text:
    LUZERNE COUNTY.
    January Term, 1881,
    No. 33.
    April 12th, 1882.
    School District of Denison Township versus Shortz et al.

    1. Where at a regular meeting of a board of school directors, the names of those present are entered on the minutes, and it is noted that a resolution for the purchase of a school lot was passed unanimously, it is a substantial compliance with the provisions of section 4th, of the Act of April 11th, 1862 (P. L., 472), though the names of those voting for the resolution were not entered.
    2. An indebtedness of a school district for materials supplied in the erection of a school-house, is not within the provisions of section 8th, article 9th, of the Constitution, and the Act of April 20th, 1874 (P.L., 65), if at the time the contract is made, the district has a surplus of assets over liabilities, though subsequent contracts for the completion of the building extended the indebtedness to an amount beyond two ,per cent, of the assessed valuation, there being no proof that the directors then had in contemplation such an increase of the debt.
    3. Where a vacancy in a school board is filled by appointment, by the remaining members of the.board, and the appointee acts as a director, and is recognized as such, and part of the time is president of the board, an order signed by him as president for the payment of money due to a third person is binding upon the school district.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Luzerne County.
    Assumpsit by Edwin Shortz, Albert Lewis, Elisha P. Wilbur, Robert Lockhart, Robert H. Sayre, and Robert A Packer, trading under the firm name of Shortz, Lewis & Co., against the school district of Denison Township, to recover for lumber sold and delivered.
    .The case was referred, under the Act of 1869, and its supplements, to A. H. Dickson, who found the facts as follows:
    On the 11th December, 1875, the directors of the Denison school district at a regular meeting, at which five out of the six directors were present, adopted a resolution unanimously that the district purchase from a Mrs. Whalen two building lots for $250. The names of the directors voting are not entered on the minutes in connection with this resolution. The names of the directors present are given, being five out of six, and the fact that the resolution was carried unanimously is stated. Subsequently, on the 30th April, 1876, at a full meeting of all the directors, it was resolved that “ we are all of us satisfied with the .location of lots,” etc. No names were given then, but stated simply as above. A deed was made by Mrs. Whalen to the district for these lots, and the purchase-money paid her in full by the district prior to June, 1876. On the 25th of March, 1876, a building committee was appointed, consisting of three members of the board. On the 22d of May, 1876, there being five members present, at a regular meeting of the school board the building committee were authorized “ to buy lumber for the new school-house and give note on district for amount.” In Juné, 1876, this committee called on Edwin Shortz, one of the firm of plaintiffs. They informed him that they were a committee appointed by the school board to purchase lumber for a new school-house they were about to erect; that no money was then in treasury to pay for lumber, but they would give him orders. Shortz agreed for himself and firm with this committee to furnish all lumber necessary for the building. The price was fixed, and the lumber was supplied by Shortz, Lewis & Co. to the extent of $675.18, beginning to deliver September 19th, 1876, and by E. Shortz to the extent of $433.84, making in all $1109.02 on this contract.
    On the 10th of February, 1877, an order of the school district was signed by John O’Day, president, Michael McDermott, secretary, and .accepted by Thomas Cummins, treasurer, to Shortz, Lewis & Co., for this $675.18. Payment was demanded of the treasurer an d refused prior to bringing this suit; The old school-houses and one lot were sold after the new school-house was built. One lot, however, is still retained by the district.
    On the 30th of April, 1876, S. Rehrig, one of the members of the school board of Denison Township, resigned. Rehrig’s term of office did not expire until June, 1877. On the 2d June, 1876, at a regular meeting of the board, John O’Day was appointed in the place of Pehrig, under the 7th section of the Act of 8th May, 1854 (P. L., 618). O’Day continued to act as a member of the board until the qualification of his successor, elected at the next spring election in 1877. He was elected president of the board in September, 1876, and held that office the remainder of the school year, and as such signed the orders, including the one to Shortz, Lewis & Co., for $675.18, and three to E Shortz for $433.80. The organization of the school board for the school year beginning June, 1876, was delayed by a contest over the offices of directors. The matter was brought into Court, and they were directed by the Court of Equity to organize on September 14th, with certain numbers, which they did. On the 14th September, 1876, being the first meeting of the school year, there was levied a tax of thirteen mills on the dollar for building purposes, on the assessed valuation of Denison Township, which, in 1875, was $96368, and in 1876, $94064. Of this sum $10910 was an assessment on trades, occupations, etc., under the Act of April 15th, 1834 (Purdon, P. L. 1358, sec. 5). The balance of building tax over the current expenses for the year 1875 was $384.48, for the year 1876 was $871.60, and a further sum of $242.78, so that the total assets for the district, at the close of 1876, were $1498.86.
    The liabilities of the district were somewhat obscure. It appeared from the stubs in the order book that the total orders from January 3d, 1876, to June 4th, 1877, amounted to $6696.78. What orders were paid, or when the indebtedness was contracted, did not appear. There was testimony that of this sum, $894.45 was for current expenses, and $5802.83 was for the purchase of lots, and matters pertaining to the school building.
    The minutes showed contracts for the new school-house during 1876, making a total of liabilities amounting to at least $4862.82. This left an indebtedness at the completion of the new school-house building of $3363.96, more than two per cent, on the assessed valuation. The indebtedness, at the completion of the building, was more than two per cent, and less than seven per cent, on the assessed valuation.
    In June, 1876, at the time the debt in suit was contracted, the district had paid all of its existing matured indebtedness. The amount of contracts then entered into, including those of the plaintiffs, was $1386.94, and this sum, deducted from the total assets of $1498.86, left a balance of assets over the then liabilities of $111.92.
    The referee found as a fact that the lumber, for the payment of which this suit was brought, was used in building a new school-house upon a new location, and that the plaintiffs knew such to be the case when the lumber was sold and delivered.
    The referee found as matter of law:
    1st. That O’Day was a member of the school board de facto, and his acts, binding on the district, so far as they were within his powers as director.
    2d. That the requirements of the Act of 11th April, 1862 (sec. 4, Purd. Dig., 242, pi. 36), in relation to the location of the new school-house, were substantially complied with,— the vote of a majority of the full board being unanimous: Tobin v. Morgan, 20 P. F. Smith, 229.
    3d. That the contract with Shortz, Lewis & Co. was binding between the parties when the agreement was made with the committee in pursuance of the resolution of the board, to wit, in June, 1876.
    4th. That no indebtedness within the meaning of the Act •of 20th April, 1874, as defined in section 5 of said act, was created by that contract, and the judgment should be entered for the plaintiffs for $798.24, being the amount of the claim of $675.18 with interest.
    The defendant filed exceptions to the report, which the Court below, Rio®, P. J., overruled, filing the following opinion:
    “ 1. The resolution for the purchase of the school lot was passed unanimously, the names of the directors present were entered on the minutes, and it was a regular meeting. This was a substantial compliance with the Act of April 11th, 1862 (Pamph. Laws, 472; Purd. Dig., 242, pi. 36), even conceding that an irregularity in the proceedings would affect a subsequent contract made by the plaintiffs to furnish materials for the erection of a school building on the said lot. ‘ The act evidently contemplated that the ayes and noes should be recorded only when there were members voting both in the affirmative and negative:’ Tobin v. Morgan, 20 Smith, 229.
    “ 2. In May, 1876, the building committee was authorized by the board ‘ to buy lumber for the erection of a new schoolhouse, and give a note on district for amountand in June, 1876, the committee, in pursuance of this resolution, entered into an agreement with the plaintiffs, and Edwin Shortz individually, to furnish the defendant all the lumber ‘ necessary’ for the building. The price of the lumber, although not its aggregate amount and cost, was agreed upon, and it was also agreed that the plaintiffs should take order’s. The plaintiffs furnished the lumber, and now bring suit for its price. The lumberwas furnished as it was needed from time to time, between September, 1876, and April, 1877. The main defence before the referee was that this was part of an indebtedness incurred by the school district in excess of two per centum upon the assessed value of the taxable property, as fixed and determined by the last preceding assessed valuation, without compliance with the provisions of the Act of April 20th, 1874 (Pamph. Laws, 65; Purd. Dig., 1928). From the referee’s report upon the facts, and they are not excepted to, we find that this contract with the plaintiffs did not increase the debt one dollar, as the term ‘indebtedness ’ is defined in section 5 of the Act of 1874, for adding to its gross amount all other debts for which the district was then liable, though to come due in the future, and deducting this sum from the money in the treasury, added to the revenues applicable within one year to the payment of the same, there would remain a surplus of assets over liabilities of $111.92. This being the case, how can this contract be declared unlawful, even though by subsequent engagements of the district there occurred an increase of the indebtedness beyond the two per cent. ? Such subsequent contracts and engagements ought not to have the effect of .relating back and vitiating every previous contract made in good faith, and to meet which there was money in the treasury or current revenues applicable to its payment. The language used by Judge Gordon, in Appeal of the City of Erie (MS.), is exactly applicable here: ‘ If the contracts and engagements of municipal corporations do not overreach their current revenues, no objections can lawfully be made to them, however great the indebtedness of such municipalities may be, for in such case their engagements do not extend beyond their present means of payment, and so no debt is created.’ The case cited is important, also, in determining when the debt, if any, was incurred. The city of Erie entered into an agreement with certain parties for the erection of a market-house, by the terms of which the city would become liable to pay the sum of $1500 or $3000 annually for twenty-five or thirty years, depending on the cost of the structure. The learned judge says: ‘ Now a debt means a fixed and certain obligation to pay money, or some valuable thing or things, either in the present or in the future,’ and for the reason that the contract increased the debt of the city, in violation of section 8, article ix., of the Constitution, beyond seven per centum of the assessed value of the property, he declared it to be unlawful. Now, if this decision means anything, it is that the debt was incurred when the engagement was entered into, and its lawfulness or unlawfulness must be determined by tbe condition of the city’s indebtedness at that time, and the city’s then ability to pay from its current-revenues. So we think the present contract must be judged by the other indebtedness of the district at the time it was entered into, and the ability of the district to meet all such indebtedness by its current revenues or the money in its treasury; and it appearing, as has been shown, that they were sufficient, after deducting ordinary expenses, to meet their engagements, and still have a surplus, the contract was not unlawful, and the district is liable.
    “ 3. But assuming for a moment that, when this contract was entered into, it was in the contemplation of the school directors to build a school house, by which the debt would be increased beyond the ability of the revenues to meet it, and that the plaintiffs knew of this purpose, we do not say that they could recover, provided it was the present purpose to exceed two per centum of the assessed valuation, and there was a failure to comply with the provisions of the Act of 1874. In that case it would seem they ought to stand or fall with the other creditors, knowing, as the case supposes they did, that their contract with the directors was part of an illegal transaction, although it, standing alone, might not constitute an illegal increase of the indebtedness. But it is not necessary to decide that question here, for the facts do not raise it. There is no proof that the directors had in contemplation such an increase of the debt when they contracted with the plaintiffs, and, although the referee has found that the final cost of the school building did create an indebtedness in excess of two per cent., yet it does not appear that this cost was made necessary by the plans upon which the work was begun, and of which the plaintiffs had knowledge when they entered into their engagement with the district.
    “ 4. John O’Day was a de facto member of the board at least. He was appointed under color of authority, and acted and was recognized as a director, being part of the time president of the board. This being the case, his acts as such director and president were binding on the district, so far at least as the public and third persons were concerned.
    “The exceptions are overruled, the report confirmed, and judgment entered in accordance with the referee’s finding.”
    The defendant then took out a writ of error, assigning as errors that the Court erred in overruling the exceptions, and in directing judgment to be entered as found by the referee.

