text:
    Galbraith et al. versus Walker.
    1. In an action by a sheriff to recover the costs due to him for services, interest will not be allowed on the amount thereof.
    2. Baum v. Reed, 24 P. F. Smith 322, and Rogers v. Burns, 3 Casey 528, followed.
    October 18th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Tritnkey, Sterrett and Green, JJ,
    Error to the Court of Common Pleas of Erie county: Of October and November Term 1880, No. 79.
    Assumpsit by Thomas M. Walker against William A. Galbraith and Charles Brandes.
    This was a case stated, and was filed by agreement of the parties as if a judgment had been obtained before an alderman and an appeal taken therefrom.
    The following facts were agreed upon for the opinion of the court: The claim of the plaintiff is as follows: In No. 169, May Term 1873, of said court, the defendants had issued a summons in partition. The plaintiff was at that time sheriff of said county, and served the writ and alias summons No. 7, September Term 1873.
    November 8th 1880.
    His fees for service, travel, mileage and advertising were $24.21 Interest from September 1st 1873 to February 1st 1879
    5 y.ears and 6 months . . . . . . 7.97
    $32.18
    The defendants deny their liability for interest.
    If the court be of opinion that the fees of the sheriff bear interest, they shall enter judgment for the plaintiff for $32.18 with costs. If they be of the opinion that the plaintiff is not entitled to interest on his fees, they shall enter judgment for the plaintiff for $24.21 without costs, and that the plaintiff shall pay the court and other costs of the case.
    The case was submitted to McDermitt, P. J., of the Thirty-fifth Judicial District, who entered judgment for the plaintiff, which action was assigned for error by defendants who took this writ.

      L. S. Norton, for plaintiffs in error.
    Interest on costs lias never been allowed in Pennsylvania: Rogers v. Burns’s Adm’r, 3 Casey 525; Baum v. Reed, 24 P. F. Smith 320.

      John P. Vincent and J. W. Wetmore, for defendant in error.
    If an officer becomes an actor and brings assumpsit to recover payment for his services, there is no reason why he should not recover interest, and no decision of this court against it. If his fees have been collected in the suit in which they were earned he takes them, and no question about interest arises. But if not paid there, and he is delayed and compelled to collect from his employer, as the amount was due as soon as the service was rendered, he is entitled to interest.
   Mr. Justice Green

delivered the opinion of the court,

In the case of Rogers v. Burns, 3 Casey, on p. 528, we said: But the court below allowed interest on the judgment for costs. By the common law of England this is not allowed: 14 Viner’s Abr. 457; Sweatland v. Squire, Id. 458 ; Butler v. Burk, 2 Salk. 623 ; 3 Jacob’s Law Dic., tit. Interest. In Pennsylvania the same rule prevails, and the statute allowing interest on judgments is held to apply to the debt alone and not to the costs : 2 Dall. 105, note; McCausland’s Adm’rs v. Bell, 9 S. & R. 390.”

In Baum v. Reed, 24 P. F. Smith, on p. 322, we said: “ It is certainly the settled general rule in this state that costs do not bear interest. The best evidence of this is the universal practice of endorsing executions. On the fi. fa. or other writ, the debt is stated, followed by the date from which interest is to be computed, and then come the costs without rate of interest. Such is the mode of endorsement, no matter how many years have elapsed from the entry of judgment. Even after, a.revival of the judgment, the same practice is pursued, the first costs being marked as on the original, and the second as on 'the scire facias.”

We see no reason for changing the rule thus laid down. We understand it to be the uniform practice'in all parts of the state not to allow interest on costs to the officers to whom they are due. There is no statute, course of decision or practice authorizing or justifying such allowance, nor is -interest a natural or necessary incident to costs in any view of the subject. Of course we except from these remarks the case of an actual payment of costs by a party. There interest may be allowed as on money paid and expended. But that is not this case. This is an ordinary case of a claim by a sheriff for costs due him for services in a cause. The court below allowed interest on the costs, and in this there was error.

Judgment reversed, and judgment is entered here on the case stated in favor of the plaintiff for $24.21.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    McNish versus Reynolds, Lamberton & Co.
    When, at the moment for the performance of a contract by one party both agree to a postponement the new contract is as valid as the old, and the .' mutual promises, the one to deliver and the other to accept and pay, are ' ample considerations to sustain the new contract.
    October 19th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Venango county: Of October and November Term 1880, No. 276.
    Assumpsit by W. C. McNish, to the use of F. R. Martin, against J. B. Reynolds, S. H. Lamberton and R. Colbert, trading as Reynolds,-Lamberton & Co.
    At the trial, before Taylor, P. J., it appeared that in April 1877, W. C. McNish agreed to buy of George Van Vleck five thousand barrels of'oil, on or before December 31st 1877, at seller’s option, at the rate of $2.51J per barrel. To secure the faithful performance of his contract, McNish deposited with the defendants' $2500 as a margin.
    It appeared from the testimony'of MeNish, that on June 21st 1877, Van Vleck, through his broker, one Bettes, tendered the oil at Titusville to MeNish, when the latter informed him that he could not take the oil at that time and pay for it, but could if he was given a little more time. Bettes then referred him to Van Vleck, and on the same day McNish went to Oil City and saw Yan Yleck, when, as McNish testified] the following interview was had:—
    “ I told him that owing to the failure of the bank, my funds being all locked up in the bank I needed a little time to make different arrangements, which, if'he would grant, I would take the oil. He asked me how long I wanted. I told him I could arrange for thirty days. He replied that if I would take the oil up, he would give me the month of July to take it in. I told him I would arrange to take the oil in the month of July, and that was agreed upon, and we separated.”
    McNish further testified that this tender was not withdrawn. Van Vleck, on the contrary, testified that when McNish declared that he was unable to take the oil, and asked for time, he, Van Vleck, had simply withdrawn the tender.
    The contract was assigned by McNish to B. E. Martin, July 18th 1877, and on the last day of July 1877, A. H. Bronson, the agent of Martin, went to Oil City with the money to pay for and take the oil. He called on Bettes, who declined to have anything to do with the contract, and Yan Yleck was not to be found, he being, as it was afterwards disclosed by the evidence, at Buffalo, N. Y. About November 8th 1877, Bettes again tendered certificates to Bronson, and the latter alleging that he had performed or offered to perform on behalf of McNish, declined to accept, and the certificates were sold.
    Martin’s agent, Bronson, demanded the $2500 margins from Reynolds, Lamberton & Go., but they having been indemnified by Yan Yleck, refused to pay to Martin, and subsequently paid them to Yan Yleck. This suit was then brought to recover said amount, with interest.
    The third point of the defendants, which the court affirmed, was as follows:—
    If the tender of June 1877 was not withdrawn, the rights and liabilities of the parties were fixed by the tender and failure to accept the oil and pay for it, and could not be changed except by a new contract founded upon a new consideration.
    In the general charge, the court, inter alia, said :—
    “ If we remember aright, the plaintiff swore that the tender of June 21st was not withdrawn. You will remember the evidence for yourselves, and not as we remember it, and we instruct you as matter of law, if that be true he cannot recover in this case, without a new and sufficient consideration, of which there is no evi dence here. But if you believe the defendants that the tender was withdrawn, and if you believe the balance of what the plaintiff says about the contract, that he should have the right to tender the money during the month of July, if you are satisfied from the -weight of evidence that this is true, then he might recover upon the evidence of the defendants.”

      November 8th 1880.
    Verdict for defendants, and after judgment thereon plaintiff took this writ and alleged that the court erred, -inter alia, in the answer to the above point and the foregoing portion of the charge.

      F. B. Guthrie and Julius Byles, for plaintiff in error.
    In the case of a parol contract, a subsequent parol agreement to enlarge the time of performance is binding. The mutual promises of the parties to deliver and accept and pay are ample consideration for the new contract: Greenl. on Ev., sect. 304 ; Carrier v. Dilworth, 9 P. F. Smith 406; Wilgus v: Whitehead, 8 Norris 131; Robinson v. Batchelder, 4 N. H. 40; McCombs v. McKennan, 2 W. & S. 216; Keating v. Price, 1 Johns. Ch. 22. Forfeitures will only be enforced when it is clearly apparent that such was the intent of the parties.

