author: Mr. Justice Gordon

text:
    Union Refining and Storage Co. versus Bushnell.
    1. An advertisement, that the party advertising is an agent, is but an ex parte notice, and is not admissible as proof to establish agency.
    2. lie who seeks to establish an agency, must not only prove the fact of agency, but the extent of the powers of the agent.
    3. Plaintiff's below contracted to deliver to defendant a quantity of oil. Defendant directed the delivery of the oil to II. & Co. Plaintiffs, under order of B. & Co., whom they believed to bo the agents of H. & Co., delivered the oil to C. Held, that there was no error in submitting the question of fact to the jury whether B. & Co. were the agents of II. & Co., and had authority to direct the delivery to O.
    November 7th 1878.
    Before Agnew, 0. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 204.
    This was an action of assumpsit by Daniel Bushnell, for use of Lockhart & Frew, against the Union 'Defining and Storage Company. The following contract was made, viz.:
    “Pittsburgh, July 17th A. D. 1867, bought for account of Union Defining and S. 0*., from Mr. D. Bushnell, five thousand (5000) barrels crude petroleum in bulk, forty gallons to the barrel, clean merchantable oil, gravity forty to forty-five degrees, to be delivered at landing of Union D. and S. Co., at sellers’ option, from September to December inclusive, 1867, to be paid for at the rate of eleven cents per gall., cash, as guaged and delivered.
    Warden & Batohelder, Brokers.
    “ Joseph Kirkpatrick, President.”
    In pursuance of this contract, plaintiff delivered to defendant below 4000 barrels. He subsequently tendered the defendants the remaining 1000 barrels, which they refused to receive. At the time of the tender, oil had declined in price, and the 1000 barrels were worth in the market §1600 less than the contract price. This suit was brought to recover this sum and the balance due on the contract. Lockhart & Frew, the equitable plaintiffs, undertook to fulfil the contract for Bushnell,. Defendants had contracted to deliver to McKee, Hackett & Co., between September 1st and Deccember 31st 1867, 5000 barrels. By arrangement, 2000 barrels of the Bushnell oil were delivered to McKee, Hackett & Co., and paid for by defendants below. Subsequently, defendants directed the balance, 3000 barrels, to be delivered to McKee, Hackett & Co., the same as the prior 2000 barrels. Plaintiff went to McKee, Hackett & Co., and did not see them, but saw Brewer, Burke & Co., whom they believed to be the general agents of McKee, Hackett & Co. Brewer, Burke & Co. directed the delivery of the oil, to wit: 2000 barrels to the Stella Works, and 1000 barrels. to the Liberty Oil Works of McKee, Hackett & Co. The 2000 barrels were delivered to the Stella Works, owned by Waring & Co., who, in a settlement with Brewer, Burke & Co., gave them a credit for it. The contention below, was, whether Brewer, Burke & Co. were the agents of McKee, Hackett & Co. To establish this agency, the plaintiffs offered in evidence the following advertisement of Brewer, Burke & Co., published in the Pittsburgh Daily Gazette, viz.:
    “BREWER, BURKE & Co.,
    Commission Merchants.
    Agents for the Pacific, Globe and Liberty Oil Works.
    Ample storage for crude and refined oil. Liberal cash advances made on consignments of crude or refined petroleum. Yards for storage and shipment of crude oil at Lawrenceville.
    Office and warehouse, corner of Duquesne way and Hancock street, Pittsburgh.”
    The admission of this proof, and the submission of the question of agency, and the powers of the agents, to the jury, were assigned for error.

      M. W. Aeheson, T. O. Lazear and L. W. Bell, for plaintiff in error.
    The advertisement was the act of Brewer, Burke & Co., and was not authorized by McKee, Hackett & Co. It was not admissible to affect defendants: 1 Greenl. Ev., sect. 99; 2 Id., sect. 63. These declarations of an agent, or his acts as such, are not competent to prove agency: Plumsted v. Redebagh, 1 Yeates 502; Clark v. Baker, 2 Whart. 343; Grim v. Bonnell, 28 P. F. Smith 152; Bringham v. Peters, 1 Gray (Mass.) 145. Notice in a newspaper must be brought home to the party to be affected : 1 Whart. Ev., sect. 673-5; Beltzhoover v. Blackstock, 3 Watts 20; Kellogg v. French, 15 Gray 354; Freno v. Freno, 1 W. N. C. 165; Ins. Co. v. Johnson, 11 Harris 76.

      Hampton Balzell, and B. $ S. Woods, for defendant in error.
    —Agency may be made out as an implication from circumstances, as well as by direct proof. Implied agencies result often out of the relation of employer and employee, husband and wife, parent and child, counsel and client, partners, and the less definite relations into which men are brought in the pursuits of business; but in all such cases it is a conclusion of fact to be deduced from circumstances by a jury, rather than assumed by the court: Jordan v. Stewart, 11 Harris 247.
   Mr. Justice Gordon

delivered the opinion of the court, January 6th 1879.

The advertisement given in evidence by the plaintiff below, against the objection of the defendant, was, at best, but an ex parte notice or declaration on part of Brewer, Burke & Co., designed to inform whoever might happen to read it that they were engaged in the oil business as commission merchants, and that they were agents for certain refineries, among which was the Liberty. As there is no proof that McKee, Hackett & Co. ever saw or heard of this advertisement, they could not be affected by it, and it was no more entitled to be received in evidence than any other unauthorized declaration of parties claiming to represent this firm. It follows, that this piece of testimony ought not to have been admitted. What remains is to consider whether this evidence could have had any prejudical effect on the defendant’s case. Did it tend to establish anything more than was or might have been admitted by the defence without injury to its case ? If not, no harm was done, and we cannot reverse for harmless error. The advertisement asserted that these commission merchants were agents for the Liberty Oil Works, but this was not disputed. That they had power to dispose of the products of these works, is proved by McKee, of the firm of McKee, Hackett & Co., a witness for the defendant. He, however, so limits that agency that, without more, it does the plaintiff no good — the powers of it are not sufficiently extensive. It is not merely an agency that will answer the plaintiff’s purpose, but an agency embracing extraordinary powers. But upon him is the burden of proof. One seeking to charge another through an agent must not only establish the fact of agency but also the extent of it: Hay v. Lynn, 7 Watts 512; Moore’s Ex’rs v. Patterson, 4 Casey 505. Giving, then, the Gazette advertisement all the force possible, and it proves nothing more than was in proof on part of the defence. It may prove an agency of some sort, but it does not define the nature and character of the powers of that agency. One dealing with them on the strength of that publication must do so at his own risk. The advertisement could not, at best, raise a presumption of power exceeding that proved by McKee, that Brewer, Burke & Co., as commission merchants, had the disposition of such portions of the products of the Liberty works as McKee, Hackett & Co. might from time to time consign to them. But what harm could this do to the defendant ? Stopping here, the plaintiff had no case. Nay, it was not enough for it to establish in Brewer, Burke & Co. the powers of a general agency. The defendant might have admitted that and yet have been entirely safe.

McKee, Hackett & Co. were not dealers in crude oil, except to the extent of supplying their own works. They were, refiners; their business was to manufacture and sell refined oil, and it was no part of their business to sell, or otherwise dispose of, the crude material. Admitting, then, the powers of these agents to be coextensive with the business of the firm, it certainly could not exceed that business, for that must limit the power ordinarily found even in a general agency.

We have here, however, these agents undertaking, not merely to dispose of the crude material belonging to their principals, but also, to change the terms of a contract made with those principals. By the contract the oil was to be delivered to McKee, Hackett & Co.; it was in fact delivered to Waring, King & Co., and this on the order of Brewer, Burke & Co., and to apply on their own account, not on that of their principals.

We need hardly say that proof of general agency, as that term is ordinarily understood, would fail to meet a case such as this; it could, in fact, only be met by evidence of extraordinary powers in the agents, or of such conduct on part of the principals as would estop them from calling the act in question. It is, indeed, doubtful whether, excluding the testimony of Frederick Fisher, there was enough in the plaintiff’s case to carry it to the jury. It is true, Burke proves that his firm exercised very extensive powers in providing supplies for McKee, Hackett & Co., and in directing the consignment of oil on their contracts, but it is only by supplementing this testimony by that of Fisher, that all doubt about the propriety of the submission of the case is removed. That testimony does, however, remove such doubt. According to his evidence, it would seem as though the business of McKee, Hackett & Co. was almost, if not wholly, controlled and directed by Brewer, Burke & Co. He says he sold a great deal of oil to McKee, Hackett & Co. through Brewer, Burke & Co., and that whilst the contracts were always given to the former firm, he always sold the oil to the latter. He further states that these contracts were frequent, extending over several years; that in 1867 he delivered to Brewer, Burke & Co. some $124,000 worth of oil, one-fourth of which, he thinks, might have been for McKee, Hackett & Co.; that in delivering on these contracts he always dealt with Brewer, Burke & Co., and that they paid him and directed the consignments. He again repeats, that he delivered the oil wherever Burke told him to deliver it; “if the contract was with the Liberty, and he told him to deliver it to the Pacific works, he did so.”

That McKee, Hackett & Co. knew of, and sanctioned this assumption of authority by Brewer, Burke & Co., might well be inferred from tbe relations existing between these parties. They occupied the same office. McKee was there daily. Goodwin was not only a member of the firm of McKee, Hackett & Co., but bookkeeper for Brewer, Burke & Co. It is therefore next to impossible that McKee, Hackett & Co. did not know of the disposition Brewer, Burke & Co. were making of their contracts.

If, however, McKee, Hackett & Co. permitted their agents to exercise such unlimited and almost exclusive control over their business, outside parties might well accept the orders and directions of the agents, though extraordinary in their character, as equivalent to the orders and directions of the principals.

