author: Green, J.

text:
    January Term, 1881,
    No. 237.
    March 20th, 1882.
    Myers versus Brice et al.

    1. Plaintiffs brought suit to recover a loss upon sales of goods of defendant, upon which they had made advances. The defence was, that the transaction between the parties was a sale and not a consignment. The plaintiffs offered in evidence receipts for the moneys, signed by the bookkeeper, who was the “business man” of the defendant, and to whom the payments were made. One-of these receipts set forth that the money was an advance, and the other that it was an advance for goods consigned for sale on defendant’s account. Held, that the receipts were admissible without proof of express authority to the bookkeeper to sign them in this form.
    2. It was not competent for the defendant to prove by the bookkeeper that he executed the receipts in this form without authority.
    3. The plaintiffs having given evidence by their agent, who contracted with the defendant, that the contract was one of consignment on advances, the defendant proposed to ask, in cross-examination, whether the witness had not said to plaintiffs that he had orders for goods of the kind at cértain prices, and that the parties guaranteed these prices. Held, that it was immaterial.
    4. The defendant further proposed to ask the witness whether, about a year after the making of the contract, he did not say to a clerk of the plaintiffs that he had bought goods of the defendant, that accounts of sales showed a loss, and that he would have to buy more goods in order to be in defendant’s debt, and whether he did not admit that it was a sharp trick, to be followed by proof that he did buy more goods of defendant. Held, that it was immaterial.
    5. A witness testified specifically as to the goods received and prices, but said, on cross-examination, “ I have such knowledge of this as a principal would have of his general business. The books which I keep show the details of every transaction.” Held, that it did not appear that his knowledge was derived from hearsay.
    6. A witness identified copies of two bills of sale of the goods in question made out to the plaintiffs, each of which contained the line, “ all claims must be made within three days’ time,” and testified that he took one of the bills to the ■ plaintiffs’ store before the money was paid, and gave it to a clerk, but was uncertain which bill he so'delivered. The defendant, upon failure of the plaintiffs to produce the originals on call, offered the copies in evidence. Held, that, the testimony being in support of only one of them, the offer was properly overruled.
    7. The defendant, having testified that the contract was one of sale, offered in evidence his books of original entry, showing the charges of the goods to the plaintiffs at the time of the transaction. Held, that, not being the best evidence, they were properly rejected.
    8. The defendant, having testified that he knew nothing of the receipts, which were respectively dated October 7th and November 4th, 1874, until they were shown to him by a clerk of the plaintiffs in November, 1875, was asked by his counsel: “Did you then and there reject and repudiate them? What did you do ?” Held, that the question was properly overruled.
    9. The plaintiffs did not become insurers of the sales because of neglect to give defendant notice of the loss for a period of nine months, there being no evidence that any loss was incurred by reason of the neglect.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas, No. 3, for Philadelphia County.

    Assumpsit by William Brice, John Allen, and Ephraim Brice, trading as Brice, Allen & Co., against Josiah B. Myers, to recover a drawback upon advances upon butter, shipped to England, as alleged, through, the plaintiffs on account of the defendant.
    Upon the trial in the Court below, the plaintiffs called G. JH. ¡¡¡¡wester, who identified the following receipts:
    “Received, Philadelphia, October 7th, 1S74, of Messrs. Brice, Allen & Co. six hundred and ninety dollars as advance upon butter, purchased October 6th, 1874.
    “$690/&.
    “J. B. Myers,
    “ Per Kahoe.”
    “ Philadelphia, November 4th, 1874.
    “Received from Brice, Allen & Co. proceeds of £180 sterling, say nine hundred and fifty-four dollars, being advance on 72 packages butter consigned to Watson, Dunn & Co. for sale on my account.
    “$954. “J. B. Myers,
    “ Per Kahoe.”
    And testified, inter alia :

    “These receipts were signed by the bookkeeper of J. B. Myers, who was his business man. The goods were shipped to England, to Watson, Dunn & Co., on account of J. B. Myers. Account sales showing loss were sent from England, and were delivered to J. B. Myers. The first receipt, of October 7th, was written by Mr. Kahoe; the other was written by Mr. Thomas Hobson. I think Mr. E. Brice, Mr. Kahoe, and myself were present when the first receipt was signed. Mr. Hobson was present when the second receipt ivas signed. If the receipts had not been signed, we would not have advanced the money.”
    The counsel for plaintiffs offered the receipts in evidence. Counsel for defendant objected, unless the authority of the bookkeeper to sign such qualified receipts is first proved.
    The Court admitted the offer under exception. (First assignment of error.)
    The witness continued:
    “The butter went to England, to Watson, Dunn & Co., to be sold on account of J. B. Myers. Brice, Allen & Co. received account sales from Watson, Dunn & Co., when I cannot say. They were sent to J. B. Myers at. same time with account current. November 23d, 1875, is the date of the account current. They were never returned, but were kept by Mr. Myers. We sent them shortly after we received them.”

      Thomas Hobson, for the plaintiff, testified, inter alia:

    “In 1874 an arrangement was made between Brice, Allen & Co. and J. B. Myers for shipping butter on advances. Mr. Myers said he would take the risk of the English market and make a shipment if he could get reasonable advances. He said that to me in his office......That butter was shipped before advances were made or paid. It was taken to the steamship by Myers’s own team. The market was very dull in England at the time, and here, too. I communicated with Mr. Myers almost daily. The English market was a subject of conversation frequently.”
    Upon cross-examination he said :
    “ Mr. Myers wanted to sell the butter. I had no orders, and didn’t want to buy. Afterwards Mr. Myers said he would like to try the English market. Tie said, ‘ Get as good an advance as you can, and I will ship it.’.....In the second conversation I did not guarantee the advances; didn’t say there would be no drawbacks.”
    “ Q. Hid you not tell Brice, Allen & Co., the plaintiffs in this case, that you had orders from the other side (meaning from England) for butter, cheese, and produce, at certain prices, and that the parties on the other side guaranteed these prices, or words to that effect ?”
    Objected to, and objection sustained under exception. (Second assignment of error.)
    _ “ Q,. Did not Frederick M. Allen on one occasion, some time about the early part of November, 1875, on your going through his office, ask you why the firm had been so disagreeable all day, if it had anything to do with the English losses coming in, and did you not reply, ‘Yes, it has?’ And did you not further say, ‘ I bought butter to ship to England and guaranteed a price, and account sales have come in with a heavy loss, showing sales'at a less price than I guar-, anteed. Now I have to go to these parties whom I bought butter off of and buy more in order that we may be in their debt, for if we don’t we will never get a cent, and we will have to settle the loss ourselves ?’ Did he not ask you if you did not think that a sharp trick, and did you not reply, ‘ Yes, but it would work’? Did you not tell Allen that the defendant, J. B. Myers, was one of those to whom you had guaranteed advances?”
    Said question to be followed by proof that more butter was then bought of Myers, namely, $”81 worth, set oft’in this ease.
    The question was objected to on ground that nothing this witness could say or do could change in any way the terms of the original contract. The objection was sustained as to all of the question except as to whether he said he had guaranteed advances. The defendant excepted. (Third assignment of error.)
    “ There was no direct charge to Mr. Myers. Myers said, ‘ Very well; pay commissions on return from other house., That was all Brice, Allen & Co. would get on the whole transaction.”

      Alfred W. Duñn, for the plaintiff, testified by deposition, inter alia:

    “ I reside in Liverpool, England. My firm’s name is 'Watson, Dunn & Co.
    “ Q. State whether you received any butter from Brice, Allen & Co., shipped on account of Mr. Myers. If so, when and what amounts ?”
    Objected to generally and on ground of immateriality.
    “A. We did. It was shipped on October 7th, 1874.”
    Objected to unless in his own knowledge.
    The objection was overruled, and defendant excepted. (Fourth assignment of error.)
    Witness: “ It was received by our firm on or about October 21st, 1874, — forty-three packages of butter, marked ‘ S. P.’ The second lot, seventy-two packages of butter, composed-of fifty-seven tubs and fifteen kegs, shipped November 2d, 1874, received by our firm on or about November 15th, 1874. We found a sale for the first lot August 20th, 1875, and on the second lot February 10th, 1875. We were unable to sell it sooner and for a better price, partly from the depressed state of the market and absence of demand, and partly from the secondary quality of the butter.”
    Upon cross-examination he testified:
    “ Q,. All these goods were consigned in the name of Brice, Allen & Co., were they not?
    “ A. I cannot remember, but such was the arrangement between us.
    “ Q. To whom do you credit the proeeeds ?
    “ A. To Brice, Allen & Go.
    “ Q. Were you ever informed of the names of the parties for whom Brice, Allen & Co were acting?'
    “ A. [I cannot remember, but my impression is-.”]
    Objected to by Mr. Wetherill.
    Witness resumes: [“My impression is that the butter belonged to Mr. J. B. Myers.] I have such knowledge of this as a principal would have of his general business. The books which I keep show the details of every transaction.”
    The objection was sustained as to the part in brackets.

      “ Q. Do you mean to say that the books you keep show that these two packages, shipped in the name of Brice, Allen & Co., were shipped on account of J. B. Myers ?
    “ A. The books in our office will show it; I mean the letters of our office. We have no account of J. B.- Myers; we do not know him except informally.”