      C. Heydrick, for defendants in error.
    The statement of the rule, in Wilgus v. Whitehead, 8 Norris 131, relied upon by plaintiff’s counsel, as well as in Goss v. Lord Nugent, 5 B. & Ad. 58, and in Chitty on Contracts 154, plainly implies that after the breach of a written contract, its terms cannot be varied by an oral agreement without a new consideration. And the reason is obvious. After a breach there are no covenants to be performed, and consequently none to be varied ór modified; the rights and obligations of the parties are changedit is no longer a question of performance ; it has become a question of damages. The right of the party who has performed or tendered performance to damages is fixed by the other party’s breach and cannot be divested without a consideration. And so, it is conceded, might a new contract between Van Vleck and McNish have been sustained. íhe mutual promises would have been the consideration,'each for the other, but not for a relinquishment of damages for the breach of a former contract: Wilgus v. Whitehead, supra; Goss v. Lord Nugent, 5 B. & Ad. 58.
   Mr. Justice Trunkey

delivered the opinion of the court,

Van Vleck contracted to sell to McNish five thousand barrels of oil at $2.51J per barrel, to be delivered at seller’s option, at any time from April 20th to December 31st 1877, to be paid for as delivered. McNish testifies, that on the last day of June, at Titus-ville, Bettes, acting for the seller, tendered the oil to the buyer, who answered that he was not in condition to take the oil and pay for it, but could if he had a little time; whereupon the agent referred him to his principal. On the same day he went to Oil City and there met the principal, Van Vleck, and what passed he states thus : “I told him that owing to the failure of the bank my funds were all locked up in the bank; that I needed a little time to make different arrangements, which, if he would grant, I would take the oil. He asked me how long I wanted. I told him I could arrange for thirty days. He replied that if I would take the oil up he would give me the month of July to take it in. I told him I would arrange to take the oil in the month of July, and that was agreed upon, and we separated.” He also said the tender was not withdrawn. For the purpose of the present inquiry this statement must be taken as true. It may have been exceedingly generous, or very foolish, in Van Vleck to change the contract into a buyer’s option for one month, and the jury might not have believed a word of it; but if they did believe it they were instructed that, unless the tender was withdrawn, the plaintiff could not recover, without a new and sufficient consideration, of which there is no evidence.” Whether this instruction was correct is the sole question here.

An accepted rule, applicable to such contracts as these parties originally made, was stated in Goss v. Lord Nugent, 5 B. & Ad. 58, as follows: “ After the agreement has been reduced into writing, it is competent to the parties, at any time before the breach of it, by a new contract not in writing, either to waive, dissolve or annul the former agreement, or in any manner to add to, or substract from, or vary or qualify the terms of it, and thus to make a new contract; which is to be proved, partly by the written agreement, and partly by the subsequent terms engrafted upon what will be thus left of the written agreement.” It is manifest from the charge, that the learned judge, recognising the rule, held that if the new contract was made at the time the oil was tendered, it was after the breach of the former.

If, at the moment for performance of a contract by one party, both agree to a postponement, is the contract broken ? A. sells B. a horse for a stipulated price; the horse to be delivered and money paid on a certain day. At the appointed time A. tenders the horse; B. says, I am not ready, but if you will wait till tomorrow I will take the horse and pay you, to which A. agrees. The new contract is as valid as was the old. The mutual promises, the one to deliver and the other to accept and pay, were ample consideration to sustain the new : Carrier v. Dilworth, 9 P. F. Smith 406. Can it be that in such case the old was broken and A. could recover damages for the breach '! If his right of action accrued at all it was at the instant he agreed to a change of time for delivery and payment, instead of demanding strict performance. The parties carried the yet .unbroken contract into a new one, and neither has a just claim for damages.

On the day the oil was tendered the parties mutually agreed that the buyer might take it at any time in the month of July. Had Van Vleck refused to extend the time, it was not then too late for McNish to perform his agreement. True, he said he was not in condition to do so and asked time; but had his request been denied, possibly he would have succeeded in performance. The oil was due, not past due. Negotiations, begun immediately on its becoming due, ended in an agreement for extension of time before it had become overdue. Nothing in this agreement involved a withdrawal of the tender — the seller was to keep the oil ready for. the time named, at the buyer’s option, not his own. Every reason which would enforce this contract, had it been made before the day of the tender, applies now ; for, made at the time the oil could have been taken, the party would be liable to be thrown off his guard, or to be defrauded, if the other could treat it as invalid, same as if made before the day. But after breach of a contract, and right of action accrued therefor, the case may be governed by other principles.

Having reference to the facts as alleged by plaintiff, and which the jury would have found had they believed him, we are of opinion it was error to affirm the defendant’s third point; and in so far as this error pervades the matter of the other assignments there was error.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Green

text:
    Wagner et al. versus Elliott.
    1. The principle which governs in all cases of substitution is one of equity merely , and is to be carried out in the exercise of a proper equitable discretion, with a due regard to the legal and equitable rights of others.
    2. A. having a judgment against B., which was a lien on his land, issued an execution and levied on personal property which was claimed by others, who gave bond, and an issue being framed under the Sheriff’s Interpleader Act, the verdict was for claimants, which verdict was subsequently set aside. Afterwards another judgment-creditor of B. issued execution against his real estate, and the same having been sold, A.’s judgment was paid in full from the proceeds. They however proved insufficient to pay the judgment of G., another judgment-creditor of B. whose judgment was postponed to that of A. H., the surety of B., in the obligation on which the judgment of G. was obtained, paid to G. the balance of his judgment and then asked the court to subrogate him to the rights of A., as defendant in the above feigned issue : Meld, that he was not entitled to subrogation.
    October 19th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Court of Common Pleas of JErie county: Of October and November Term 1880, No. 97.
    Feigned issue wherein H. G. Wagner, T. S. Wagner and J. H. Wagner were plaintiffs and G. T. Elliott subrogated as defendant, in place of H. J. Lowry and Frank Gunnison, committee of M. B. Lowry, a lunatic.
    The material facts will be found in the opinions of this court and the court below.
    The court, Galbraith, P. J., filed the following opinion:

      “ Gr. T. Elliott, being the co-defendant and surety of Gr. H. Wagner in a judgment in favor of the Marine National Bank of Erie, and having paid the debt, now asks to be subrogated to the rights of the plaintiffs in a certain judgment in which H. J. Lowry et ah, committee of M. B. Lowry, are plaintiffs, against said Gr. H. Wagner, to enable him to collect the amount of the first-named judgment so paid by him.
    “The record shows that the Lowry judgment was senior to the bank judgment, and that it has been fully paid from the money made from the sale of Wagner’s real estate, which, however, did not reach the bank judgment. Before the sale of the land an execution was issued-on the Lowry judgment and a levy made on personal property alleged to belong to the defendants, but which was claimed by H. J. Wagner and brothers, his sons, and by J. B. Wagner, a brother, and issues were framed under the Sheriff’s Interpleader Act to try the question of ownership.
    “Pending the trial of those issues the Lowry judgment was paid out of the distribution of the money made from the land as before mentioned.
    “There can be no question that the surety, having paid the bank judgment, is entitled to be subrogated to the rights of the plaintiffs in that case. It is equally clear that, as between the bank and the committee of Lowry, the 'former would be entitled to subrogation to their rights as against the defendant, for the reason that the plaintiffs in the Lowry judgment had two funds to which they could look for payment after their levy upon the personal property, while the bank had only the one fund to look to, namely, that arising from the sale of the land. The payment of the Lowry judgment might have been deferred until the result of the contest over the personal property was had, but as it was not, and the Lowry judgment was paid, the junior judgment has an equitable claim for subrogation to the rights of the older judgment, and to whose rights Elliott succeeds, as standing in place of the plaintiffs in the bank judgment. The process issued for the collection of the Lowry judgment and the rights acquired under that execution are of course a part of the judgment and go with it as included therein, and it follows, therefore, that the holder of the bank judgment ought to have the right to prosecute the remedies commenced by the holders of the senior judgment, and to look to the personal property taken in execution therein.
    “ It was not required to pay the Lowry judgment, because it was paid out of the land. Why should it not now avail the meritorious surety, who will otherwise suffer loss while the defendants, whose debt he has been compelled to pay, escapes? The issues are still pending, and the property in question is still in gremio legis, or ought to be, for if the sheriff has not the property, he has bonds for its production. We can see no good reason against this

      November 8th 1880.
    appeal to the equity powers of the court on the facts shown, but, on the contrary, the strongest reason in common honesty for its exercise.”
    The court then made the decree which will be found below.
    The plaintiffs in the feigned issue took this appeal, alleging that the court erred in the following order of subrogation made April 28th 1879:
    “It is therefore ordered that G.T. Elliott be subrogated to the rights of the Marine National Bank of Erie v. Gr. H. Wagner and Gr. T. Elliott, and also to the rights of the plaintiffs, H. J. Lowry et al., committee, v. Gr. II. Wagnej’, No. 191, September Term, 1874, including the rights of said plaintiffs in the feigned issues arising under said judgment and the executions issued thereon, and being the cases of H. Gr. Wagner et al. v. H. J. Lowry et al., and that Gr. T. Elliott is subrogated in place of said H. J. Lowry et al., as defendant in said case.”