It thus becomes obvious that, under the circumstances above narrated, the error of the court in the admission of the Gazette advertisement, was unimportant, and to reverse on that account would subserve no good purpose.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Kleber et al. versus Ward et al.
    1. The property of a stranger found on demised premises, left for no purpose of trade or other purpose requiring protection, as a matter of public policy, is liable to distress for rent.
    2. Prior to the Act of May 13th 1876, a piano leased to a tenant’s wife for her private use, was liable to such distress for rent.
    October 9th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1878, No. 107.
    Replevin by Kleber & Bro., against William Ward and another, for a piano, distrained by defendants for rent due by J. II. Smith.
    At the trial it appeared that the plaintiffs rented," the piano to the wife of Smith for her private use, with the privilege of purchasing at a certain price, in which case the payments of rent were to be credited on account.
    The distress was levied before the passage of the Act of May 18th 1876, exempting pianos, &c. (See McGeary v. Miller, 6 Norris 461.)
    The defendants submitted the following point, which the court, Bailey, J., affirmed: “That if the property in dispute was found upon the demised premises, it was liable to distress for rent; and that the plaintiffs were not entitled to recover even if they owned it and had rented it to Mrs. Smith, as claimed.”
    The verdict was for defendants, when plaintiffs took this writ, and, inter alia, assigned for error the answer to the above point.

      A. M. Brown, for plaintiffs in error.
    The bailment to Mrs. Smith was a reasonable, customary and legal business transaction, clearly consistent with public policy, and in the interest of trade and business, and the property, both on principle and authority, was exempt from distress for rent: Brown et al. v. Sims et al., 17 S. & R. 138; Briggs et al. v. Large, 6 Casey 287; Riddle v. Weldon, 5 Whart. 9; Karns et al. v. McKinney, 24 P. F. Smith 387 ; Cadwalader v. Tindall, 8 Harris 422.

      Bruee JSTegley, for defendants in error.
    The property in controversy, was, with other furniture, distrained on the demised premises, a dwelling-house, and if the law was as contended for by the plaintiffs in error, a tenant, by leasing or borrowing all his furniture, might defeat the landlord’s right of distress. The property was not received in the course of business as a means of making a livelihood, and does not come within the exceptions of the common-law rule: Price v. McCallister, 3 Grant 248 ; Cadwalader v. Tindall, supra.

   The judgment of the Supreme Court was entered, October 14th 1878,

Per Curiam.

The piano in this case was simply the property of a stranger, found on the demised premises, left for no purpose of trade or other purpose requiring protection, as a matter of public policy. It did not belong to or further the business of J. H. Smith, but was simply leased to his wife, at a rental, for her private benefit. The fact that the Act of Assembly of 13th May 1876 was passed to exempt pianos, melodeons and organs from levy and sale in such a case, is a legislative interpretation of the law as it stood before. We see no error.

Judgment affirmed.


text:
    Neel’s Appeal. Neel’s Estate. Colvin’s Estate.
    1. Where in a proceeding in the Orphans’ Court, that court has charged money payable at a future period upon real estate, said court may, under the Act of May 17th 1866, decree the payment of said charge, when due, out of such real estate.
    2. Owelty of partition is such a charge, and the person to whom it is due is not bound to sue on the recognisance, but may proceed in the Orphans’ Court, under the terms of said act.
    3. There is nothing in the Act of 1866, which precludes a resort to the other remedies pre-existing, for the recovery of the sum charged, and the jurisdiction of the Orphans’ Court is not exclusive.
    November 13tb 1878.
    Before Agnew, C. J., Sharrwood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.

      Appeal from the decree of the Orphans’ Court of Allegheny county: Of October and November Term 1878, No. 278.
    Archibald Neel died intestate in 1854, seised of real estate in Allegheny county, proceedings for the partition of which were commenced in the Orphans’ Court at June Term 1865. The inquest returned that said real estate could not be divided, and valued the same at §70,000. William Neel, one of the heirs, took the property at this valuation, he owning all the other shares, except that of Dorcas Colvin, and entered into a recognisance conditioned for the payment to Lessing S. Colvin, the heir of Dorcas Colvin, of the sum of §1750, payable on June 20th 1878, with interest from October 13th 1865, semi-annually. These payments were regularly made until the death of Colvin, in 1874. In 1878, the administrator of Colvin, proceeding under the Act of May 17th 1866, Pamph. L. 1096, 2 Purd. Dig. 1111, pi. 55, 56, entitled “An act enlarging the powers of the Orphans’ Court so as to discharge liens upon real estate,” petitioned the Orphans’ Court, averring that the interest on the share of said Colvin, which had accrued since April 13th 1874, and the principal, which was due June 20th 1878, had not been paid, and prayed the court for a citation on said Neel, to show cause why the said charge upon his real estate should not be paid. The citation issued and was duly served, and Neel not appearing, nor making answer, the court (Hawkins, P. J.), on the 7th of September 1878, entered a decree against him for §2203.83, and in default of payment within thirty days, directed that execution should issue for the payment of the sum so charged out of the said real estate of the said William Neel.
    From this decree this appeal was taken.

      It. $ iS. Woods, for appellant.
    The recognisances for owelty of partition are taken and payable out of the goods and chattels, lands and tenements of the parties giving the same, and are a lien on all their lands and tenements, and the practice has been almost exclusively to issue a scire facias on said recognisances in the Court of Common Pleas, where the defendant, in case of any dispute about the payment of the same, could have the question tried by a jury, and the plaintiff, on obtaining judgment, issue execution, after first exhausting the defendant’s personal property, could levy upon not only the land taken at the valuation, but also all other lands in the county, owned by the defendant, as also all lands owned by them at the time of issuing executions. If this Act of 1866 gives the Orphans’ Court the power to collect all liens, the remedies in the other courts are all destroyed.

      J. M. Acheson appeared for appellee,
    but was not heard by the court.
   The judgment of the Supreme Court was entered, November 25th 1878,

Per Curiam.

The Orphans’ Court had jurisdiction of this proceeding under the Act of 17th May 1866, 2 Br. Dig. 1111, pi. 55, 56. The owelty in the partition was charged upon the real estate accepted by' the appellant; and the charge thus made fell within the terms of the law. If the petitioner chose to pursue this remedy, it was open to him; and he was not bound to sue upon the recognisance.- There' is nothing in the Act of 1866 which excludes a resort to the other remedies pre-existing for thé recovery of the sum charged. When the purpose is to reach the bail in the recognisance, the party to whom the money is due may pursue his remedy by scire facias or debt on the recognisance. The remedy in the Orphans’ Court is full and ample, under the provision of the Act of 1832, jurisdiction having attached under the Act of 1866; but it is not exclusive.

Decree affirmed, with costs to be paid by the appellant, and the appeal is dismissed


text:
    School District of Wilkins Township versus Milligan.
    A school district erected a schoolhouse upon a lot, and occupied it for school purposes for thirty years. A larger schoolhouse becoming necessary, the school board agreed with M., to whom the lot belonged, that if he would pay them a certain amount for the old schoolhouse, they would abandon his land and build a new schoolhouse elsewhere. In an action by the board to recover this amount from M., Held, that this contract was not within the Statute of Frauds; that the sale to M. was a deliberate indication of an intent to abandon the property for school purposes, and the matter was made absolute, conclusive and irrevocable by the withdrawal of the board from the possession of the premises; that it was not the deed of the district that was necesgary to execute the contract, but its act of abandonment, and that it was entitled to recover.
    November 13th 1878.
    Before Ag-ñew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1878, No. 172.
    Assumpsit .by the School District of Wilkins township, against Robert Milligan, to recover the price of an old schoolhouse sold by the plaintiff to the defendant.
    At the trial, before Bailey, J., it appeared that the schoolhouse in dispute was situated upon the land of defendant, and that the plaintiff had the right of possession of said schoolhouse only so long as it was used for school purposes. The schoolhouse not being sufficiently large for the purposes of the district, the school-board appointed a committee to purchase from defendant a lot of ground to include the old site. The defendant refused to sell, and the committee then proposed to sell the old schoolhouse to defendant, who referred them to his son. The latter, as agent for his father, agreed to pay $650 for the old schoolhouse, on condition that the school-board would withdraw from his father’s property, and purchase a lot elsewhere, on which to erect the new schoolhouse. The committee, on the part of the school board agreed to do this, and as an earnest of the bargain, the defendant’s son paid to the committee ten dollars, which they in turn paid over to the treasurer of the school-board. The contract was also duly referred to the board, and an entry thereof made in the school-book. Subsequently, another location was selected for the schoolhouse. A now house was built and the old house and lot were abandoned and suit brought to recover the balance of the purchase-money. The verdict was for the plaintiff, subject to the opinion of the court in banc, whether this contract was within the Statute of Frauds; which court, afterwards,, entered judgment for the defendant, n<m obstante veredicto ; when the plaintiff took this writ and assigned this entry of judgment for error.

      W. h. Ohalfant, for plaintiff in error.
    A license or privilege to be exercised upon land is not within the Statute of Frauds, and may bo granted without a contract in writing: Woodbury v. Parshley, 7 N. H. 237; Ameriscoggin Bridge v. Bragg, 11 Id. 103; Prince v. Case, 10 Conn. 375; Keyser v. School District, 35 N. H. 477. A parol promise to pay for .improvements made upon land is not within the Statute of Frauds. They are not an' interest in land, but only another name for work and labor bestowed upon it: Spencer v. Darlington, 24 P. F. Smith, 286; 4 Kent *450; Browne on Statute of Frauds, sec. 233; Frear v. Hardenbergh, 5 Johns. 272; Lower v. Winters, 7 Cow. 263; Scoggin v. Slater, 22 Ala. 687; Cassell v. Collins, 23 Id. 676.
    If a party has not such an interest in land as can be assigned, the contract is not within the statute: Whittemore v. Gibbs, 4 Foster (N. H.) 484; Evans v. Roberts, 5 B. & C. 829; Beegle v. Wentz, 5 P. F. Smith 369.
    No deed or other writing was necessary to convey the complete title in the land to the defendant: Keyser v. School District, supra.

