author: Read, O. J.

text:
    Hutchinson versus Pittsburg.
    1. The councils of Pittsburg are authorized to improve streets and collect the cost by “assessment of an equal sum per front foot” on the properties abutting on the portions of the streets thus improved, which should be a lien. They ordained the grading of a street from M. to B. streets, and a contract was made for that distance; it appearing that part had been graded, the grading under the supervision of the engineer was done only between P. and C. streets, part of the distance ordained. Held, that the assessment was to be on property between P. and O. streets.
    2. Notice of assessment is to be given that the parties may have errors corrected at the engineer’s office, and the claim be paid to the treasurer. Held, that objections to the assessment not having been made under the notice could not be made to a scire facias on the lien.
    3. The contract being between the city and contractor, and the city adopting the action of its officers, an owner could not object that the whole was not graded.
    4. The assessment was on a whole lot, which had been divided into smaller lots by the owners, but was not on the city plan. Held, that the assessment was properly made on the entire lot.
    5. An owner paid the contractor part of the cost; he afterwards assigned his claim, for value, without notice to the assignee or the city of the payment. Held, that the city to the use of the assignee could recover the whole amount.
    November 8th 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 198 and 199, to October and November Term 1872.
    Two writs of scire facias, on municipal claims, were issued on the 5th of November 1869, by the City of Pittsburg against David Hutchinson.
    The claims were No. 29 and No. 30, and were for grading Bluff street.
    No. 29 was against a lot of ground on the north side of Bluff street, and fronting on said street 236f feet, running back about 236 feet to Vickroy street.
    No. 30 was against a lot of ground on the north side of Bluff street, fronting on said street 159J feet, and running back about 187 feet to Viekroy street.
    The Act of January 6th 1864, sect. 6, authorized the councils of Pittsburg to grade, &c., any street or parts thereof, and collect •the cost from the owners of property bounding or abutting on the portions of streets, &c., thus improved, by an assessment of an equal sum per foot front of said properties. When the grading shall have been done the regulator shall make an assessment of the cost, and give notice of the assessment by publication ten days, that parties may have errors or mistakes corrected, and corrections having been made, he shall hand the same to the treasurer.
    In pursuance of this act, the councils of Pittsburg, on the 21st of August 1868, ordained “ That the city engineer be instructed to advertise for proposals for the partial grading of Bluff street, from Miltenberger to Boyd street, and let the same in accordance with ordinances providing therefor.”
    By virtue of this ordinance the city engineer, on the 10th of October 1868, entered into a contract with Patrick Bradley, by which Bradley agreed to furnish all the materials and partially grade Bluff street, from Boyd street to Miltenberger street, for which he was to be paid “ from the moneys to be collected for the cost thereof, in accordance with Acts of Assembly and Ordinance of Councils,” 70 cents for each cubic yard of grading and filling.”
    The plaintiff gave evidence by the city engineer that the work was done under the contract, the cost assessed according to the feet graded, and the notice of the assessment published. The assessment was between Cooper and Pride streets, two intermediate streets between Miltenberger and Boyd streets. There was no grading east of Pride street, or west of Cooper street, that having previously been brought to grade. The assessment was made on the part of the street in which the work was done.
    The defendant gave evidence that he had graded part of the street west of Stevenson street and opposite his land, but not between Pride and Cooper streets.
    His property is bounded by Stevenson, Bluff and Vickroy streets, Stevenson crossing Bluff and Viekroy streets; his lots, which are charged with the claim, are parts of the above-stated property; he held the lots under different deeds from several persons. He gave evidence that he had paid Bradley directly $427, on account of grading. Lot No. 30 was divided by a former owner into several lots with different numbers, some of which smaller lots did not front on Bluff street.
    The plaintiff, in rebuttal, gave evidence that after notice of the assessment the defendant came to the regulator’s office and objected to the assessment, because it had not been made on all the property between the streets named in the ordinance, Boyd and Miltenberger, but made no other objection.
    Also evidence that Bradley had assigned his claim under the contract to M. Munhall & Co., who took it without any knowledge that the defendant bad paid Bradley anything on account of it. The city officers had no knowledge of the payment to Bradley.
    The plaintiff’s points were:—
    1. If no work was done east of Pride or west of Cooper street, there could be no assessments but between those two streets, and they were properly limited to property between them, notwithstanding the ordinance directed the grading to be done between Boyd and Miltenberger streets.
    2, 3. Cost of grading was properly assessed equally per foot on the property between Pride and Cooper streets, without regard to the amount of work on front of each owner’s property, or if there had been no work done in front of some lots.
    4. The fact that a portion of defendant’s property is divided by a plan into small lots does not limit the lien to the lots abutting on the street, but is a valid lien on all his property abutting on the street.
    5. The fact that property not subject to the lien has been included in the property described in the lien is not a defence to the scire facias, the court having power to restrain the execution to the property properly chargeable.
    6. 8. If property not chargeable is included in the lien, the defendant cannot now take advantage of the error, notice having been given of the assessment and the time for correcting the errors.
    7. Payments to Bradley without authority are not payments, or set off the city’s claim.
    These points were affirmed. 1

    The defendant’s points were:—
    1. The lien No. 30 having been filed against lots 39 (and fourteen others specified), and as lots No. 27 (and nine others specified), do not front on Bluff street, the lien cannot be maintained against the last-mentioned lots.
    2. As lien 30 includes 22 and 23, which were never owned by the defendant, and neither fronts on Bluff street, there can be no recovery as to these two lots.
    3. The city was bound to give the amount of assessment on each separate lot, and a lien in gross against a large number of lots of different size or feet front, and held under different conveyances cannot be sustained.
    4. 5. If Hutchinson had graded in front of his property at his own expense before Bradley commenced, he is not liable to be assessed.
    6. The payment to Bradley while the work was in progress, on account of it, was a good payment, and the defendant is entitled to credit for it.
    7. The contract having been awarded for grading between Boyd and Miltenberger streets, the action of the officers of the city in confining the work to a portion of that distance was illegal, and the assessment under a part execution of the ordinance is void.
    These points were refused.
    The jury found a special verdict, viz.:—
    1. That the assessments sought to be recovered in these actions were levied upon the property-holders between Pride and Boyd streets, and not between Miltenberger and Boyd streets, and that no grading was done east of Pride street.
    2. That the amount in principal and interest is $373.22 in No. 29, and $250.97 in No. 30.
    3. That the amount of the assessment, in case the same had been levied on the property-holders between Miltenberger and Boyd streets, would be $252.45 in No. 29, and $169.97 in No. 30.
    4. That the defendant graded his property west of Stevenson street.
    5. That the defendant paid Bradley, the contractor,'on account of grading $427, amounting now with interest to $491.77.
    6. That Bradley, on the 24th of September 1870, assigned to Munhall & Co. all his interest in the claim under his contract; they received the same for value and without notice of the payment to Bradley, and we find for the plaintiff $373.22 in No. 29, and $250.97 in No. 30, subject to the opinion of the court upon the questions of law raised by the points of the parties respectively, upon the facts as found by us. If the court shall be of opinion that the verdict should be for the defendant, or if for the plaintiff, that the same should be modified in amount, then judgment to be entered for the defendant non obstante veredicto, or for the plaintiff in such modified form or amount as the court on consideration of these reserved questions should think proper.
    The court (Kirkpatrick, J".) entered judgment on the verdict for the plaintiff on the questions of law reserved.
    The defendant took a writ of error and assigned for error :—
    1, 3,19. Entering judgment for the plaintiff on the verdict and without directing for what sum judgment should be entered.
    2. Not allowing defendant credit for the amount found to have been paid by him to Bradley.
    4-11. The answers to the plaintiff’s points.
    12-18. The answers to the defendants’ points.

      J. Barton, for plaintiff in error,
    cited Shaffer v. Pittsburg, 16 P. F. Smith 454.

      D. T. Watson and J. F. Slagle, for defendant in error,
    cited Philadelphia v. Burgin, 14 Wright 539; Philadelphia v. Wistar, 11 Casey 427; Schenley v. Commonwealth, 12 Id. 29.
    January 6th 1873,
   The opinion of the court was delivered, by

Read, O. J.

By the 6th section of the Act of 6th January 1864, the councils of Pittsburg are authorized whenever they may deem the same necessary to cause to be graded, regraded, paved, repaved, or macadamized any public street, lane or alley, or any parts thereof, and they are to levy and collect the cost of the same, from the owners of property bounding or abutting on the portions of the streets, lanes or alleys, thus improved, by an assessment of an equal sum per front foot of said properties; and section 7th provides, that when any grading shall have been done, the recording regulator, (now city engineer), is to make an assessment of the cost ^nd expense thereof, “ and to give notice by publication for ten days in two daily papers of said city, that the said assessment has been made, and may be seen at his office, and that the parties interested may have an opportunity of having any errors or mistakes corrected. After correcting any errors or mistakes that may have been discovered, he shall immediately hand over the said assessments, with a plan and description of each lot, the amount assessed thereon, and the name of the owner or owners, to the treasurer of said city.”

By the 8th and 9th sections, the treasurer shall then give notice of the amount so assessed upon each property to the owner thereof, and if the same be not paid to him within thirty days from the time of said notice, it will be filed as a lien against said property, with interest, costs and fees, and if not paid within the thirty days, the treasurer shall hand over to the city solicitor (now city attorney), the assessment, with plan and description of each lot et cetera, as furnished to him as aforesaid, and the city (attorney) solicitor shall file a lien against each property for the amount of the assessment thereon remaining unpaid, with interest from the time notice for payment was given, and five per cent, additional as the solicitor’s (attorney’s) fee for collection.