      Benson & Brainerd, for appellants.
    Courts will not subrogate when it is unjust to other parties or produces injustice in any respect whatever: Erbs’s Appeal, 2 P. & W. 296; Kyner v. Kyner, 6 Watts 221; Coats’s Appeal, 7 W. & S. 99; McGinnis’s Appeal, 4 Harris 444; Lloyd v. Galbraith, 8 Casey 103. The law of subrogation is equitable, and will not be enforced against legal rights: Fink v. Mehaffey, 8 Watts 384; Wallace’s Estate, Russell’s Appeal, 9 P. F. Smith 401; Grings’s Appeal, 8 Norris 436. Here injustice was done both to the plaintiffs in the feigned issue and the surety on their bond by the order of subrogation.

      Davenport & Griffith and Frank Grunnison, for appellee.
    Appellee having, as security, paid the bank judgment is entitled to be subrogated to all its rights: Kyner v. Kyner, supra; McCormack’s Adm’r v. Irwin, 11 Casey 111; Mosier’s Appeal, 6 P. F. Smith 76; Fleming v. Beaver, 2 Rawle 128; Cottrell’s Appeal, 11 Harris 294; 1 Story’s Eq. Jur., sect. 653: Brightly’s Eq. Jur., sect. 183.
   Mr. Justice Green

delivered the opinion of the Court,

In Fink v. Mehaffy, 8 Watts 384, it was held that, the doctrine of substitution being one of mere equity and benevolence, will not be enforced at the expense of a legal right. In McGinnis’s Appeal, 4 Harris, on p. 448, we said: “ The principle which governs in all cases of substitution is one of equity merely, and is to be carried out in the exercise of a proper equitable discretion with a due regard to the legal and equitable rights of others.” In Erb’s Appeal, 2 P. & W., on p. 298, Rogers, J., in delivering the opinion of the court, said : “Where, therefore, an application is made for substitutfon, the court will take care that the subrogation of the surety shall work no injustice to the rights of others.” In Ziegler v. Long, 2 Watts 206, Sergeant, J., said: “ But this principle must be employed, like all other rules of equity, to the attainment of justice; it is not to be used to overthrow the equity of another person, and thus work injustice.” In Lloyd v. Galbraith, 8 Casey, on p. 110, we said, Strong, J.: “ Subrogation is not to be allowed except in a clear case, and where it works no injustice to the rights of others.” The same doctrine was repeated in Russell’s Appeal, Wallace’s Estate, 9 P. F. Smith 401, and Gring’s Appeal, 8 Norris 339.

Tested by these principles let us consider the relative positions and rights of the parties affected by the order for subrogation in the present case.

M. B. Lowry held a judgment in the Court of Common Pleas of Erie county against Gideon H. Wagner, No. 191, September Term 1874. This judgment was a lien upon G. H. Wagner’s real estate, and M. B. Lowry having become a lunatic, his committee, H. J. Lowry and Frank Gunnison, caused a fi. fa. to be issued on the judgment to No. 178, May Term 1878. Upon this writ a levy was made on certain barley, clover-seed and' rails as the property of G. II. Wagner. This property was claimed by the appellants, II. G. Wagner, T. S. Wagner and J. H. Wagner, as belonging to them. They gave a bond to the sheriff dated March 28th 1877, and took the property. A feigned issue under the Sheriff’s Inter-pleader Act was awarded to determine the title to this personal property, No. 202, May Term 1877, in which the appellants were plaintiffs, and the committee of M. B. Lowry were defendants. The issue was tried before a jury, and resulted in a verdict for the appellants on October 25th 1877, thus determining that the title was in the appellants and not in G. H. Wagner, the defendant in the judgment. A rule for a new trial having been granted on October 27th 1877, was made absolute on January 7th 1878. The new trial has not yet taken place. On the 25th of June 1878, one G. T. Elliott presented a petition praying to be subrogated in the case to the rights of II. J. Lowry, and Frank Gunnison, committee of M. B. Lowry. An answer to this petition was filed by the appellants on November 11th 1878, and on April 28th 1879, the court made an order of subrogation, and from that order the present appeal to this court is taken. The facts urged in support of Elliott’s claim to subrogation were as follows:

The Marine National Bank recovered a judgment No. 492, September Term 1875, against Gideon H. Wagner and George T. Elliott for $1500, in which Wagner was the principal debtor and Elliott was surety. As such surety Elliott paid the judgment of The Marine National Bank on June 25th 1878, and was subrogated to the rights of the bank in the final order of subrogation on April 28th 1879. To this order no objection is made. In the petition for subrogation, it was set forth that the judgment of The Marine Bank was a lien on G. H. Wagner’s land in Erie county, and that this land was sold by the sheriff under a judgment obtained by the Erie Dime Savings and Loan Company, at February Term 1878; that by this sale the liens of all the judgments against G. H. Wagner were divested and the judgment of M. B. Lowry v. G. H. Wagner was paid in full. It further appeared that the proceeds of the sale of G. H. Wagner’s real estate having been paid into court, an auditor’s report distributing the money was confirmed nisi on May 15th 1878, and that on May 29th 1878, the whole amount, $1427, due on the Lowry judgment was paid to the committee, thus paying off and satisfying the judgment in full. This payment being accomplished on May 29th 1878, occurred within four days of one month before Elliott paid off the judgment of The Marine National Bank, and presented his petition for subrogation, both of which facts transpired on June 25th 1878. Now, it is claimed by the appellants that the effect of this payment of the Lowry judgment was to terminate the proceedings under the feigned issue, and, therefore, they were no longer bound to respond in that case. This position is undoubtedly true as between them and the committee of M. B. Lowry. The question that now arises is, are the appellants bound to submit to have those proceedings reopened to have another trial as to the ownership of the personal property involved in that issue, incur the expense of such a trial and the risk of an adverse verdict, in order that Elliott may get his money out of this personal property as the subrogated representative of M. B. Lowry ? We think not. The bond given by the appellants to the sheriff was conditioned for the delivery of the goods at the termination of the issue pending between them and the committee of M. B. Lowry, a surety, S. B. Wagner, joined them in the execution of the bond and was responsible for the performance of its condition. When the Lowry judgment was paid by the proceeds of G. H. Wagner’s land,- the proceedings under the feigned issue had reached their termination as to the original parties to the issue and to the bond. We see no reason why the surety could not then insist that he should be subject to no further responsibility on his obligation. Certainly the committee of M. B. Lowry could have no further resort to him. If, now, the subrogation is permitted to take place and another trial to be had, the surety is subjected to still further liability to other persons than those named in the bond or in the proceedings at the time the issue was framed and the bond given. But he never contracted for such additional liability, and he at least is one person whose positive and plain legal rights will be changed in a most material respect if the subrogation is affirmed. Indeed, the very object of the subrogation is to produce such a change; to make him liable to pay the debt to persons entirely different from those with- whom he contracted when he signed the bond. The same considerations apply to the appellants, the other parties to the bond. They must become subject to fresh expense and hazard, and to new and additional liabilities to those which held them under the bond and under the pleadings. From and after the 29th of May 1878, they were entirely discharged from all liability. Now, it is sought to reimpose the full measure of •their liability from the 25th day of June 1878. This, too, in a matter of purely equitable cognisance and upon equitable principles solely and in favor of persons to whom they never owed any duty whatever. We consider that this would be doing injustice to the appellants and their surety, and, therefore, it is not a proper case for enforcing subrogation.

The order of the court below subrogating G. T. Elliott to the rights of H. J. Lowry and Frank Gunnison in the judgment No. 191, September Term 1874, and in the feigned issues arising under the said judgment and the executions issued thereon, being the cases No. 202, May Term 1877, and No. 206, May Term 1877, is reversed at the cost of the appellees.


author: Per, Curiam.

text:
    Franklin Fire Insurance Company versus Kepler.
    A policy of fire insurance provided that it would not cover unoccupied buildings, and if the premises insured should be vacated without the consent of the company endorsed on the policy the latter should cease and determine. An insured was absent from -his dwelling from Wednesday until Monday, to attend a funeral, during which time there was no occupant of the house: Held, that such a temporary absence was not a breach of the policy.
    October 19th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Stekrett and Green, JJ.
    Error to the Court of Common Pleas of Forest county: Of October and November Term 1880, No. 56.
    Assumpsit by Jacob M. Kepler against The Franklin Fire Insurance Company, on a policy of fire insurance, to recover for a loss.
    The 15th section of the policy provided: “ This policy will not cover unoccupied buildings (unless insured as such), and if the premises insured shall be vacated without the consent of the company endorsed hereon, * * * this policy shall cease and determine.” The property insured was destroyed by fire.
    The evidence showed that this fire occurred on Sunday morning, October 27th 1878. Plaintiff testified that on Wednesday preceding that day he went to Clearfield county; that he received a telegram notifying him of the death of a friend, and he left for tile purpose of attending the funeral, and returned on Monday, following the fire. Kepler himself was the only occupant of the house. He testified that he made it his home and residence, and that he had no other home or residence at the time.
    It was claimed on the part of the company,, that this absence, with no one in the house during the time was a violation of the 15th clause of the policy, and that it was substantially an unoccupied building.
    The following were among the points of the defendant:—
    1. The undisputed facts being that at the time the plaintiff’s dwelling-house was destroyed by fire, no one was living in it and no one had been living in it for four days prior to that time, and no notice of that fact having been given to the defendant and its consent obtained to such non-occupancy, the house was vacant within the meaning of the contract between the parties, as contained in the policy on which this suit is brought, and there can be no recovery.
    2. The occupancy of a dwelling-house consists in living in it, and if the plaintiff' absented himself from the said house from Wednesday prior to the fire, and was still absent when the fire occurred, which was Sunday morning, during, which time no one occupied the house, it constituted such a vacation as was contemplated in the contract between the parties, and the verdict should be for the defendant.
    3. The existence of an intention in the mind of the plaintiff to return and resume the occupancy of the house under the circumstances, makes no difference in determining the question of vacancy.
    The court answered these points in the general charge, as follows :—
    “We. say to you, that if the plaintiff left upon an emergency for the purpose of attending a funeral, and he was absent for that purpose, and when he had accomplished the purpose for which he left, he returned on the Monday following the fire, then the absence under these circumstances is not a breach of clause 15th of the policy; that it was not an unoccupied "building within the purpose and meaning of that clause of the policy.”
    Verdict for plaintiff, and after judgment thereon, defendant took this AYrit and alleged that the court erred in the portion of the charge noted.