      jE. S. Osborne, for plaintiff in error.
    The names of the members of the board voting in the affirmative and negative are not entered in the minutes, as required by section 4th of the Act of April 11th, 1862.
    1. To allow the claim would be to abrogate this statute.
    2. It represents an indebtedness incurred in violation of section 8th, article 9th, of the Constitution, and the Act of April 20th, 1874.
    1. By the Act of 11th April, 1862, no school-hpuse shall be located, or its location abandoned or changed, except by the affirmative vote of a majority of the whole number of the directors or controllers thereof; and in each of said cases the names of the members voting, both in the affirmative and the negative, shall be so entered on the minutes of the board by tne secretary. This act is mandatory, and must be strictly followed. By it something is required to be done, and the act is specific in pointing out the manner in which it shall be done. Its purpose was to prevent jobbery, and the exercise of one man power: School District v. Padden, 8 Norris, 395.
    2. Before any indebtedness exceeding two per centum could have been authorized, it was necessary that a vote should be taken in the manner pointed out by the Act of April 20th, 1874, by the directors, and duly recorded. A statement under oath must be filed. The Constitution requires that the assent of the electors must be obtained. This claim is part of an indebtedness incurred in the erection of a school-house. The debt is to be ascertained by taking into the account all the bills and items necessary which the district had to buy on credit. To single out this bill, and compare it alone with the amount realized from the tax duplicate, is only a clear way to avoid the statute and violate the Constitution: Pike County v. Lowland, 9 W. N. C., 241.