      Josiah B. Myers, the defendant, testified, inter alia:

      “ I met Brice......I told him Hobson had come to me on their account and wanted to negotiate a sale of some goods......He said they were responsible for all he did. This was before the transaction of October 6th, 1874. Hob-son, at time of first transaction, came into my place and wanted to buy goods, telling me he was buying for Brice, Allen & Co. Mr. Kauffman showed him a lot of goods in my presence. We settled on twenty cents as the price. I knew that he proposed to ship the butter. I didn’t know to whom. I never heard of the firm of Watson, Dunn & Co. until a year afterwards. I said to Hobson, ‘ I don’t want any after-claps, I must know what I am doing.’ ‘You will get this twenty cents sure,’ he said, ‘ I think more.. Twenty cents you have, anyhow.’ ‘ You are sure ?’ I asked. ‘ Yes,’ he replied. The next day or two afterwards I received the money at the rate of twenty cents. The bookkeeper brought me the money.
    “ Q. You say he guaranteed the advances he made at twenty cents ?
    “ A. Yes, sir. The next lot he bought I told him I couldn’t take twenty cents. He allowed me twenty-two cents. There was the same arrangement as before. He guaranteed the twenty-two cents in advance without reclamation at all. November 5th, 1875,1 first heard of this claim for reclamation. I objected at once.”

      Frank H. Kauffman, for the defendant, testified, inter alia:

    “ The first contract was made in October, 1874. I showed him the butter. He was satisfied with the character of the goods; would make an advance of twenty cents, and guarantee it. He said there should be no drawbacks. In regard to the second transaction I was present at that sale. The terms were similar to the former except as to rate. Would advance twenty-two cents, and guarantee it.”

      Thomas Kahoe, for the defendant, testified, inter alia:

    “ I was bookkeeper for the defendant in 1874.”
    The following bills of sale shown witness:
    “all claims must be made within three days’ time.
    Philadelphiia, October 6th, 1874.
    Messrs. Brice, Allen & Co.
    Bought of J. B. Myers,
    Wholesale Commission Merchant,
    Nos. 32 and 34 South Water Street,
    20 kegs butter.......
    8 firkins butter.......
    15 tubs butter . ;.....
    $690.40

      “ALL CLAIMS MUST BE MADE WITHIN THREE DAYS’ TIME.
    Philadelphia, November 2d, 1874.
    Messrs. Brice, Allen & Co.
    Bought of J. B. Myers,
    Wholesale Commission Merchant,
    Nos. 32 and 34 South Water Street,
    57 tubs butter.......$638.66
    15 kegs butter....... 325.82
    $964.48
    “ These are exact copies of the bills for the butter in question purchased by Hobson. I took the bills, of which these are copies, to Brice, Allen & Co., before I received the checks on each transaction. I left them at their store with a clerk, one of these two certainly. The other I can’t speak positively about. I don’t know which one I rendered, but I presented one of them, I am certain.”
    After failure of plaintiffs to produce the originals on call, counsel for defendant offered the copies in evidence.
    The offer was objected to, because it was not proved which one was rendered.
    The objection was sustained under exception. (Fifth assignment of error.)
    The witness produced a book, and continued:
    “ This is defendant’s book of original entries kept by me. These books contain entries and charges of the goods in question against Brice,'Allen & Co. These bills of sale are exact, copies from the hooks.”
    Counsel for defendant offered the book in evidence.
    Objected to, and the objection sustained under exception. (Sixth assignment of error.)
    The receipt of October 7th, 1874, was shown the witness.
    “Q,. Had you any authority from the defendant to sign the receipt in that way for advances ?”
    Objected to, and the objection sustained under exception. (Seventh assignment of error.)
    “This receipt was written by me under direction of Mr. Shoester. I objected to sign it the way it now stands. I first wrote the word purchase. Mr. Shoester directed me to strike out that word. He insisted on having the word purchase stricken out. I raised objections, still I signed it. All that I had to do was to see that the amount I received corresponded with the amount charged on my books.”

      Frederick M. Allen being called for the defendant, counsel proposed to prove:

      That in November, 1875, Thomas Hobson, the agent of plaintiffs, called by them as a witness in this case, told the ■witness, Frederick M. Allen, shipping clerk for plaintiffs, that in 1874 he had bought butter to ship to Europe, and had guaranteed price, and that account sales with a heavy loss, less than the price guaranteed, had come in, and that said Hobson said to said Allen : “Now, I have to go to these parties whom I bought butter off of and buy more, in order that we may be in their debt, for if we don’t, we will never get a cent of drawback, and we will have to settle the loss ourselves.” And that said Allen asked' said Hobson if he did not think that was a sharp trick, and that the said Hobson replied: “Yes, but it would work.” And to prove further, that the said Hobson told witness that the defendant was among those to whom he had guaranteed the amount advanced. To be followed by proof that more butter was bought from Myers about that time, namely, to the amount of $281, claimed as a set-off in this case.
    The offer was objected to, and the objection was sustained, except as to the single question, whether Hobson said he had guaranteed prices to any one.
    Exception for defendant. (Eighth assignment of error.)
    The witness:
    “Ilobson told me that he had guaranteed advances made to J. B. Myers.”

      J. JB. Myers, the defendant, recalled.
    “ I knew nothing of the two receipts of October 7th and November 4th, 1874, until . .. . November, 1875. . . . Mr. Shoester showed them to me.”
    “Q. Bid you then and there reject and repudiate them? What did you say ?”
    Objected to, and objection sustained under exception. (Ninth assignment of error.)
    Counsel for defendant asked the Court to charge, inter alia:

      2. That if the jury believe that plaintiffs neglected for an unreasonable time to give defendant notice of loss on sales, and of Watson, Dunn & Co.’s delay in selling, which justified the defendant in concluding that the butter had been disposed of without loss, the plaintiffs cannot recover, even if the price paid had been subject to reclamation.
    3. That an agent or factor is liable for any loss arising from his neglect to keep his principal informed. The burden of proving extent of loss is upon the plaintiffs, and if the jui’y believe that the plaintiffs neglected for a whole year to communicate with defendant as to operations of Watson, Bunn & Co., they became insurers for amount advanced, and cannot recover in this suit. And this is the law, even if plaintiffs were originally entitled to make reclamation.
    The Court refused these points, and charged the jury, inter alia, “ that the plaintiffs did not become insurers of the amount advanced for nearly nine months of loss on English shipment, for the reason that, in this case, it was the duty of the defendant himself to make inquiry and inform himself as to the condition and sale of the said shipment.”
    The defendant excepted to the answers to the points and the charge, which constituted his tenth, eleventh, and twelfth assignments of error.
    April 12th, 1880. Verdict for the plaintiff for $510TV<r, upon which judgment was subsequently entered.
    The defendant then took out a writ of error, assigning twelve errors as set forth sufra.

      William D. Wetherill, for plaintiffs in error.
    The rulings covered by the first, seventh, and ninth assignments, treating the receipts as estoppels, were plainly erroneous. A party who wishes to avail himself of the acts of an agent to charge the principal, must prove the authority: Hays v. Lynn, 7 Watts, 524; Insurance Co. v. Shultz, 1 Norris, 46.
    A receipt even under seal is not conclusive, and is open to explanation: Hamilton v. McGuire, 3 S. & R., 355; Horton’s Appeal, 2 Wright, 294; Berryhill’s Appeal, 11 Casey, 245; Bell v. Bell, 2 Jones, 235.
    They were written in direct contradiction of the contract, under protest by the bookkeeper, and without notice to the defendant. They were obtained by fraud and misrepresentation. The Court, in excluding proof of no authority, decided that an agent sent merely to collect money can entirely change the original contract and conclusively bind his principal.

      Second Assignment. The questions were not asked to prove a change in the original contract, but to contradict Hobson’s testimony, and to show what the contract originally was by showing what a different account Hobson gave of it on a previous occasion: Schlater v. Winpenny, 25 P. F. Smith, 321; Starkie on Evidence, 214; Greenleaf on Evidence, vol. i., sec. 216
    3d. Dunn’s statement was: “ I have such knowledge as a principal would have of his general business. The books which I keep show the details of every transaction.” This is not enough to make his testimony competent.
    4th. That the witness could not swear positively which one of the two bills of sale was presented, did not render them inadmissible, as each contained, at the top, the same notice.
    The book-entries were part of the res gestee: Welsh v. Cooper, 8 Barr, 217.
    They were corroborative: Welsh v. Speakman, 8 W. & S., 257 ; Eastman v. Bennett, 6 Wis., 232.
    5th. If there had been a right of reclamation of any loss, then delay in giving notice of it made plaintiffs insurers of the amount advanced. It was unreasonable, and justified the defendants in concluding the butter had been sold without loss : Harvey v. Turner, 4 Rawle, 222 ; Arrott v. Brown, 6 Wharton, 9; Brown v. Arrott, 6 W. & S., 402.

      Benjamin F. Tolson, Henry B. Freeman, and Charles B>. Freeman, for defendants in error.
    Kahoe was the general agent and business manager for the defendant. The acts of the agent, within the general scope of the business with which he is intrusted, bind the principal, although the specific act may be in excess of his instructions: Express Company v. Schlessinger, 25 P. F. Smith, 247; Tanner v. Oil Creek Railroad Company, 3 P. F. Smith, 411; Hatch v. Taylor, 10 N. H., 538; Barber v. Britton, 26 Vermont, 112.
    Knowledge of the agent is knowledge of the principal, if he acquired it in the same transaction: Hood v. Fahnestock, 8 Watts, 489; Bracken v. Miller, 4 W. & S., 111.
    The first question asked Hobson was not cross-examination, and, if offered for contradiction, no time or place was stated, and it was inadmissible: 1 Greenleaf on Ev., sec. 216 ; Starkie on Ev., 214.
    The other question was properly ruled out, on the ground that nothing Hobson could do or say could change the contract.
    The bills of sale were not identified. The books were not competent, because since the Act of 1869 they are not the best evidence.
    May 1st, 1882.
   — The decision of the Court was delivered by

Green, J.