The ordinance under which the grading in these cases was done, was passed August 31st 1868, and is as follows : “ That the city engineer be, and he is hereby authorized and instructed, to advertise for proposals for the partial grading of Bluff street, from Miltenberger to Boyd streets, and to let the same in accordance with ordinances of councils providing therefor.”

The city engineer having advertised for proposals, on the 31st of October 1868, contracted on behalf of the city with Patrick Bradley to do the grading at so much per cubic yard, and he entered upon his work under the supervision of the engineer. On a survey it was found all the property between Miltenberger and Pride streets had been brought up to the grade established, and no grading was done east of Pride street, having been graded before. The grading and of course the assessment were confined to that part of Bluff street lying between Cooper and Pride streets. The assessment so made was regularly advertised, agreeably to the provisions of the 7th section, by the city engineer, who handed over the same to the city treasurer, who then gave the notice required by law, and handed over to the city attorney the said assessment, and the city attorney filed liens against the two properties of the defendant, and brought the two writs of scire facias which are now before us.

The contract is between the city and the contractor; the contractor does not complain, and the city adopts and approves the action of its officers, and the defendant cannot take advantage of the non-grading of four squares which the city found to be unnecessary and inexpedient under the circumstances. Besides the authority was to grade, not to regrade.

It was not an excess of authority, but a wise exercise of discretion in not grading the whole distance authorized, for reasons entirely satisfactory to the city. The same course of reasoning would apply to an authority to pave from one street to another street, where three squares at one end and one square at the other end were discovered to have been already paved.

The portion of the street so improved lay between Cooper and Pride streets, and by the express terms of the Act of Assembly, all properties bounding or abutting on the same are to be assessed an equal sum per front foot of the same.

But the defendant says he holds these lots by different conveyances, and the property was cut up into lots on a private plan of previous holders, and should have been so assessed. This plan was not among the city records, nor known to its officers. If there was anything in this objection, it should have been made to the city engineer, when he appeared before him in pursuance of the notice given to him. He knowing how the assessment was made, never pointed out the error or mistake now alleged, and permitted the city engineer to proceed with the assessment as made, and he is estopped to deny its correctness.

It is claimed by the defendant that he should be allowed $427, paid Patrick Bradley on 24th September 1869, on account of this grading, which with interest due on the same amounts to $491.77.

This* payment was entirely unknown to the city or its officers, or to any but the parties concerned in it, and, if a valid set-off, enables Bradley, on the 24th of September 1870, to commit a fraud on Munhall & Co., by assigning his interest and claim to and under this contract to them, without notice or knowledge on their part that the defendant had paid the said Bradley the amount due him on the 24th September 1869. It is clear if this payment is a legal one, then the same might have been practised by all the other owners of property on Bluff street, between Cooper and Pride streets, and it would have left Messrs. Munhall & Co. nothing but a dry bone.

But such is not the law. The treasurer receives all the assessments, either directly or through the city attorney, and is to pay the contractor from the moneys to be assessed and collected for the costs thereof, which in this case is for grading or filling for each cubic yard 70 cents: Schenley v. Commonwealth for the City of Allegheny, 12 Casey 29.

The law and the practice in Pittsburg differs entirely from the city of Philadelphia, where as in Coxe v. City of Philadelphia, 11 Wright 11, the ordinance “ charged upon the properties in front of which the culvert passed, seventy-five cents for each lineal foot of the front of the said properties, the contractor to accept the sums so assessed and charged in part payment of his contract price, and to collect the same at his own cost; and the better to enable him so to do, to use the name of the city of Philadelphia, and employ all legal remedies or proceedings, whether of lien or otherwise, to which the said city may be competent,” and in contracts for paving, it is prescribed by the ordinance authorizing them that “ the condition of said contract shall be that the contractor shall collect the cost of said paving from the owners of property:” City of Philadelphia v. Scott, antea, p. 92.

Upon the whole case as presented to us the judgment in each case is affirmed.


source: Caselaw Access Project

author: Sharswood, J.

license: Public Domain

text:
    Everson versus Fry, Trustee.
    1. By articles of separation the husband agreed to pay the wife a stipulated sum monthly. . In a suit for her use for a payment, evidence in defence that at the execution of the agreement he allowed her to remain till a time named in his house, that she refused to leave at the end of the time, and the value of the use of the house, was admissible as set-off to her allowance.
    2. A set-off is to be regarded as if it were a separate action by the defendant against the plaintiff.
    3. Evidence of a parol agreement contemporaneous with a writing and collateral to it, although the writing may be the consideration, is admissible in evidence as showing a set-off to the claim under the writing.
    November 11th 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 16, to October and November Term 1872.
    This was an action of assumpsit brought June 6th 1870, by Henry C. Fry, trustee of Minerva Everson for her use against Richard Everson, the husband of Minerva Everson, to recover the amount claimed to be due her under articles of separation as follows:—
    “ This indenture of three parts, made the 30th day of September, A. D. 1869, between Richard Everson, of, &c., of the first part, and Minerva Everson, his wife, of the second part, and Henry O. Fry, of, &c., trustee of the said Minerva Everson, of the third part.
    “ Whereas divers disputes and unhappy differences have arisen between the said party of the first part and his said wife, for which reason they have consented and agreed to live separate and apart from each other during their natural lives. Therefore this indenture witnesseth, that the said party of the first part, &c., doth hereby covenant, &c., with the said trustee, and also with his said wife, that it shall and may be lawful for her, * * * to live separate and apart from him, * * * that all the articles of clothing of said Minerva Everson, household goods, furniture, &c., now in the house occupied by said parties, except the parlor furniture, &c., shall remain in the custody of his said wife, so long as she shall live free from any interference therewith on his part, and that he will not claim or demand at any time hereafter any property of any kind' which may be devised to her or which she may hereafter acquire, and that she shall and may enjoy and absolutely dispose of such after-acquired property as if she were a feme sole and not married; and further, that he shall and will well and truly pay or cause to be paid unto her, his said wife, for and towards her better maintenance and support, the yearly sum of six hundred and thirty dollars, in monthly payments- of $52.50 each, until the youngest child shall be of age, after which time the payments to her shall be regulated as hereinafter provided. In case she should sooner die, all payments are to cease. From said monthly payment of $52.50 for each child that shall die or leave her custody, or become of age, there shall be deducted the sum of ten dollars, and after all the children shall become of age, or shall go to live with their father, or in case of the death of all of them, then the amount to he paid to the said Minerva Everson shall be determined by three disinterested parties, * * * the award of a majority of whom shall be final and conclusive, and the amount so fixed shall be paid to the said Minerva Everson during the residue of her natural life.
    “And the said Minerva Everson agrees to accept the provisions hereinbefore made for her, and that she will not at any time hereafter in any manner annoy or interfere with the said Richard Everson at his separate home, * * * and in consideration of the said provision she releases any and all right of dower which she has or may have in the estate real and personal of her said husband, and agrees that upon request made she will * * * sign, acknowledge and deliver such quit-claim as may be necessary effectually to bar any such right. * * *
    “ And it is further stipulated that if the said Minerva Everson should at any time refuse or fail to comply with any of her covenants herein made, such refusal shall work a rescission of this agreement, and the said Richard Everson shall no longer be bound to pay her the amount hereinbefore provided, and the said trustee * * * agrees that the said Minerva Everson shall faithfully comply with each and all of her covenants herein made.”
    The defendant filed an affidavit of defence “ that Mrs. Everson agreed to vacate the house occupied by her in consideration of the agreement upon which this suit is brought, as soon as she could get a house, and that she would make diligent efforts to get one, and said defendant then agreed that if she would do this she might have the house free of rent till January 1st 1870. . Affiant says that said Mrs. Everson never attempted to get a house, as she was bound to do by her agreement, and therefore claims that she is liable to defendant for the rent of said house from October 1st 1869, being about the date of said agreement; that as affiant is informed and believes said house would rent for about $25 or $80 per month, and she has occupied it for a period of eight months up to June 1st 1870, making a rental due by her of at least $225.” * * *
    The defendant pleaded
    “ Covenants performed, absque hoc, &c., &c., payment with leave, &c., and the special matter contained in affidavit of defence.”
    On the trial of the case, September 29th 1871, before Stowe, J., the defendant made the following offers of evidence :—
    1. “ That at the execution of this agreement it was agreed by Henry C. Fry and Minerva Everson that she should leave the premises then occupied by her, and surrender them to defendant on or before January 1st 1870, and that defendant has demanded possession thereof and compliance with said agreement, and that she has failed and refused to comply therewith and to deliver possession to said defendant as she was bound under said agreement to do.”
    2. “ To ask the witness on the stand (Richard Everson) whether or not it was agreed that Minerva Everson should not reside in the house in which she resided at the time of the execution of the agreement of separation longer than January 1st 1870, and that she was to remove from said house sooner than said first day of January 1870, if she could obtain a house; that she still remains in said house against the consent of witness, who is the owner of the house, and that though repeatedly called upon by and for him to vacate said house, she has always refused to do so.”
    The offers were objected to by the plaintiff for the reason that there is no such agreement or stipulation contained in the articles of agreement sued on: and that the offers are to contradict the terms of the written agreement by parol evidence.
    The court rejected the offers and sealed bills of exceptions.
    The court charged:—
    “ The jury are instructed that if they believe that this paper in evidence was signed by the parties as alleged, and not denied by defendant, plaintiff is entitled to recover the amount specified to be paid them, less the amount paid up to the time suit was brought, less the value of the property she is alleged to have kept, and which she should have allowed defendant to have.”
    The verdict was for the plaintiff for $227.85.
    The defendant took a writ of error and assigned for error the rejection of his offers of evidence.