      Joseph D. Goons, for defendants in error.
    The provisions of the Act of April 11th, 1862, do not apply to contracts of this nature. The instances upon which the act was intended to operate are distinctly specified therein. The only application that it can have, by the strictest construction, to affect this particular case, is in reference to the location of the school-house. And, if it be held that a compliance with its provisions was necessary in that direction, the method of recording the ayes and noes of the members of the school board upon the minutes is fully explained by the ruling of this Court in Tobin v. Morgan, 20 P. F. Smith, 229.
    It is evident from the Act of 1874; as well as from the language of the 8th section of the 9th article of the Constitution, that only permanent debts created by lpans, to be paid at some future fixed time, were contemplated by this legislation. It was not intended to apply to the ordinary current expenses which a municipality might incur in providing for its wants and necessities: Appeal of the City of Erie, 10 Norris, 403.
    The district was not in debt, but had a surplus of funds in its treasury when the contract was made There is no evidence that, at that time, the directors intended or contemplated increasing the debt beyond two per centum of the valuation.
    April 24th, 1882.
   — Per Curiam:

This judgment is affirmed upon the opinion of the learned Court below.

Judgment affirmed.


source: Caselaw Access Project

author: — Per Curiam:

license: Public Domain

text:
    MIFFLIN COUNTY.
    July Term, 1882,
    No. 97.
    May 24th, 1882.
    Fosselman’s Appeal.
    1. An appraiser of collateral inheritance tax filed his appraisement, which set forth: “ This does not include note of two thousand dollars, dated October 2d, 1879, which is claimed by Isabella Fosselman, niece of decedent, and is in litigation- on the ground that it was delivered to her before the death of decedent.” It was subsequently judicially determined that Isabella Fosselman got title to the note by bequest. The appraiser then added the amount of the note to his appraisement, more than a year after it had been originally filed. Meld, that the Commonwealth was entitled to recover the collateral inheritance tax, though it had not appealed from the original appraisement.
    2. The decision of the appraiser was suspended, and the limitation only began to run from the date at which the note was added to the appraisement.
    . Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Appeal of Isabella Fosselman from the decree of the Or-' phans’ Court of Mifflin County, in the matter of the assessment of collateral inheritance tax on the estate of Elizabeth Fosselman, deceased.
    Elizabeth Fosselman died in January, 1880, leaving a last will and testament dated July 17th, 1878. In it she made certain devises and bequests to her niece, Isabella Fosselman, who lived with her. The appraisers of her estate found an envelope on which was indorsed in her handwriting : “ Dear Bella: This is for you to open.” Inside of the envelope was the note of a third person fur $2000, and a writing in the hand of the testatrix saying:
    “ My wish is for you to draw this $2000, for your own use, should I be called off sudden.
    “ Elizabeth Fosselman.”
    The collateral inheritance tax appraiser appraised the other property devised and bequeathed to Isabella Fosselman, and reported in his appraisement, filed May 5th, 1880: “This does not include note of two thousand dollars, dated October 2d, 1879, which is claimed by Isabella Fosselman, niece of decedent, and is in litigation on the ground that it was delivered to her before the death of decedent.”
    In a feigned issue, framed to determine whether or not there was a good testamentary disposition of the note, this Court (1 Penny packer, 77) decided in the affirmative. The collateral appraiser then, August 17th, 1881, added to his appraisement: “ By a decree of the Court, the note of $2000 was ordered to be paid to Bella Fosselman, and I now include it in my appraisement.”
    There was no appeal from the original appraisement, and Isabella Fosselman paid the tax as assessed in it.
    Upon answer setting forth these facts, the register of wills rendered judgment against the Commonwealth. The Commonwealth excepted to this ruling, and the Court below, Bucher, P. J., reversed the decision of the register, and directed that Isabella Fosselman pay a tax of five per cent., and penalty of five per cent, since August 17th, 1881, in all, $101.25.
    Isabella Fosselman then appealed, assigning as error this decree.

      A. Seed, for the appellant.
    The appraisement filed in the register’s office on the 5th day of May, 1880, was a regular appraisement. It purports to appraise the whole estate of Elizabeth Fosselman, for it was all liable to appraisement, there being no lineal heirs. The note in controversy was laid before the appraiser, with the facts in relation to it. The appraiser did not appraise it, and sets forth in his return that he did not, and also sets forth the reason he did not, viz., “ that it was delivered to appellant before the death of the decedent.” It -was an honest decision. The ordinary mind would naturally decide that a note placed in an envelope with written directions to the person to draw the same, and securely sealed and addressed to the person, was a delivery of the note. There is no doubt but that the decedent intended that the appellant should have the note, as a reward for her services, without going through the process of administration. The Commonwealth accepted the results of the appraisement by receiv-ing from the appellant and other legatees the tax assessed by it on the balance of the estate. The decision of the appraiser that the note in question was not subject to tax was a matter that could have been appealed from.
    The Commonwealth cannot, after more than a year has gone by from the time of appealing, have a second appraisement of the same thing that had been adjudicated in the first appraisement.
    The appraisement is as conclusive against the Commonwealth as it is against individuals, unless appealed from: Commonwealth v. Freedley’s Executors, 21 Pa. St. R., 33.
    Unless an appeal is taken by the proper party within the time limited by law, the decision of the appraiser is conclusive: Commonwealth v. Coleman, 52 Pa: St. R., 468.

      John A. McKee, for the appellee.
    For the appraiser to have decided that the note of two thousand dollars was not subject to a collateral inheritance tax, all that was necessary was to omit to mention it altogether. The record would have then shown that he had appraised the whole estate, but he suspends his appraisement until the question is settled by the Courts, and he writes on his appraisement paper, “ This does not include the note of two thousand dollars, dated October 2d, 1879, which is claimed by Isabella Fosselman, niece of the decedent, and is in litigation on the ground that it was delivered to her before the death of the decedent.” This ivas deciding nothing, but stating a simple fact, as he understood it, as a reason why he did not then appraise the note. After the trial of the issue, and the decision of this Court that the papers, taken together, constituted a will, and that the note passed thereby to Isabella Fosselman; then John Baum, on the 17th day of August, 1881, completes his work, and says : “I now include this note in my appraisement.” There was but one appraisement, begun in 1880 and ended after the litigation in respect to the note was settled.
    June 2d, 1882.
   — Per Curiam:

The original appraisement did not decide against the liability of the appellant to collateral inheritance tax as respects the alleged gift or assignment for value, but suspended a decision because the matter was in dispute. When it was afterwards settled that the gift or assignment was a testament, he then decided that it was subject to the tax. The limitation only began to run from the last date.