There is no merit whatever in the first assignment of error. Certainly, the Court should not have rejected the receipts on the assumption that Kahoe, the agent, had no authority to sign them. Admittedly, Kahoe was the agent of the defendant, sent by him to the plaintiffs for the transaction of this particular business. He did receive the money, which was accepted and retained by the defendant. ■ The money was paid by the plaintiffs upon account of the transaction in question, and the selected agent of the defendant having full power to receive the money, and, in the transaction, gave receipts for it in the name of his principal at the times it was paid. Upon no principle would it have been proper to absolutely reject them. The objection that proof was not first given by the plaintiff that the defendants’ agent had express authority to sign receipts, containing the matter appearing on the face of these papers, has no weight. In actual fact, he did sign them, and the plaintiffs were entitled to the benefit of that fact. Of course, they were not conclusive upon the defendant. If the contract between the parties was a sale, and not a consignment, the defendant was at perfect liberty to prove it, notwithstanding the receipts. He did give such testimony by himself and other witnesses without any objection, and the case went to the jury mainly on that question.

Second Assignment. — The question, put to Hobson and rejected, on cross-examination, was not cross-examination, and was entirely immaterial. It could not have affected the case, whether he answered it affirmatively or negatively, and was subsequently contradicted. It did not, and could not illustrate the question, — what was the actual contract between these parties ?

The same is true of the question rejected under the third assignment.

Fourth Assignment. — The witness, Dunn, testified positively to the receipt of butter from the plaintiffs, giving dates and particulars of the shipments. He nowhere said that his knowledge on this subject was derived from hearsay. What he said about his understanding that the butter was the property of Myers, was rejected from the deposition by the Court on the objection of defendants’ counsel.

Fifth and Sixth Assignments. — The defendant offered in evidence two papers, purporting to be bills of sale of the butter in question by the defendant to the plaintiffs. To make them admissible, he called Kahoe, his bookkeeper, who testified that he took bills, of which they were copies, to the plaintiffs’ store, before the checks were given, and left them with a clerk. He immediately added, however, that he took one of them, but did not know which. He did not name the clerk with whom he left the bill. The defendant then called upon the plaintiffs to produce the bills, and they responded by testifying, together with Hobson and Shoester, the latter of whom had taken the receipts, that they knew nothing of such bills, and had never seen or heard of them. Then the defendant offered the two bills in evidence, which were very properly rejected. The offer was a unit of both bills. But the testimony in support of the offer was that only one of them was left, and which one, that the witness could not state. In no view of the case were the two bills admissible, and therefore, there was no error in rejecting the offer as made.

As to the defendant’s books of account, they were not the best evidence of the particular matter in controversy, and, therefore, not admissible. The question at issue was, whether 'the contract between the parties was a sale or a consignment ? The defendant was a competent witness, and could prove by his own testimony, and by that of any other person having knowledge, what the contract was. All this he did. Had he not been a competent witness, the case would have been quite different. It might well be, that in such a situation the book-entries would have been competent from the necessity of the ease. But, as he was competent, and did testify, the necessity of introducing evidence of a secondary character no longer existed. In these circumstances, the entries are nothing but the defendant’s unsworn declarations in writing of the same fact, which he could and did prove by his own oath. The case of Welsh v. Cooper, 8 Barr, 217, is not applicable. There the very question at issue was, whether a certain person was the owner of a stock of store-goods at a certain place, and it was held competent to prove that a store-business was carried on at that place by that person, and with the goods there kept. Of course, the fact that books of account, showing sales of goods there and by that person, were constantly kept in the name of that person, was a fact proper to be proved as a part of the res .gestee. The same offer of proof was proper, and for the same reason, in the case of Welsh v. Speakman, 8 W. & S., 257. But this does not touch the present case, or the present question. The utmost that could be proved by these entries could be, and actually was, proved by testimony of a superior order, and, therefore, this inferior and unnecessary testimony was properly rejected.

The seventh assignment is not pressed, nor could it be with any force, as it was a proposition to prove by the agent that he had no authority to do the act which he did do, and as a consequence of which the money of the plaintiffs was paid by them and received by him. The case of Mundorff v. Wickersham, 13 P. F. S., 87, goes further than this, and holds that if an agent obtains possession of the property of another by making a stipulation, or condition, which he was not authorized to make, the principal must either return the property, or, if he receives it, it must be subject to the condition tipon which it was parted with by the former owner. In the present case, the defendant was allowed to prove by the agent all the fact3 which transpired when the receipts were given, and this was as far as he could go.

The eighth and ninth assignments are not pressed, and there is nothing in them. In answering the defendant’s first point, the Court below defined the duty of the agent in respect of giving information to his principal of the sale of goods, and charged that a violation of this duty was negligence on the part of the agent. This was in accordance with the defendant’s request, and covers all the abstract law that is contained in the second and third points. These latter points were refused, because there was no evidence that the loss on the sale of the butter was occasioned by neglect, or that any loss was incurred by the failure of the plaintiffs to keep the defendant informed, either for a; whole year or for any unreasonable time. The counsel for the plaintiff in error has not pointed out to us the evidence necessary to sustain these points, and, after carefully reading the testimony, we fail to discern it. The trouble seems to have been that the butter was not sold for a long time after it was shipped, on account of the very low price which prevailed, and the absence of demand. When it was sold, it was necessarily at a loss, for which neither the plaintiffs nor the foreign consignees were responsible. When the account-sales were received by the plaintiffs does not appear, but the plaintiffs’ bookkeeper, Shoester, testified that they were sent to the defendant, who retained them, shortly after they were received. The witness, Hobson, testified that he communicated constantly with the defendant from the time of shipment to the time of receipt of account, and that he kept him advised of the condition of the English market. The case was tried chiefly upon the question whether the transaction was a sale or a consignment. The evidence was com flicting, but the jui’y have determined, and upon sufficient testimony, that it was a consignment. As we see no error in the record,

The judgment is affirmed.

Sharswood, C. J., and Trunkey, J,, dissent.


source: Caselaw Access Project

author: — Per Curiam:

license: Public Domain

text:
    January Term, 1882,
    No. 275.
    March 28th, 1882.
    Patton versus Patton et al.

    A husband, “ for himself, his executors and administrators,” covenanted with his wife to suffer her to live separate and apart from him. In a later clause, the agreement provided that he “ will allow her for her support the sum of four hundred dollars per annum, to be paid quarterly in advance.” In his will, the husband devised and bequeathed certain real and personal estate to his executors, “ to carry into effect the provisions of a certain agreement made between me and my wife, which agreement is in writing.” Held, that the agreement was a personal contract, not binding on the executors of the husband.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas, No. 4, of Philadelphia County.

    Covenant by Maria Patton, widow of William Patton, deceased, against Robert R. Patton and Eliza Patton, executors of the last will and testament of the said William Patton.
    On the trial in the Court below, the following facts appeared :
    On the 1st day of October, 1867, William Patton and his wife Maria Patton entered into an agreement of separation under seal, to which agreement one Holmes B. Kelly was a party. The agreement provided, “ That the said William Patton, in pursuance of his aforesaid agreement, doth hereby for himself, his executors, and administrators, and for every of them, covenant, promise, and agree to and with the said Maria Patton, his wife, in manner and form following: that is to say, that it shall and may be lawful to and for the said Maria Patton, his wife, and that he, the said William Patton, shall and will permit and suffer her, the said Maria, from time to time, and from all times hereafter during her natural life, to live separate and apart from him, and to reside and be in such place and in such family and families, and with such relatives and friends and other persons, and to follow and carry on such trade and business as she, the said Maria Patton, from time to time, at her will and pleasure, notwithstanding her present coverture (and as if she was a feme sole and unmarried) shall think fit; and that he, the' said William Patton, shall not nor will at any time or times hereafter sue her, the said Maria, in any court for living separate and apart from him to compel her to cohabit with him, or sue or molest, disturb or trouble any person or persons whomsoever for receiving, harboring, or entertaining her. Nor shall nor will, without the consent of the said Maria, visit her, or knowingly go into any house or place where she may dwell or be. Nor shall nor will at any time hereafter claim or demand any of the moneys, rings, jewels, plates, clothes, household goods, or stock in trade which she, the said Maria, now hath in her custody, or which she shall or may at any time hereafter buy or purchase, or which shall be devised or given her, or shall otherwise be acquired by her, and that she shall and may enjoy and absolutely dispose of the same as if she was a feme sole and unmarried.
    “ And further, that the said William Patton will allow her for her support the sum of four hundred dollars per annum, to be paid quarterly in advance, the first payment thereof to be made on the first day of October, in the year of our Lord one thousand eight hundred and sixty-seven; and the said Holmes B. Kelly doth hereby covenant, promise, and agree to and with the said William Patton, that he, the said Kelly, will favor, indemnify and save harmless the said William Patton, of and .from any charge for support and -maintenance for the said Maria Patton, and also for any debt or debts to be contracted by the said Maria Patton after this date hereof.”
    This agreement was carried into effect from its date, and Maria Patton always thereafter lived separate and apart from her husband. William Patton died August 3d, 1878, having first made his last will and testament, in which he devised and bequeathed, inter alia, -as follows:
    “ I give, devise, and bequeath unto my executors, hereinafter named, and the survivor of .them, his or her heirs, executors, administrators, and assigns, all the rest, residue, and remainder of my estate, real, personal, or mixed, whatsoever and wheresoever, to hold the same in trust, for the following uses, intents, and purposes, that is to say, in trust, to keep the real estate in repair, pay the taxes thereon, collect, recover, and receive the rents, income, and issues of my said residuary estate, and apply the same when and as received as follows:
    “ 1. To carry into effect the provisions of a certain agreement made between me and my wife, which agreement is in writing, and a copy whereof will be found among my papers.”.....
    Mrs. Patton elected to take against the will, and subsequently, for a consideration, released her dower.
    This action was brought to recover the amount of the quarterly instalments under the agreement, from the time of the death of William Patton up to the time of suit.
    The Court charged the jury:

      “ This agreement between William Patton, now deceased, and his wife, Maria Patton, the plaintiff in this case, was a personal contract between William Patton and his wife, and is not binding on William Patton’s executors. I therefore instruct you to find a verdict for the defendants.”
    April 7th, 1881. Verdict for defendants, on which judgment was subsequently entered.
    The plaintiff then took out a writ of error, and assigned as error the direction to the jury to find a verdict for the defendants.