      J. S. Ferguson (with whom were Weir Gcibson), for plaintiff in error. —
    Agreements of separation are valid: Hutton v. Duey, 3 Barr 100; Dillinger’s Appeal, 11 Casey 357.

      W. W. Thompson (with whom was T). Reid), for defendant in error.
    A writing cannot be varied by parol evidence: Harbold v. Kuster, 8 Wright 392 ; Heebner v. Worrall, 2 Id. 376; Lloyd v. Farrell, 12 Id 73.
    November 22d 1872,
   The opinion of the court was delivered, by

Sharswood, J.

This was an action instituted by the plaintiff below as trustee upon articles of separation between Bichard Ever-son and himself for and on behalf of Minerva Everson, the wife of the said Bichard Everson, to recover arrears of the stipulated allowance therein agreed to be paid by the husband for the support of his said wife during the separation. The defendant pleaded among other things the special matter set up in his affidavit of defence filed in the cause, and, upon this with other pleas, the parties went to trial. The matter referred to was that it was agreed that the wife should vacate the house then occupied by her belonging to the defendant, on the first of January following the date of the articles, up to which time she was not to pay any rent, but that she refused to leave the premises, and continued to occupy them subsequent to that time — and in consequence the defendant claimed as a set-off a reasonable rent for such occupancy. This was the substance of the affidavit. Had it been pleaded in form it would have been a special plea of set-off. After the plaintiff had given in evidence the articles of separation and closed his case, the defendant made two separate offers to prove this agreement and its breach — in the first stating it as an agreement by the plaintiff and the wife, and in the second as an agreement generally without saying between whom. We do not consider this difference in the offers material, as it is necessarily implied in the last offer that the agreement was between the parties to the suit, and that therefore Henry Fry, the trustee, was one of the parties. The learned judge below rejected both the offers on the ground, it would seem, that it was an attempt to vary the terms of the written contract. In this we think there was error.

It is to be observed that a set-off is a counter claim, and is to be regarded in all respects as if it was a separate action by the defendant against the plaintiff. If the husband in this case could have recovered in an action against Fry upon the evidence here offered, and rejected, it is clear he could avail himself of it as a set-off against Fry’s demands in this action. The offers were to prove a parol contract; it may be cotemporaneous but nevertheless altogether separate from and independent of the articles of separation. It did not vary or contradict any one of the stipulations contained in the articles, but was entirely consistent therewith. In the written contract Everson agreed that it should^ be lawful for his wife to live separate from him wherever she might choose, and that he would not molest her. He did not agree to furnish her with a,house to live in, but it is a necessary implication that the annual sum he agreed to pay to her was to be in full of all demands by her upon him, and the trustee expressly covenants to indemnify the husband against all debts which the wife might contract. The rule which excludes parol evidence to contradict or vary a written instrument does not apply to such a collateral agreement, even though it may be founded upon the consideration of the writing. In Weaver v. Woods, 9 Barr 220, it was decided by this court that where a written contract is executed for a consideration therein mentioned, a party is not concluded in an action for the breach of a parol contract from showing that the agreement evidenced by the writing was the consideration for the cotemporaneous parol contract. As we have seen, the same rule applies to a set-off as to an action. It follows that if the proof sustained the offer, Fry was liable in damages to Everson for the breach of the contract, and the measure of damages would be the rent which could have been obtained by Everson for the house so occupied by the wife.

Judgment reversed, and venire facias de novo awarded.


author: Agnbw, J.

text:
    The Youghiogheny Shaft Company et al. versus Evans et al.

    1. Plaintiff declared against a corporation and its president and secretary jointly, there was no evidence of a joint contract by the defendants, nor of any joint relation, except as a corporation and its officers acting on its behalf. Held, that the action could not be maintained.
    2. The claim was for work for the corporation, the president told plaintiff that he would see it paid for; this did not create a joint liability, but was a several assumption as surety and not as principal.
    3. The defendants having been declared against in general assumpsit, their individual liability as stockholders could not be enforced in that form; it must be enforced as provided in the statutes.
    4. Brinham v. Wellersburg Coal Co., 11 Wright 43; Hoard v. Wilcox, Id. 51, adopted.
    November 11th 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 22, to October and November Term 1872.
    Evan E. Evans and others, trading as Evans & Co., brought an action of assumpsit against The Youghiogheny Shaft Company, James Truniek and W. W. Fullerton. The writ was issued February 4th 1871.
    The plaintiffs declared against the above-named defendants jointly in the common counts.
    The affidavit of claim was for work and materials done and furnished “ for the said Shaft Company at the instance and request of the president and the agent thereof, at the coal-works of the said company, in Westmoreland county, from November 1868, to January 7th 1870,” as set forth in the account annexed to plaintiffs’ prceeiye, affidavit of claim and narr., as follows:—
    The Youghiogheny Shaft Company,
    To Evan E. Evans, Dr.

    Truniek was the president and Fullerton the secretary of the Shaft Company.

      The case was tried December 6th 1871, before Kirkpatrick, J.
    The plaintiff gave in evidence an agreement dated January 1st 1868, between the Shaft Company and Henry Bailey, by which the company leased to Bailey for two years, their coal-works, &c., with 400 acres of coal-land, shaft, buildings, &c., Bailey to pay one half-cent per bushel on the terms mentioned; the lease to be continued for three years more at the option of Bailey; “any permanent improvements that may be necessary during the term shall be made with the advice and consent of the president of the Shaft Company,” at the cost of the company.
    The agreement was executed as follows:—
    “ In witness whereof, the said Henry Bailey has hereunto set his hand and seal, and James Trunick, president of the said Yo'ughiogheny Shaft Company, has signed his name and caused the official seal of the said company to be hereunto attached, and also to be countersigned by the secretary of said company.
    Jambs Trunick, [seal.] President.
    Henry Bailey, [seal.]

      W. W. Fullerton, Secretary.
    Sealed and delivered in the presence of 1 John Fullerton. j
    f Seal of the Youghio-1 [ gheny Shaft Company. J
    “ The within agreement is fully ratified and approved by us.
    James Trunick, ] James A. Hunter, 1 Committee.” J. G-. McQuaide, J
    The plaintiffs gave in evidence an agreement between Henry Bailey and Evan E. Evans, dated January 1st 1869, by which Bailey leased to Evans the same premises, &c., mentioned in the foregoing agreement, Evans to pay to Bailey one half-cent for every bushel of coal mined; and by which it was agreed “ that the expense of mining and entry under the bed of the Youghiogheny river that may exceed the worth of the coal mined, shall be deducted from the rents of the mines and the proper cost of the same, said entry to be put through as fast as possible.”
    Evans, the plaintiff, testified that Trunick, the president of the Shaft Company, directed how the entries for the coal should be driven, and urged witness to have them driven on “ and get the thing into a good shape so that he could sell the property, and he would see I should be paid for it.” The entries were made under the direction of Trunick, he furnished the cement; they would have to go through one Smith’s land and could not get his consent, Trunick directed witness to ascertain from Smith what he would take for his land, Trunick on being informed of' Smith’s proposition said he could do nothing- for witness. Evans’s interest in the lease was sold by the sheriff under an execution issued by Trunick on a judgment against him which Trunick had bought; Fullerton, the secretary of the company, bought Evans’s interest. Trunick said he would see that Evans would be paid for the pump: nothing was done without the advice of Trunick. The pump with its connections cost $2009.16, for which a judgment-note was given, under which Evans’s interest was sold by the sheriff.
    There was other evidence that Trunick was present frequently whilst the work at driving the entries was progressing, and gave directions concerning it.
    All the foregoing evidence was given under objection and exception by the defendants.
    The foregoing is a synopsis of the evidence as bearing on the liability of Trunick and Fullerton.
    Amongst others, the following are points of the defendants and their answers:—
    5. There is a misjoinder of the corporation with James Trunick and W. W. Fullerton, the other defendants, and therefore plaintiffs cannot recover.
    Answer: “ This point is refused.”
    6. There is no evidence in the cause tending to prove a joint undertaking or a joint liability, of the defendants to the plaintiffs, and therefore plaintiffs cannot recover.
    Answer: “ This point is refused. As detailed and for the reasons given and subject to the instructions as to the burden of proof given by us in answer to the fourth point of defendants, we leave the question to the jury to be determined by them from all the evidence in the cause.”
    7. There is no evidence in the cause tending to show any legal liability of W. W. Fullerton, one of the defendants, to the plaintiffs, and therefore plaintiffs cannot recover.
    Answer: “ Refused. We leave this to the jury, under instructions as already given.”
    11. Even if the jury believe that James Trunick did say to E. E. Evans, “ to push those entries on, and he would see that I (Evans) would be paid for them,” or words to that effect, the plaintiffs cannot recover upon such promise or undertaking against the defendants in this action.
    Answer: “ This point is refused. We leave it to the jury to say what Trunick intended, and how far, if at all, he intended to be bound by the language used in the point.”
    The verdict was for the plaintiffs for $1923.20.
    The defendants removed the record to the Supreme Court, and there, amongst other specifications, assigned the answers to the foregoing points for error.