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


author: — Per Cttriam:

text:
    MONTGOMERY COUNTY.
    January Term, 1881,
    No. 173.
    April 18th, 1882.
    Boud’s Appeal.
    1. Where the personal property of a decedent is inadequate, the administrator is not entitled, as against a mortgagee of the decedent, to credit for a reasonable amount expended by him out of the proceeds of real estate sold for the payment of debts for the funeral expenses of the decedent.
    2. Nor for medical attendance of the decedent.
    3. Nor for State, county, and road taxes not a lien.
    4. An administrator who mingles the proceeds of real estate sold by him for the payment of debts with his own funds, and uses it for his own benefit, is not entitled to commissions on the amount so used.
    Before Sharswood, C. J.; Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. Mercur, J., abseut.
    Appeal of William H. Boud from the decree of the Orphans’ Court of Montgomery County, confirming the report of an auditor appointed to distribute the balance in the hands of the appellant, as administrator of the estate of James Boud, deceased.
    The administrator filed his account March 3d, 1880, and Mary L. Shannon, a mortgage creditor, excepted, inter alia, to the following items of credit:
    1. State and county tax, $23.74; road taxes for 1878 and 1879, $33.78; D. Y. Mowday (coffin), $59.93; Dr. David Sehraek’s bill (medical attendance), $46; Dr. John Sehrack’s bill (medical attendance), $5; digging grave and funeral expenses, $35.
    2. The accountant is not entitled to $150 commission.
    Louis M. Childs was appointed auditor to distribute, and he reported the material facts as follows:
    James Boud, the decedent, died September 8th, 1878, and his son, William II. Boud, was appointed administrator. The inventory of the personal property of the decedent amounted to $91.60, but upon its sale there was a deficiency of $36.21. The accountant charged himself with $90 rent collected. On the 29th of November, 1879, the administrator, in pursuance of an order of the Court, sold the real estate, consisting of a hotel, in Shannonville, in Montgomery County, at public sale, to William L. Rittenhouse, for $3100. On the 15th of December, 1879, Rittenhouse, for the sum of $3110, sold the premises to Boud, the accountant, and on the same day deeds conveying the property from Boud, administrator, to Rittenhouse, and from Rittenhouse back to Boud, were executed and delivered. The purchase-money was not paid over until May 22d, 1880, and the money was then brought into court for distribution. Both Rittenhouse and Boud testified that there was no understanding between them that Rittenhouse should buj in the interest of Boud, and the auditor found that the sale was bona ficle. The credits claimed for payments and excepted to were for amounts actually paid, were x-easonable, and were what they purported to be.
    Mary L. Shannon appeared before the auditor and claimed, upon a mortgage given to her by the decedent, for $2600, dated March 31st, 1868, which, with the interest, amounted, at the time of the confirmation of the sale, to $3019.90.
    Upon these facts the auditor found as follows:

      “ The taxes were not liens, nor were they shown to have been placed by levy or otherwise in a position requiring payment. The funeral expenses and physician’s bills are not proper credits in the account of the administration of the real estate, and must await the satisfaction of i'ecord liens before being entitled to payment out of the proceeds thereof: Wade’s Appeal, 5 Casey, 328; Bryan’s Estate, 4 Phila., 228; Deichman’s Appeal, 2 Wharton, 396 and 397. Your auditor has therefore stricken out all these credits, decreeing payment in the distribution of the balance of personal property of the doctors’ bills and funeral expenses, so far as said balance will reach.”
    He allowed 5 per cent, commissions, upon the balance of the personal property and rent collected of $145.39, amounting to $7.27, and further found:
    “ The evidence shows that during nearly six months, to wit, from December 15th, A. D. 1879, to May 22d, 1880, the accountant mingled $2800 of the money arising from the sale of the real estate with his own funds and used it for his own benefit. The rule of law is that commissions are to be given as compensation for a careful and scrupulous administration of the trust funds. These must be collected, kept and used for the purposes of the trust, and for those purposes alone. Any other use of them is a breach of the trust and precludes the right to receive commissions: Stehman’s Appeal, 5 Pa. St. R., 413 ; Norris’s Appeal, 71 Pa. St. R., 126 ; Witman and Geisinger’s Appeal, 28 Pa. St. R., 376 ; Swartswalter’s Account, 4 Watts, 77.
    “ The auditor has therefore disallowed the claim for commissions upon the $2800 used by accountant for his own private benefit, and has allowed him commissions on the $300 of the purchase-money, which he seems to have collected and preserved, at the rate of 3 per cent., making $9 commissions on the proceeds of the real estate.

      % x j[< ?}s íK jfs
    “ Mr. Chain further asks that accountant be surcharged with interest on the whole of the purchase-money of the real estate from the date of sale to the closing of the audit. This claim your auditor has only partially sustained. The principle that where a trustee uses trust funds for his own benefit, he may, at the option of his cestui que trust, be charged either with the profit or interest, is well settled: Norris’s Appeal, 71 Pa. St. R., 125 ; Robinett’s Appeal, 36 Pa. St. R., 174; Hall’s Appeal, 4 Wr., 409; Miller’s Appeal, 6 C., 478; Gilbert’s Appeal, 78 Pa. St. R., 266; Hess Est., 68 Pa. St. R., 454.
    “ That the accountant used a portion of the funds of the estate for his own purposes is clear from the evidence. On December 15th, 1879, he sold the trust estate to Rittenhouse and purchased the property from him, and $2800 of the purchase-money was paid by neither him nor Rittenhouse until May 22d, A. D. 1880. In ocher words he received, in satisfaction of the debt due to him as administrator from Rittenhouse, the debt due from him individually to Rittenhouse, and of this debt $2800 remained unpaid until May 22d, 1880. Your auditor has therefore surcharged him with interest on $2800 from December 15th, 1879, to May 22d, 1880, amounting to $73.26.”
    He awarded the whole balance to Mary L. Shannon.
    To these findings the administrator filed exceptions, which the Court below, Ross, P. J., dismissed, and it confirmed the report of the auditor, and decreed distribution in conformity thereto.
    The administrator then appealed, assigning that the Court erred:
    1. In surcharging the administrator with the following items of credit in his account for bills paid by him, and which are admitted to be what they purport to be, viz., State and county tax, $23.74; road taxes for 1878 and 1879, $33.78; D. Y. Mowday, coffin, etc., $59.93; Dr. David Schrack, medical attendance during last illness, $46 ; Dr. John Schrack, same services, $5 ; digging grave and funeral expenses, $35.
    2. In reducing the commissions of the accountant from $150 to $16.26.
    3. In surcharging the administrator with interest upon $2800 from December 15th, 1879, to May 22d, 1880, to wit, the sum of $73.26.
    4. In dismissing the exceptions.