      Johnson, Lindsey § Parmlee, for plaintiff in error.
    How' long an absence from a building does it take to make it unoccupied or vacant ? The court answered this question by saying, as a matter of law, that the absence of plaintiff from Wednesday to Monday was not a breach of the policy. We submit that this was a question of fact for the jury.

      November 1st 1880,

      D. J. Bull, William B. Brown and S. D. Irwin, for defendant in error.
    A practical occupancy consistent with the purposes and uses for which the dwelling-house was insured, is all that is required : Wood on Insurance 180. The word “ vacated ” has, in ordinary acceptation, but one meaning, and suggests only the state of emptiness. It is a misuse of the -word to say of Mr. Kepler’s dwelling-house, that it was a vacant house because of the absence of the owner for four days.
   The judgment of the Supreme Court was entered

Per, Curiam.

The temporary absence of the insured from the premises, leaving them for the time unoccupied, was not a breach of the conditions of the policy. The premises were not vacated by such absence. The case, we think, was very properly submitted to the jury in the charge of the learned judge.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    Van Vliet versus Conrad.
    1. Where amotion for the reargument of a rule for anew trial is made on the same day on which the rule is discharged it continues the rule, and judgment cannot be'entered on-the verdict.
    2. On the 8th of July 1879, a president judge discharged a rule for- a new trial. On the same day a motion for a reairgument of the rule was filed. On the next day judgment was entered on the verdict. On November 19th 1879, the reargument was had before the associate judges, in the absence of the president judge, and a new trial granted on certain conditions as to costs and security which were complied with. On March 19th 1880, the president judge of another district, holding a special court, vacated the order for a new trial and directed the plaintiff to collect his judgment: Held, that this was error; that the' order discharging the first rule and the motion for the rehearing of that rule were legally contemporaneous, and the effect was to postpone the final consideration of the rule for a new trial and annul the order then made, and the new trial having been subsequently granted by a court having full power to do so, and the defendant having complied with the conditions imposed upon him he could not be deprived of a right thus lawfully acquired by an attempt of the court to reverse its own order.
    October 19th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, J J.
    Error to the Court of Common Pleas of Jefferson county: Of October and November Term 1880, No. 83.
    Assumpsit by John Cojirad against George Yan Yliet.
    On May 24th 1879, a verdict was rendered for the plaintiff. On the same day a motion for a new trial was filed, and a rule granted, which, on the 8th of July 1879, the court, Jenks, P. J., discharged. On the same day, by permission of the court, a motion for a re-argument of the rule for a new trial was filed. On July 9th 1879, the plaintiff paid the jury fee and entered judgment on the verdict. On November 8th, the court, Jenks, P. J., on the application of the defendant, referred the motion for a new trial to the associate judges of the court. On November 17th 1879, in the absence of the president judge, the associate judges made absolute the rule for a new trial, the defendant to pay the costs and enter security for the amount of the judgment. The costs were duly paid, and the security entered and approved. On December 8th 1879, the defendant moved to strike off the order made by the associate judges making absolute the rule for a new trial. On March 20th 1880, MeDermitt, P. J., of the Thirty-fifth Judicial District, holding a special court, vacated said order and directed the plaintiff to collect the amount of his judgment. The defendant took this writ and alleged, inter alia, that the court erred in this action.

      White & Scott and Gordon & Corbett, for plaintiff in error.
    The motion for a new trial was made and filed on the same day the verdict was rendered, and, therefore, was in time. The motion for a reargument was made and filed _ on the same day the court refused the new trial, but before a judgment was entered on the verdict. The motion for a reargument would suspend the order refusing the new trial, and the court must have so considered it, for on the 8th of November, when the motion was made by the defendant to set aside the execution issued by the plaintiff, the court (the president, Judge Jenks, drawing and making the order,) granted a rule to show cause, and at the same time directed that the matter of staying the writ, the motion for a new trial and the giving a bond, be referred to the associates.
    The court adjourned to meet on the~17th of November, and on that day convened, with the associates on the bench, who, among other things, considered the matters referred to them by the court, by its president judge at its previous sitting, and after a careful consideration, stayed the writ and granted a new trial, requiring the defendant to give a bond, &c., and we are now told that the court, in open court thus convened and thus constituted, had no power to act in the matter referred to them. We contend this was error.

      Jenks & Clark and Stewart Marlin, for defendant in error.
    —The mere filing of a motion for reargument, without any rule to show cause, or any order of the court, would not suspend the order disposing of the case, or hinder entering judgment on the verdict: Spang v. Commonwealth, 2 Jones 358. Therefore, as soon as the jury fee was paid and judgment entered on the verdict, it was legally standing in full force, and with a judgment standing in full force a new trial cannot be granted under any conceivable circumstances: Syracuse Pithole Oil Co. v. Carothers, 13 P. F. Smith 379 ; Lane v. Shreiner, 1 Binn. 291; Lessee of Fehl v. Good, 2 Id. 496, also 3 Id. 313. The associate judges have no power to reverse the decision of the president judge: Syracuse Pithole Oil Co. v. Carothers, supra; Kelb’s Case, 4 Watts 154; Glamorgan Iron Co. v. Snyder, 3 Norris 397.
    November 8th 1880.
   Mr. Justice Gordon

delivered the opinion of the court,

The action of the court below, on the 17th of November 1879, granting a new trial, was not only regular, but final and conclusive. This action was founded on the rule taken May 24th 1879, the clay of the rendition of the verdict, which was continued by the motion for rehearing filed July 8th. As the conditions on which the new trial was granted were fully complied with, the judgment, improperly entered on the 9th of July, should have been stricken off and the parties allowed to proceed to a retrial of the case. Instead of this, we find the court, on the 11th of December, being then presided over by a-judge from a neighboring district, entertaining a rule to inquire into the regularity of the former proceedings, and the power of the associates to grant a new trial, which rule was, by the same judge, disposed of on the 19th of March 1880, by a vacation of the order for new trial. In support of this action, it is urged that the court had no power to entertain the rule for reargument after discharging the motion for a new trial, and in support of this view of the case, Spang v. The Commonwealth, 2 Jones 358, is cited. In this case, however, nothing was determined but that a rule to show cause why judgment should not be opened, does not operate to stay proceedings unaccompanied by an order to that effect, but it does not rule that the court could not, under that motion, have proceeded to open the judgment.

In the case in hand, the question is, did the motion for reargument continue the consideration of the previous rule for a new trial ? We think it did.

On the same day the order was made by the court discharging the first rule it entertained, or, what is the same thing, permitted to be filed a motion for the rehearing of that rule. Now, as both these acts occurred on the same day, and hence were legally cotemporaneous, the effect was to postpone the final consideration of the rule for a new trial to some future time and to annul the order then made. It follows that power was not wanting in the court to consider and dispose of as it did on the 17th of November, the rule thus pending. What then is wanting to the regularity of that action ?

It is said the associates had no power to overrule the previous act of the president judge; but they did nothing of the kind ; they only acted, as they had full power to do, upon a pending rule granted by the president judge himself; a rule, moreover, which he, in express terms, had referred to his associates for their consideration and final action.

The conclusion, resulting from the above-stated condition of affairs, is this : the new trial having been granted by a court having full power so to do, the defendant having complied with the conditions then imposed upon him, by paying the costs and giving a bond w’ith approved sureties for the security of the plaintiff, he could not be deprived of a right thus lawfully acquired, by an attempt of the court to reverse its own order some four months after it was made.

The remaining assignments of error we leave undetermined, thinking it better to send the case back with a procedendo, that it may be • proceeded in from the point where it was left when the new trial was granted.