      A. M. Brown, for plaintiffs in error.
    <7. B. M. Smith, for defendants in error.
    November 18th 1872,
   The opinion of the court was delivered, by

Agnbw, J.

There is a fundamental error running throughout this case, which must put an end to the action in this form. The plaintiff declared against the corporation and Trunick and Fullerton as joint debtors. There is no evidence of a joint contract by these defendants, or of such a joint relation between the corporation and the individual defendants, as will support an implied contract jointly, to pay for the work and labor declared upon. There is not the slightest testimony that Fullerton made any assumption personally, and the only evidence as to Trunick is that while acting as president of the company he told Evans he would see him paid. Such an agreement, even if intended as an individual assumption, would not be joint, but several — a promise of suretyship, and not that of a principal. Several of the points of the defendants presented this error of misjoinder, but were refused by the court. It is now argued that the purpose of the action was to enforce the liability of the individual defendants as stockholders of the'corporation, under its charter, or laws relating thereto. But no such purpose appears in this record. The declaration is in general assumpsit against all the defendants jointly. Neither the charter of the company nor the law under which it was organized was given in evidence. The evidence as to the individual defendants is that one was president and the other secretary of the corporation. No point was made upon their liability as stockholders. From the whole case we derive no intent to charge them as stockholders. The liability of stockholders is secondary, and the proceeding to enforce it statutory, not at common law. It was, therefore, held in several decisions that, in such case, the proceeding is wholly governed by the statute, and the rights and liabilities of the parties must be ascertained by it: Brinham v. Wellersburg Coal Co., 11 Wright 43; Hoard v. Wilcox, Id. 51. Á reference to these eases will show that the form of this action is wholly misconceived, if it were intended to enforce a statutory liability of the stockholders in this way.

Judgment reversed.

The court afterwards granted a venire facias de novo.


author: Agnew, J.

text:
    McFadden versus Johnson.
    1. The plaintiff was owner of land through which a railroad was constructed ; without receiving damages she solí the land; the company after-wards settled with the purchaser and paid him the damages. Meld, That she could recover the amount from him.
    2. The damages were a personal claim of the owner when the injury occurred ; they did not run with the land, nor pass by the deed, although not reserved.
    3. Schuylkill Nav. Co. u. Decker, 2 Watts 343, followed.
    November 12th 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1872, No. 109.
    This was an action of assumpsit, brought to December Term 1869, by Eliza McFadden against Henry C. Johnson.
    The statement of the plaintiff’s claim was substantially as follows :—
    She was owner of a tract of land in Crawford county, through which the Pittsburg and Erie Railroad Company, in the year 1856, had constructed their road, and had thereby damaged her said tract of land; in the month of March 1857, she contracted to sell her land to John Scott, and Scott assigned his contract to the defendant; afterwards the Atlantic and Great Western Railway Company succeeded to the franchises and liabilities of the Pittsburg and Erie Railroad Company. The defendant afterwards, in 1862, effected a settlement with the Atlantic and Great Western Railway Company for the damages done to the land previously to the sale to Scott, for which he, the defendant, received from the company $625; afterwards, without-informing the plaintiff that he had received the damages, he received a deed from her, having paid all the purchase-money except $263.63.
    The plaintiff’s claim was for the damages and the unpaid purchase-money.
    The case was tried May 1st 1872, before Collier, J.
    The plaintiff proved the allegations set out in her claim, as regards the sale to Scott, his transfer to the defendant, and execution and delivery of a deed to him. A. W. Mumford, who had been a director and one of the committee on land damages in the Atlantic and Great Western Railway Company, testified that he had examined the plaintiff’s land before that company took possession of it; it was badly cut, owing to the line of curving; the cutting was 30 feet deep, and the embankment at the lowest point 25 feet. He gave further details as to the injury done to the farm.
    There was other evidence showing that the damages had accrued to the land before the plaintiff sold it.
    It was admitted by defendant that he had settled with the Atlantic and Great Western Railway Company for the damages, and received from them $625.
    The court charged:—
    “We think that under all the evidence in the case the plaintiff cannot recover, except as to the amount admitted to be due, to wit: the sum of $268.63, and so direct you to find.”
    The verdict was for the plaintiff for $263.63. She took a writ of error, and assigned the charge for error.

      Stoner Patterson and A. M. Brown, for plaintiff in error.

      Gf. W. Be Oamp, for defendant in error.
    January 6th 1873,
   The opinion of the court was delivered, by

Agnew, J.

The court below charged the jury that on all the evidence the plaintiff was not entitled to recover, except for the admitted balance of purchase-money unpaid by the defendant. This was an error, the plaintiff having shown that she was the owner of the farm when the railroad company entered upon it, and made the cutting and filling for the railroad track, for which she claimed damages; and that this injury was done by the Pitts-burg and Erie Railroad Company before the road passed into the hands of the Atlantic and Great Western Railroad Company. The facts are clearly proved by a number of witnesses; among them was Mr. Mumford, a land surveyor, and a director of the Atlantic and Great Western Railroad Company, who, as a member of a committee to settle for damages and the right of way, had examined the ground. He testifies distinctly to the profile of the road through the cut and fill, the former thirty feet deep, and the latter twenty-five feet high, at their lowest and highest points respectively. This profile he testified showed the condition of the farm after the grading was done, and that it was the condition in which the Atlantic and Great Western Company took the road. The proof is equally clear that Johnston, the defendant, settled with the company, and received the damages, and this settlement comprised all that had been done upon this farm. The cause seems to have been tried and decided upon the principle that unless Mrs. McEadden reserved her right to the damages they passed by her sale of the farm to John Scott, who testifies that she did not reserve her right at the time of her sale to him, and that he also did not reserve the right at the time of his sale to Johnston. This was a manifest error; the reverse being true that the damages did not pass either by the article or the deed, unless expressly conveyed. The damages for the injury done to the land while Mrs. McEadden was the owner, were clearly a personal claim, which did not run with the land. If the company entered unlawfully, the entry and work done upon the land were a trespass, and the right to recover damages could be enforced by a common-law action. If the entry were lawful, the company acquired a right, for which the damages (so called) are a compensation, enforceable in the statutory mode given to assess it: McClinton v. R. R. Co., 16 P. F. Smith 409. In either case,— quacumque via data, — therefore the right is personal, belonging to the owner of the land when the entry and injury took place, and could pass only by her assignment. In Schuylkill Navigation Co. v. Decker, 2 Watts 343, the very point is decided, that the damages do not pass by the deed ; Chief Justice Gibson saying: “ To the parties proposed to be made defendants it is a decisive objection that they have not title to the damages, which being in compensation of an injury in the nature of a trespass, could not pass by a conveyance of the land.” The same principle will be found to be asserted and sustained in the following cases : Hart v. Kucher, 5 S. & R. 1; Commonwealth v. Shepard, 3 Penna. R. 509; Reese v. Addams, 16 S. & R. 40. Instead, therefore, of holding Mrs. McFadden to proof of a reservation of her claim to the damages, the defendant, Johnson, was bound to show that she had parted with her rights which had become vested in him. Neither the articles with Scott, nor the deed to Johnson is exhibited; but it is to he presumed, if either contained a transfer, it would have been noticed.

Judgment reversed, and a venire facias de novo awarded.