      I). B. Meany and F. Carroll Brewster, for the plaintiff in error.
    The words “ executors and administrators ” occur in the beginning of the agreement. They need not be in the particular clause providing for the payment. If there be two clauses in a deed totally repugnant, the first is received. The construction should be on the whole deed. Patton shows in his will what his meaning was. Why were the words “ executors ” and “ administrators ” used in the deed of separation, if not for the purpose of binding the executors or administrators to pay the $400 per annum? There is no other duty or thing in the deed of separation for executors or administrators to do. Though a wife as a general rule may not be able to sue her husband, yet she can sue his executors: Dougherty v. Snyder, lo S. & R., 91.
    And a Court of Chancery •will lend its aid to sustain a grant from husband to wife, even against third parties, where the grant is nothing more than a reasonable allowance or provision for her, made bona fide and for a valuable consideration : Stickney v. Borman, 2 Barr, 68; Lady Aruudell v. Phipps, 10 Ves-.,. 146; Morris v. Ziegler, 21 P. E. S., 450; Coates v. G-erlach, 8' Wr., 45; Townsend v. Maynard, 9 Wr., 198.
    And a deed of separation, provided its object be actual and immediate, is valid and will be upheld in equity after the death of the husband, if carried into effect in good faith, and it contain nothing unreasonable in its provisions: Hutton v. Duey, 3 Pa. St. R., 100 ; Dillinger’s Appeal, 35 St. R., 357 ; Hitner’s Appeal, 54 St. R., 110.

      PI. C. Thompson, for defendants in error.
    It is admitted that this agreement binds the executors of William Patton to carry out the agreement as made by him. In other words, had any default been made by William Patton in his lifetime, his executors and his estate would have been liable for the amount of such default. It is not admitted, however, that the widow was entitled to the payment of the $400 per annum after his death, except as she should accept the provision made for her in the will. On the contrary, it is contended that the agreement of separation was an agreement binding the parties only for life or until the marital relation was legally ended.
    The agreement is that William Patton was to pay her the sum of $400 for her support. He was not bound to support her after his death. The widow of a decedent must then look to his will, or, if no provision is there made for her, to her dower. ' In this case William Patton did make provision for her, and that provision was to carry into effect or continue the payment of the sum of $400. That the widow, the plaintiff in error, so understood it, is evident from the fact, as stated in her testimony, that, upon receiving her dower, she considered the agreement not binding, after her husband’s death, and returned or allowed to be deducted the payments which had been made to her by the executors under the supposition that she would accept the provision made for her in the will.
    It is submitted upon this point that the true construction of the agreement, under the circumstances of the parties, is that it expired and ceased to be obligatory upon the death of William Patton. ’
    Callen v. Hilty, 2 Harris, p. 286: “ Every agreement is to be construed with reference to the circumstances under which the parties act.”
    McMahan v. Davis, 7 Harris, p. 354: “The several clauses of a contract are to be construed with reference to the main intent of the whole instrument.”
    Fraziers. Monroe, 72 Penna., p. 166: “In the construction of a contract the court cannot interpolate words not contained in it; that can only be done when it is reformed for fraud, accident or mistake.” The plaintiff’ in error asks the Court to interpolate the words “for life ” in the agreement of September.
    April 1st, 1882.
   — Per Curiam:

Ve concur fully in the opinion of the learned judge of the Court below, as expressed in his charge to the jury, that this was a personal contract, not binding on the executors of the husband.

Judgment affirmed.


author: Sterrett, J.

text:
    January Term, 1881,
    No. 196.
    January 9th, 1882.
    The Pennsylvania Mutual Aid Society versus Corley.
    1. A declaration recited that the company defendant, by an instrument in writing under seal, insured the life of plaintiff’s husband to the extent of $2000, for her benefit, and promised under its seal to pay her that sum upon his death, and averred that he afterwards died and thereupon the said sum became payable to her. It alleged the breach as follows : “Yet the said defendant, not regarding its said promise, has hitherto neglected and refused, and still does neglect and refuse to pay the said plaintiff the sum of $2000, or any part thereof, although often requested by the plaintiff so to do, whereby the plaintiff has sustained damage,” etc.

      Held, that the declaration was in assumpsit, and that the admission in evidence of the contract under the corporate seal of the company was precluded by the form of the action.
    2. Where suit was brought on a certificate in the nature of a policy of insurance, which provided that the declarations and representations in the application for membership were made a part of the certificate, it was incumbent on the plaintiff to present in evidence the application in connection with the certificate, or account for its non-production.
    3. Where a general objection is made on the trial to the admission of a contract in evidence, and the party objecting is not called upon to specify, he cannot be considered as waiving any ground of objection that might have been specifically urged.
    4. Semble, that where a policy of insurance does not require notice of the death of the insured to be given to the insurer, there is nothing in the nature of the contract requiring such notice or demand before bringing suit.
    6. Semble, that where jurors, summoned to serve for the week preceding the trial, were in attendance, and from them the jury was duly impanelled and sworn to try the case, it must be presumed, in the absence of any evidence to the contrary, they were in attendance by direction of the Court.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas, No. 4, of Philadelphia County.

    Case by Mary Corley against the Pennsylvania Mutual Aid Society, to recover the amount of a policy of insurance for $2000, upon the life of her husband, Patrick Corley, executed in her favor by the defendant company.
    The-narr set forth: “Eor that whereas heretofore,to wit, upon the second day of October, 1879, the defendant, by a certain instrument of writing under seal, called a certificate of membership, for and in consideration of the payment to it, then and there made by one Patrick Corley, the husband of the plaintiff, of, to wit, the sum of sixteen dollars, lawful money of the United States of America, and for divers other good and valuable considerations, did insure the life of said Patrick Corley to the extent of, to wit, two thousand dollars, for the use and benefit of the said plaintiff, at the county aforesaid, and did then and there promise and agree under its seal to pay to the said Mary Corley, her heirs and assigns, the sum of, to wit, two thousand dollars, upon the death of the said Patrick Corley. That the said Patrick Corley died, to wit, upon the thirtieth day of January, 1880, and afterwards, to wit, upon the day and year last aforesaid, due notice and proof of the death of the said Patrick Corley was furnished to the defendant, whereupon the said sum of, to wit, two thousand dollars, became due and payable to the plaintiff; yet the defendant, not regarding the said promise, has hitherto neglected and refused, and still does neglect and refuse to pay the said plaintiff the said sum of two thousand dollars, or any part thereof, although often requested by the plaintiff so to do, whereby the plaintiff has sustained damage to the amount of five thousand dollars, and therefore she brings suit,” etc.
    The defendant pleaded, “Non asumpserunt, set-off, payment with leave etc.,”and the replication was, “Non solvit, no set-off, and issue.”
    The policy of insurance upon which suit was brought was signed by the president and secretary of the defendant company, was sealed by the company, and was as follows:
    “ By this certificate of membership, The Pennsylvania Mutual Aid Society, Home Office, Newport, Pa., witnesseth, that Patrick Corley has paid sixteen dollars, his first annual payment, the receipt of which is hereby acknowledged, and has become a member of the said The Pennsylvania Mutual Aid Society, in Class A, Division No. 2. This membership entitles Mary Corley, his wife, her heirs or assigns, upon the death of said Patrick Corley, to two thousand dollars. Provided, however, that he, the aforesaid member, continues so long to comply with the requirements of the charter and bylaws of this society, and stipulations for membership taken together, and none of its terms can be modified nor any forfeiture under it waived, except by an agreement in writing, signed by the president and secretary of this society, whose authority for this cannot be delegated.
    “ Provided, also, that if the aforesaid member should die before the first five annual payments are made, the amount still due thereon shall be deducted from the sum of two thousand dollars as granted above.
    “ Provided, also, that death does not result through and by the member’s own hand, and whether sane or insane, or by immorality, or by being engaged in the military service in case of rebellion or invasion.
    “And it is also understood and agreed by the persons named in this certificate, that if the proposals, answers, declarations, and representations made by the aforesaid member in his application for membership, dated the thirtieth day of September, of 1879, and which are hereby made a part of this certificate as if fully herein recited, and upon the faith of which this agreement is made, shall be found in any respect untrue, then and in such case this certificate shall be null and void; or in case the stipulations contained in the said application for membership are not strictly complied with, then, and in every such case, the said The Pennsylvania Mutual Aid Society, of Newport, Pa., shall not be liable for the payment of the amount promised in this 'certificate, which certificate shall cease and determine, ahd the payments made thereon shall be forfeited to the said The Pennsylvania Mutual Aid Society, of Newport, Pa.
    “ This society will not take notice of any assignment of this certificate unless a duplicate or certified copy thereof shall be delivered to the society at its principal office, and under no circumstances will the society assume any responsibility for the validity of such an assignment. If any claim be made under an assignment, proof of interest to the extent of the claim will be required.
    “ This society is not required to maintain the reserwe which life insurance companies are required to maintain under any former laws; it has in lieu thereof an assessment basis, as per the provisions of the Act, approved the first day of May, A.D. 1876, under and by which this society is incorporated and governed.
    “ Given under the seal of said society at Newport, Pa., this second day of October, 1879.”
    On the trial in the Court below, November 22d, 1880, before Elcock, J., counsel for the defendant objected to the jury being sworn, “ for the reason that there are no lawful jurors in attendance upon the Court, the period for which the persons attending as jurors were summoned having expired on the 20th instant, and no jury having been sworn on or be.fore that day.”
    The Court overruled the objection, and directed the jury ■to be sworn, and defendant excepted.
    Counsel for plaintiff then offered in evidence the aboveidescribed policy of insurance. Counsel for defendant objected to the offer, which was admitted under exception.