The judgment of the court below, as well as the order of 19th March 1880, is reversed and set aside, and a procedendo awarded.


author: Chief Justice Sharswood

text:
    Steele versus Hull.
    1. A sheriff’s deed was offered in evidence and the record of its acknowledgment. It was objected that the deed, though acknowledged, had not been executed and that the record of the acknowledgmentwas only secondary evidence, not admissible without proving the loss of the deed : Held, that it was not error to admit the record where, as here, the deed was produced and offered in evidence and any irregularity in the execution was cured by the acknowledgment.
    2. Per Shakswood, C. J. — “ What the irregularity was does not appear, as we have not been furnished with a copy of the deed which of itself would be a sufficient reason for disregarding this assignment of error, as it is the settled rule of practice in this court never to reverse for the admission or rejection of a written document, a copy of which is not spread upon the paper book.”
    October 21st 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Jefferson county: Of October and November Term 1880, No. 22.
    Trespass by B. F. Hull and wife, for the use of said wife, against William P. Steele, sheriff.
    The facts are sufficiently stated in the opinion of this court.
    The trial was before McDermitt, P. J., of the Thirty-fifth Judicial District, holding a special court.

      Jenks & Clarke and White Scott, for plaintiff in error.
    The deed offered in evidence showed no execution by the sheriff, and the acknowledgment could have no effect. Proof of the acknowledgment, without proof that the deed was lost, could not be received when it was admitted that the deed offered was the one delivered in pursuance of the sale.
    November 1st 1880.

      R. Arthurs and Stewart & Martin, for defendants in error.
    The purchase-money was paid to the sheriff, the sale confirmed, and the deed acknowledged and delivered, as shown by the record of the court. The sheriff’s vendee, therefore, acquired a title by the purchase, even if the deed 'had not been acknowledged: Bellas v. McCarty, 10 S. & R. 21 and 40. In Steever v. Rice, 2 Whart. 21, it was held that where the money was coming to the vendee, he acquired a right to the property without having obtained a deed at all from the sheriff. A fatal effect is not to be ascribed to an inaccuracy in a sheriff’s deed, and should not operate to defeat proceedings regular in every respect: Hinds v. Scott, 1 Jones 26. The provisions of the Act of Assembly relating to executions of sheriffs’ deeds are directory, and after a deed is acknowledged and delivered to the purchaser, it is presumed they have been complied with: Stroble v. Smith, 8 Watts 280.
   Chief Justice Sharswood

delivered the opinion of the court,

This was an action of trespass brought by husband and wife against the sheriff of Jefferson county for seizing and selling cer- • tain timber, alleged to be the property of the wife, on an execution against the husband. The title of the wife to a part of this timber was a purchase from Orr & Blood by the wife, as to which the charge of the court and the verdict of the jury were in favor of the plaintiff in error, and as to that he has no ground of complaint. The residue for the value of which the verdict was for the plaintiff below was shown to have been cut from a tract given to the wife by her father and of which she and her husband were in possession. This home lot, as it was called, had been purchased by the wife’s father ata sheriff’s sale on an execution against the husband. The name of the wife’s father was William Simpson. This brief statement is sufficient to explain the several assignments of error which are now to be considered.

The first assignment is to the admission in evidence of the sheriff’s deed to Simpson and the record of its acknowledgment. The objection, as we understand it, was that the deed, though acknowledged, had not been executed, and it is said that the record of the acknowledgment was only secondary evidence, not admissible without proving the loss of the deed. The law may be so: Lodge v. Berrier, 16 S. & R. 296; but see Stonebraker v. Short, 8 Barr 155. Here, however, the deed was produced and offered in evidence, and any irregularity in the execution was cured by the acknowledgment. What the irregularity was does not appear, as we have not been furnished with a copy of the deed, which of itself would be a sufficient reason for disregarding this assignment, as it is a settled rule of practice in this court never to reverse for the admission or rejection of a written document, a copy of which is not spread upon the paper book.

The second assignment is, that the court refused to affirm the defendant’s fifth point, that if there was a wilful confusion of lumber cut from the home lot with the lumber cut from the Orr lot, the verdict should be for the defendant. There was no evidence of any wilful confusion by the wife, and this point was therefore rightly refused.

The third assignment was to the refusal to affirm the defendant’s sixth point, which was based upon the assumption of a sale by the wife to David White. There was some evidence of a transfer to White, but the same evidence showed-that there was no sale to him, but the paper was executed only as authority to him as the agent of the Avife to run the lumber to market. Such being the case his taking possession of the rafts and marking his name on the lumber could not affect her title.

The fourth assignment was abandoned on the argument.

The fifth assignment is to that -portion of the charge which directed the jury to find a verdict for the plaintiffs below for the timber cut on the home lot.

There was no evidence to impeach the gift of Simpson to his daughter Jane Hull. No creditor of his was complaining. The title was indubitably in her to the lot, and of course to the timber Avhich had grown upon it. Any fraud actual or legal in the transaction as to the Orr timber was entirely irrelevant, and it would have misled the jury if they had been instructed to take it into consideration. Some remarks were made in the argument as to the instruction given to the jury on the measure of damages, but no exception was taken and there is no assignment of error as to that. If there had been we see no evidence that Jane Hull was the purchaser at the sheriff’s sale so as to vary in ¿ny respect the general rule.

Judgment affirmed.


author: Mr. Justice Sterrett

text:
    Indiana County Bank’s Appeal.
    1. The rights of those claiming to participate in the proceeds of a sheriff’s sale are to be determined by their status as shown by the record at the time of the sale. All liens then on the land, except first mortgages and other fixed liens, are divested by the sale, and the lien holders are turned over to the proceeds. No lien upon the fund, and consequently no right to participate in its distribution, can ordinarily be acquired afterwards.
    2. A fund for distribution arose from the separate sheriff’s sales of the real estate of A., B. and C., in the order named. Afterwards another portion of the real estate of C. was sold, and the proceeds added to the fund for distribution. A joint judgment against A. and C. was paid out of this fund. It afterwards appeared by parol evidence before the auditor to distribute the fund that O. was principal in said judgment and A. only surety, and it was claimed that A. or his judgment creditors were entitled to be subrogated to the amount of said judgment against the proceeds of the real estate of C.: Held, that this could not be allow.ed as it would be inequitable thus to displace a creditor who, as the record showed at the time of the last sale, was entitled to the proceeds.
    3. Douglass’s Appeal, 12 Wright 223, followed.
    October 21st 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green-, JJ.
    Appeal from the Court of Common Pleas of Indiana county: Of October and November Term 1880, No. 161.
    Appeal of the Indiana County Deposit Bank from the decree of the court distributing the proceeds of the sheriff’s sale of 'Aie real estate of J. B. Morris, John Cary and John Couch.
    The facts were found by the auditor, John Conrad, Esq., as follows:
    “ The real estate of the defendants out of which the fund for distribution was realized, was sold in the following order, to wit: October 24th 1879, sold 158 acres as property of J. B. Morris, to J. U. Gillespie, for $2306. October 24th 1879, sold 65 acres as the property of J. B. Morris, to J. U. Gillespie, for $600. October 24th 1879, property in Clayville, as property of J. B. Morris, for $155. October 24th 1879, sold 120 acres as the property of John Cary, to William Davis, for $2000. October 24th 1879, sold 200 acres as property of John Couch, to Indiana County Deposit Bank, for $2200. December 9th 1879, sold 160 acres as the property of John Couch, to Indiana County Deposit Bank, for $2605, which makes total amount for distribution, $9866. Of this $4928 was paid into court, but it was understood by the parties that, for the purpose of distribution, the entire amount should be considered in court.