text:
    Hamnett & Son’s Appeal.
    1. Land for which the title was in a wife’s name, was sold by the sheriff; on distribution of the balance after payment of liens, a judgment-creditor of the husband claimed it, alleging that the land had been bought with money she held as guardian, and the husband being liable for her misappropriation, he had an equitable title to the land. Held, that the creditor had no standing in court on that ground.
    2. The wards having a resulting trust in the land, the balance was theirs, and the wife had the right to receive.it as guardian.
    3. Under the circumstances, the costs of audit, &c., imposed on the excepting creditor.
    November 12th 1872.
    Before Thompson, C. J., Eead, Ag-new, Sharswoód and Williams, JJ.
    Appeal from the District Court of Allegheny county: No. 67, to October and November Term 1872.
    In the distribution of the proceeds of the sheriff’s sale of real estate sold under a mortgage executed by John C. Smith and Adaline, his wife.
    The sheriff made a special return that he had sold the land for $1475, and that in pursuance of the Act of April 10th 1862, relating to the distribution of the proceeds of sheriffs’ sales in Allegheny county, he reported a schedule of distribution by which it appeared, that after payment of costs, &c., and certain liens which were all that appeared to be against the property, he had appropriated $715.95, the residue of the proceeds of sale, to Mrs. Adaline Smith, the defendant.
    J. Hamnett & Sons, judgment-creditors of John C. Smith, filed exceptions to the sheriff’s return and distribution, averring that although the title to the land was in the name of Mrs. Smith, in contemplation of law it belonged to her husband, it having been conveyed to her during coverture; and- that it was actually his, having been purchased and improved by him with his own funds.
    On motion of the attorney of Mrs. Smith, W. F. Austin, Esq., was appointed auditor to take testimony and report distribution, together with the facts. The money was afterwards ordered into court.
    The auditor reported:—
    “ * * * The defendants in this case are John O. Smith and Adaline Smith, his wife; the lot of ground and house sold under this writ and therein described is in the name of Adaline Smith, who claims the fund. The mortgage given in part payment of purchase-money, &c., was made by Smith and wife to Judge Mel Ion. Hamnett & Son are claimants on the fund to the extent of a judgment against John C. Smith for $165, with interest from October 14th 1870. John C. Smith did not appear; his residence is unknown, but an appearance by attorney was made in his behalf, who making no claim nor presenting any ground for claim, has not been considered by auditor as claimant. Adaline Smith, by a former marriage with John B. Bruner, had three children, of whom she was guardian, and as guardian, on April 25th 1867, entered into articles of agreement with Thomas Mellon, for the purchase of the lot from which this fimd is realized, and for which she was to pay $400 in equal semi-annual payments. Deed to be made to her when all the purchase-money was paid. On October 22d 1868, a deed for the property was made to Mrs. Adaline Smith. I find that the reason of the deed being made to her individually and not as guardian, was that Mr. Mellon requested it, as he told her the mortgage as guardian would not be good. She wanted the deed in the children’s name.
    “ A very common frame house was built, which cost, with other improvements, about $800.45, and the mortgage in thio case was given for unpaid purchase-money, the balance on account of building materials furnished by Mellons, and ninety-five dollars in cash, with probably a small amount of interest, the mortgage being for $825.41, reduced subsequently to $599. The lumber and building materials from Mellons were given on the credit of Adaline Smith, she paying some $50 advance on it and the balance along as she had the money; kept a pass-book with Mellons, in which the materials were entered and the cash credits thereon. She also paid other money for building, &c., to other parties. She also as payment for building furnished boarding to workmen of a carpenter, to about the amount of $60. The money necessary to keep the house during that time she borrowed, and afterwards repaid out of her own funds. John C. Smith paid bills to the aggregate of $30, including some $12.50 in shoemaking. Mrs. Smith gave him the money to pay these amounts, either at the time, before or after their payment. On the 1st day of December Í870, the unpaid balance of mortgage was purchased by G. II. Heuves, as an investment, the property was sold at sheriff’s sale to him for the sum of $1475, and the residue, after payment of the mortgage, is the sum now in court for distribution. The question now is, from what source came the moneys to pay the building and improvements other than that portion included in the mortgage.
    “ Mrs. Adaline Smith, on her own account, and as guardian of her three children by Bruner, a deceased soldier, received for bounty, pension and back pay, $1071.41. From estate of Ephraim Bruner, her husband’s father, $386.33, making a total sum of $1457.80, which she had independently of her husband, John C. Smith. In addition to the payments on house and lot, Mrs. Smith paid on mortgage $229.16, which was paid out of the last instalment of the money received from the Bruner estate. From the uncontradicted testimony of. Mrs. Smith, the auditor finds that all the money expended on and about the building of the house was paid by her out of the sums of money before enumerated; that Smith was a drinking man, insolvent, who did but little work at anything, and was mainly supported by his wife. The testimony of Mrs. Smith is corroborated by that of James Mellon, from whom the materials were purchased, and who acted as the agent of Thomas Mellon in the sale of the lot, who says everything was furnished by them on the credit of Adaline Smith, and that she paid them. Mrs. Smith’s testimony is further supported by the fact that the different payments were made at or shortly after the time of receiving money from pension, Bruner estate, &c. Messrs. Hamnett & Son produced evidence to the effect that Smith had worked on the house and paid some small sums of money and done some shoemaking in payment for work on the property, but this is satisfactorily explained by the evidence of Adaline Smith, who says she furnished him with the money to pay these amounts.
    “ On the facts as found, the auditor is clearly of the opinion that the whole fund should be awarded to Adaline Smith personally, as her position as guardian renders her liable to account in the Orphans’ Court for the moneys derived from the Bruner estate for her children, and that the exceptions to the sheriff’s return should be dismissed at the cost of the exceptants; and for the following reasons :
    “ 1. Where property is claimed by the wife, she must prove not only that she had the means of paying for it, but that she actually did pay for it. The evidence in this case shows conclusively that Adaline Smith did pay for this property and that Smith was insolvent and had no means of paying.
    “ 2. There is no evidence of any collusion between Smith and his wife to defraud the former’s creditors; on the contrary, Adaline Smith swears she was not aware of the debts to Hamnett & Son ; and again the account of Hamnett & Son was not for improvement of the property, but for leather, and it was certainly not purchased on the credit of this property, because at the date of their judgment they had constructive notice of the title, by the deed on record to Mrs. Smith. Seeing no reason why the sheriff’s return should not be confirmed, the auditor reports distribution as therein made, and that the exceptants pay the costs of this audit.”
    Exceptions were filed to this report, and upon hearing it was referred again to Mr. Austin.
    The auditor again reported: * * * “It was agreed by all parties interested that the testimony upon which the first report was based, should be considered in making up this report. After careful i’evision of that testimony, the auditor can see no reason why any change should be made in the finding of the facts, taken from first testimony. In addition to the facts found in first report, the auditor reports the facts as taken from evidence in this reference, as follows:—
    “ John O. Smith, one of the defendants, married Martha Boyd, in Washington county, Pa., about 24 years ago, and had by her four daughters. Ten years ago he sent his wife to her father’s, in Washington county, from Steubenville, Ohio, where they then resided, came himself to Pittsburg, and in 1863 married Adaline Bruner, the other defendant, his first wife then and now living. Adaline Smith (or Bruner) did not know or suspect the existence of Smith’s wife, as he informed her before their marriage that his wife had been dead two years, and she only discovered the fact within a few weeks back and subsequently to the date at which this matter was referred to the auditor for the second time. * * * The auditor finds that the marriage with John O. Smith is void.
    “ A further fact is found bearing, however, only on a matter of costs, and not affecting the merits of the case. John O. Smith, on January 24th 1871, made an affidavit claiming the fund and chai’ging fraud against Adaline Smith and others, and that he had paid the sum of $600 towards building the house under an arrangement between himself and Adaline; she to purchase the lot and he would build the house. The purpose of offering this affidavit in evidence was to show that Hamnett & Son had a strong reason for making claim on this fund. Except as to the question of costs recommended in first audit to be paid by Hamnett & Son, there is no reason why the former distribution should be changed. There is from the testimony taken in second reference the additional reason why Adaline Smith (Bruner) should have the fund, that never having been the wife of John O. Smith, his creditors claiming through him have no standing whatever. Mr. Duff claimed also that the money used in the purchase of this lot and house was, by Adaline’s own showing, the property of her children, and that she, as guardian, embezzled it, and had therefore no property in it. Were this the case it would not benefit, Hamnett & Son, and if it were a question, the second marriage void, but a very small proportion (from Bruner estate) really belonged to Adaline as guardian, as she, and not the children, was entitled to the pension and bounty money, which would only be theirs in the event of a second marriage, and Adaline in receipting for it as guardian did so under under the mistaken impression that she was the wife of John O. Smith, and the $386 received from the Bruner estate, after eight years’ support of the three Bruner children, certainly would be exhausted. Now, as to costs. * * * In addition to the legal presumption that the fund is the property of the husband, Hamnet & Son had a very good and further reason for making their claim, namely the affidavit of Smith himself, and it being-conceded by all that John O. Smith is an exceedingly hard case, the supposition that the deed in his wife’s name was for the purpose of defrauding creditors is natural. This as to costs on the first audit.

      “ The case of this report is different. Hamnett & Son’s belief and assumptions of law were entirely overthrown in the first report, as they introduced no evidence throwing further light on the merits of the case in this reference, they ought injustice be made to pay the costs of this second reference.
    “ Distribution reported as follows:—
    Amount in court . ......$754.89
    Adaline Bruner, ..... $649.39
    Auditor’s fee and certificate first reference paid by J. G. Dicken, Esq., and now for his use, 100.50
    Joseph Boss, Prothonotary, copying first report 5.00
    -$754.89”
    Mrs. Smith filed exceptions to this report, viz., that the auditor should have charged all the costs of the audit to Hamnett & Son, and awarded the amount in court to her. Hamnett & Son filed exceptions that the auditor had not awarded to them the amount of their judgment, and that he had imposed any of the costs on them.
    After argument the court decreed that Hamnett & Son should pay all the costs of the audit ($133.50), and with this alteration confirmed the report of the auditor.
    Hamnett & Son appealed to the Supreme Court, and there assigned for error that the court did not decree the payment of .their judgment from the fund in court, and decreed that they should pay the costs.

      L. B. Buff, for appellants.

      J. O. Bichen, for appellee.
    November 22d 1872,
   The opinion of the court was delivered, by

Sharswood, J.

The facts found by the auditor appointed to distribute the fund in court, are substantially these: Adaline Smith, the real or supposed wife of John C. Smith, having money in her hands, whether her own or as guardian of her ohildren by her former husband, is, as we shall presently see, entirely immaterial, entered into articles with Thomas Mellon for the purchase of a lot of ground, and proceeded to erect a small frame house' upon it. Afterward a deed was executed to her, and she gave a mortgage to the vendor for the unpaid purchase-money, and a balance due him for building materials furnished to her by him. All the money expended on or about the building of the house was paid by Mrs. Smith, no part of it having been contributed by her husband. The house and lot were sold under proceedings upon the mortgage, and after discharging that, the balance was paid into court for distribution. The appellants are judgment-creditors of John C. Smith, the husband or supposed husband of Adaline Smith. It is entirely unnecessary to enter upon any question as to the unlawfulness of the marriage, or whether it can be set up in this proceeding. It is very clear that upon the facts reported by the auditor the appellants had no claim upon the fund, but that it was rightly awarded to Adaline Smith. It has been maintained indeed that if the money used by Mrs. Smith belonged to her children, it was an embezzlement or misappropriation by her to invest it in the house and lot, for which her husband would be legally responsible, and that therefore it ought to be considered in law as belonging to him. The premises may perhaps be true, but the conclusion by no means follows. The utmost inference which could be made would be that upon payment by him to the wards of his wife, he would then have an equitable estate in the land. It may also be that as against Thomas Mellon, the mortgagee, with notice that it was the money of the children, they could follow it into the land, but the sheriff’s sale without notice vested the legal title in the purchaser discharged of the secret trust resulting to them, and they are necessarily thrown upon the fund. Mrs. Smith is their guardian, and in that capacity, if it is their money, she is entitled to receive it. The appellants have no standing in court to contest the right on that ground. The decree of the court below was therefore right in awarding the money to Adaline Smith or Bruner.