      William F. Solly and George N. Corson, for the appellant.
    The medical attendance and funeral expenses were matters of necessity and humanity, and being reasonable should have been allowed: Heffs Appeal, 9 Harris, 246.
    The administrator is entitled to his commissions for selling the real estate of the decedent as against lien creditors just as an assignee is. lie must give bond: Pennock’s Estate, 2 Phila., 228.

      B. E. Chain, for the appellee.
    The first question involves the right of an administrator, who sells real estate under an order of the Court to pay debts, to pay out of the proceeds thereof funeral expenses, doctors’ bills, and taxes, at the expense of a mortgage creditor. To permit such payment is, in effect, compelling the mortgagee to pay them. If compelled to pay them, it would seem to be reasonable that such creditor should he at least consulted as to the amount to be so expended, and as to the person to make the expenditures. If funeral expenses are to he so paid, the creditor should decide whether the decedent is to be deposited in the ground with such burial as would compare with the plain notions of people in ordinary walks of life.
    If he is to pay the doctors’ bills, it would seem but right that he should have the privilege of selecting the practitioner: Wade’s Appeal, 5 Casey, 328.
    In selling the real estate to himself, this accountant neither incurred nor assumed a single responsibility for which by law commissions are allowable.
    May 1st, 1882.
   — Per Cttriam:

We affirm this decree upon the report, and opinion of the auditor in the Court below.

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


text:
    January Term, 1882,
    No. 39.
    April 19th, 1882.
    Appeal of A. G. Croll.
    1. A petition for viewers, filed October 16th, 1879, set forth thatapublic road or street, laid out in the borough of Norristown, “ has within one year last past been opened through the said lands and premises of the petitioner, creating a high embankment, obstructing ingress and egress to and from his house, situated upon the premises and lands of the petitioner.” Held, that the petition disclosed that the petitioner was seeking to recover consequential damages.
    2. The remedy of the petitioner was not in the Quarter Sessions but in the Court of Common Pleas, under the Act of May 24th, 1878, P. L., 129.
    Before Sharswood, C. J.; Gordon, Trunkey, Sterrett, and Green, JJ. Mercur and Paxson, JJ., absent.
    ■ Certiorari sur appeal by A. G. Croll from the decree of the Court of Quarter Sessions of Montgomery County, sustaining exceptions to the report of a jury of viewers.
    The petition of A. G. Croll was presented to the Court below, October 16th, 1879, setting forth: “That a public road or street, called Elm Street, has been laid out in the borough of Norristown, in said county, on and along the lands and premises'of the petitioner, on the southwest side of said Elm Street, two hundred feet north-westerly from Cherry Street, in the Second Ward of said borough of Norris-town, and has within one year last past been opened through the said lands and preñases of the petitioner, creating a high embankment, obstructing ingress and egress to and from his house, situated upon the preniises and lands of the petitioner, and therefore and thereby he has sustained heavy loss and damage,” and asking for the appointment of viewers.
    The Court appointed a jury of viewers, who reported, inter alia, that “having taken into consideration the advantages dei’ived from said road or street being opened through the land of said Albert G. Croll, and the embankments created thereby, (we) do assess the damages sustained by the said Albert G. Croll at $600.”
    The county commissioners filed the following exceptions to this report:
    Exception First. The exceptants except to the petition, the appointment of the jury, and all proceedings under the petition as illegal and void.
    Second. The assessment of damages to the petitioner as returned by the jury is excessive and outrageous.
    Third. The county had no notice of the appointment of the jurors, and therefore no opportunity to challenge.
    Fourth. The county of Montgomery is not liable to pay damages for filling up a street by the borough of Norris-town after it had been laid out and opened for twenty years.
    Fifth. The county of Montgomery is not liable for the damages sustained by changing the grade of street by the borough council of Norristown.
    The Court below, Ross, P. J., sustained the exceptions and dismissed the proceedings, saying:
    “ All these petitions disclose that the petitioners are seeking consequential damages. The date of their applications discloses that they should be in the Common Pleas, if they have rights at all, under the Act of May 24th, 1878.”
    The petitioner then appealed, assigning as errors that the Court erred in sustaining the exceptions and dismissing the proceedings, in holding that the damages assessed to the petitioner were consequential damages, and not sustaining the petition and report.

      George N. Corson, for the appellant.
    The proceedings are under the Act of 1853, P. L., 230, section 3.
    The damages we are seeking, while of course they happen as a consequence of the opening of the street, are in no technical sense “ consequential damages,” but direct damages done by the opening of a street, and grading it to such a height that the road-bed is above the "topmost story of the house.

      Aaron 8. Schwartz and H. B. Dickinson, for the defendants in error.
    The damages were consequential: Henry v. Bridge Co., 8 W. & S., 85. The Act of May 24th, 1878, provides a remedy.
    It is found by the exceptions and the decision of the Court that this was no widening but the alteration of a grade.
    The county is not liable for the grading down of a street or the filling up of a road-bed: O’Connor v. Pittsburgh, 18 Pa. St. R., 187; Henry v. Bridge Co., 8 W. & S., 85; Monongahela Nav. Co. v. Coons, 6 W. & S., 101.
    Nor does the Constitution of 1874 alter the law, for the 8th section of Article XYI. of the Constitution does not apply to counties. Judge El well, in the case of Freeze v. County of Columbia, Weekly Notes, vol. vi., 145, demonstrates that counties are not municipalities covered by said section.
    May 1st, 1882.
   — Per Curiam:

The petition disclosed that the petitioner was seeking to recover consequential damages. It is clear that the remedy of the petitioner is in the Court of Common Pleas, under the Act of May 24th, 1878, P. L., 129.

Proceedings affirmed.