      Sarah Sweeney, for the plaintiff, testified:
    “ I am an undertaker; I attended .to Patrick Corley’s burial; he died on the thirtieth day of January, of this year, and was put in ice on the thirty-first, and buried on the third of February; I dressed the body the night before.”
    The plaintiff then rested, and the defendants, by their counsel, moved the Court that a nonsuit be entered, which motion the Court overruled, /and the defendants excepted. The Court charged the jury that if they believed the evidence of the undertaker, they should find a verdict for the plaintiff, to which charge and instructions the defendants excepted.
    November 22d, 1880. Verdict for plaintiff for '$2053.68, upon which judgment was afterward entered.
    The defendant then took a writ of error, assigning as errors that the Court erred : (1) in admitting in evidence the certificate of insurance; (a) because it was not accompanied with the application; (b) because the pleadings were in assumpsit, and the certificate was under seal; (e) because the certificate made the charter and by-laws a part of the contract, and they were not offered with the certificate; and (2) in instructing the jury as above; and (3) in directing the jurors to be sworn after their period of service had expired.

      Sharp Alleman, for plaintiff’ in error.
    No proof was offered to show why the application, was not produced, nor was any evidence offered to show its contents: Lycoming Insurance Co. v. Storrs, 10 W. N. C., 304; Farmers’ Insurance Co. v. Meckes, 10 W. N. C., 307.

      Thenarr was in assumpsit, and that the plaintiff’so regarded it is proved by the replication being responsive to the pleas which were in assumpsit. The words “ under seal,” after the word “ promise,” were merely surplusage. The remedy upon a contract under seal is in covenant: Troubat & Haly’s Pr., § 1496; Shaeffer v. Geisenberg, 11 Vr., 500; McManus v. Cassidy, 16 P. F. Smith, 260.
    The charter and by-laws were a part of the certificate.
    No proof was offered that the defendant had ever been notified of the death of Patrick Corley.
    When a promise to pay money is contingent upon the happening of an event, which must of necessity be peculiarly within the knowledge of the promisee, notice of the happening of the event must be given the promisor before an action can be maintained: Parsons on Contract, vol. 2, p. 669, 670 ; Vyse v. Wakefield, 6 M. & W., 442; 8 Dowl. P. C., 377,4 Jur., 509; affirmed on error, 7 M. & W., 126; Bouvier’s Dictionary, edition 1864, title “Notice,” p. 241, first column, par. (4) (5); see Taylor v. Witman’s Administrators, 3 Gr. 138, 139.

      Theodore F. Jenkins, for defendant in error.
    No reason was assigned for the objection to the admission in evidence of the certificate, and therefore the first assignment of error is bad; a general objection applies only to the relevancy of the testimony.
    The narr was in debt, and three of the pleas, to wit, “ set-off, payment, payment with leave, etc.,” are good’ pleas in debt, and the plea of “ non assumpserunt ” was, of course, bad, but that was the fault of the counsel for the defendant below, and the counsel for the plaintiff,considering that plea as no plea, filed, as the replication to the good pleas, “ non solvit,” and “ no set-off,” which was the only replication that could be properly filed to those pleas.
    As the defendant did not plead that any of “ the proposals, answers, declarations, or representations,” made in the application were untrue, they, were not, so far as the present case was concerned, matters of controversy. The same reply may be made as to the requirements of the charter and bylaws of the society, — no question as to them was raised by the pleadings.
   The opinion of the Court was delivered by

Sterrett, J.

The declaration in this ease is somewhat peculiar. It has some of the distinctive features of a narr in case, but it is devoid of essential characteristics of both debt and covenant. After reciting that the company, by an instrument in writing, under seal, called a certificate of membership, insured the life of plaintiff's husband to the extent of $2000, for her benefit, and promised under its seal to pay her that sum upon his death, and averring that he afterwards died, and thereupon the said sum became payable to her, etc., the declaration alleges the breach in the following words: “"Yet the defendant, not regarding its said promise, has hitherto neglected and refused, and still does neglect and refuse to pay the said plaintiff the sum of $2000, or any part thereof, although ofteu requested by the plaintiff so to do, whereby the plaintiff has sustained damage to the amount of $5000, and therefore she brings suit,” etc. If good for anything, this must be regarded as a declaration in assumpsit. The summons was in that form, and the action was so recognized in the pleas and on the tidal, as appears by the bill of exceptions.

The certificate of membership recited in the declaration, unaccompanied by the application therefor, was received in evidence under a general objection and exception. This is the subject of the first assignment of error, in support of which several distinct positions are taken. Inasmuch as the company was not called upon at the trial to specify, it cannot be considered as having waived any ground of objection to the admission of the certificate that might then have been specifically urged.

It is contended in the first place that, in connection with and as part of the certificate, the plaintiff was bound to offer the application for membership, or give a satisfactory reason for nob doing so. The certificate provides that “ if the proposals, answers, declarations, and representations made by the aforesaid member in his application for membership, and which are hereby made a part of this certificate as if fully herein recited, and upon the faith of which this agreement is made, shall be found in any respect untrue, then and in such case, this certificate shall be null and void,” etc. In view of this provision, it was clearly incumbent on the plaintiff to present the application. in connection with the certificate, of which it forms a part, or account for its non-production.

The reason of this has been so clearly pointed out in several cases, that it is unnecessary to add anything to what has been there said: Lycoming Mut. Ins. Co. v. Sailer, 17 P. F. Smith, 108; Same v. Storrs, 10 W. N. C., 304; Farmers and Mechanics’ Mut. Ins. Co. v. Meckes, Ibid., 306. There is nothing upon the record in this case to excuse the non-production of the application. It is also contended that the admission of the contract or certificate of membership, under the corporate seal of the company, was precluded by the form of action adopted. We think this position is also well taken. Where, as in this case, the cause of action arises upon a specialty, or writing under seal, it is well settled that the action must be debt or covenant, as the case may be: McManus v. Cassidy, 16 P. F. Smith, 260, and cases there cited. While the legislature, by statutes of amendment, and the courts, by judicial construction, have gone far to relieve against technical distinctions, which sometimes interfere with the trial of causes on their merits, they have not yet obliterated the boundary lines between the different forms of action as they are defined by the common law. If the contract on which the claim of the plaintiff below is based had been properly in evidence, the instruction complained of in the second assignment of error would have been unobjectionable. There is nothing in the nature of the contract, or in any of its provisions, requiring either notice of death or demand before bringing snit.

The third assignment is destitute of merit. The jurors summoned to serve for the week preceding the trial were in attendance, and from them the jury was duly impanelled and sworn to try this ease. In the absence of any evidence to the contrary, it must be presumed they were in attendance by direction of the Court.

Judgment reversed, and a venire facias de novo awarded.


author: — Per Curiam :

text:
    January Term, 1882,
    No. 119.
    March 21st, 1882.
    Petry’s Appeal.
    1. Where a firm had been in the habit of selling upon credit, and by articles of dissolution the liquidating partners were given full discretionary power in the collection of the debts, they ought not to be surcharged with loss arising from a private sale upon credit of goods of the firm made without bad faith to an irresponsible purchaser.
    2. Such liquidating partners have power to make a private sale upon credit.
    Before Sharswood, C. J.; Mercur, Gorron, Paxson, Trunkey, Sterrett, and Green, JJ.
    Appeal from the decree of the Court of Common Pleas, No. 1, for Philadelphia County.