    This action is founded upon a promise of the defendant to pay $650, made upon a sufficient and legal consideration, viz., that the plaintiff would not condemn defendant’s ground for school purposes, which under the 1st sect, of Act of Assembly, approved 9th April 1867 (Purdon 257, pi. 141), it had a legal right to do.
    There was no transfer of any right, but only an agreement not to exercise a right. The plaintiff parted with no interest in the land.

      Hampton Dalzell, for defendant in error.
    The plaintiff had a base, qualified or determinable fee in the land: 2 Black. Com., ch. 7; Walsingham’s Case, Plowd. 557; 1 Washburne on Real Property 67, 77 ; State v. Brown, 3 Dutch. 20; Schertz v. Fitzwater, 5 Barr 126.
    Here the plaintiff had an estate which “ by possibility might endure for ever.” Its endurance depended on whether a schoolhouse was maintained on the land; and the maintenance of the schoolhouse depended on the will of the plaintiff. To determine the condition of the grant was the object of the contract. No pretence is made that the schoolhouse would be of any use to any other party than the owner of the ground. As between the plaintiff and the defendant, who had a reversionary interest in the school-lot, the plaintiff had certainly an assignable interest. And as between the plaintiff and any party willing to take the land and “use it for school purposes,” its interest was as certainly not less capable of assignment.
    If the plaintiff’s interest in the land was not a determinable fee, but a lease, it is then still within the very language of the statute, and was incapable of surrender by a parol contract.
    If, on the other hand, it was a license, it was still clearly within the statute. For it is not true, in a general and unqualified sense, that “ a license or privilege to be exercised upon land is not within the Statute of Frauds.” An executed license in this state, on whose faith expenditures have been made, gives absolute rights: Huff v. McCauley, 3 P. F. Smith 206.
    And there is a broad distinction between licenses to be exercised upon land which may be granted by parol, and such as amount to leases and require a writing. “ Where the act licensed is of such a character that the licensee cannot perform it without actually holding and occupying the grantor’s land for the purpose, the permission must be in writing, as the transaction is, in effect, a lease of the premises to that extent:” Brown on Statute of Frauds, sect. 28; Cook v. Stearns, 11 Mass. 533.
    Contracts about land, if more is meant than a three years’ lease, must be in writing: Washabaugh v. Entriken, 10 Casey 74; Shoofstall v. Adams, 2 Grant 209 ; Moore v. Small, 7 Harris 465; Henry v. Colby, 3 Brewster 171; Galbreath v. Galbreath, 5 Watts. 146; Pattison’s Appeal, 11 P. F. Smith 294; Yeakle v. Jacob et al., 9 Casey 376.
    No evidence was offered of any abandonment of the property, and the agreement was never performed by plaintiff.
   Mr. Justice Gordon

delivered the opinion of the court, January 6th 1879.

It appears from the evidence in this case that for some twenty-five or thirty years the School District of Wilkins Township had occupied, for school purposes, a small lot of ground belonging to Robert Milligan, the defendant. A one-story brick schoolhouse had been built thereon by the district, and used for the period above stated.

In the year 1874 the directors, considering it necessary to build a new and larger house, applied to the defendant in order to purchase from him, for this purpose, a lot of ground, including the old site. He peremptorily refused to sell at any price. The committee, who were appointed to wait on him, then proposed to sell him the old house; he answered by referring them to his son John, a member of the Allegheny county bar. They afterwards had an interview with John, which resulted in a sale to him, as agent for his father, of the old house for the sum of $650; they agreeing, on part of the school-board, to withdraw from the property and get a lot elsewhere on which to build the new schoolhouse. John, at that time, insisted upon paying to the committee $10 as an earnest of the bargain. This contract was duly reported to the board, was approved and recorded in the school-book. Afterwards another location was selected, a new house built, the old lot and house abandoned, and thus surrendered to the defendant. All this seems very plain and unambiguous, and on the matter being submitted to the jury, a verdict was returned for the plaintiff. The court, however, reserved a point put by the defendant, which point reads in this wise, “ Taking all the evidence in the case on the plaintiff’s part to be true, the contract proven is within the Statute of Frauds, and the plaintiff cannot recover.” On this reserved point the court entered judgment for the defendant non obstante veredicto. Our question then is, was this contract within the Statute of Frauds; was a deed from the directors to Milligan necessary to the execution of the agreement between these parties ? This leads us to inquire what the bargain was about; what the school board had to sell, and what Milligan bought. For if the contract could not be executed without a deed from the directors, the judgment of the court was right, but if it could be fully executed by a withdrawal by the school board from the premises, then the court was wrong, and judgment should have been entered on the verdict for the plaintiff’.

Now, according to the affidavit and admissions of the defendant, he was the owner in fee of the lot in question, and the school district entered and built its house under a mere parol license that it should have the occupancy of it only so long as it was occupied for school purposes. Without stopping to consider whether the minute reciting and approving the sale of-the house entered upon the schoolbook would or would not be a sufficient note in writing under the statute, we may ask what had the district in the property that required a writing of any kind in order to transfer it to Milligan ? It had the old house; it had the right, by permission of the owner, to occupy the lot on which the house stood as long as it was used for school purposes. But the very moment the school district abandoned the house and lot, that moment this property reverted to the owner of the fee, and there was nothing left in the district upon which its deed could operate. What then has the statute to do with this case? The board sold the old house to Milligan, which, in itself, was a deliberate indication of an intent to abandon the property for school purposes, and the matter was made absolute, conclusive and irrevocable by the withdrawal of the board from the possession of the premises, thus leaving Milligan the sole and absolute owner and occupant. Thus we see that it was not the deed of the district that was necessary to execute the contract, but its act of abandonment. That the defendant bargained for and that he got, that gave him all the district ever had, all it did or could sell to him, and nothing now remains for the entire fulfilment of this contract but the payment of the money by the defendant.

The judgment is reversed and set aside, and it is ordered that judgment be entered on the verdict for the plaintiff.


text:
    Whiting & Co. versus The Pittsburgh Opera House Company.
    1. A parol agreement between a landlord and a tenant in possession of the premises for a lease of the same for a term of three yeai’s, commencing one year after the date of the agreement, is void under the Statute of Frauds.
    2. The facts that the tenant was in possession and that he made certain improvements in consideration of said lease do not create a sufficient equity to take the case out of the operation of the statute.
    October 14th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 255.
    . This was an appeal by Whiting & Co. from a judgment by a justice of the peace in favor of the Pittsburgh Opera House Company, in which the jury found the following special verdict:
    “ We find that during March or April 1874, and while defendants were tenants at will of plaintiff, at the annual rent of $8870, payable quarterly, the plaintiff made and entered into a new verbal contract or lease for the premises in dispute, and then in their possession, for a term of three years, to commence April 1st 1875, for the same rent then being paid, and that as consideration for such verbal lease, defendants were to replace at their own expense, a large pane of glass in said premises which had been broken, and also to build an elevator therein, and which were done by defendants as agreed upon. We also find, that plaintiff, ignoring said verbal lease, and claiming a right to recover possession of said premises, three months before the 1st of April 1876, gave notice to defendants, signed by William Coleman, who was at the time, and also then, well known by defendants to bo the president of said plaintiff’s company, and that defendants also knew that said notice was intended to and did refer to the premises then occupied by them on Fifth street, as auctioneers.
    “ We also find that plaintiff, claiming to re-possess the said promises, instituted the proceedings in this case before Esquire Barr, a justice of the peace for Allegheny county, and recovered a judgment before him, upon which a writ of possession was issued to a constable, and under which possession of the premises in dispute was taken, defendants ejected, and their property removed from the same.
    “ We also find that the damage done to defendants thereby was $10,000.
    “ But the jury not being informed as to whether the said verbal contract is a valid contract of lease under the Statute of Frauds, and not knowing as a question of law, whether the same gave defendants a legal right to retain possession of said premises after the 1st of April 1876, and after said notice to remove, do therefore return and find the foregoing facts as their verdict, so that if the court shall bo of opinion that said verbal lease was a valid and binding contract under said Statute of Frauds, their judgment shall be entered hereon in favor of defendants for $10,000 damages. But-in case the court should be of the opinion that said verbal agreement of lease was under said statute of no effect, except as a lease at will of plaintiff, then judgment shall be entered hereon for plaintiff.”
    The court, Stowe, P. J., entered judgment for the plaintiff, in an opinion saying:
    The questions raised by the special verdict of the jury are. whether a verbal contract of lease for a term exceeding three years from the making thereof, is valid for three years from the making, or is only good as a lease from year to year, determinable upon the will of the lessor upon the three months’ notice, required by the Act of Assembly in cases of leases at will, and if not, whether the facts found by the verdict in relation to the consideration, for the making of said verbal lease, and the performance thereof, create such an equity as takes the case out of the statute, and gave the defendants a right to hold the premises in question as against the plaintiff at the time suit was instituted before the justice of the peace to recover possession. To my mind, upon neither ground is the case with defendants, and therefore I am compelled to direct judgment to be entered for plaintiff on the facts set out in the special verdict of the jury, and judgment is now ordered to be so entered with costs.”
    This entry of judgment was assigned for error by Whiting & Co., who took this writ.

      Thomas M. Marshall, Jacob S. Slagle and S. O. Schoyer, for plaintiffs in error.
    The contract found by the jury may be stated in a few words. The plaintiffs, in March or April 1874, made a parol contract leasing the premises to the defendants, Whiting &' Co., for the term of three years, commencing at the 1st of April 1875, possession in pursuance of this contract and valuable improvements made on the premises.
    Does the limitation in the statute as expressed, “ of three years from the making thereof,” avoid the lease ?
    It is an almost invariable rule in Pennsylvania to make contracts of lease three months in advance of the possession, and the construction contended for would, in effect, destroy the proviso of the statute. A very large proportion of the leases in this state have been held and enjoyed under parol contracts to commence in futuro. Nearly every contract of lease, whether parol or written, is prospective as to possession. The system of three months’ notice to leave has established a usage of leasing three months in advance of the possession.
    In any event, our case is taken out of the statute by possession under the lease and valuable improvements, which could not be adequately and completely recompensed otherwise than by possession under the contract.