text:
    January Term, 1882,
    No. 307.
    April 18th, 1882.
    Dewees’s Appeal.
    1. An assignor of property for the benefit of creditors has no right of appeal from the distribution because of the disallowance by the Court below of the claim of a third party, which claim was based upon an alleged appropriation of assets to her made by the assignor before the assignment.
    2. An assignor for the benefit of creditors in the deed reserved his exemption, but made no claim at the time of the inventory and appraisement. A dower mortgage, in which the assignor had an interest, was subsequently collected by legal process, and the assignor claimed his exemption from this fund. By direction of the Court the moneys representing his interest were paid to the assignee, with the understanding that the assignee should claim credit in his account for the §300 exemption. Held, that this sum of §300 was attachable in the hands of the assignee, under an execution issued by a judgment creditor of the assignor upon a judgment in which was a waiver of the exemption.
    Before Sharswood, C. J.; Gordon, Paxson, Trunket, Sterrett, and Green, JJ. Mercur, J., absent.
    Appeal from tbe decree of the Court of Common Pleas of Montgomery County, confirming the report of an auditor making distribution of the balance in the hands of George Wolf, assignee of the estate of Jacob H. Dewees.
    The assignee filed an account, showing a balance on hand of $981.53, which was referred to Aaron S. Schwartz, as auditor, to distribute.
    Before the auditor a claim was made on behalf of Mrs. Mary E. Slater, in which the facts ’as found by him were as follows:
    Mary Dewees, the mother of Jacob H. Dewees, died some time before his assignment was made. Soon after her death, and before the assignment, the children of Mrs. Dewees agreed to pay each his portion of her funeral expenses. Jacob had no present means to pay his share, and Mary E. Slater agreed to pay for him. Whether she paid the $120 before or after the assignment does not clearly appear, nor is Jacob’s evidence free from contradiction as to what agreement was made to secure Mrs. Slater for this payment of $120. First, in answer to a leading question, he states there was au appropriation made by him to her, before the assignment, of his interest in the dower mortgage, or so much thereof as was needed to repay her; but later in his testimony, upon cross-examination, he shows clearly that there ■was no more than an agreement to repay her when he became in funds, mentioning this dower mortgage as the means of enabling him to repay. There was no present intention to make a transfer of the mortgage to Mrs. Slater.
    The auditor disallowed the claim as an appropriation or assignment of his interest in the dower mortgage, but allowed her a pro rata dividend.
    The assignor claimed $300 as his exemption. The facts concerning this claim, as found bj the auditor and appearing in the testimony taken by him, were as follows:
    The assignor reserved the benefit of his exemption in the deed of assignment, but failed to claim it or ask to have it set apart for him when the inventory and appraisement were held. The instrument, called a dower mortgage, was not appraised. Subsequently George N. Corson, Esq., as counsel for the parties interested in this mortgage, collected the amount due under it. The assignor claimed his $300 exemption out of his proportion of this fund before any part of it was paid to the assignee. Counsel for the assignee claimed the share of the assignor, and took a rule upon the sheriff to pay this share into Court. Upon argument, the Court decided that the money should be paid to the assignee, who should claim credit in his account for $300 exemption. This was done. Ely & Morris issued an attachment execution upon a judgment against the assignor, containing a waiver of exemption, and summoned the assignee as garnishee.
    The auditor allowed the $300 exemption, but awarded the amount to Ely & Morris, the attaching creditors.
    Mary E. Slater and Jacob II. Dewees, the assignor, filed exceptions to these findings.
    The Court below, Róss, P. J., January 16th, 1882, dismissed the exceptions, filing an opinion, saying, inter alia:

    “The Court has listened with care and attention to the last argument made by counsel. It was deemed in the prior opinions that the case of Gery v. Ehrgood, 1 Casey, 329, did not govern the claim of the defendant to the exemption, for it seemed to the Court, that although the fund might possibly be conceived to be, as that fund was, liable to the control and disposition of the Court, yet not so much within its grasp as to make the case just cited a ruling and controlling motor in the general distribution of the fund. It is true that the Court compelled Mr. Corson to pay over to the assignee the sum in question, but it went into his hands, i. e., into the hands of the assignee, precisely as if no question had arisen in the Court in regard to it. Had it been retained by Mr. Corson, as counsel, it would have been precisely in the same situation that it is to-day. It must be remembered that when he received it, he did so as counsel for the assignor — his receipt would have been as counsel for the assignor, and beside, it must also be specially remembered, that if personal property it would have been liable in the hands of Mr. Dewees to the execution of his creditor. "Why, then, should it be supposed that it has any peculiar sanctity because of the assignment? The real estate out of which it arose was not sold by the order of this Court, but came into the hands of the sheriff under regular execution process — would have passed to him as any other property passing by sheriff’s sale. In the sheriff’s hands, with an execution against it waiving $300, it would have been amenable to the writ. Being so, it cannot be disputed that it was so also in the hands of the assignee.
    “Therefore, it seems to the Court that no error has been committed by the auditor, and his report with its distribution must be confirmed.
    “If the opinions already filed cannot now be found, they will be reproduced and refiled, in order that the record may be entire and perfect. All the other exceptions, especially that in reference to the arrangement between the heirs and Mr. Dewees, have been carefully considered, and they seem also to have been so by the auditor. His finding of fact upon these matters, it seems to the Court, cannot be questioned, certainly not in view of the evidence before him, both that originally taken and that which was subsequently submitted at the instance of the Court.”
    Dewees, the assignee, then appealed, assigning as errors-,. inter alia, that the Court erred in not allowing the exemption, to Dewees, and in not allowing the claim of $120.

      George JSf. Corson, for the appellant.
    It was manifest error to disallow the claim of Mary El Slater. It was upon a family arrangement, proper to be made, and such a settlement has always been sustained by the Court. There was a good consideration and intention, to transfer, and an assent by the intended assignee: Dale v. Land Co., 3 Phila., 328; Lightuer’s Appeal, 82 Penna. Stat., 301; Patten v. Wilson, 34 Penna. Stat., 299 ; Chase v. Bank, 66 Penna. Stat., 169; Thomas’ Estate, 26 P. F. Smith, 40.
    As to the exemption, we hold, that under the authority of Gery v. Ehrgood, 7 Casey, 330, and the numerous authorities therein cited, that the plain sense of the law is that $300 of property is to be saved, to Dewees from the execution creditors, and this money, which is given in its stead, cannot be attached while passing from the Court to his hands.

      II. K. Weand, for Ely & Morris; G. W. Rogers, for the assignee; and Neville D. Tyson, for J. S. Gerhard, appellees.
    The money was in the hands of the assignee, and was duly attached. It had never reached Dewees, and was not in Court. The interest in the mortgage passed by the assignment, and neither Dewees nor his attorney had any lawful right to intercept it in its passage to him.
    Mrs. Slater had no claim to the $120. It never was assigned or transferred to her in any way. She does not claim it. Dewees makes the claim.
    May 1st, 1882.
   — Per Curiam:

Mrs. Slater has not appealed, and this appellant has no right to stand in her shoes. In regard to the appellant’s claim of the $300, we concur in the opinion of the learned Court below.

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


text:
    January Term, 1882,
    No. 401.
    April 19th, 1882.
    Gerhab versus Ruth et ux.

    In an action by a feme covert upon a judgment-note for $1550, in her own name, it was in evidence that all the negotiations for the loan were made by her husband. Subsequently he got the obligor to indorse two promissory notes for him individually, and gave receipts setting forth that the amounts, when paid by the obligor, should go on account of the judgment-note. The husband collected for the wife $93 of interest. He got $750 from the obligor, which the wife gave to him for his use. He bought from the obligor a bill of lumber, which was used upon her lot by her directions. All of these transactions were conducted by the husband alone. The obligor paid one of the indorsed notes and a portion of the other. Held, that there was no evidence to submit to the jury as to the agency of the husband for the wife in borrowing the money upon the promissory notes, that these notes were not a set-off against the judgment-note, and that his declarations in her absence did not bind her.
    Before Sharswood, C. J.; Gordon, Trunkey, Sterrett, and Green, JJ. Merour and Paxson, JJ., absent.
    Error to the Court of Common Pleas of Montgomery County.