      “ From the parol evidence produced before the auditor, the fact is established that in the judgment of Levi McGregor to use of J. U. Gillespie v. John Couch, J. B. Morris and Daniel Couch, No. 120, December Term 1876, John Couch is the principal debtor, and J. B. Morris iq only bail, but the docket entries and the records do not show that fact in the entry of the case. Counsel for judgment-creditors claimed that, as J. B. Morris was only bail in the above-stated judgment, and the judgment was paid by sale of the real estate of J. B. Morris, he would be considered as subrogated to the rights of the plaintiff in the writ, and equity would apply the fund on judgments filed by J. B. Morris’s creditors. Your auditor is of the opinion that J. B. Morris acquired no right to that fund, and, consequently, his judgment-creditors could acquire none except such as they had at the time of the sale of the property. Had he paid off the judgment before the sale the principle of subrogation contended for would undoubtedly be true, but in a distribution of proceeds of sheriff’s sale, claims of lien-creditors remain as at time of sale, the liens being divested by the sale, the lien-holders are turned over to the proceeds, and no lien or right thereto can be afterwards acquired. : Douglass’s Appeal, 12 Wright 223. Able arguments were made by counsel on both sides of the questions in issue, and numerous-authorities were; produced. But your auditor holds a secret equity of this nature could not be enforced. No lien-holders would be safe, and there would be nothing so certain as the uncertainty that would be occasioned by the adoption of such a principle. It cannot be said that J. B. Morris, the surety, has paid the judgment until this distribution is made and the report corifirmed by the court. There is nothing in the opinion of your auditor to sustain the exceptions filed to the special returns, and they are, therefore, overruled.”
    Exceptions were filed to this report, when the court filed the following opinion :
    Four hundred and seventy-four dollars and seven cents of the fund raised by the sale of the real estate of Morris was taken to pay a debt in which Couch was principal and Morris surety. This would give Morris or his individual creditors a right of subrogation against Couch for the amount so paid.
    “ We understand the auditor to find as a fact that the real estate of the defendants was sold at the same time. The funds in the hands of the auditor are treated 'as real estate, and in the absence of some overpowering equity would have to be so applied as to extinguish liens according to their priority. Had the auditor commenced in his distribution with the funds raised by the sale of the real estate of Couch, the money raised by the sale of real estate of Morris would have been so applied as to pay exceptant’s judgments. The equities of the parties should be carefully considered. The judgments of Gillespie v. Morris, 572 and 573 of September Term 1875, were entered some six months prior to the entry of the Indiana Bank judgments. The former judgments (so far as these funds are concerned) are against Morris alone. The latter judgments are against Couch, Cary and Morris. Out of the Morris fund $5574.07 was tahen to pay the judgment immediately prior to the Gillespie judgment mentioned, in -which. Morris was but the surety of Couch. Under these circumstances in equity, Gillespie should be subrogated to the rights of plaintiff in judgment of Levi McGregor, for use, against Couch and Morris, No. 120, December Term 1879, and out of the funds raised by the sale of Couch’s real estate, there should be applied to the judgment of Gillespie v. Morris et al., No. 572 and 573, September Term 1875, the sum of $574.07.
    November 2st 1880.
    “ The cases of Lathrop’s Appeal, 1 Barr 512 ; Morris v. Oakford, 9 Barr 498, and Gearhart v. Jordan, 1 Jones 325, fully, as we think, justify the correction of the auditor’s report.”
    A decree of distribution was made in accordance with this opinion, from which this appeal was taken.

      Stewart & Martin, for appellant.

      White & Scott, for appellee.
   Mr. Justice Sterrett

delivered the opinion of the court,

The separate real estate of J. B. Morris, John Carey and John Couch was sold by the sheriff in the order named and all on the same day, except a portion of Couch’s property which was sold several weeks afterwards for $2605. The proceeds of these several sales, amounting in the aggregate to $9866, were distributed by the auditor among the respective lien-creditors in their order as they stood at the time of the sales. Out of the fund realized from the sale of Morris’s real estate, he appropriated $574.07 to the payment of judgment in favor of McGregor, to use of Gillespie, against Couch and Morris, entered October 18th 1875, on the joint , and several note of the defendants. There was nothing upon the face of the record to indicate that the relation of the defendants to each other was not that of joint debtors; and assuming, as creditors were bound to do, that they were both principals in the debt secured by the judgment, the correctness of the distribution made by the auditor cannot be questioned. It was, however, shown aliunde, on the hearing, that Morris was merely surety for Couch, and on this ground it was claimed that the amount thus taken out of the Morris fund to pay Couch’s proper debt should, on the principle of equitable subrogation, be given to Morris’s creditors, thereby diminishing to that extent the fund to which appellant, as a lien-creditor of Couch, looked for payment. The auditor refused to recognise the principle of substitution thus contended for by the creditors of Morris, but the court, adopting the opposite view, reversed the auditor in this particular, awarded the $574.07 to Morris’s creditors and deducted the same from the distributive share of the appellant. This action of the court is substantially the only matter assigned for error.

As was held in Douglass’s Appeal, 12 Wright 223, the rights of those claiming to participate in the proceeds of a sheriff’s sale are to be determined by their status, as shown by the record at the time of the sale. All liens then on the land, except first mortgages and other fixed liens, are divested by the sale and the lien-holders are turned over to the proceeds. No lien upon the fund, and consequently no right to participate in its distribution can ordinarily be acquired aftex-wards. It was on this principle that the learned auditor proceeded in distxúbuting the funds, and we are satisfied he was right. The only safe guide that lien-creditors can have in bidding at sheriff’s sale of real estate in which they are interested, is the record as it stands at the time of the sale.

An examination of the records after the first sheriff’s sales would show that the proceeds of those sales applied to the judgments in their order would neaxdy satisfy all the liens that were ahead of appellant’s second judgment, so that when the sale of Couch’s property took place in December following, appellant would have a right to assume that the proceeds of that sale, with the exception of a small amount, would be applicable to its second judgment which was nearly reached by the first sales; and thus relying upon the state of the record at that time, might well be governed by it in bidding at the last sale. As we have already seen, thex’e was nothing on the face of the record to indicate that any right of subrogation existed, and in fact, none did exist. Morris, as surety of Couch, might have paid the debt before the sales, and upon satisfying the court as to the proper facts, might íxave been subrogated to the rights of the plaintiff in that judgment, but he did not do so then or at any other time; and the last sale took place without anything to warn appellant or other creditors that tlxe proceeds of the sale would not be applicable to the judgments in their order as they then stood on the judgment-docket. Under such circumstances, it would be inequitable to permit Morris or any of his creditors claiming through him to displace a creditor who, as the record stood at the time of the last sale, was entitled to the proceeds. We -think the principle upon which the auditor distributed the funds was correct, and his report should have been confirmed.

Decree reversed, report of the auditor confirmed, and it is ordered and decreed that the funds be paid out in accox’dance therewith — the costs of this appeal to be paid by the appellee.


text:
    Stern’s Appeal.
    1. An administrator permitted the business, in which the decedent had been a partner, to be carried on by the surviving partner, and the result was a profit and increase in value of the firm assets. When the business was finally closed and the real and personal property sold, the firm was found to be insolvent. It appeared also that the firm was in fact insolvent at the time of the decedent’s death. There was no property of the decedent other than his interest in the firm : Held, that there was no reason for surcharging the administrator, he not having adventured or lost in the business any estate, real or personal, of the decedent
    2. The administrator was properly allowed credit for expenses of administration and ¡jjilOO for services.
    October 21st 1880.
    November 8th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Orphans’ Court of Venango county: Of October and November Term 1880, No. 82.
    Appeal of Joseph Stern, administrator of Solomon Stern, deceased, from the decree of the court upon the report of the auditor appointed by the court to report upon the exceptions to the account of said administrator.
    The facts are stated in the opinion of this court.

      O. LTeydriek, for appellant.

      McQloskey and Dodd Lee, for appellee.
   Mr. Justice Green

delivered the opinion of the court,

The appellant is the administrator of Solomon Stern, his deceased brother. Upon filing his account, it was referred to an auditor who, after hearing considerable testimony which is not returned to this court, surcharged him, apparently, but not certainly, with the sum of $1681.98. The Orphans’ Court, however, have, by their decree, fixed that sum as the measure of the surcharge, directing that of that amount $856.98 be presently payable, the remainder to be accounted for hereafter. The accountant has appealed to this court upon assignments of error which call in question the entire surcharge.