      M. W. Acheson, for defendant in error.
    A verbal lease for three years is good only where it commences from the time it is made, and it cannot be made to commence from a future day: Brown on Statute of Frauds, sect. 33; Taylor on Landlord and Tenant, sect. 30; Rawlins v. Turner, 1 Ld. Raym. 736; 12 Modern Rep. 610 ; Snelling v. Lord Huntingdon, 1 Cr., M. & Ros. 20; Boydell v. Drummond, 11 East 142; Delano v. Montague, 4 Cushing 42; Chapman v. Gray, 15 Mass. 443; Kelly v. Terrell, 26 Georgia 551; Nones v. Homer, 2 Hilton (N. Y.) 116; Wheeler v. Conrad, 6 Phila. 209.
    The improvements claimed to be the consideration for the alleged lease were of trifling value, and could readily be compensated in damages. The pane of glass cost $125, and the elevator about $500, according to defendants’ testimony. Moreover, possession was not taken in pursuance of the alleged contract.' The defendants were in possession of the premises as tenants at the time the alleged agreement was made.
    To take a parol contract out of the Statute of Frauds, possession must be taken in pursuance thereof; a previous and continuing possession will not have that effect: Christy v. Barnhart, 2 Harris 260; Myers v. Byerly, 9 Wright 368.
    Where improvements can be compensated in damages, they will not take a case out of the statute, and this even where possession follows the parol contract: McKowen v. McDonald, 7 Wright 444 Hart et al. v. Carroll, 4 Norris 508.
   The judgment of the Supreme Court was entered, October 21st 1878,

Per Curiam.

A careful examination of the evidence in this case does not disclose any sufficient facts to take the lease in question out of the effect of the Statute of Frauds and Perjuries. Finding no substantial error, the judgment is affirmed.


text:
    Logan versus McNaugher.
    The by-laws and usages of an unincorporated company, are analogous to the terms of an article of copartnership, and in buying into the partnership the purchaser of stock is bound to know the rules and regulations which govern it.
    November 14th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 194.
    This was an action of assumpsit, brought by Arthur Hobson, trustee of the Allegheny Trust Company, against William P. Logan, as a member of the firm of William P. Logan & Bro., upon their endorsement of a certain promissory note, a copy of which is as follows :—
    “§1250.00 Pittsburgh, August 1st 1874.
    Four months after date we promise to pay to the order of W. P. Logan & Bro., twelve hundred and fifty dollars, at No. 20 Fifth avenue, without defalcation.
    (Signed) Clark & Co.
    (Endorsed) W. P. Logan & Bro.”
    The plaintiff company was unincorporated, being composed of a number of individuals associated together as a copartnership in the banking business. Arthur Hobson having died since the bringing of the suit, the name of Joseph McNaugher was substituted upon the trial as trustee of the company in his stead.
    The defence to the action being the plea of payment, and the protest of the note having been waived, the plaintiff merely offered the note in evidence, and rested.

      The facts given in evidence on part of the defendant to establish the alleged payment, were as follows:—
    In the fall of 1874, after this note had been running some time, one B. D. Moore, the holder of ten shares of stock in the plaintiff company, made a proposition to defendant to trade said stock for an equal amount in value which defendant owned in the Central Refining Company of Pittsburgh. This the defendant agreed to do, provided the plaintiff company would apply the Moore stock towards the payment of his said note, at its par value, amounting in all to §1000 (each share of the stock being of the par value of §100), and accordingly, before closing the transaction, the defendant went to the plaintiff bank to make inquiry on the subject. He there saw W. A. Reed, the president and treasurer of the company, and told him of the negotiation, and thereupon Reed agreed that if defendant would trade for the stock, it should be received as a credit on the note at par. The trade was then accordingly consummated, and defendant, at the same timé, obtained from Moore an order for the transfer of the stock, under the arrangement agreed upon, a copy of which order was as follows:—
    “Pittsburgh, September 80th 1874.
    W. A. Reed, president:
    Please transfer ten (10) shares of your stock to W. P. Logan.
    (Signed) B. H. Moore.”
    The defendant, the same day or soon after, took this order to Mr. Reed, for the purpose of lifting the note by paying the difference in cash. Some conversation then ensued about a rebate of interest, the note not falling due for some time to come ; but Reed objected to allowing the rebate, and it was then agreed that it should not be lifted before maturity. Reed, however, accepted the order at that time, and defendant left it with him for the purpose of making the transfer under the. arrangement mentioned.
    Subsequently, when the note became due, the defendant called at plaintiff company’s bank to have the arrangement for lifting the note concluded, and was then informed by David Ray, the bookkeeper (and who was also the representative of Mr. Reed in the business of the bank, in the latter’s absence), that Mr. Reed was sick at home and had left no instructions in regard to it. He proposed, however, that defendant should waive protest of the note, promising to see Mr. Reed about it. The defendant accordingly waived the protest, and afterwards visited the bank on several occasions to close up the 'transaction, and in course of a few weeks, Mr. Ray stated to defendant that he had received orders to accept defendant’s check for the balance and deliver him the note. The defendant thereupon, in compliance with Mr. Ray’s request, returned to his office and made out his check for §250 (being the full balance of the note after deducting the value of the stock), which he sent over to the bank by Thomas S. Gillespie, his bookkeeper. This was on the 14th of December 1874. Mr. Gillespie then delivered the check to the person in charge of the bank (who, he thought, was Mr. Kay), but the latter declined to give up the note till the check would be paid, the same not having been certified. The check was, however, duly paid on presentation.
    The defendant, regarding the matter as ended, gave himself no further concern about it, until informed, one day in the month of January following, that the bank had closed. He then went over to get his note, and seeing Mr. Bay there, said to him, that he (Ray) knew the note was paid, and he wanted it; to which Ray replied, that it was all right, and ho would get the note and give it to him.
    The defendant then left the bank, relying upon this promise of Mr. Ray’s; but the next information he had about the note was a notice from the plaintiff’s attorneys that it had been placed in their hands for collection, which was soon after followed by the summons in this case, calling upon him to pay the note a second time.
    At the trial before White J., plaintiff’s counsel offered in evidence, article fourth of the Articles of Association, for the purpose of showing that the stock could not be transferred without the consent of the board of directors, nor when a stockholder was indebted by note or otherwise to the bank.
    Objected to as incompetent to affect the defendant, there being no evidence that he had any knowledge of such articles and by-laws, and as irrelevant. '*•
    Objection overruled, to which defendant’s counsel excepted and a bill sealed.
    In the general charge, the court, inter alia, said:
    “ I do not consider the transfer of stock as the turning point of the case. When Logan made the trade with Moore and had his interviews with Reed, he was bound to know that such an arrangement was not within the scope of the ordinary powers and duties of the president of the association. The power of Reed to make such an agreement, is, I think, the turning point of the case. And I think he had no such power. The agreement, therefore, if made by Reed, to take the stock in payment of the note, would not bind his co-partners, unless sanctioned or ratified by them. The board of directors wore the general agents for the association, and represented all the stockholders. Their agreement would be binding on all.
    “ If the jury find from all the evidence, that a majority of the board of directors sanctioned the alleged arrangement by which the ten shares of Mr. Moore’s stock wTere to be transferred and received by the bank in payment of, or to be credited on, the note in suit, their verdict should be for the defendant, otherwise for the plaintiff.

      “ The declarations of the bookkeeper to Mr. Moore, of what the board of directors did, are not evidence of the action of the board.”
    Verdict for plaintiff for the full amount claimed, when defendant took this writ, assigning, inter alia, the admission of the above evidence and the foregoing portions of the charge.

      Thomas 0. La-sear, for plaintiff in error.
    Reed was the cashier and executive officer of the bank, and it was within the scope of his authority to receive this stock in payment of a debt due the bank: Wharton on Agency, sect. 684; Story on Agency, sect. 114. And his declarations that the board of directors had ratified his act, were competent evidence of the fact: The Portland, 2 S. & R. 197; Hannay v. Stewart, 6 Watts 487; Stockton v. Demuth, 7 Id. 89.

      Marshall Brown and A. M. Brown, for defendant in error.
    We submit that there is no principle of law that would give the president and cashier, as executives of a bank, the wide range of power contended for by the learned counsel for plaintiff in error. Such a power is not to be presumed, and is not within the ordinary business scope of such officers; and unless the power to make the transfer of stock, and credit.the same as part payment of the note sued upon, was expressly delegated by the board of directors to Reed, the case of the plaintiff in error must fail: Stewart v. Huntingdon Bank, 11 S. & R. 267, cited in Pennsylvania Railroad Co. v. Books, 7 P. F. Smith 339; Bank of United States v. Dunn, 6 Pet. 51; United States v. City Bank of Columbus, 21 Howard 356.
    The declarations of the cashier were not competent when the minutes of the board of directors would show what their action had been.
   The judgment of the Supreme Court was entered, November 25th 1878,

Per Curiam.

This is not a very clear case, but we think it is governed by the by-laws and usages of the association, which was unincorporated. While such an association has some analogy to a corporation in its by-laws and rules, it is still a mere partnership, and these laws and regulations are analogous to the terms of an article of co-partnership, by which each member binds himself to the others. This association permits a new partner to be introduced through a transfer of its stock, but upon its own terms. By its rules and regulations the stock of each partner is made liable for the partner’s debts to the association, and its assignment is prohibited without the assent of the managing partners, called directors. In buying' into the partnership the purchaser of the stock is bound to know the rules and regulations which govern it. He cannot ask to be made a partner unless upon the terms imposed upon Ms entrance into the partnership. Had he inquired into the nature of the association, and the laws by which it is governed, he he would have discovered the terms of his admission, and have acted accordingly; otherwise he cannot complain.