It may be that the costs of the first audit, if the matter had rested there, ought not to have been put upon the appellants. But they renewed their claim with full knowledge of the facts upon the second audit, and it was agreed that the testimony taken on the first audit should be received, and used on the second. Under these circumstances we think that the order by the court below, that the appellants should pay the costs of the audit, was also right.

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


author: "Williams, J.

text:
    Hunter’s Appeal.
    1. Ross sued Hunter, judgment was rendered for Hunter; this was reversed ; attachment executions were issued on judgments against Rosg, and judgment recovered against Hunter as garnishee. He did not plead the attachments to the suit: as the case was about to be again tried, negotiations for settlement were had and Hunter agreed to confess judgment for $280. Held, that this sum was not subject to the attachments.
    2. Hunter obtained a rule to have the judgment entered subject to the attachments, the rule was discharged. Held, to be a decision that the judgment was exclusive of the attachments.
    3. The presumption was that the settlement was with understanding that the confession was exclusive of the attachments.
    November 12th 1872.
    Before Thompson, C. J., Read, Agnew, Shaeswood and Williams, JJ.
    Appeal from the District Court of Allegheny county: No. 124, to October and November Term 1872.
    J. & S. S. Ross filed a mechanics’ lien to July Term 1868, against James Hunter for $788.52.
    On this lien a scire facias was issued, and on the trial a verdict was rendered for the defendant; the judgment on the verdict was reversed in the Supreme Court. On the 16th of January 1869, J. & S. S. Ross assigned $100 of their claim against Hunter to J. C. Dicken, Esq.; the assignment was noted on the record. On the 12th of April 1869, Hartman & Lane recovered a judgment against J. & S. S. Ross, and an attachment execution was issued in which Hunter was garnishee: judgment for $21.47 recovered against him as garnishee on his answer to interrogatories ; on the same day judgment was recovered by John Boyd against J. & S. S. Ross, and judgment for $20.70 recovered against Hunter as garnishee in an execution attachment.
    On the 5th of October 1869, J. & S. S. Ross assigned to William Blakely, Esq., $25 of their claim on Hunter. On the 25th of January, and November 1st 1870, they assigned all their claim to J. C. Dicken.
    The record then shows the following entry in the case :—
    “October 28th 1870, the defendant, per writing filed, tenders judgment in favor of the plaintiffs for $268, and costs of suit up to this day. December 13th 1870, settled by counsel, and defendant confesses judgment in favor of plaintiffs for $280, and all costs except plaintiff’s witnesses at this term. December 14th 1870, rule on plaintiffs to show cause why the judgment confessed and accepted in this case should not be marked subject to the execution attachments served heretofore on the defendant, as garnishee of plaintiff, and, in the mean time, all proceedings stayed, and the plaintiff is enjoined from assigning the said judgment, unless subject to the said attachments, and with notice of this rule. March 8th 1871, on argument list, and rule discharged.”
    On the 13th of June 1871, Hunter was ordered to pay into court the amount of the judgment, to abide the further order of the court. The money having been paid into court, Walter E. Austin, Esq., was appointed auditor to make distribution.
    Before the auditor the evidence was, that just as the case was going to the second trial, a negotiation was commenced between the counsel of the respective parties for a settlement. Different sums were offered and demanded, and finally Hunter’s counsel agreed to confess judgment to the plaintiff for $280, as stated in the record. There was evidence on the part of Hunter that in the negotiations, it was understood that whatsoever sum might be given, would be subject to the legal effect of the attachments, but that after the confession the obligation to pay them was denied.
    On the other side the evidence was that nothing was said about the attachments during the negotiation for settlement, and that the amount for which judgment was confessed would not have been accepted, if it had been understood that the attachments were to be deducted. There was a good deal of evidence on both sides bearing on these points, besides the facts as to the record proceedings and the attachments. The auditor reported:—
    “ When Mr. Palmer, counsel for Hunter, confessed judgment in this case, it was with the understanding, inferred from conversations with Mr. Dicken, counsel for defendant, that the confession was as a matter of course only in liquidation of the amount claimed by the Rosses at institution of suit, and was to be subject to attachments spoken of, though taking Mr. Palmer’s own testimony, there was no explicit agreement to that end, and certainly nothing said about the matter at the time the judgment was confessed. * * *
    “ On the other hand, Mr. Dicken understood the matter differently, that as the whole amount had been assigned to Gen. Blakely and himself, he considered it only as a confession to them, and over and above the attachments, and that he would not have agreed to a confession otherwise, and that Mr. Palmer did not mention the matter at the time. * * *
    “The auditor is of the opinion, that the judgment is subject to the attachments, and that Messrs. Dicken and Blakely as equitable plaintiffs took no more than the plaintiff had to give at the date of assignments, and if they knew of the existence of these attachments, it was their duty to have had the payments so marked. The confession having the same effect as the verdict of a jury, it is certainly unreasonable and unjust to make Hunter pay these attachments over and above that verdict. As to the matter of adjudication by the court, the order of court appointing an auditor negatives that position. If the discharge of the rule entitled the Rosses to the fund, why appoint an auditor, or order the money into court?”
    The auditor accordingly awarded payment of the attachments out of the land, and after taking out G-en. Blakely’s amount and expenses of audit awarded the balance to Mr. Dicken.
    Dicken filed exceptions to the report, viz.:—
    Awarding .payment of the attachments; not charging the costs of the audit to Hunter.
    The court sustained the exceptions to the report, and directed Hunter to pay the costs. Hunter appealed to the Supreme Court and assigned for error, that the court did not allow the attachments, and directed him to pay the costs.

      S. Palmer and D. Bruce, for appellant.
    Hunter was not bound to plead the pendency of the attachments in abatement: Brown v. Scott, 1 P. F. Smith 57.

      J. O. Bichen and W. Blahely, for appellee'.
    Hunter not having pleaded the attachments in abatement, is estopped': Maynard v. Nekervis, 9 Barr 81; Fitzsimmons’ Appeal, 4 Id. 248; Irvine v. Lumbermen’s Bank, 2 W. & S. 190; Lowry v. Lumbermen’s Bank, Id. 210.
    January 6th 1873,
   The opinion of the court was delivered, by

"Williams, J.

It is conceded that if the judgment confessed by the appellant is not subject to the attachment executions previously served on him as garnishee of the plaintiffs, then the court was right in sustaining the exceptions to the auditor’s report, and decreeing the fund to the plaintiffs’ assignees. There is nothing on the record to indicate that the judgment was confessed subject to the attachments. They were not pleaded, nor otherwise brought to the notice of the court. The amount for which the judgment was confessed and accepted, was the result of compromise, as is apparent from the record, and as the evidence shows. The case had been previously tried before a jury, and the judgment reversed; and just as it was about to be called for a second trial the judgment was confessed for a sum less than that demanded by the plaintiffs, but exceeding the amount for which the appellant had tendered judgment. It does not appear that anything was said in relation to the attachments at the time the judgment was confessed, though they had been previously spoken of by the parties; nor is there any evidence showing the basis on which the compromise or settlement was made. But'the next day after the judgment was entered the appellant obtained a rule on the plaintiffs to show cause why the judgment confessed and accepted in this case should not be marked subject to the execution attachments served heretofore on the defendant as garnishee of the plaintiffs, and in the meantime all proceedings stayed, &c. After the lapse of more than three months the court discharged the rule. This, as it seems to me, was in effect deciding that the judgment was not confessed and accepted with the understanding that it was to be subject to the attachments, or to a credit for the amount of the judgment rendered therein against the appellant as garnishee; and if so, why should he not be bound by the adjudication ? But if it cannot be regarded as conclusive, it is at least primá facie or presumptive evidence that the judgment wa,s not confessed subject to the attachments; and as there is nothing to rebut it, it must be accepted as conclusive. It does not follow that the judgment is subject to the attachments because they were served on the appellant prior to its confession. His liability for the amount of the attachments had then been fixed by the judgment rendered against him therein; and he may have taken them into account in confessing the judgment. If he did, it is clear that he is not entitled to have any portion of the money which he paid into court, in discharge of the judgment, applied to the satisfaction of the judgments in the attachments. The finding of the court below, in whose presence the judgment was given, that it was not confessed with the understanding that it was to be subject to the attachments, is entitled to great weight, and ought not to be reversed or set aside without some evidence tending to show that it was a mistake. This is not a controversy between the plaintiffs attaching creditors and assignees. The attaching creditors are not seeking to have the fund applied to the satisfaction of their judgments against the appellant as garnishee of the plaintiffs. They did not appear before the auditor, and they are in no sense parties to this proceeding. The appellant is the only party claiming to have the attachments satisfied out of the money in court, and it is clear that he has no right or equity to have the fund so applied if the judgment, as confessed, is not subject to the attachments. It may be that the appellant confessed the judgment under the impression and belief that it would be subject to the attachments, but how can we say that this was the understanding of the plaintiffs’ assignees, in face of the presumption arising from the record, and the other evidence in the case ? If the assignees, as alleged, would not have accepted judgment, subject to the attachments, for the amount for which it was confessed, it would be doing them injustice to apply the fund to the satisfaction of the attachments.