    Bill in equity for an account by Nicholas Petry and Rollins M. Braithwait against August Geissel and John Bayha.
    After answer filed, denying the allegations of the bill, the case was referred to Hampton L. Carson, as master, who found the material facts substantially as follows:
    The complainants and defendants had been partners in the business of making and selling carnages under an agreement executed May 14th, 1867. The partnership was dissolved January 15th, 1877, by agreement, which provided, inter alia, “ that August Geissel and John Bayha be and they are hereby appointed trustees for the following purposes, that is to say, to collect all debts now due to the said partnership, or that may hereafter become due to the same, and retain the same, to pay all debts as far as possible now or hereafter to become due by the said partnership, or any indebtedness due or hereafter to become due against the same, and any surplus to be equally divided betwmen the said parties a.nd partners hereinbefore mentioned, each and every of the said partners holding himself at all times hereafter responsible for his share (being one-fourth) of the indebtedness of the said firm. The said August Geissel and John Bayha are hereby given full discretionary powers in the collection of debts due said partnership, whether to make allowanees or discounts in the collection of said debts, or whether to compel the payment of the whole thereof, unless all the said partners shall agree upon a certain sum due by any debtor, in which case the said August Geissel and John Bayha shall be' bound by said agreement.”
    Among the assets of the late firm were two carriages,, which, three years before the dissolution, had been sent to Clark & Co., of Chicago, to sell, and were charged to them at $2000. By direction of the trustees they were repaired at an expense-of $190, and were sent to Cincinnati, where one of them was sold to a haekdriver on credit July 16th, 1877, for $950, The driver made several payments, but the balance of $728.13 proved to be uncollectible. The sale was made by direction of the defendants, after inquiry as to the financial responsibility of the driver. A customer and correspondent for years of the firm said of the driver that whatever credit he wanted might be given him, and that he was a man of his word, hardworking and industrious. He owned no stable, but rented part of one.
    The master reported that he found no evidence of a custom of the firm before dissolution to sell on credit. “ There is testimony to show that sometimes sales were made on credit, that in some of these sales the credits were secured by mortgage under the Ohio law, and by leases, but thei’e was no evidence of a custom continuous and certain of either plan.”
    The complainants claimed that the sale on • credit to an' irresponsible haekdriver, upon irresponsible recommendation, was an act of such gross negligence as to justify the master in charging defendants with the loss.
    The master reported, inter alia, that it was purely and simply a question of power, and that the question, whether liquidating partners charged with the duty of winding up the affairs of a firm after dissolution have the power to make a private sale on credit of a part of the joint stock, had never been decided. " After reviewing at length the cases bearing on the subject, he found that the sale of the carriage on credit was beyond the power of the defendants, and that they must, therefore, be surcharged with the loss, amounting to $728.13.
    The defendants filed exceptions, inter alia, to this finding, which the Court, June 18th, 1881, sustained.
    The plaintiffs then appealed, assigning as error, inter alia, that the Court erred in sustaining defendants’ exceptions to the report of the master.

      Hector T. Fenton, for appellants.

      In Pennsylvania there is a dearth of authority on this express point; a liquidating partner may borrow money to pay debts, but 'thei’e are no cases which can be said to hold that he may sell the assets, of which he is a trustee, on credit, and so practically continue the business at the risk of the cestui que trust. The powers of liquidating partners are not such as they previously had prior to dissolution, but are limited to those only which are necessary to effect a winding up of the concerns of the partnership: Parsons on Partnership, 3d edition, *393; Lindley on Partnership, vol. ii., page 1076. Considered as trustees, which these appellees are by the terms of the articles of dissolution, and applying to them the rules of law applicable to trustees, they would not be authorized to sell the trust property on credit, and thus convert it into an unsecured personal promise to pay, without express authority in the trust deed: Perry on Trusts, section 453, citing 5 Barr, 377.

      Joseph L. Tull, for the appellees.
    The master has mistaken the rights and powers of a liquidating partner in closing and winding up the firm business when 'he denies to him the power and authority to sell, assign, and transfer any part or the whole of the firm property in the way the regular business of the firm was conducted.
    All the authorities agree upon this point, and several citations are used from leading text-books upon this subject: Story’s Partnership, section 328; Lindley, page 426; Col Iyer, section 546; Parsons, page 388; Robbins v. Fuller, 24 N. Y., 570 ; Gannett v. Cunningham, 34 Maine, 56; Houser v. Irvine, 3 W. & S., 345.
    In Pennsylvania the cases show enlarged powers which may be exercised by a liquidating partner, for we find that he may borrow money, may renew accommodation indorsement, may give notes in settlement of partnership liability, may indorse notes for the purpose of raising money, can bind the firm by submission to arbitration, and can transfer the assets of the firm for the benefit of the creditors.
    April 3d, 1882.
   — Per Curiam :

We concur entirely in the decree of the Court below upon the master’s report. No bad faith in the appellees was pretended. The articles of dissolution gave them an unlimited discretion in settling with debtors. The firm had been in the habit of selling on credit. The appellees were equally interested with the appellants in all sales, and though the sale in question may have been an error, it was but an error in judgment, and it would be a harsh rule to apply to them, acting without compensation, to hold them responsible for such an error.

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


text:
    January Term, 1881.
    January 12th, 1882.
    Rementa versus Erwin.
    1. A declaration in detinue should describe the subject-matter with adequate certainty, so as to enable the sheriff who may serve the execution upon the judgment to identify it.
    2. Want of such certainty is ground for demurrer.
    Before Sharswood, O. J.; Mercur, Gordon, Paxson, Trunkby, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas, No. 1, for Philadelphia County.

      * Detinue by William Rementa against J. Warner Erwin, executor of the estate of Charles Rubieam, deceased, to recover possession of certain writings in the possession ‘of the defendant, and alleged to belong to the plaintiff.
    The narr set forth that the plaintiff “ was lawfully possessed, as an heir-at-law of the said Charles Rubieam, deceased, of a certain writing or writings, signed by the said Charles Rubieam in his lifetime, or by some one in his behalf, and at his instance and request, relating to a lot of ground of four acres, more or less, at or near Twenty-sixth and Federal streets, belonging to the said Charles Rubieam, dated within five years prior to the institution of this suit, and which said writing or writings concerns plaintiff's right, title, and interest in said lot of ground as an heir-at-law to the said Charles Rubieam, of the value of fifteen thousand dollars, or thereabouts, and came into the possession of the said defendant at the death of the said Charles Rubieam, by virtue of his office as executor of the said Charles Rubicam’s estate;” and that the defendant had been requested to deliver the said writing or writings, and had refused.
    The defendant demurred to the narr on the ground, inter alia, that it did not describe the said writing or writings with sufficient particularity and - certainty to identify the same; .The Court sustained the demurrer. The plaintiff then took out a writ of error, assigning as error that the Court sustained tbe demurrer, and refused to enter judgment for plaintiff.

      Robert Palethorp, for plaintiff in error.
    Great certainty is not required: 2 T. & H. Practice, 28 ; 2 Saunders, 919; 1 Chitty on Pleading, 389.
    Plaintiff in error never having seen the writings in question cannot describe them with precision, nor does tbe law hold a plaintiff' to precise averments in his declaration.

      Samuel Dickson, for defendant in error.
    January 23d, 1882.
   — Per Curiam:

The declaration contained no description of the writing or writings for which the action was brought. “ A writing or writings, signed by Charles Rubicana in his lifetime, or by some one in his behalf, and at his instance and request, relating to a lot of ground,” are certainly very inadequate to identify any particular writings. The judgment in detinue is special for the thing sued for, or damages in the alternative. How could the sheriff who goes with the execution know whether the writings signed by Charles Rubicana, which the defendant might surrender, were those demanded by the plaintiff? a

Judgment affirmed.


text:
    January Term, 1882,
    No. 7.
    January 12th, 1882.
    Roberts versus Williams et al.

    The piamtiff; a trustee, held the mortgage of a third party, and a separate • guaranty by the defendants of its palyment. At a sheriff’s sale of the real estate, under proceedings on the mortgage, he bid for the purpose of protecting the mortgage, and the property was knocked down to him. The conditions of the sale were, that upon failure of the purchaser to pay within ten days, the property might be resold at his expense, and he would be liable for any defiffciency. The plaintiff did not pay the amount of his bid, but at his request the sheriff returned the writ, and he issued an alias levari facias. At the sale under this writ the property brought a less sum. Held, in a suit upon the guaranty, that the guarantors were entitled to set off the difference between the amounts realized at the two sales.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkby, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas, No. 4, for the County of Philadelphia.

      Debt, by John Roberts, trustee, against George Williams, Charles E. Ellis, and Anna M. Ellis, executors of the last will and testament of Amos Ellis, deceased, upon an obligation of the testator, in which he guaranteed the payment of a certain mortgage debt.
    Upon the trial in the Court below, before Thayer, P. J., the following facts appeared:
    The testator held a mortgage for $4450, and accompanying bond, on real estate in the city of - Philadelphia, dated February 12th, 1869. On the 30th of April, 1873, he assigned it to J. Madison Miller, trustee for Catharine Hobbs, and at the same time executed and delivered to the trustee an obligation under seal, in which he guaranteed the payment of the mortgage debt, principal and interest, in case it should not be recovered in proceedings against the mortgagor, his heirs and assigns, or against the mortgaged premises. The trustee died May 3d, 1878, and the plaintiff was appointed in his place.
    June 22d,1878, a judgment was obtained.upon the mortgage for $16-0, and an execution was issued. The property was offered for sale .by the sheriff in August, 1878. The conditions of the sale were read as follows:

      “ Conditions of sale: fifty dollars of the price or sum at which the property shall be struck off shall be paid to the sheriff at the time of sale, unless the purchase-money shall be less than that sum, in which case only the purchase-money shall be paid, otherwise the property will again be immediately put up and sold. The balance of the purchase-money must be paid to the sheriff at his office within ten days from the time of sale without any demand being made by the sheriff therefor, otherwise the property may be sold again at the expense and risk of the person to whom it is struck off’, who, in case of any deficiency at such resale, shall make good the same.”

      John Roberts, the plaintiff, testified that he attended the sale; that there were two bidders, a Mr. Carpenter and himself ; that he had no instructions about the property; did not desire to buy it, and only bid to protect his mortgage; that it was struck down to him; that he did not take it, but at his request the sheriff returned the writ, and he issued an alias levari facias, and gave notice to the defendants that on the sale under the alias he would hold them responsible for the difference between the amount of the judgment and what would be realized. His bid was $4750, on account'of which he paid $50.