      Feigned issue, in which Barbara Ruth and Peter Ruth were plaintiffs, and John Gerhab was defendant, to determine how much, if anything, was due upon a judgment-note for $1550, given- by Gerhab to Barbara Ruth, dated April 18th, 1876, and entered April 2d, 1877.
    Upon the trial in the Court below, before Ross, P. J., the plaintiffs offered in evidence the note for $1550, admitted a credit of $750, dated March Bd, 1877, and rested.

      John Gerhab, the defendant, then testified in his own behalf that, on the day of the date of the note, Peter Ruth came to his office and said “ that he had received money at home, and that he had no use for it at present, and would not have any need for any of it until after harvest, until he went to lay in some stock for his farm, when he would want a couple of hundred, or $300 or $400......So we contracted and agreed on that point, that I would take this money and indorse him a note at the bank, payable at the bank, to pay him $300 or $400, whichever amount he needed. That was all he needed out of this money. So we finally agreed on that point......He brought $1550. I counted the money......I drew up the note, and, as soon as I drew up the note, he asked me to make that note in his wife’s name, on account of that part of the money belonged to his wife, which I then did. In the first he said it -was his, and I didn’t know anything else. When I was about to draw up the note, and had the note wrote, then he said I should make the note in his wife’s name, Barbara Ruth. .....August 9th, 1876, Mr. Peter Ruth came to my place again and called on me to indorse him a note of $300, which I did......I drew him up this receipt, and he signed it:
    “Telford, August 9th, 1876.
    “ Received of John Gerhab his indorsement for a note at Quakertown Bank of three hundred dollars. When note paid it shall be on account of John Gerhab’s judgment-note of $1550.
    “ $300 Peter S. Ruth.”
    “.....October 13th, 1876, Peter Ruth called again'to have another note indorsed for $200, which I indorsed him, one for $200, and Peter Ruth gave me this receipt:
    “ Received of John Gerhab a note, indorsed at the Quaker-town Bank, of two hundred dollars. If not paid by Peter Ruth -when due, and must be paid by John Gerhab, it shall be on account of his judgment-note of $1550.
    “$200. Peter S. Ruth.”

      The witness then testified that he paid the note of $300, and a balance of $160 on the second note. Items of $750 and interest $93, and a lumber bill of $107.49, were admitted as credits against the judgment-note.
    The witness then testified that, April 15th, 1878, Peter Ruth came to his office to settle up the whole affair, that they made a final settlement, which left a balance of $254.39; that, “ for all these notes he wanted me to let them stand open that Ruth offered certain deeds. “ He was very willing to take my check if I would fill it for the whole amount; that is the way he said his wife would expect, and he didn’t want his wife to know about these notes......I tendered him this check for the balance I owed him that day...... He said it would come all right, but he daren’t let the notes come out......He made an assignment......In all this transaction I never saw Barbara Ruth......I never spoke a word with her yet.”

      Peter Ruth, for the plaintiff, in rebuttal, testified substantially :
    “I brought this $1550 to John Gerhab’s place. It was my wife’s money. Not. a dollar of it was mine. After I took this money there he gave me a judgment-note. It is not true that I said a part of the money was mine when I got the note indorsed by Gerhab. I did not at that time agree with him that it should be deducted from this judgment. My wife had a son deceased, and he had a guardian. He was deceased, and she had the money, and that money came to her. She had it there in the house, and she had no place- for it, and so she asked me.”
    Upon cross-examination he testified :
    “ I went there to get the $750 with a note. My wife gave me a note and sent me there to get that money. I got it myself. She gave it to me afterwards for my use. I went there and got tine bill of lumber in my wife’s name. I got a bill of lumber amounting to over $100. She took it on the lot she bought and used it there. He gave me his note for the $750. I mean I took the note in place of the money. I gave it to a certain man for a debt. I paid my debt with it. My wife consented to that.
    “ In the first place she sent me there for the money to John Gerhab, because she wanted money when she moved on the lot to repair it. John said: ‘I can’t give you the money, but she can have as much lumber as she pleases to fix up the lot.’ I told her I went there, she sent me there, and i got the lumber. We got a bill there of over $100, that is here.”

      Barbara Ruth, the plaintiff, testified:

      “ Q. "Where did the money come from whien you loaned John Gerhab ?
    “ A. It came from my son’s guardian, Samuel Fillman.
    “ Q,. Who was the guardian ?
    “ A. Joseph Horning.
    “ Q. Hid you at any time know of any notes which John Gerhab indorsed for your husband?
    “ A. No, I know nothing of it.
    “ Q,. Hid you at any time gi ve him authority ?
    “A. I know nothing at all about it.”
    Cross-examined:
    “ A. I had this money at home, and told my husband to go and ask somebody to take the money; then he told me that John Gerhab would take it; I didn’t know anything about John Gerhab, and he said John would give a judgment-note and six cents on the hundred.
    “ Q,. You never were with your husband when he went to see Gerhab at any time when he drew any money for you ?
    “A. I never talked to him; I never saw John Gerhab about this business at all.”
    ■ Counsel for defendant asked the Court to charge, inter alia:

    “ 2. That if the jury find that Mr. Gerhab received the money with the understanding that he might pay the money to the husband in any way that the husband desired, and that he did pay notes of the husband under the distinct promise that if not paid he might deduct it from the judgment, then the jury must deduct the notes paid by Gerhab.
    “ 3. That the acts of the husband bind the wife, unless she gave the defendant notice that she had countermanded •the authority ; and she is estopped from repudiating his acts before said notice.
    “ 4. That the whole question of agency is a question of fact for the jury.”
    The Court charged, inter alia,:

    “In this ease and in this issue Barbara Buth and Peter Buth. are plaintiffs, and if you find in their favor your verdict will be for the plaintiff. John Gerhab is the defendant, but, in any event, your verdict must be, and will be under the ruling of the Court, in favor of the plaintiff. This case, like all others where a married woman is' involved in litigation, presents questions of law which, although the Act of 1848 has been in existence since that period, and has been before the Court of last resort, I think, probably some thousand times at least, is still left in such doubt and in such difficulty that the wisest and ablest lawyers very often give an opinion with fear and trembling......