Judgment affirmed.


author: Mr. Justice Sharswood

text:
    The Millville Mutual Fire Ins. Co. versus Wilgus. City Fire Ins. Co. versus Same. Ben Franklin Fire Ins. Co. versus Same. Kenton Fire Ins. Co. versus Same.
    W. purchased a property sold by an administrator under an order of the Orphans’ Court, the conditions of which sale were, that W. should pay one-half the purchase-money on the confirmation of the sale, and the balance in one year thereafter. W. immediately took possession of the property, made improvements and upon the confirmation of the sale paid the one-half of the purchase-money. Shortly thereafter, and before the payment of the balance he became insured in several companies, the policies of which required that if the interest of the assured be any other than the entire, unconditional and sole ownership for the use and benefit of the assured, it must be so represented to the company and expressed in the policy, otherwise the same should be void. W. brought actions to recover his insurance. Held, that his title though an equitable one vested in him the entire, unconditional and sole ownership, subject to the payment of the balance of purchase-money, and that he could recover.
    November 14th 1878.
    Before Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Agnew, C. J., and Woodward, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1878, Nos. 62J, 110, 111, 112.
    These were actions of assumpsit brought by T. B. Wilgus against the Millville Mutual Fire Insurance Company, the City Insurance Company of Pittsburgh, the Ben Franklin Insurance Company of Pittsburgh, and the Kenton Insurance Company of Kentucky, respectively,' on policies of insurance. The first case was tried before Stowe, P. J., in January 1878, and the other three together before Bailey, J., in March 1878, and the four cases were argued together in the Supreme Court.
    At the trial it appeared that on February 12th 1876, the administrators of E. Toynbee, deceased, sold, by order of the Orphans’ Court of Fayette county, certain real estate of said deceased, known as the Toynbee distillery, situated in Fayette county. Wilgus became the purchaser at the sum of §6000, one-half of which was to be paid upon the confirmation of the sale, and the balance one year thereafter, with interest. Upon the day of the sale the administrators delivered possession of the property to Wilgus, who proceeded to make improvements thereon. On March 6th 1876, the one-half of the purchase-money was paid, and the sale confirmed. Between March 9th 1876 and June 1st 1876, the defendant insured the property to the amount of $23,500, in different companies. Among the'policies was one dated May 1st 1876, issued by the Millville Insurance Company, for $2500, and four issued respectively by the defendant companies, each for $1410. All of these policies contained the following condition:
    “ If the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property, for the use and benefit of the assured, or if the building insured stands on leased ground, it must be so represented to the company, and so expressed in the written part of - this policy, otherwise the policy shall be void.”
    There was no expression in the policy as to the character of the interest Wilgus had in the property, and there was no evidence to show that he gave the companies any information in regard thereto other than the fact that when he applied to the agent for the insurance he was asked by the latter if he owned the property in fee, and he replied that he did, but that subsequently, in a letter to the agent, on June 10th he said, “When I got the policies on the dwelling-house, I told you I owned it in fee-simple, not knowing the exact meaning of the term, which I believe is without encumbrance of any kind. I owe $3000, payable one year from April, being the last payment on all the property.”
    The agent, however, testified that he never received such a letter.
    On the night of June 22d 1876, the property was destroyed by fire, and upon the refusal of these companies defendants to pay the insurance, these actions were brought.
    The plaintiff’s first point was as follows, which the court, Stowe, P. J., affirmed:
    “If the jury believe that the plaintiff in February 1876, purchased the property at Orphans’ Court sale, as shown by certified copies of the records of the Orphans’ Court of Fayette county; that the sale was confirmed by that court; that plaintiff paid one-half of the purchase-money and. became bound for the payment of the balance of the purchase-money, and that plaintiff entered into occupation of the property in pursuance of the purchase, and made valuable improvements on the same, and that neither the said Orphans’ Court, the heirs of Toynbee, or the administrators raised any objections to the sale to plaintiff, but permitted the said occupation and improvements; then the plaintiff became the equitable owner of the entire property and had an insurable interest therein, and any loss to the buildings subsequent thereto was his loss.”

      The second and third points of defendant were as follows:
    2. That the interest of Wilgus in the property described in the policies sued on, at the time he procured them, as disclosed by the record in evidence, was not the entire, unconditional and sole ownership thereof, within the meaning of the fourth clause of the conditions of said policies; and the true nature and character of his ownership not being expressed in the written part of said policies, as required by the express terms thereof, the policies are void and the plaintiff cannot recover.
    8. That the true nature or character of the plaintiff’s ownership in the property described in the policies, is a fact material to the risk ; and if the jury believe from the evidence that the plaintiff did not disclose the true nature thereof and have it truly stated in the policies, as required by the first clause of the conditions thereof, the policies are void and the plaintiff cannot recover.
    To which the court answered:
    “ Refused. It is true that the general principle enunciated in those points is correct, but we think, under the evidence in this case as to the representation of plaintiff in regard to title and interest and the actual title and interest he owned, the principle is not applicable to the facts of this case, and does not, therefore, bar his right of action in this case.”
    Verdict and judgment against all the companies, who took these writs and, inter alia, assigned for error the answers to the above points.

      Weir Gibson, G. L. B. Fetterman and W. G. Guiler, for pjaintiffs in error.
    The question is, was Wilgus the entire unconditional and sole owner of the property for the use and benefit of the assured, within the meaning of the provision of the policies at the time he effected the insurance ? He had an equitable estate in the property to the extent of the purchase-money paid. That this was an insurable interest is not denied. But that he was the entire unconditional and sole owner for the use and benefit of the assured, is denied upon principle as well as upon authority: Security Ins. Co. v. Bronger, 6 W. P. D. Bush 146; Farmers’ and Drovers’ Ins. Co. v. Curry, 13 Id. 312; Rohbach v. Germania Ins. Co., 62 N. Y. 47 ; Reaper City Ins. Co. v. Brennan, 58 Ill. 159; Clay Fire and Marine Ins. Co. v. Huron Salt and Lumbering Manufacturing Co., 31 Mich. 346 ; Hinman v. Hartford Fire Ins. Co., 36 Wis. 159; Columbia Ins. Co. v. Lawrence, 2 Peters 25; Reynolds v. State Mutual Ins. Co., 2 Grant 326; Jenkins v. Quincy Mutual Fire Ins. Co., 7 Gray 370; Leathers v. Farmers’ Mutual Fire Ins. Co., 4 Foster 259; Tyler v. Ætna Ins. Co., 12 Wend. 507; Same Case, 16 Id. 385; Hayward v. N. E. Mutual Ins. Co., 10 Cush. 444; Birmingham v. Empire Ins. Co., 42 Barb. 457 ; Marshall v. Columbia Ins. Co., 7 Foster 169 ; Kibbe v. Hamilton Ins. Co., 11 Gray 163; Falis v. Conway Ins. Co., 7 Allen 46; Phillips v. Knox Ins. Co., 20 Ohio 174.

      K)box Reed, D. T. Watson and J. Gr. Wood, for defendants in error.
    Concerning the nature or character of Wilgus’s interest, there is no question between him and the plaintiffs. It is conceded that whatever may have been its extent, whether in the whole property or only to the amount of purchase-money actually paid at the time of insuring, that his interest therein was an equitable and consequently an insurable one: Siter, Jones & Co’s Appeal, 2 Casey 180; 2 Story’s Eq., ss. 789, 790, 1212; Stevens’s Appeal, 8 W. & S. 186; Kerr v. Day, 2 Harris 112; Robb v. Mann, 1 Jones 300; Reed v. Lukens, 8 Wright 202; Ins. Co. v. Updegraff, 9 Harris 519.
    The interest of Wilgus was the entire unconditional and sole ownership for his use and benefit within the meaning of the condition of the policies: Merrill v. Agricultural Ins. Co., 6 Reporter 237; Northampton v. Smith, 11 Metcalf 390; Ætna Ins. Co. v. Tyler, 16 Wend. 385; Strong v. Ins. Co., 10 Pick. 40; Tyler v. Ins. Co., 12 Wend. 507 ; Lorrillard Ins. Co. v. McCulloch, 26 Ohio 52; Coursin v. Ins. Co., 10 Wright 328; Gaylord v. Ins. Co., 40 Mo. 13; Becknall v. Ins. Co., 58 N. Y. 677; Wood on Ins. 477; May on Ins., sect. 76; Hough v. Ins. Co., 29 Conn. 10.
   Mr. Justice Sharswood

delivered the opinion of the court, January 6th 1879.

These cases all involve the same principle, and were argued together. The plaintiff below had purchased the premises upon which these insurances were effected, at an Orphans’ Court sale, the terms of which were one-half cash, and the other half in one year. •He made the first payment, and before the year expired the loss occurred. The condition of the policies relied on to avoid them, was, “ that if the interest of the assured in the property, be any other than the entire unconditional and sole ownership of the property for the use and benefit of the assured,” it must be so represented and expressed. The plaintiff’s title was an equitable one, but it nevertheless vested in him the entire unconditional and sole ownership, subject to the payment of the balance of the purchase-money. This balance was practically an encumbrance. It is true the legal title was in the vendors, but they could use it only to enforce the payment of the price agreed upon. In this respect it is exactly the case of a mortgage which vests the legal title in the mortgagee for the same purpose. Had the property been swallowed up by an earthquake, the entire loss would have fallen on the plaintiff. In Reynolds v. The State Mutual Ins. Co., 2 Grant’s Cases 329, there was a representation that the property was not encumbored. The language of the opinion indeed favors the idea that an equitable owner cannot insure beyond the purchase-money paid. Yet, Mr. Justice Biack adds: “ If we regard the difference between a legal and an equitable title as totally immaterial (and perhaps we ought so to regard it) then the unpaid balance of the purchase-money must be treated as an encumbrance.” It is clear, that if the owner could not insure beyond the purchase-money paid —he would be often entirely without indemnity. He is personally liable for the balance of the purchase — he may have made expensive improvements, or the property may have greatly appreciated. It is very easy for the insurance company, by proper questions, to draw out the exact nature of the title of the insured. In the cases before us, nó inquiry was made as to encumbrances. According to the law of Pennsylvania, the insured had a right to consider himself as the entire unconditional and sole owner. There is nothing in the remaining assignments requiring notice.

