so often stated as to make their repetition unnecessary. In this case the exceptions to the report of the auditor upon the issues of fact were sustained by the Orphans’ Court, and the fund for distribution reduced from $8648.15 to $4790.34. This was assigned for error.

We fail to see in the opinion of the court below any sufficient reason for the judgment. If Mr. Baugh’s evidence as to the profits of the firm was not reliable, there was an easy mode of showing it. His statements were based mainly upon the books of the firm in the possession of the administrators, of which firm one of the administrators was a member. No attempt was made to show from those books that the estimate of the witness was inaccurate. Mr. Rhoads was in the position of administrator as well as surviving partner. It was especially his duty to have closed up the business of the firm, and accounted to the estate of his deceased partner. No account appears to have been furnished by him as surviving partner. Instead of doing so he became the purchaser from his co-administrators of the interest of his deceased partner. The sale was private, and the amount paid $150. Not long after he thus acquired this interest he made a re-sale of it at a large advance. The administrators may have acted in good faith, and under the advice of counsel, as was suggested by the court below. But neither good faith nor the advice of counsel can avail to sustain such a transaction as this. It does not need authority to show that an administrator cannot so deal with property intrusted to his care. The sale to Rhoads was voidable at the election of any party in interest; and the accountants were properly charged with what the auditor found to he the real value of Dr. Johnson’s interest in the firm property and business.

The court below reduced the amount of interest with which the auditor had surcharged the accountants, for the reason “ that administrators cannot always safely invest various amounts received from time to time.” There would have been more force in the reason assigned if such surcharge had been made because of the failure of the accountants to keep the funds of the estate invested. This, however, was not the ground of the surcharge. It was made for the reason that the administrators had allowed one of their number to mingle the funds of the estate with his own money and use it in his business. That such use was made of the money sufficiently appears from the evidence. The liability to account to the estate for interest is the legitimate conclusion from this fact.

The court below in weighing the evidence evidently relied upon “the well-known character of the administrators.” We do not lose sight of the fact, however, that they were the parties immediately interested in the decree, and we see no good reason why their testimony should outweigh that of other witnesses who have no interest in the controversy.

The decree of the Orphans’ Court sustaining the exceptions to the report of the auditor is reversed; the report of the auditor is confirmed, and distribution ordered to be made in accordance therewith ; the costs of the appeal to be paid by the appellees.