      E. P. Carpenter, for the plaintiff, testified that at the sale he bid on two properties, the one in question and another ; that the latter was struck down to him, and that the party whom he represented did not take it.
    The property was sold under the alias levari to E. L. Bender for $4000, out of which on a settlement with the sheriff the plaintiff received $3692.51. He claimed the difference between this sum and the amount of the judgment.
    The Court reserved the point, whether the failure of the plaintiff to comply with his bid at the first sheriff’s sale, and to take the property at the price bid, is a defence to his claim in this action to the extent of the difference between the sum bid by him at that sale and the sum which the property brought at the second sale.
    The jury found a verdict for the plaintiff as follows:
    If the Court should be with the plaintiff on the reserved point, they find for the plaintiff $966.29; but if the Court should be with the defendant on the reserved point, they find for the plaintiff $260.66.
    The Court subsequently found the reserved point for the defendant, and entered judgment for the plaintiff for $260.66.
    The plaintiff then took out a writ of error, assigning as errors the ruling on the point reserved in favor of the defendant, and in allowing in a suit brought by John Roberts, trustee, as a set-off, a liability, if any existed, of John Roberts individually to the sheriff.

      George S. Graham, for the plaintiff in error.
    The bidding of plaintiff at the first sale was for the benefit of the defendants, since if the property had been struck down at a low figure they would have had a greater deficiency to make up. As the first sale was not insisted on, the presumption is it was -waived by the sheriff. He alone could sue: Freeman v. Husband, 27 P. F. Smith, 389 ; Adams v. Adams, 4 Watts, 162 ; G-askell v. Morris, 7 W. & S., 32.
    The sum of $750 was allowed as a set-off against the trustee’s claim for the deficiency, when, if there was any liability, it was one of Roberts to the sheriff: Longsfeltt v. Barsher, 3 P. & W., 492 ; Huling v. Hugg, 1 W. & S., 418 ; Wolf v. Beales, 6 S. & R., 242.
    There was no consummation of the sale, and therefore no appropriation, and the sheriff had only a right of action, which he waived.

      George W. Thorn, for defendant in error.
    By his purchase of the property the mortgage debt was paid to the extent of the purchase-money.
    By the terms of the sale the plaintiff was absolutely bound without further demand.

      The guarantor is liable only in ease the debt could not be recovered by the use of proper diligence against the principal debtor: Rudy v. Wolf, 16 S. & R., 79; Johnston v. Chapman, 3 P. & W., 18 ; Isett v. Hoge, 2 Watts, 128 ; Gilbert v. Ilenck, 6 Casey, 205; Hoffman v. Bechtel, 2 P. F. Smith, 190.
    Here the plaintiff had the money in his own hands.
    January 30th, 1882.
   — Per Curiam:

We are of opinion that the judgment of the Court below, on the point reserved for the smaller sum, was entirely right. The plaintiff’ was personally liable on his bid, which was accepted by the sheriff', and the fifty dollars required by the conditions of sale were paid by him. The fact that he brought this action as trustee did not relieve him from the set-off. He must answer— if he is responsible for the loss to the trust estate — to his cestui que trust.

Judgment affirmed.


text:
    January Term, 1882,
    No. 19½.
    January 17th, 1882.
    Schultz versus Asay et al.

    1. Where a mechanic’s claim is clearly shown in the bill of particulars to be an apportioned claim against houses separated by a public street, it cannot be properly treated as a single unapportioned claim, because the claim proper, as filed, is only against a single building, and is not therein apportioned.
    2. It is not competent to make an apportioned claim against buildings in different- blocks a good claim by filing such a claim separately against each building.
    3. The bill of particulars is an integral part of the claim, and must be read with it.
    4. A mechanic’s claim for $201.05 for lumber was filed against a single building and lot. The annexed bill of particulars was for lumber to the amount of $4825.08 furnished for twenty-four buildings, twelve on each side of the same street, and averred that the claimant claimed a lien for an equally apportioned pro rata or part of the said sum. It was shown by parol that the houses were all alike, and that the lumber was delivered to the twenty-four houses to be divided equally among them. Meld, That the claim was invalid.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas, No. 4, for Philadelphia County.

      Scire facias sur mechanic’s claim by Jackson S. Schultz, trading as the “ Wilcox Lumber Company,” against A. Merritt Asay, Jr., and Casper E. Asay, owners or reputed owners, and the said Casper E. Asay and William T. B. Roberts, contractors, and William N. Wheel en, who intervened as ¿erre tenant.

    The claim for the payment of the sum of $201.05 was filed against a certain two and one-half story building (describing it and the lot), and continued:
    “ The said debt of $201.05 being a debt contracted for lumber, hemlock joists, etc., sold and delivered at the request of the said Casper E. Asay and William T. B. Roberts by said Wilcox Lumber Company continuously to within six months last past, for and about the erection and construction of and on the credit of the said building, at the times and in the quantities in the annexed bill of particulars mentioned, to wit, from the second day of August, A.D. 1878, to the thirteenth day of January,. A.D. 1879, which said bill claimant prays may be taken and considered as part of the lien against said building, of which said A. Merritt Asay and Casper E. Asay then were and now are the owners or reputed owners, and the said Casper E. Asay and William T. B. Roberts, contractors. And the said Wilcox Lumber Company claims to have a lien on said building, and the curtilage appurtenant thereto, for the amount of said claim from the commencement of said buildings, according to the act of Assembly in such case made and provided.”
    The bill of particulars -was as follows:
    “ Casper E. Asay to Wilcox Lumber Company, Dr.
    “ For lumber ordered by W. T. B. Roberts for houses on north and south sides of Butler Street, west of Thirteenth Street, Philadelphia.”
    (Then followed items of goods sold and delivered from August 2d, 1878, to January 13th, 1879, inclusive, amounting to $4825.08.)
    And contained this averment:
    “ The materials mentioned in the aforegoing bill of particulars were furnished and delivered for and about the erection and construction, as well of the building mentioned in the annexed claim, as of twenty-three other buildings of the same or similar description; twelve of which are situated on the north side of said Butler Street west of Thirteenth Street, and the remaining twelve (of which the one within mentioned is one) of the twenty-four are situated on the south side of said Butler Street west- of Thirteenth Street, as is shown by a plan of the said buildings and lots which is hereto annexed and made part hereof, showing the location and size of the buildings and lots, and of all which the said A. Merritt Asay, Jr., and Casper E. Asay are the owners or reputed owners, and the said Casper E. Asay and W. T. B. Roberts the contractors. And against all of which buildings said claimants claim to have a lien for a proportionate of the said debt for which claims are filed in the same court with this claim to the present June term, 1879.
    “ The annexed claim is for an equally apportioned pro rata or part of the said sum of $4825.08.”
    Judgment for want of an appearance was entered against all of the defendants except Wheelen, terre tenant.

    Upon the trial in the Court below, the plaintiff’ offered in evidence the agreement under which the lumber was furnished, which provided, inter alia :

    “The same (the lumber) to be delivered by the lumber company to the said Asay, at Philadelphia, at any point on the line of the Pennsylvania Railroad, at such time and in such quantities, by the car-load, as said Asay or William T. B. Roberts, his agent and contractor, may order in writing; provided that he shall be entitled to receive the same under the terms of this contract, and that he shall indicate in his written orders for which houses in the different operations the lumber as ordered is intended.” ....
    “ And it is further agreed in case said Asay shall make default in any particular in the performance of his part of this contract, or shall suspend work on the said buildings, the said lumber company may, at their option, any time thereafter, demand in cash the whole amount due for lumber shipped, and in default of payment by said Asay, said lumber company may sue or institute such other proceedings for the recovery of the amount due, as aforesaid, as said lumber company may determine upon. Provided, however, and it is expressly understood, that nothing herein shall be so construed, taken or considered as to prejudice or interfere with the said lumber company’s right, under the law, to file mechanics’ claims for the said material against the said buildings, and maintain actions thereon for the lumber sold under this agreement, which rights said company hereby expressly reserves as a further security for the payment of the amount becoming due, until the same shall have been fully paid.”
    Witnesses for the plaintiff testified that the lumber was delivered for the twenty-four houses to be divided equally among them. It was to do the job. It was considered one job for twelve houses on the north side of Butler Street, and twelve on the south side. They were all alike, supposed to take exactly the same kind and exact amount of lumber for each house, and the lumber was delivered for these twenty-four houses, to be divided pro rata, each house alike.

      William T. B. Roberts, one of the defendants, testified under cross-examination:

      “ In making out the list I made out the list for one house, and when I gave it to Mr. Wemarth to send it to the lumber company I multiplied it by twenty-four, so that, as the houses were going on continuously, we could multiply it and divide it pro rata among the houses as they were going on.”
    lie also testified that it was part of the agreement that one twenty-fourth part of each order was to be ordered for each house; that at the time he applied for the lumber he endeavored to get an agreement that they should not have liens, and the company refused, and that the advancers saw the agreement.
    February 18th, 1881, the jury found a verdict for the plaintiff for $146.14, subject to the point reserved by the Court, “ Whether such a lien can, in point of law, be sustained at all; whether a man can file an apportioned lien against a single house under a contract to erect numerous buildings or different blocks of houses on different sides of the same street.”
    April 2d, 1881, the Court, Thayer, P. J., entered judgment for the defendant non obstante veredicto, on the point reserved, filing an opinion which, after stating the facts, continued as follows:
    “Upon the trial it appeared that under a contract between the plaintiff and Asay and Roberts, contractors, dated August 1st, 1878, a large quantity of lumber, amounting in value to $4825.08, was furnished for twenty-four houses, twelve of which were on the north side and twelve on the south side of Butler Street, one of the public streets of the city of Philadelphia. Twelve of the houses were therefoi’e in one block and twelve in a different block, the two blocks being separated by Butler Street. It was proved that the lumber was delivered to the contractor indiscriminately upon the credit of the twehty-four houses. No proof was given to show what proportion or amount of the lumber, if any, was actually used in the erection of the particular house sought to be charged by this claim, or that any of the lumber ordered went into this particular house. The plaintiff made out an apportioned claim against the twenty-four houses, and filed this claim as a single claim against each house. The Court reserved the point whether this claim, unsupported' by any other proof than that the lumber was delivered to the contractors upon the credit of all the houses in the different blocks, could be sustained. The question is whether, upon such a state of facts, the claim can be maintained as a valid and legal claim under the acts of Assembly and the construction which they have heretofore received.
    “ Upon the argument, it was contended by the plaintiff’s counsel that this is not an apportioned claim. It is true that if we look to the formal part of the claim alone as it was filed, rejecting altogether the bill of particulars which is annexed and made part of it, nothing is said there about an apportionment. But we are not at all at liberty to do that. The bill of particulars is an integral part of the claim, and must be read with it: Knabb’s Appeal, 10 Barr, 186'; Donahoo v. Scott, 2 Jones, 45 ; Calhoun v. Mahon, 2 Har., 56; Hill v. .McDowell, lb., 175; McClintock v. Bush, 13 Smith, 203.
    “ Indeed, it must be apparent that if the plaintiff were to stand upon the claim alone, rejecting the bill of particulars, it could not be maintained, for ‘ the amount of materials furnished and the time when they were furnished,’ nowhere appear with sufficient certainty, except in the bill of particulars. It is for that reason, doubtless, that the plaintiff in his claim prays that the bill of particulars may be taken and considered as part of his claim.
    “ Looking then at the bill of particulars as an essential and integral part of the claim filed, it distinctly appears that the lien claimed is for $4825.08, and is against twenty-four buildings, twelve of which are in one block and twelve in another. ‘ Against all of which buildings said claimants claim to have a lien for a proportionate part of the said debt.’ It is, therefore, perfectly p'ain that this is an apportioned claim, and not only an apportioned claim, but, so far as the bill of particulars is concerned, it is a joint apportioned claim, although if we regard the formal parts of the claim apart from and independently of the bill of particulars, it is on its face a single and unapportioned claim. But we are bound to read the bill of particulars as a part of the claim. As has been already said, if the plaintiff rejects the bill of particulars his claim is clearly invalid for uncertainty, inasmuch as it does not comply with the statutory requisites in setting out the ‘ times and quantities:’ Bussell v. Bell, 8 Wr., 54; Behrer v. Zeigler, 8 W. & S., 258 ; Lehman v. Thomas, 5 W. & S., 262 ; Witman v. Walker, 9 W. & S., 183.
    “ Is it competent then for the plaintiff to avoid the difficulty which clearly appears in his bill of particulars, that this is an apportioned claim against houses in different blocks, by saying that the claim proper as filed is only against a single building, and is not apportioned in the claim itself? In other words, if the claim itself is clearly shown in the bill of particulars to be an apportioned claim against houses separated by a public street, and which, therefore, by no latitude of construction whatever can be said to be ‘adjoining,’ can it be properly treated as a single unapportioned claim, because it would so appear if we rejected entirely the bill of particulars ? Is it competent to make an apportioned claim against buildings in different blocks a good claim by filing such a claim separately against each building? Are separate apportioned claims against houses in different blocks good, although joint apportioned claims against buildings so situated are bad ? If the law is so, then such claims may be filed against a multitude of buildings for which materials are supplied under one contract in various and remote localities, where the materials have been furnished indiscriminately upon the joint credit of all, and the only standard of charge against each is an apportionment between all made by the claimant himself.
    “So far as the right to apportion claims for materials among several houses depends upon statutory authority, it is clear that the acts of Assembly contemplate only ‘ houses and buildings adjoining each other’ as proper subjects of such apportionment, and the reason assigned for permitting the apportionment in the Act of 1831 is, that as to houses so situated ‘ it sometimes happens that it is impossible for the person who has provided materials to specify in his claim the particular house or building for which the several items of his demand were provided.’ Both the Act of 1836 and the Act of 1850, where they speak of the apportionment, clearly refer to the apportionment previously authorized; that is, to the apportionment provided for in the Act of 1831, and not to any new or different kinds of apportionment. The ease of Penuock v. Hoover, 5 R., 291, where the claims were made under the Act of 1806 and its supplement of 1808, was the case of claims filed against contiguous houses, and it was held that claims against such íouses might be filed against all the houses jointly, or they might be apportioned and separate claims filed against each. Pennock v. Hoover, as well as the subsequent eases of Dayis v. Earr. 1 Har., 167, and Harper v. Ileely, 5 H., 234, are authorities which decide that either joint or separate apportioned claims may be filed against adjoining houses. But there is no case which holds that either joint or separate apportioned claims can be filed against houses not adjoining in any sense, but which are separated by streets, and therefore situated in different blocks, or which decides that any right of fixing and charging the amount of a claim by the process of apportionment exists in the cases of houses so situated. The reason assigned by the act and by the cases for permitting a charge by apportionment does not exist in such a state of things, for, as was said in Chambers v. Yarnall, 3 Har., 268, it is as easy to distinguish between separate blocks as it is between separate houses in different streets. The words ‘several houses' and buildings adjoining each other’ have been construed to mean any number of buildings owned by the same person, provided they are all in progress and are all situated in the same block: Young v. Chambers, 3 Har., 267; Taylor v. Montgomery, 8 Har., 443; but in Young v. Chambers, and the subsequent case of Goepp v. Gartiser, 11 Casey, 130, followed in our own case of French v. Kaign, 3 W. N. C., 495, it was distinctly decided that a material-man cannot maintain a claim which rests upon an apportionment made between houses in different blocks, because such an apportionment is neither within the reason nor the letter of the acts of Assembly, nor within any previous decision. Those were cases of joint apportioned claims. 13ut the principle upon which they rest seems to us to control the present case, for, as we have already seen, the present case clearly appears by the bill of particulars to be in reality an apportioned claim against houses in different blocks, although it is ingeniously attempted to avoid the effect of that by filing a copy of this jointly apportioned claim against each house separately. There is no precedent and no authority for such a claim as this, and it would- be extremely impolitic and dangerous in practice to allow it, for if it can be done, then a contractor under a contract for the erection of a multitude of buildings in different parts of the city, no matter how remote they may be from each other and how different from each other in their dimensions and plans, may fasten upon each of the buildings a claim resting upon no certainty whatever, but depending entirely upon guesses as to the amount which should be charged to each of them, and all the proof necessary to support such a claim will be, as in the present case, proof that credit was equally given to all the houses when the contractor purchased the lumber.
    “ The cases relied upon in the able and ingenious argument of the plaintiff, Davis v. Farr; Harper v. Keely; Fitzpatrick v. Allen, 30 Smith, 294; Rush v. Bank, 2 W. N. C., 263; Armbrust v. Galloway, 2 W. N. C., 585, were all, without exception, cases of adjoining buildings, either actually adjoining, or constructively adjoining, in the sense that they were situated in the same block. All that was decided in Millett v. Allen, 3 W. N. 0., 374, was that separate apportioned claims may he filed when the materials have been indiscriminately furnished for several buildings. The case is but a confirmation of Davis v. Farr, Harper v. Kelly, and the cognate cases. The record did not raise the question whether an apportionment could be made where the houses are in no sense adjoining, but situated in different blocks and separated by streets. "Where materials are furnished to many houses, situated on different streets in different localities, it is certainly very easy to keep an account of the materials furnished for the different blocks, if not to the different houses. If a material-man will not do so much as that, and seeks to apportion a large amount, obtained by a contractor, among different houses upon different streets, surely he ought to be prepared to show by measurement, or by some similar proof, what proportion of the materials was actually supplied to the house he seeks to chai’ge. Otherwise, the practical result is that the apportionment is to be made according to his own arbitrary will, without any regard whatever to the rights of owners, and that such an apportionment is to be supported by simply proving that a large quantity of materials was obtained by a contractor upon the credit of many buildings which he was erecting in different blocks, and that the whole was supplied to him under a single contract for a gross sum.”
    The plaintiff then took out a writ of error, assigning as error the entry of judgment for the defendant non obstante veredicto.

      J. Quincy Hunsicker, for plaintiff in error.
    This is not an' apportioned claim. It is a several claim for a debt of $201.05 for materials furnished to the particular building as set forth in the body of the claim, established by the evidence and found by the jury.
    This ease is ruled by Davis v. Farr, 1 Harris, 167; and Harper v. Keely, 5 Harris, 234.
    Since a joint claim could not have been filed, if the plaintiff* cannot have a lien as filed, he can have no claim, and the first section of the Act of 1836 is practically defeated: See Millett v. Allen, 3 W. N. C., 374; Young v. Chambers, 3 Harris, 268.
    The statement at the head of the bill of particulars is not an essential part of it, and is a mere memorandum. It could be rejected as surplusage. The credit on which the goods were sold was for the jury: Church v. Allison, 10 Barr, 414,

      W. II. Drayton, for defendant in error.
    The claim is an apportioned claim, but one unauthorized by the Court: Russell v. Bell, 8 Wr., 54; Chambers v. Yarnall, 15 Penna. St., 265.
    The parol testimony cannot affect the lien: Bolton v. Johns, 5 Barr, 149; Dearie v. Martin, 28 P. F. Smith, 55; O’Neill v. Hurst, 33 Leg. Intel., 13; Day v. Garrett, 3 "W. N. C., 558; Nason Co. v. the Trustees, 4 W. N. C., 369.

      January 30th, 1882.
   — Per Curiam:

We affirm this judgment upon the opinion of the learned president of the Court below.

Judgment affirmed.