For these reasons the decree of the District Court must be allowed to stand.

Decree affirmed at the costs of the appellant.


text:
    King versus Blackmore.
    1. King leased to Lynn; Blackmore became surety for the rent; King distrained; Lynn replevied, and the goods were delivered to him; pending the action King sued Blackmore on his suretyship. Held, that the pending replevin did not bar the action.
    2. As soon as the rent was due and unpaid a cause of action arose against the surety.
    3. The sheriff’s liability and the replevin-bond are but a means of producing satisfaction, but not payment of the debt the surety.
    4. The distress was not satisfaction of the debt.
    5. On paying the rent the surety can prosecute the replevin to final judgment, and is entitled to subrogation to the replevin-bond; and can require the tenant to defend in the action against him as surety. "
    " 6. Quinn v. Wallace, 6 Wharton 452, distinguished.
    November 12th 1872.
    Before Thompson, C. J., Read, Agnbw, Shakswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 96, to October and November Term 1872.
    This was an action of debt by D. C. King against James Black-more, brought to December Term 1871.
    The affidavit of claim was for $150, one quarter’s rent, due on the 1st of October 1871, by William Lynn, under a lease between the plaintiff and Lynn, dated January 31st 1871, the defendant having become bound as bail absolute to pay the rent and perform the covenants stipulated for in case of Lynn’s default, and averring that Lynn had not paid the rent.
    The lease, which was filed with the affidavit of claim, was for renting a dwelling-house, &c., to Lynn for a year from April 1st 1871, for a rent of $600, payable in quarterly payments of $150 each, on the 1st days of July, October, January and April following, with some other stipulations. The defendant became bound for the performance by Lynn of the covenants in the lease by the following instrument:—
    “For a valuable consideration, as well as in consideration of the letting of the above-described premises unto the said party of the second part, I hereby become security, as bail absolute, for the payment of the rent, and performance of the covenants, in the foregoing agreement mentioned, by the said party of the second part to be paid, kept, done and performed. And in the event any default shall be made therein, I hereby covenant and agree to pay unto the said party of the first part such sum or sums of money as will be sufficient to make up any deficiency, and fully satisfy the conditions of the said agreement, without requiring any notice of nonpayment or proof of demand being made.”
    The affidavit of defence, amongst other things, averred that the plaintiff issued a landlord’s warrant and distrained the goods and chattels of Lynn to compel the payment of the rent mentioned in the affidavit of claim; that Lynn replevied the goods; that the replevin remains undetermined, and averred that the plaintiff could not have two actions pending and undetermined for the same debt. There were allegations also of the non-performance by the plaintiff of his covenants in the lease.
    On the trial, May 21st 1872, before Sterrett, P. J., the plaintiff having given in evidence the lease of Lynn, and the defendant’s covenant of suretyship rested.
    The defendant then gave in evidence, under objection and exception, the record of an action of replevin, Lynn v. King (the plaintiff here), brought October 31st 1871, in the District Court of Allegheny county, No. 623, to November Term 1871, being for goods distrained for the rent for which this suit is brought. The goods were delivered by the sheriff to Lynn, he having given a replevin bond.
    The court charged:—
    “ The defendants claim that the proceedings in replevin pending in the District Court of this county are a bar to the plaintiff’s recovery in this case; and in this position he appears to be sustained by the authority cited. Inasmuch, however, as we have a similar question to be considered by the court in banc, we instruct you in this case pro forma that said proceedings are not a bar to the recovery of the plaintiff in this case, and that your verdict should — under the evidence before you — be in favor of the plaintiff for the amount of the three months’ rent claim with interest. Your verdict will be taken subject to the opinion of the court in banc on tbe question of law reserved, viz.: Whether the distress and proceedings in replevin in No. 623, of November Term 1871, in the District Court are a bar to the plaintiff’s action ? and if the court shall be of the opinion that the law is with the plaintiff, then judgment to be entered in his favor is the verdict; but if the court shall be of a contrary opinion, then judgment to be entered in favor of defendant, non obstante veredicto.”

    The verdict was for the plaintiff for $155.77.

      The court afterwards entered judgment for the defendant non obstante veredicto.

    The plaintiff removed the record to the Supreme Court by writ of error, and assigned for error entering judgment for the defendant.

      J. W. Hall, for plaintiff in error.

      B. F. Lucas, for defendant in error, cited Quinn v. Wallace, 6 Wharton 452.
    January 6th 1873,
   The opinion of the court was delivered, by

Agnew, J.

— This was an action in the court below, against the defendant as surety, upon a distinct, several and independent covenant, as bail absolute to pay the rent of William Lynn, a tenant, in consideration of the letting, and for a valuable consideration, it said also. The instant the rent fell due and was unpaid by Lynn, a cause of action arose against Blackmore, the surety. There cannot be a doubt that King could have sued the tenant for the rent, and brought an action also against the surety, and prosecuted both suits concurrently until he obtained satisfaction from one of them. As the plaintiff’s right of action against the surety was immediate, independent and concurrent, it is plain that the distress merely of the goods of the principal was not, ipso facto, a bar or a suspension of the plaintiff’s remedy against the surety. The true question, therefore, is whether the distress upon the tenant’s goods followed immediately by a replevin by the tenant and a return to the writ by the sheriff, that he had executed the writ by delivéring the goods to the plaintiff in the replevin, is such an extinguishment or satisfaction in law, as will discharge the surety from his separate covenant. On principle clearly it is not, for the goods were not sold, but went back into the possession and custody of the tenant as his own property, and by his own act; and the landlord had in lieu of the distress only the replevin-bond, and the liability of the sheriff for the solvency of the sureties in the bond; both of which were mere ehoses in action, and not satisfaction per se. Even in the case of a levy upon execution, the levy is not a satisfaction when the goods remain in the hands of the defendant in the writ, or are restored to him at his own instance : Cummins’ Appeal, 9 W. & S. 73; Lytle v. Mehaffy, 8 Watts 275; Davids v. Harris, 9 Barr 501; Cathcart’s Appeal, 1 Harris 421. The replevinbond and sheriff’s liability are but a means of producing ultimate satisfaction, but are not in themselves payment of a precedent.and absolute debt, as the sureties’ debt here was. They are neither money nor goods. The very ground upon which the sheriff’s ultimate liability stands was rested by Shippen, President, in the leading case, upon the hardship of the case of the landlord; “for (says he) by the replevin he is divested of the immediate security of his tenant’s goods, and yet has no right to interfere in the choice of sureties, that undertake to see them returned when he has established his demand:” Oxley v. Cowperthwaite, 1 Dallas 349-50.

The court below founded its decision on the supposed authority of Quinn v. Wallace, 6 Wharton 457. But that case is no precedent for this. That case decided that a landlord who has made a distress on goods of his tenant, cannot make a second distress on the goods of an undertenant without showing that the distress upon the goods of the tenant was insufficient or rendered unproductive by the act of God, or of the tenant himself; and that the burthen of the proof of the insufficiency or unproductiveness of the distress lay on the landlord, who, having taken the goods into possession, is presumed to have put them to sale, as he is bound to do under the Act of 1772, and consequently has it in his power to show the result of the sale. But the present caso is clearly distinguishable from that, on the very ground that the record of replevin and sheriff’s return show that the goods were made unproductive by the act of the tenant himself, who has had them returned into his own possession, and the liability of the bond and of the sheriff substituted. The record of the replevin and return, therefore, show that the distress was no satisfaction, and consequently no bar to the independent action against the surety on his several covenant as bail absolute for the rent. Nor can the surety or bail complain of this. His liability is original, concurrent and prior to the distress. If he has to pay he will be entitled by subrogation to the security of the replevin-bond: see Burns v. Huntingdon Bank, 1 Penna. Rep. 395; Pott v. Nathans, 1 W. & S. 155; Armstrong’s Appeal, 5 W. & S. 352. He can prosecute the action of replevin to final judgment, and avail himself of the security of the replevinbond. In the meantime he can protect himself against the risk of mispayment, by a notice to the tenant, as his principal, to defend the suit of the landlord against himself on his covenant as surety for the rent. Why then should the landlord be deprived of his concurrent remedy against the surety by a replevin, which itself accounts for the distress, and shows that it was made unavailable by the tenant’s own act ? The consequence flows from the. very form which the contract was made to take by the mutual acts of the parties; that is to say, two separate and independent agreements for the debt. Like the several liabilities of drawer and endorser, the remedy against each is complete and independent, and can be pursued, concurrently with the other, to judgment and execution, and can be ended only by actual payment or a legal extinguishment which satisfies the debt. The distress and replevin were not a bar to the plaintiff’s action, and the court erred, therefore, in entering judgment for the defendant non obstante veredicto.