Judgment affirmed.


text:
    Margaretta Schad’s Appeal.
    S., executed in favor of his wife the following instrument of writing; “ Pittsburgh, 11th Dec. 1875,1, Conrad Schad, husband of Margaretta Schad, have insured my life with the Knickerbocker Co., in New York, for four thousand dollars (84000). I, Conrad Schad, assign the whole amount, four thousand dollars, to my wife, Margaretta Schad, after my death, when she can do with it according to her best will, without partiality toward her children. This I have written with good sound mind, and set my name to it. Comead Schad,” — which instrument was with other evidence, offered to prove an assignment of the policy mentioned to the wife, who, as administratrix, was sought to he charged with the amount of the policy. Held, that under the Act of April 15th 1868, Pamph. L. 103, the burden of proof was on the wife to show clearly a bona fide assignment; that the instrument was testamentary in its character; that the wife, as administratrix, was bound to account for and was properly surcharged with the amount of the insurance.
    October 12th 1878.
    Before Agnew, 0. J.,. Siiarswood, MerCur, Gordon, Paxson and Trunkey, JJ„ Woodward, J., absent.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1878, No. 256.
    Appeal of Margaretta Schad from the decree of the court surcharging her as administratrix of the estate of her husband, Conrad Schad, deceased, with the proceeds of a policy of insurance on the life of said decedent.
    Conrad Schad, of Pittsburgh, Pa., was killed by a fall from a wagon on June 30th 1876.
    Margaretta Schad, on July 6th 1876, took out letters of administration, giving an administration bond, with sureties in the sum of $2000.
    The administratrix filed her account January 16th 1878.
    The Orphans’ Court, on exceptions filed by the creditors of Conrad Schad, deceased, surcharged the administratrix with the sum of $3515.22, the proceeds of a policy in the Knickerbocker Life Ins. Co., on the life of said Conrad Schad.
    This was the main question involved in this appeal, and in this it was claimed the court erred.
    The said policy was taken out on the life of Conrad Schad, on the 25th of October 1869, for the benefit of himself. In connection with the policy was offered in evidence the following, written by Conrad Schad, in German, in a book belonging to him, this being a free translation:
    “Pittsburgh, 11th December 1875. I, Conrad Schad, husband of Margaretta Schad, have insured my life with the Knickerbocker Company, in New York, for four thousand dollars ($4000). I, Conrad Schad, assign the whole amount, $4000, to my wife, Margaretta Schad, after my death, when she can do with it according to her best will, without partiality toward her children. This I have written with good sound mind, and set my name to it.
    Conrad Schad.”
    It was objected that this was a testamentary paper, and as such, not properly proven, and the objection.was sustained. There was also some oral evidence of a gift of the policy by Conrad Schad to his wife in 1874. . Upon testimony, on argument, the court below, Hawkins, P. J., decided that the wife, as administratrix, be surcharged with the amount of the insurance, in an opinion, saying :
    “If it be meant by the expression used in the Act of April 15th 1868, Pamph. L. 103, ‘assigned bona fide,’ that there should be an actual assignment, that fact must be clearly shown; if it be meant that the assignment must be without intentional fraud upon creditors, that fact must be shown. In either view, the burden of proof is on Mrs. Schad in this case. Prima facie the title to the fund claimed is in the estate.
    “ 1. There can be no doubt that the attempted written disposition by Conrad Schad of his policy of life insurance was testamentary in character: Erew v. Clarke, 30 P. F. Smith 170. It was not to take effect, by its terms, until after his death. Not having been proved in the mode prescribed by law, it was not admissible in evidence as a will. If it had been admissible, the testator being insolvent at the time of his death, the legatee would take nothing. But it is of value, indeed necessary, in explaining Schad’s declarations and the sense in which he used the word ‘ assigned,’ in respect of his policy. Those declarations refer to an act of disposition, and the testimony of the insurance agent sufficiently identifies this writing as being that act. That writing is therefore the best evidence of Schad’s intentions. The evidence of his declarations is merely secondary and referential in character. It follows that he did not make an assignment, but a testamentary disposition. The word ‘assigned’ was used in the sense of ‘willed.’ This view is strengthened by Schad’s possession of the policy; by his personal interest in keeping the policy alive; by the testimony of the insurance agent, who was the only disinterested witness called on this branch of the case; and by the payment of premiums out of funds which otherwise should have been appropriated to the claims of creditors; and is consistent with an honest purpose. The written disposition must be presumed to have been made with deliberation and care, and without any intention other than that which appears on its face.
    “ 2. The intention of Schad with respect to his creditors in his attempted disposition of this policy can only be inferred ; there is no direct evidence. If that disposition was testamentary, it was clearly without fraud; his beneficiary would take subject to their claims ; ii it was intended as an assignment, it was certainly not made ‘ bona fide’ so far as they were concerned ; it was the fruit of property to which they were justly entitled. He was totally insolvent at the time of the alleged assignment, and so continued to the time of his death. With the proceeds of this policy constituting part of the assets of the estate, a large number of creditors will got a dividend on their claims; without it, they will get nothing, although some of them, it is fair to presume, are in as needy circumstances as this widow'. It is impossible to see upon what principle of justice or equity their title to the fund can be denied. Mrs. Schad paid nothing for it; for she had no means with which to pay. She has therefore no equity as against these creditors.”
    The accountant took this appeal, alleging that the court erred in surcharging her with the proceeds of the policy.

      George B. Brown and W. 0. Friend, for appellant.

      Chris. Magee, Thos. Mellon, C. F. McKenna, J. G. Bryant, Morton Hunter, 11. B. Carnahan, John J. Mitchél, J. H. Baldwin and W. A. Lewis, for appellees.
   The judgment of the Supreme Court was entered, October 28th 1878,

Per Curiam.

Upon the facts found by the judge of the Orphans’ Court, which seem to be supported by the evidence, his decree appears to bo right. The paper called the assignment is testamentary in its character; and the policy appears to have remained in the possession of Conrad Schad until his death.

Decree affirmed, with costs to be paid by the appellant: and the appeal is dismissed.


text:
    O’Hara and Wife versus Baum, for use, &c.
    A mortgage givefi by a married woman to indemnify an endorser of her husband’s paper against loss, is in no manner for the benefit of the holders of the paper, and the assignment of the mortgage by the mortgagee only carried to the assignee the right to recover the amount actually paid on the paper by the mortgagee, up to the time of the assignment. The assignment was a limitation of the security, to the amount then actually paid, and a reassignment of the mortgage could not restore it as a security for more than the amount paid prior to the assignment.
    November 14th 1878.
    Before Sharswood, Merctjr, Gordon, Paxson and Trunkey, JJ. Agnew, C. J., and Woodward, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 71.
    Scire facias sur mortgage, by A. F. Baum for use of S. P. Fulton, The Pittsburgh Savings Bank, The City Deposit Bank & Trust Co., and the National Trust Co., against Michael O’Hara and Frances A. O’Hara, his wife.
    At the trial, it appeared that Mrs. O’Hara joined with her husband in the execution of a mortgage, on August 22d 1871, to A. F. Baum, to indemnify the latter to the extent of $15,000, for any loss he might sustain by reason of endorsements already made or to be made, of the paper of said Michael O’Hara. Under said mortgage, Baum endorsed over $15,000 of O’Hara’s paper, none of which, with a trifling exception, was ever paid by either O’Hara or Baum, and which was all in the hands of the use parties plaintiffs, who were holders for value. On June 5th 1873, Baum assigned said mortgage to S. B. W. Gill, who, on September 3d 1873, re-assigned it to Baum, who in turn, on May 23d 1874, assigned it to S. P. Fulton. Baum had paid a small portion of the paper, and Fulton procured some of it after the assignment to him, but the bulk of it was in the hands of the use plaintiffs.
    Among the points submitted by the defendants, were the following, to which are subjoined the answers of the court, Fetterman, J.:
    1. That this mortgage was to indemnify A. F. Baum against loss or damage for the use of his name upon the paper of Michael O’Hara, and not a security for the paper in whosoever hands it might come, and outside parties holding such paper, have not, by virtue of their ownership of said paper alone, any rights in said mortgage, and it being shown by the plaintiffs’ evidence that S. P. Fulton is assignee only of said mortgage, without any evidence that he holds the same for any one but himself, no recovery can be had thereon for such outside parties; and notes held by the National Trust Company, J. T. Stockdale, trustee of the Pittsburgh Savings Bank, the City Deposit Bank and Trust Company, &c., should be excluded from the consideration of the jury.