The facts as found by the auditor disclose that prior to April 9th 1878, Solomon Stern, the decedent, and Philip Worst were engaged as partners in the brewing business at Franklin, Pa. Solomon Stern died on April 9th 1873, and letters were granted to the accountant about July 22d 1873. The business of the firm of Stern & Worst was carried on in the same name until about April 1876, by Philip Worst, the surviving partner. The decedent left a widow and two minor children, who had for their guardian their mother’s father, A. Lehman. The firm had borrowed $3000 from Lehman at the time they engaged in business in 1870, and they still owed him this money at the time of Solomon Stern’s death. The auditor finds as a fact that the business was carried on by the surviving partner with the knowledge and consent of Lehman and the accountant, and that the latter was frequently present about the brewery giving directions and advising and sometimes keeping the books and having them examined, and generally keeping himself acquainted with the run of the business. There does not appear to have been any distinct agreement for the continuance of the business nor any actual participation by the accountant in the purchasing of stock, in the sale of the products, or in the receipt of the proceeds. The auditor investigated the business of file firm and exhibits a summary of it which, in his mode of presenting the figures shows, that during the time it was carried on by the surviving partner it yielded a profit of $4744.84. To this sum he adds the “ cash in bank, as per inventory,” $300, and “ book accounts good, as per inventory,” $617.82, and thus makes a gross amount of assets of $5662.66. From this he deducts the amount of firm debts as they existed at the death of Solomon Stern, which were paid by Worst during the continuance of the business by him, $3958.45, leaving a balance of assets over debts paid, of $1704.21. He then states an account between the firm and Lehman, the only remaining creditor, giving him credit for his original loan and interest to April 9th 1875, in all $3695. From this ho deducts the proceeds of the personal estate of the firm sold under Lehman’s execution, $353, and also the proceeds of the sale of the real estate held by the partners as tenants in common, also sold under Lehman’s execution, $1008.77. He thus arrives at a balance which the firm still owed Lehman $1681.98. Upon some principle which is not clearly stated, and which it is difficult to understand, he decides that this accountant, Joseph Stern, should personally pay Lehman this amount still due him, and therefore he proposes to surcharge him with it as administrator. But he concludes that as Lehman has been somewhat to blame, and as it is rather hard to make the accountant pay the whole of Lehman’s debt, he, the accountant, shall be permitted to keep $825 which he received from the sale of certain real estate of the decedent, under an order of the Orphans’ Court, but which was not embraced in the account submitted to the auditor, and therefore concludes that the accountant shall pay Lehman $856.98. This is a very extraordinary mode of dealing with an administrator’s account. The auditor seems to treat the case as if it were a common-law action between Lehman and Joseph Stern, and he practically concludes it by rendering a judgment in Lehman’s fAvor against Stern for a fixed sum. The court undertook to correct this manifest error by striking out the distribution, but retained the whole of the surcharge directing the accountant to be surcharged with the sum of $856.98, as presently payable, and that he account in the future for the $825. The learned judge does not seem to have investigated the details of the auditor’s work, but rather to have assumed that it was correctly done. In this we are of opinion there was grave error. The auditor’s report does not exhibit clearly the principles or reasons upon which the surcharge is founded. He does, however, find certain facts which, in our judgment, plainly show that there ought to be no surcharge whatever for any cause stated in the report. He finds that the firm was, in point of fact, insolvent at the death of Solomon Stern, their indebtedness at that time being $6804.40. He also finds that the assets of the firm were then of the value of $4212.15, but as $3504.32 of this sum consisted of the estimated value of certain hops, malt and utensils used in th# manufacture of beer, it is manifest that no reliance can be placed upon these figures as the true representative in cash value of the firm’s assets. The gross item also embraced $334.80 of book accounts which subsequently proved to be worthless. But even at the auditor’s estimate of the value of the assets, he still finds the firm insolvent at the death of Solomon Stern to the amount of about $2600. The implements and utensils were subsequently sold at sheriff’s sale for $372.50, showing a large additional deficiency. Now, the auditor further finds that the decedent had no personal property at the time of his death except his interest in this firm. But this, as we have seen, instead of being an asset, was, in reality, a debit. The auditor further finds that while Philip Worst, the surviving partner, carried on the business, he made money for the firm and paid off all its debts except the one to Lehman, and that was largely reduced by the value of the firm’s assets still remaining and sold at sheriff’s sale. In point of fact, therefore, the estate of Solomon Stern was benefited and not injured by the continuance of the business after his death. It thus appears that this accountant never adventured and lost in business any estate, personal or real, of the decedent; that no money was lost by the conduct of the business after Solomon Stern’s death, and it is not shown that the accountant ever failed to collect any money or property which by any kind of proceeding or in any kind of right, legal or equitable, he could have collected. In this plain and entirely undisputed state of facts, it is perceived at once that there is an utter absence of any element of surcharge. The only reason the auditor seems to give for surcharging the accountant is that there is a balance of $1704.21 in the hands of Worst unaccounted for. He finds as a fact that the accountant never had any of the firm money or is in any way responsible for this deficiency; and he finds further that Worst has nothing, so that no part of it could be collected from him. He admits that Worst drew out of the firm $1775.80, and it must be admitted that this is quite’a moderate sum to be used in supporting a man and his family for three years. The auditor says the accountant could have enjoined Worst from using any of the money and closed up the business, but he fails entirely to show that if this course had been adopted, Solomon Stern’s estate could or would have been in any degree benefited. But it is useless to prolong the discussion. There is no reason for surcharging Joseph Stern with any part of the sum of $1681.98 now or in the future, and it must, therefore, be stricken from the account. The auditor was also in error in refusing to allow the accountant credit for the sums paid for expenses of the administration, to wit, J. W. Shaw, register, $4.25; register for examining, &c., former account, $11; C. Heydrick, stating account, $10; register for examining this account, $11. We see no reason why the accountant should not be allowed his charge for services, $100. As to the other payments for which credit is claimed, as there is no testimony’ before us, we make no disposition of them. The account of the proceeds of the sale of the real estate is not before us, nor was it before the auditor, and no order can be made in reference to it. This disposes of the assignments of error.

The decree of the court below is reversed, with direction to correct the account of the administrator by striking out the surcharge of $1681.98, and by allowing credit for the several items of expense of administration mentioned in this opinion, and for the item of $100 for services, and the record is remitted for further proceedings. The costs of this appeal to be paid by the appellee.

Subsequently, the decree was amended as follows:—

Now, January 31st 1881, the decree of this court made November 8th 1880, is amended by striking out all after the words, “ The decree of the court below is reversed,” and inserting in place thereof the following, to wit, “ And it is now considered, adjudged and decreed that the auditor’s report be set aside, the exceptions to the account dismissed, and the account confirmed, and that the costs of this appeal be paid by the appellee,” and the record is remitted.

By the Court.


author: Mr. Justice Paxson

text:
    The Brunswick and Balke Company versus Hoover et al.
    1. There is no principle of law better settled in Pennsylvania than that a sale and delivery of personal property, with an agreement that the ownership shall remain in the vendor until the purchase-money is paid, enables creditors of the vendee to seize and sell the same for the payment of his debts.
    2. A. agreed with B. that he would furnish him. with four billiard tables, to be paid for in instalments, said payments to be secured by a lease and the property to remain in A. until final settlement. The tables were delivered and a lease and notes executed as provided in said agreement. The tables were subsequently levied upon and sold by creditors of B. A. brought trespass against said creditors and the sheriff: Held, that defendants were not trespassers ; that the agreement between A. and B. was a sale of the tables upon a credit with a stipulation that payment should be secured by a lease, and that while said contract was good between the parties it was worthless as to creditors.
    3. Rowe v. Sharp, 1 P. B. Smith 27, distinguished, and Stadtfield v. Huntsman, 11 Norris 53, followed.
    October 21st 1880.
    Before Sharswood, C. J., Mercur, Gordon Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Venango county: Of October and November Term 1880, No. 180.
    Trespass by John M. Brunswick and others, trading as the J. M. Brunswick & Bailee Co., against C. M. Hoover, J. H. Windsor and John W. Windsor.
    On the 28th of January 1878, the plaintiff company by their agent, H. F. Corbin, entered into the following contract:
    Oil City, Pa., January 28th 1878.
    Andrew E. Russell has this day ordered of The J. M. Brunswick & Balke Co., through H. F. Corbin, agent, subject, however, to -the approval of The J. M. Brunswick & Balke Co., four (4) carom tables : style * * * (here follows description of tables, &c.) Price ($1650.) sixteen hundred and fifty dollars. Five old tables at $875. Terms ($375) three hundred and seventy-five dollars, cash, balance in twelve payments of $75 each, payable in the twelve following consecutive months, with interest at the rate of ---per annum. . Payment to he secured by first lease and fire insurance on said tables. It is understood that the title to the property described in this contract shall remain with The J. M. Brunswick & Balke Co. until the notes and chattel lease are fully executed by the purchaser, and that under no circumstances shall any claim be made as owner until the settlement is so completed.
    Tables to be shipped by A. & G. W. R. R. to Oil City, “ will write” when ready, and the freight payable by the purchaser. Settlement to be made on delivery of tables at office of express company, Oil City, Pa.
    The J. M. Brunswick & Balke Co., [seal.]
    Per H. F. Corbin, Agent, [seal.]