The judgment is reversed, and judgment is now entered for the plaintiff on the verdict, with interest since the rendition thereof, and costs.


author: Thompson, C. J,

text:
    Weise’s Appeal.
    1. Decrees for specific execution are not of right, but are within the discretion of the chanoellor.
    2. When the equity of the plaintiff is not clear or the case unconscionable or inequitable, specific execution will be refused and the plaintiff left to his action at law.
    3. Weise in writing authorized Lyon to sell land, a sale to be binding on Weise if made according to conditions named ; if, through Lyon’s agency, “a purchaser is sent to or induced to negotiate with me and we consummate a sale,” Lyons was to be entitled to commissions as if he had conducted the negotiations. “If taken out before sold within four months, I will pay--dollars for advertising.” Held, that the purchaser from Lyons was, by the terms of the paper, put on his inquiry from the principal whether the authority had been revoked.
    November 12th 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the District Court of Allegheny county: In Equity: No. 114, to October and November Term 1872.
    This was a bill, filed to November Term 1871, by Thomas R. Sill against Frederick Gr. Weise.
    The bill averred:—
    1. The defendant owned a tract of land in Ross township, &c., and on the 6th of June 1871, by written authority under his hand and seal, empowered H. B. Lyon to sell the land at $1300 per acre.
    2. Lyon in pursuance of this authority, by writing on the 22d of September 1871, agreed that the defendant, on or before the 1st of November then next, would convey to plaintiff by good deed, &e., the said tract of land in fee; the terms to be $100 on executing the agreement, one-third of the purchase-money less the $100 on the 1st of November then next, and the remainder in four equal annual instalments, to be secured by bond and mortgage on the .premises.
    3-4. The plaintiff paid Lyon the hand-money, and on the 1st of November 1871, tendered to Weise the remainder of the first instalment, and offered to execute a bond and mortgage for the other instalments according to the agreement, but Weise refused to receive the money tendered, or to comply with any part of the agreement.
    The prayer was for a decree against Weise for specific execution of the agreement, &c.
    The authority to Lyon was as follows:—

      “ Memorandum of enlistment: ¡

    “I, E. G. Weise, of Allegheny county, have authorized H. B. Lyon to sell for me a tract of 11 acres, more or less, lying in the county of Allegheny. Any sale of the above-mentioned property by said Lyon or any of his agents will be binding upon me if made on the conditions named in the description given by me. I bind myself to pay the said Lyon a commission of two per cent, upon the whole amount of such sale, to be taken out of the first cash payment made on said property, and it is declared to be the true intent and meaning of this agreement that if through the agency of the said Lyon or his agents, or by his or their instrumentality, a purchaser for said land is sent to or induced to negotiate with me in person, and we consummate a contract of sale between ourselves, without other agency on the part of said Lyon, it is to be taken and considered as the performance of their part of this agreement, so as to entitle them to the said commission as fully as if they had personally conducted the whole negotiations. If taken out before sold, within four months from this date, I will pay-dollars for advertising said property. Examinations and preparations of title-papers in the event of a sale, are to be paid for by me.
    “Given under my hand, this 16th day of June 1871.
    E. G. Weise. [l. s.]”
    On the back of the above is the following:—
    “ Acres more or less in Ross township. Improvements, one frame house, frame stable, good spring, fruit trees, grapes and shrubbery. Terms $1300 per acre, one-third in hand, balance in four equal annual payments, with interest.”
    The agreement of sale was as follows:—
    “Article of agreement made and concluded the 22d day of September, A. D. 1871, between E. G. Weise, of, &c., by his agent H. B. Lyon, of, &c., of the first part, and Thomas R. Sill, of the city of Pittsburg, of the other pai't:
    “ Witnesseth, that for and in consideration of the sum of thirteen hundred dollars per acre, to be paid and secured as hereinafter set forth, the said party of the first has sold and by these presents for himself, &c., does covenant to and with the said party óf the second part, his heirs and assigns, that he the said party of the first shall and will on or about the first day of November 1871, by a good and sufficient general warranty deed, grant, &c., to the said party of the second part, his heirs and assigns, all that certain tract of land situate, &c., containing eleven acres more or less.
    “ And the said party of the second part agrees to pay the said sum of thirteen hundred dollars per acre with lawful interest, in manner following, viz.: One hundred dollars on the execution of this agreement, the receipt whereof is hereby acknowledged, the one-third of the purchase-money (less'$100) on or about the 1st day of November 1871, and the remainder in four equal annual payments, to be secured by bond and mortgage on the premises, on delivery of the deed.
    “ In witness, &c., H. B. Lyon, Agí., [seal.]
    Thos. R. Sill. [seal.]
    The defendant answered, admitting the allegations in the first paragraph of the bill, but averring that on the 14th of August 1871, and before the sale set out in the second paragraph, he had revoked the authority to Lyon, and notified him to make no further effort to sell the property; and that the sale was without authority, and after Lyon had ceased to be his agent.
    Robert Arthurs, Esq., was appointed examiner and master.
    The master reported, stating the authority of Lyon and the agreement, and that “the property was withdrawn or taken out of the hands of H. B. Lyon as agent, on the 14th day of August, A. D. 1871.
    “ The plaintiff, on the first day of November, A. D. 1871, made" a tender of one-third the amount of purchase-money to F. Gr. Weise, the defendant, and up to this time had no actual notice that the property had been withdrawn from sale or taken out of the hands of Mr. Lyon, as agent, before said agreement was entered into.
    “ The article of agreement between H. B. Lyon, agent, and Thomas R. Sill, was acknowledged by the parties on September 25th 1871. The day after it was shown to the defendant and repudiated by him, and the same day the publication of a notice in the Qhronitie, of the authority to Lyon to sell having been withdrawn, and recorded on September 26th 1871.
    “ The opinion of the master on the facts is as follows, viz.:—
    “ 1. The document entitled ‘ Memorandum of Enlistment,’ is not such an authority as would justify the agent in making a conveyance or receiving the purchase-money; it merely authorizes a parol sale, which as such would be as binding upon the principal as if made by himself. It has none of the necessary forms of a power of attorney, but merely what it purports to be, the enlistment of an agent to aid the principal in making a sale. It was not acknowledged nor intended so to be.
    í “ 2. The property, being, on the 14th day of August 1871, withdrawn from sale, or taken out of the hands of said H. B. Lyon as agent, he had no authority after that date to make any sale or in anywise dispose of the same.
    “ 3. The article of agreement of September 22d 1871, between H. B. Lyon and Thomas R. Sill, has no binding effect upon F. Gr. Weise, the defendant, the said Lyon having no sufficient authority to execute such an agreement.
    “4. Although the said Thomas R. Sill had no actual notice of the withdrawal of said property from sale, yet there was sufficient in the body of the ‘ Memorandum of Enlistment ’ to put him upon inquiry, and having read this paper before making any contract, it was his duty to ascertain from the principal himself what power remained in the agent, and to anticipate the contract only to be binding when executed by the principal himself.”
    Sill filed several exceptions to the master’s report; the last was that he had not found that the plaintiff was entitled to a decree.
    After argument, the court decreed that the exceptions be sustained, and that the defendant should convey to the plaintiff the land mentioned in the agreement upon the plaintiff's making the payment and giving the bond and mortgage as stipulated in the agreement: and that the defendant should pay the costs.
    The defendant appealed to the Supreme Court and assigned the decree for error.

      S. Sehoyer, Jr. (with whom was S. Q. Sehoyer), for appellant.

      M. W. Aeheson (with whom was J. W. Riddell), for appellee.—
    As to effect of a revocation of agent’s authority: 2 Kent’s Com. 8$4; Story on Agency, sec. 470; Morgan v. Stell, 5 Binn. 305.
    November 22d 1872,
   The opinion of the court was delivered, by

Thompson, C. J,

— Decrees in equity for specific execution are not like judgments at law — a matter of right; they are within the discretion of the chancellor and of grace: Miller v. Henlan, 1 P. F. Smith 265; Freetly v. Barnhart, Id. 281. As a rule, whenever the equity of the party under his-contract is not clear, or his case is unconscionable or inequitable, courts of equity refuse specific execution, and leave the party to his action at law to recover damages for the breach of the contract.

We agree with the learned master, that the instrument entitled u memorandum of enlistment,” if it is to be regarded as a power of attorney, was in such terms as ought to have required an inquiry by the purchaser from the agent of his principal as to whether it remained in force still, as upon its very face there was a provision for the contingency of revocation within four months. Had that inquiry been made he would have found that at the date of the contract, it had been revoked more than a month before. Besides, the slightest attention to it would have raised a suspicion of the right of Lyon to enter into a specific contract. He was only authorized to make a sale of the property, “ if. made on the conditions named in the description given by me.” These-are the terms of the “memorandum of enlistment” itself. But the conditions do not appear in the authority to the agent. The memorandum on the back of the papers ivas the work of the agent, and not signed by the principal. This should have been the subject of inquiry by the complainant. So, too, he could find no authority for the payment of money on the footing of the contract to Lyon; nor for the payment, by instalments extending four years, for the balance of the purchase-money. I incline to the master’s view of the case, that the expected service of the agent was to find a purchaser; the principal himself to hear and approve of the terms. It is not necessary to settle this definitely now. But these things show that the purchaser dealt recklessly, and in such a way as to involve the respondent in a contract, when in fact there was no authority to make one for him at the time, and after he had concluded not to sell the property but keep it himself. An inquiry would have resulted in information that would have saved all trouble to both parties. There was enough on the face of the authority to have made this a conscionable duty on part of the plaintiff. The only equity that he has shown is simply the payment to the agent of $100. No possession or improvements followed the contract, and this payment can be compensated, as also any other legitimate damages, in an- action at law. We think specific execution should not be decreed, and this is our conclusion without definitely saying whether the contract between Lyon and Sill can be regarded as totally without authority or not. We leave that to be decided in a suit at law, if the complainant chooses to try it. Certainly he will be at least entitled to his money back from either the principal or agent.

The decree of the court below in this case is reversed, and the bill of'the complainant is dismissed, without prejudice, at Lis costs.