      Ans. “ That point is refused. As I have already stated, if these parties held this paper, and it was taken as paper secured by this mortgage, they would be entitled to recover; and as to the mortgage being assigned to Mr. Fulton in trust for these parties, it is immaterial whether Mr. Fulton was interested in the matter or not. But Judge Mellon testifies that Mr. Fulton paid over the amount of his claim, and took an assignment of it. If he did, he would be an interested party, but independent of that Mr. Baum would have a right to assign this mortgage to whomever he saw proper, to hold for the benefit of ’the parties who were to be protected by the mortgage.”
    3. If the plaintiff is entitled to recover at all, it would be only for such notes as A. F. Baum had lifted at the date of the assignment to S. P. Fulton.
    Ans. “Refused.”
    4. The assignment of the mortgage to S. P. Fulton was an abandonment of it as an indemnity against the said paper, and none of said paper being shown to have passed to said Fulton or to have come into his possession prior to the bringing of this suit, the plaintiff cannot recover.
    Ans. “Refused.”
    5. That as A. F. Baum assigned said mortgage absolutely, as appears by the record, and directly thereafter went into bankruptcy, the liability of Mrs. O’Hara under the mortgage, if liable at all, would be for only as much as is shown to have been said Baum’s loss and damage up to that time.
    Ans. “ That point is refused. He is not only liable on this mortgage for the amount Baum paid prior to his bankruptcy, but for all the other paper I have spoken of up to the amount of $15,000 that was endorsed by him under and in pursuance of the arrangement of this mortgage.”
    6. Under this mortgage and the evidence, the plaintiff is not entitled to recover, at least for notes (certain notes specified).
    Ans. “Refused.”
    9. While the mortgage was in S. B. W. Gill as assignee it was not any indemnity for any paper issued by O’Hara and endorsed by Baum.
    Ans. “ Refused.”
    In the general charge, the court, inter alia, said:—
    “All notes that were endorsed by A. F. Baum for Michael O’Hara, in pursuance of the arrangement, and which this mortgage was given to secure, not exceeding $15,000, are covered by it, and if in the hands of third parties, they would be entitled to the rights of Baum under this mortgage, and [if Baum assigns it to Mr. Fulton or to any person else for his own benefit, to the extent that he had paid out on those notes and for the benefit of other parties who held that paper, they would be entitled to come in through Baum, and claim- the benefit of the mortgage.] So that in this case, [if you find that these notes in suit were executed by O’Hara and endorsed by Baum, under and in pursuance of this mortgage, and have not been paid by Michael O’Hara, the maker of the paper, and are still -held by these parties for whose use this suit is now brought, they would be entitled to a verdict for the full amount, not exceeding $15,000, with interest on the notes.] If you find the notes in suit were all executed by O’Hara and endorsed by Baum under and in pursuance of this indemnity he had to secure him, and were discounted for O’Hara, he receiving the proceeds thereof, and that he has never paid them, the plaintiffs would be entitled to your verdict.
    “ [It is further contended that the notes held by the National Trust Company were executed and delivered to the bank or endorsed by Baum during the interval that he had assigned this mortgage. It appears by the record that he assigned the mortgage to Gill on June 5th 1873, and that it was re-assigned to him Sep-, tember 3d 1873. It is said that while it was assigned to Gill, the notes held by the National Trust Company were executed, and the point is made that those notes would not be protected by the mortgage. Whether they were or were not made at that time, if Baum assigned this mortgage to Gill for the purpose of securing him on some matters between themselves, it would not, as against Mrs. O’Hara, affect Baum’s right under this mortgage (if he still endorsed those notes), to get the mortgage back to secure him. He would have a right, notwithstanding the temporary assignment of the mortgage to Gill, to hold this indemnity as against those notes also.”] ’ '
    Verdict for plaintiff for $19,575, and after judgment, defendants took this writ, assigning for error, inter alia, the answers to the foregoing points and the portions of the charge in brackets, noted above.

      M. A. Woodward, for plaintiffs in error.

      A. M. Brown and S. P. Fulton, for defendants in error.
   Mr. Justice Gordon

delivered the opinion of the court, January 6th 1879.

The amendment allowed by the court by which certain alleged equitable plaintiffs were added to the record, was of no moment whatever, since nothing was thereby added to the responsibility of the mortgagor. She was accountable to Baum, the mortgagee, alone, and not to the use plaintiffs. If she owed him nothing, they could get nothing; on the other hand, if he had the right to recover, it was of no consequence to her how matters were arranged between Baum and his assigns. It was, however, a mistake to treat the case as though Baum were a trustee for the endorsees of the notes made by O’Hara, or to suppose that the mortgage inured to the benefit of such endorsees. The mortgage of Mrs. O’Hara was, by its terms, intended to indemnify Baum personally against any loss that might happen to him by reason of his endorsement of O’Hara’s paper, and if, by any means, or for any reason, he was released from payment that was the end of her obligation. She was not bound to take care of the paper, that was the maker’s business, she was only bound to see that no damage resulted to Baum by reason of his connection with it. Hence, the mistake in treating the mortgage as a collateral guaranty of the paper, and the holders of it as having an equitable right in that mortgage, whereas in Baum alone was that right, and that only to the extent of such of the O’Hara notes as ho might be obliged to pay. For the undertaking of Mrs. O’Hara being only that of indemnity, she having, herself, no interest in the paper, she must be regarded as standiug in a position not less favorable than that of a prior endorser. But it is held in Byles on Bills, 5th Am. ed. 576, note, that before an endorser can bring suit against prior parties, he must take up the bill. Unless, therefore, it was otherwise intended, and in case of a married woman, there can be no intendment not apparent on the face of her deed, it must be presumed that those who took the O’Hara paper took it on the credit of the maker and endorser, and not on the credit of the mortgage: Peterson v. Willing, 3 Dal. 506.

Again, how could Baum continue to hold the beneficial interest in this mortgage after his assignment to Fulton ? As long as he owned it, it continued to be his personal security, but when he parted with it, it could no longer have that effect, for he had then no more right in it than in the mortgage of a stranger. He assigned to Fulton “the mortgage” and “all the moneys secured thereby.” Fulton was thus invested with all Baum’s right; he could, through the mortgage, charge Mrs. O’Hara’s land with all the moneys Baum had paid on the endorsements for Michael O’Hara, and that was all that could be charged against it. Fulton’s right in this mortgage being thus absolute and unqualified, what was left for Baum ? Had not Fulton the right to exhaust the mortgaged premises in satisfaction of his claim ? Had he not the power to satisfy the mortgage, or to assign it to the mortgagor, or to whomsoever he pleased? Certainly he owned the whole and every part of it, hence wo cannot understand how, after the date of the assignment, it could continue in Baum as security for notes endorsed by him after that time. And when he had thus put an end to the mortgage as a continuing indemnity to himself, and had, by his own act, limited it, as a security, to the moneys which he had then actually paid, we cannot understand how it could afterwards be enlarged by a re-assignment. Would he, by that act, get any thing more than Fulton had? If so, then the re-assignment had the effect to restore to him powers which he had voluntarily abandoned; to revoke his own deliberate limitation of the indemnity, and in this manner rebind a released surety. This would, in effect, amount to a re-execution of a mortgage by implication; but this cannot be permitted, and especially as against the rights of a married woman. •

The foregoing reasoning sustains the defendant’s assignments of error from the first to the tenth inclusive; the rest are dismissed as untenable.

The judgment is reversed, and a venire facias de novo ordered.


text:
    Mills versus Wilson.
    W., a resident of Kansas, wishing to secure a loan from M., a resident of Pennsylvania, executed in Kansas a bond' and mortgage which specified no rate of interest or place of payment, and mailed this to H., a broker, in Pennsylvania, who negotiated the loan and acted as the agent of both W. and M.
    H. delivered the bond and mortgage to M. and secured the money. M. subsequently obtained a judgment against W. in Pennsylvania on a scire facias, issued on the mortgage, which judgment included interest at the rate of seven per cent., the rate paid in Kansas. W. paid the judgment, but brought an action to recover the excess of interest over six per cent., the legal rate in Pennsylvania. Held, that this was a Pennsylvania contract and that "VY. was entitled to recover.
    November 18th 1878.
    Before Agnew, C, J., Sharswood, Merour, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas; No. 1, of Allegheny county: Of October and November Term 1878, No. 245.
    This was an amicable action of assumpsit by Levi Wilson against John Mills, in which the following case was stated for the opinion of the court: In July 1873, Wilson, who was a resident of Leavenworth, Kansas, negotiated a loan from -Mills, who was a resident of Pennsylvania, through W. H. Hastings, a broker, in Pittsburgh, who acted as agent for both parties. The attorney of Mills, in Pittsburgh, prepared a bond and mortgage upon real estate belonging to Wilson, situate in the city of Pittsburgh, and these papers which specified no rate of interest or place of payment were sent to Wilson in Kansas. He executed them there and mailed them to Hastings, who, upon receipt of the money lent by Mills to Wilson, delivered them to Mills. In 1876, Mills obtained a judgment against Wilson upon a scire facias issued on said mortgage after a return of two nihils. In liquidating the amount, interest was calculated at the rate of seven per cent., which rate Mills claimed to be correct, as that was the legal rate in Kansas. Wilson contended that only six per cent., the rate allowed in Pennsylvania, should be computed, but he paid the full amount of the judgment as liquidated, and brought this action to recover back the excess of interest paid over six per cent., to wit, $85.60. The court entered judgment for the plaintiff on the case stated, and defendant took this writ and assigned this action for error.

      T. II. Baird Patterson, for plaintiff in error.
    Kansas was the locus of the contract, for the bond and mortgage were executed there, at the residence of the obligee, and the payment by the agent in this state is not legally competent to change tnc locus thus shown by the papers themselves: Potter v. Tallman, 35 Barb. 182; Findlay v. Hall, 12 Ohio 610. The negotiation was made here, but the transaction was closed in Kansas. The instant Wilson mailed the executed papers in Kansas the contract was closed and subject to Kansas law: Parsons on Contracts, 5th ed., 582; Jones on Mortgages 502, 508; Addison on Contracts 361; Lennig v. Ralston, 11 Harris 138.