      The tables were duly forwarded to Oil City, and on February 19th 1878, Russell paid the freight therefor and removed the tables to his billiard rooms. The following agreement was then entered into:
    “ This agreement, made and entered into this 19th day of February 1878, by and between The J. M. Brunswick & Balke Co., parties of the first part,*and A. E. Russell, of Oil City, of the second part: Witnesseth, That the parties of the first part have leased, and do hereby lease to the said party of the second part, all and singular the goods, chattels and personal property mentioned and described in the following schedule (here follows description), for the term of twelve months from the 19th of February to the 19th of February 1879, for the sum of $967, with interest (in addition to the sum of $375, which has this day been paid as rent, the receipt of which is hereby acknowledged by the parties of the nrst part), payable in twelve payments of $80.58 each, to wit: The first note falling due on March 19th 1878, and the remaining eleven notes on the 19th day of each consecutive month thereafter. 1
    “ And the said parties of the first part covenant with the said party of the second part, that they have good right to lease said goods, chattels and personal property in manner aforesaid, and that they will suffer and permit said party of the second part (he keeping all covenants on his part as hereinafter contained), to possess and enjoy said goods, chattels and personal property without hindrance or molestation from them, or any person claiming by, from or under them.
    “ And the said party of the second part covenants with the said parties of the first part, to hire said goods, chattels and personal property, and to pay the rent therefor as aforesaid; that he will not injure, misuse or deface said property, ordinary wear, fire and other unavoidable casualties excepted. Also, that he will not assign this lease, nor keep said property in any place other than at Windsor block in the town of Oil City, county of Yenango, and state of Pennsylvania; also, that he will keep said property insured in an amount to be approved of by the said parties of the first part, to wit: in the sum of $967, and the loss, if any, payable to the parties of the first part, for the amount of rent which may remain due for the use of said property. The sum received by said parties of the first part as insurance, over and above the sum which may remain due as rent, shall be refunded to the said party of the second part.
    “ Provided, however, and it is further agreed that if the rent shall remain unpaid ten days after the same shall become due and payable as aforesaid, or if said party of the second part shall assign his lease, or shall injure, misuse or deface any portion of said property, or shall keep said property in any place other than that designated in his covenant aforesaid, or shall fail to keep said property insured in manner aforesaid, then his lease shall thereupon expire and terminate, by virtue of this express stipulation therein, and the parties of the first part may, at any time thereafter, enter in and upon the premises where said property is kept, stored or in use, and the same have and possess as of their former estate, and all payments of rent which shall have been made by the said party of the second part, previous to the breach of any of the conditions, covenants and agreements aforesaid, shall be forfeited to said parties of the first part.
    “ And the parties of the first part covenant and agree that, upon the payment of the rent in manner aforesaid by the party of the second part, they will give to said party of the second part a good and sufficient bill of sale of said goods, chattels and personal property.
    “And it is understood and agreed between the parties hereto, that the stipulations and agreements aforesaid, are to apply to, and bind the heirs, executors and administrators of the respective parties.”
    The cash alluded to in the above lease was paid by Russell, and the notes drawn. On May 28th 1878, J. H. and J. W. Windsor obtained a judgment against Russell, a writ of fieri facias was issued, and Hoover, the sheriff, levied on the tables and sold them to the Windsors. The company then brought this suit.
    The defendants claimed that the lease and the other papers above recited were but one transaction, and should be construed together, and that they constituted a sale.
    The plaintiffs contended that the tables were held under the lease, and that the other papers were preliminary and were all merged in the lease, but if they were all construed together, they constituted a bailment.
    The court, Taylor, P. J., inter alia, charged :
    “ After certain preliminary arrangements were made between the parties, certain negotiations looking forward to a final sale, on the 28th of January 1878, a paper was executed which, in our opinion, states the contract between these parties, when it was submitted to the plaintiffs in the suit, and approved by them. That it was done is evidenced by the fact that, under the contract the possession of the property was changed. The billiard tables and fixtures were sent, in pursuance of this contract, to Oil City. This contract, in our opinion, is the contract between the parties, although it provides upon its face for certain matters to be performed thereafter, to wit: The execution of a lease which the plaintiffs here claim was the final contract between the parties. We cannot agree with them in that; we think that this was the contract between the parties, and that the lease was executed in pursuance of this contract therefor, as well as the delivery of the possession of the property. That being so, we instruct you, that under the papers in this case, as the parties have chosen to make this a question of law for the court — we instruct you, that under the papers in this ease, this was a conditional sale, and that the title to the property passed at the time of its delivery in Oil City, and the consummation of the contract by the delivery of the property and the execution of the lease therefor; the title to'the property passed, so far as creditors were concerned. * * * Under the papers, then, we instruct you — and under the evidence in the case — that the title to this property passed to Russell, so far as creditors of Russell were concerned, upon the delivery of the property and- the execution of this paper., called a lease, and it was subject to be levied upon in his possession by the creditors of Russell, and the defendants having levied upon it as the property of Russell and sold it as his property, plaintiff cannot recover in this action. They are not trespassers. Your verdict will be for the defendants.”
    Yerdict and judgment for defendants. Plaintiffs then took this writ and alleged that the court. erred, inter alia, in the above portion of the charge.

      Wm. McNair, for plaintiffs in error.
    The paper of January 28th 1878, provides that the title to the property shall remain with the plaintiffs until the notes and lease are executed by Russell, and under no circumstances shall any claim be made as owner until the settlement is completed, the settlement to be made at the express office, Oil City. The settlement was made at Oil City, the terms of the lease fixed and executed by Russell, and it was the final act of the parties, and the other then became functus officio. The word “lease” in the original paper had, unquestionably, a well-understood meaning in the trade, and shows that a bailment for use was contemplated, and that no title was to pass, and that the lease and terms were to be fixed before delivery of' possession to Russell. No title to the property of any kind passed, and if lost in transitu it would have been plaintiff’s loss. It is not a sale either absolute or conditional.
    The agreements in the following cases were held to be bailments: Henry v. Patterson, 7 P. F. Smith 351; Enlow v. Klein, 29 Id. 488; Becker v. Smith, 9 Id. 470; and we cannot comprehend why a different construction should be put upon the agreements in this case. There is no analogy between this case and Martin v. Mathiot, 14 S. & R. 214, which was a conditional sale simply and purely, and our case does not come within the definition of a conditional sale as given in Rose v. Story, 1 Barr 190; but said case supports the plaintiffs’ theory.

      Dodd & Lee, for defendants m error.
    The whole question is one of intention to be deduced from written contracts. The parties stated their intention too clearly for mistake when they contracted for a sale of the goods with a lease as security, and carried that contract into execution. The case comes clearly within the principle laid down by Rogers, J., in Rose v. Story, 1 Barr 190, and affirmed in Euwer v. Van Giesen, 6 W. N. C. 363. If the vendor and vendee agree that the possession shall pass to the vendee, but the property remain in the vendor until the purchase-money is paid, such agreement, as respects creditors and the sheriff, is fraudulent. The lease, standing by itself, does not constitute a bailment. It differs from the lease in the case of Rowe v. Sharp, in that no provision is made for the return of the property at the end of the term. The obligation to return the property is an essential quality to the bailment. “ A delivery of chattels upon a sale made on condition that the title shall pass on the payment of the purchase-money at a future day, is something more than a bailment; it gives the buyer a conditional title:” Krause v. Commonwealth, 12 Norris 418.
    November 8th 1880.
   Mr. Justice Paxson

delivered the opinion of the court,

In the recent case of Stadtfeld v. Huntsman, 11 Norris 53, we endeavored to point out with some care the distinction between a conditional sale and a bailment, and the line of cases commencing with Clow v. Woods, 5 S. & R. 275, and ending with Enlow v. Klein, 29 P. F. Smith 488, was considered and commented upon. We need not repeat what was there said.

The case in hand comes precisely within the ruling of Stadtfeld v. Huntsman. The transaction was a conditional sale. The attempt to disguise it under the cloak of a bailment was too clumsy to have the merit of being clever. The contract of January 28th 1878 was a sale of the billiard tables upon a credit, with a stipulation that payment should be secured by a lease of the tables and an insurance thereon. When the tables were delivered the subsequent agreement of 22d of February 1878 was executed. This paper is in form a lease, and it was not denied that it was executed in pursuance of and in strict compliance with the contract' of sale of the preceding January. The feeble attempt to prove that the tables were delivered under the lease and not under the contract, will not avail, for the reason, among others, that the two papers must be regarded as one transaction. Taken together they amount to a sale of the billiard tables upon credit accompanied with a lease thereof as a security for the payment of the price. Such a contract, while good between the parties, will not keep creditors at bay. It is worthless as to them. There is no principle of law better settled in Pennsylvania than that a sale and delivery of personal property, with an agreement that the ownership shall remain in the vendor until the purchase-money is paid, enables creditors of the vendee to seize and sell the. same for the payment of his debts. ’ It would be a needless labor to cite the numerous cases in which this doctrine has been asserted.

It was urged, however, that the case in hand is upon all fours with Rowe v. Sharp, 1 P. F. Smith 27, and that we cannot affirm this judgment without overruling that case. Rowe v. Sharp, like Enlow v. Klein, was a close ease and stands upon the border. It differs from the present one in two important particulars. While in Rowe v. Sharp there was evidence of a sale of the billiard tables by Sharp to Goff a few days prior to the lease, there was no agreement for a lease as security. And again, in Rowe v. Sharp there was an express stipulation for a return of the property at the end of the bailment. This important part of a contract of bailment is wholly omitted in the lease between the parties to this contention. The lessors may re-enter and take possession of the property upon a breach by the lessee of the covenants contained in the lease. Rut if the lessee fulfils his covenants, that is to say if he pays the several instalments as they mature, the lessors cannot reclaim the property, nor is the lessee bound to restore it after the bailment is over.

There is not a single element of a bailment in this transaction. It is immaterial what the parties call it; the law pays little heed to the label; it looks beneath and examines the nature and character of the contract between the parties.

Judgment affirmed.