      Thomas C. Lazear, for defendant in error.
    The contract, both in the making and the performance, was a Pennsylvania contract. The mortgage was of no effect until delivery. The receipt of the money and the delivery of the mortgage were contemporaneous acts by the agent of both parties and acting in Pennsylvania. The place of payment would of necessity be where the mortgage could be enforced. Only the Pennsylvania rate of interest should have been computed: Story on Conflict of Laws, sects. 291, 292; Archer v. Dunn, 2 W. & S. 327; Wood v. Kelso, 3 Casey 241; Schell v. Stetson, 34 Leg. Int. 114.
   The judgment of the Supreme Court was entered November 25th 1878,

Per Curiam.

This is clearly the case of a Pennsylvania contract. The agreement for the loan was made here, and the place of payment was here, where the creditor resided. Though the bond and mortgage were sent to Kansas to bo executed, they were inchoate until delivery and payment of the money here, acts necessarily simultaneous. Hastings, though the agent of both parties in effecting the loan, was the agent of Wilson in delivering the bond and mortgage and receiving the money.

Wo think the court was right in giving judgment for the interest at the rate allowed in Pennsylvania, and not at the Kansas rate.

Judgment affirmed.


author: Mr. Justice Mercur

text:
    Bergman’s Appeal.
    1. In the distribution of the proceeds of a sheriff’s sale of the real estate of Henry Hackman, a judgment entered against him in the name of Ilenry Heckman was properly allowed to participate therein as against subsequent liens correctly entered.
    2. The Act of Assembly requiring judgment-dockets and indexes to be kept, provides for notice rather to the eye than to the ear, although it may not wholly exclude the latter.
    3: Myer v. Fegaly, 3 Wright 429, followed, and Heil and Lauer’s Appeal, 4 Wright 453, distinguished.
    November 15th 1878.
    Before Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Agnew, C. J., and Woodward, J., absent.
    Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1878, No. 144.
    Appeal of G. E. Bergman from the decree of the court dismissing the exceptions and confirming the report of the auditor to award distribution of the proceeds of the sheriff’s sale of the real estate of John Henry Hackman.
    The levari facias under which the fund for distribution in this case was realized, was issued upon a judgment recovered at June Term 1877, upon a mortgage given by John Henry Hackman to Henry F. Eggers, upon certain lots of ground in Allegheny City, and by the latter afterwards assigned to Casper Will. This mortgage bore date the 19th of August 1874, and was duly recorded on the 21st of the same month.
    The sheriff having applied this fund, after payment of costs and taxes, to the judgments of C. E. Kenneweg and Eggers, to the exclusion of the judgment of G. E. Bergman, the latter thereupon excepted to the sheriff’s return making this appropriation, and assigned as the reason for the exceptions that his judgment was a lien on the real estate sold prior to the judgments thus preferred, and consequently entitled to be first paid out of the proceeds of the sale.
    The Bergman judgment was recovered on the 8th of November 1872, the Kenneweg judgment on the 3d of December 1873, and the mortgage on which the Eggers judgment was recovered was recorded still later, on the 21st of November 1874.
    The defendant in the writ was the owner of the property sold, from the 12th of July 1864 until sheriff’s sale thereof on the 8th of June 1877.
    It was objected to the Bergman judgment that the defendant in said judgment, though confessedly the same person as the defendant in the writ, was not properly named, and therefore that said judgment was no lien on the premises as against other encumbrances. This raised the only question in dispute.
    The auditor, inter alia, reported: — ■

      “ The full name of the defendant in the writ is John Ilenry Hackman, though he has been in the habit of omitting the first name, John, in writing his signature. His full name appears in the Eggers judgment. In the Kenneweg judgment the name is Heinrich Hackman, Heinrich being the German for Henry. But in the Bergman judgment it is Ilenry Heckman, the first vowel in the surname being e instead of a, and was so spelled by mistake, for the judgment was entered by confession upon a judgment-note, which was signed correctly in German characters Heinrich Hack-man, but the prothonotary’s clerk, who entered it upon the records of the court, and who was not acquainted with the German language, appears to have misunderstood the directions of the persons who delivered it to him for entry as to the spelling of the name. He was directed to spell it Henry Hackman, and, to insure against mistake, he wrote the name at the time on the back of the note as he doubtless understood it, but he committed the same error there as in the entry of the judgment upon the appearance and judgment dockets, spelling it Heckman instead of Hackman. But while the plaintiff in the Bergman judgment admits this mistake in the surname of defendant, he maintained that it did not amount to a variance, such as would vitiate the lien of the judgment, and insisted that it cable within the principle of idem sonans. The decision chiefly relied upon for this position was Myer v. Fegaly, 3 Wright 429.
    “ The auditor, however, cannot concur in this view, and is of odinion that the mistake was material, and that the sheriff was therefore right in rejecting the judgment on the distribution of the money.
    “The proof was that Hackman and Ileckmen are pronounced differently in the German language, as they certainly are in the English. In the German language Hackman is pronounced as if spelled in English Ilawkman, and Heckman as if spelled Hake-man. The case of Myer v. Fegaly has, therefore, no application, for while Bubb and Bopp were there held to be the same as respects a purchase of real estate from one against whom judgments had been entered in both forms, it was decided that the variance was immaterial only because in the German language they had the same sound. But if the evidence in this case was not only that there is no identity of sound in the pronunciation of Hackman and Heckman, but that these surnames have a different origin and designate different persons and different families.
    “ In fact, the list of liens in question contains the name of Heck-man as a defendant in several judgments, but with the exception of the judgment in dispute so entered by mistake, not one was against the defendant in this writ.
    “The auditor, in the conclusion to which he has arrived in this case, relies mainly on the opinion of the Supreme Court in Ileil and Lauer’s Appeal, 4 Wright 458, where it was held that in the distribution of the proceeds of a sheriff’s sale of the real estate of George P. Yoest, a judgment entered against him in the name of Joest is not entitled to come in as against subsequent liens properly entered, even though the names have the same sound in the German language.”
    The court dismissed the exceptions filed to this report, and confirmed the same, whereupon this appeal was taken.

      Thomas J. Jack, for appellant.
    The Act of Assembly which requires that judgment dockets and indexes shall be kept, provides for notice to the eye, and not to the ear, so as to furnish to the eye of purchasers and subsequent encumbrances that record notice which the Act of Assembly contemplates: Heil and Lauer’s Appeal, 4 Wright 454; York Bank’s Appeal, 12 Casey 458. In this case it seems quite reasonable that such should be the case, for no careful examiner looking for liens against John Henry Hackman would pass a judgment entered against Henry Heckman.
    In this case the auditor in his report admits that there was an identity of the person, but assigns as his reasons for finding against the exceptant, that there was a variance in a single vowel in spelling the name. Such a variance was held to be immaterial in Myer v. Fegaly, 3 Wright 429.

      B. C. Christy and J. H. Mueller, for appellee,
    adopted the report of the auditor as their argument.
   Mr. Justice Mercur

delivered the opinion of the court, January 6th 1879.

This is a distribution of the fund raised by a sheriff’s sale of real estate. The lien of the appellant was prior in time to all other liens, but was disallowed by the auditor and by the court below, by reason of alleged error in spelling the name of the defendant in the judgment. The lien of the appellant wras entered on a judgment-note, signed in German characters, Heinrich Hackman. When it was filed of record, the prothonotary was directed to spell the name Henry Hackman; but in fact he wrote it on the record Henry Heckman. It appears from the evidence and the finding of the auditor that the full name of the maker of the note was John Henry Hackman ; yet he testified that he always omitted the John in writing his name, except on one occasion, and that he pronounces his name, in English, Henry Hackman. His wife testified she was the wife of Henry Heckman; that she never knew any other Christian name for him than Henry; that everybody knew him as Hockman, in German, and Heckman, in English. Their son testified that his father’s name was Henry Hackman, but that it was generally pronounced, in the neighborhood, as though the a in the first syllable was e instead of a. Hack, in Herman, he would pronounce Heck, in English. Another witness thought it was Hackman, but pronounced Hawkman. Still another heard it called Hartman, in English. Looking at the origin of the names it appears that Hackman means a chopman, a man who chops; and that Heckman means a brushman or hedgeman, and that the two are pronounced differently in the Herman language. We cannot, however, consent that a difference of meaning in the signification of names in their original language, shall control the question now presented. In a search for liens, the appearance of the name to the eye, and its sound to the ear, are more important. The initial letter of the' name being undoubted, allowance must be made for slight differences in the spelling. When, as here, the two names are Hackman and Heckman, the difference is so little, it should put one interested on inquiry. That inquiry thereupon became a duty. Slight investigation would have disclosed the fact to the appellees that Hackman and Heckman were one and the same person, and that the appellant had a prior lien.

This case appears to have been decided by the auditor on the authority of Heil and Lauer’s Appeal, 4 Wright 453. The correctness of that case on its facts, we do not question; but we see no reason for holding that it leads to the conclusion at which the auditor arrived. It was there held, the fact the name was spelled Jbest, in Herman, and Yoest, in English, was insufficient to establish the identity of the names as against a lien-creditor. It was therefore said that in searching for a name, the initial letter of which was Y., a purchaser or encumbrancer should not be required to examine the index through the letter J. Where, however, both names have the same initial letter a different rule applies. The eye is naturally directed to names otherwise slightly different. Thus where the correct name was Bopp, and on the judgment-docket was written Bupp, substituting u for o, the lien was held good as against one claiming under Bopp: Myer v. Fegaly, 3 Wright 429. It is true some weight was given to the fact that, according to the Herman pronunciation, the sound of both names was identical. In Heil and Lauer’s Appeal, supra, it was held that idem sonans does not apply to judgments entered in different initials from the usual and ordinary form in which the name was spelled in the English language. The Act of Assembly requiring judgment-dockets and indexes to be kept, provides for notice rather to the ‘eye than to the ear, although it may not wholly exclude the latter. We cannot discover any greater variance, either to the eye or to the ear, between Hackman and Heckman, than between Bopp and Bupp. In each case the departure consists in the substitution of one vowel for another, in the second letter of the name.

Decree reversed, and record remanded with instructions to decree distribution conformably with this opinion.