      “ This is the substance of her testimony, for she says she knew nothing whatever about it, and the sole inquiry here, as I regard it, is purely a matter of law, with one slight exception, which it is hardly worth while to submit to you, although I suppose I must do so. It is whether Mr. Gerhab is entitled to a credit of $300, with its interest upon the $300 note, and a credit of $160, the balance unpaid by Peter 8. Euth of the $200 note, or not. It is said that he has the right to set it off against this j udgment, for the reason that the husband in law is presumed to be the agent of the wife for the transaction of her business; that the relations between them are such that it becomes his duty to supervise her affairs and act in her place and stead. And this is measurably true, for in an early case, Walker v. Eamey, reported, I think, in 1st Wright, it was ruled that where a woman has got property by gift or devise, or obtained it by grant under the Act of 1848, the husband becomes in a large sense her trustee, and it does appear that where the husband has invested money with the knowledge and consent of his wife where he has received the interest, and either by knowledge upon the part of the wife and no protest upon her part against it, that the presumption of law is that he has acted as her agent, and a credit thus obtained by her debtor by the payment of interest under the circumstances, and the interest-money being used in the family with the knowledge of the wife, is sufficient evidence upon which a jury can base a verdict in favor of the defendant who had made such payment to the husband.
    “ It has never been held, gentlemen of the jury, that this presumption was quite final. It is simply a presumption, and it can be overturned by the truth ; and here we have the declaration of the husband to Mr. Gerhab, if you believe Mr. Gerhab’s testimony, at the time they tried to settle, that he declared his wife knew nothing about it. We have his own testimony from the stand that he knew nothing about it. We have her own testimony that she knew nothing about it, and therefore if you believe this testimony, and it is all one way in that regard, this wife neither had knowledge of the payment when it was made nor of the agreement that it should be taken on account of the judgment; nor did she recognize it in any way whatever. And if this be true, the legal presumption of the agency of the husband is distinctly and positively rebutted by the proof. Then, again, gentlemen, as a matter of law, I charge you distinctly that while the husband may be presumed by law to be the agent of the wife in the collection of her rent for money invested by him and for money invested by her during a series of years, that nevertheless this presumption does not apply to the actual conversion by the husband of the wife’s property for his own use. If the presumption of agency would justify such a conversion — the whole corpus — that is, the whole body of the estate of a ■married woman might be swept away by her husband simply presenting himself to her debtor either by mortgage, judgment, plain bond, or note, and having the money paid to him on his bare statement that he was her husband. If that doctrine be true the Act of 1848 keeps the promise to the ear and breaks it to the hope. It is very different in regard to interest and income from investments, for there the accrued interest, if used for the support of the family and for the benefit of the children and clothing of the children and the wife, and to provide the wife with necessaries used as household money with her knowledge, I think that her knowledge would raise the presumption as between herself and her husband that there was an agency, but when it comes to take away the principal fund of the estate of the wife by the husband’s voluntary appearance for her, it seems to me that if that be the law we might as well repeal the Act of 1848 in regard to personal property, and place the husband precisely where he was at common law. Now, then, gentlemen, I said there was a question of fact. It hardly rises to the dignity of the question. Mr. Gerhab swears that Mr. Ruth told him that part of this money was his and part was his -wife’s. I do not intend to rule the testimony out, but I say to you that the declaration of Ruth in regard to part of this money being his is no evidence against his wife unless she was present, or by her acts or by her declarations subsequently ratified it. It does appear in evidence positively here, if you believe the old lady, that this was money entirely her own, which came from the estate of her deceased minor son, and therefore it is that it is hardly worth while even to submit this question of fact to you for your consideration, and in order that the defendant here may have a broad ruling, and if this Court has committed error it can be fairly met and demonstrated, and that error corrected by our superiors, who, I am glad to know, will have an opportunity of again expressing themselves upon this married woman’s law, [I charge you distinctly that, if you believe all the evidence all around in this case, the only payments which can be used here as set-off and as payment upon this, judgment are the $750, the $93 and the $107.49.] A calculation will be shown you, but that calculation don’t bind' you. You must make it for yourselves, and ascertain that it is correct, unless counsel on both sides agree; but, in making up your verdict, you will remember that the only three items allowed as set-off or payment are the $750, the $93, and the $107.49, [and that you must reject the credits of $300, with its interest, and of $160 and its interest.]
    “ 2. The second point is answered as follows:
    “ This is true, if it was done with the knowledge and consent of the wife, either expressly given or implied from her knowledge, or from subsequent ratification ; but no matter what the understanding may have been, if made with the husband without such consent so established upon the part of the wife, it is not true.
    “ 3. The third point is answered as follows:

      “ I decline to affirm this point, and for further answer thereto refer to the general charge upon this subject.
    “ 4. The fourth point is answered as follows:
    “ This is true, if there be any competent proof establishing either agency, expressly or by implication, or establishing it by subsequent ratification and assent by the wife ; but in this case there is no such competent proof, and the declarations of the husband in the absence of the wife cannot aifect her interests.” '
    Counsel for defendant excepted to the charge.
    October 17th, 1881. Verdict for the plaintiffs for $851.57, on which judgment was afterward entered.
    The defendant then took out a writ of error, assigning as errors that part of the charge in brackets, the answers to the points, and that the Court erred in not submitting all the questions of fact to the jury, and in directing a verdict for the plaintiffs, less admitted credits.

      Charles Hunsicker, for plaintiff in error.
    The gist of all the specifications lies in the error of not submitting the question of the husband’s agency to the jury. The agency may be presumed from his and her acts.
    He took the money with her assent; he made the bargain about the investment, how it should stand for his benefit, that Gerhab should indorse his notes on the credit of this money, so as to enable him to stock his farm (and this he put into writing); that afterward he paid $750 of the principal to him by his note, then $93 interest, and then purchased lumber for $107, all with the presumed assent of the wife, and surely a jury should have been allowed to pass upon the question, whether these and all other acts of Peter S. Ruth and his wife did not constitute him the agent of the wife. And, besides all this, Ruth claimed that part of the money was his: Marin’s Appeal, 14 Wright, 375 ; Earley v. Rolfe, 9 W. N. C., 106 ; Stephens’s Appeal, 6 Norris, 202.

      J Wright Apple, for defendants in error.
    As stated by the counsel of the plaintiff in error, in his argument, the only question here is, did the Court err in not submitting the question, of agency on the part of the husband to the jury.
    The cases cited by the counsel, Martha Mann’s Appeal, 14 Wright, 375, and Earley v. Rolfe, 9 W. N. C., 106, deny the wife the right to repudiate the acts of her husband only as to interest or rent, and then only when it is done with her knowledge and without her dissent.
    In this case she did not even have knowledge of the transaction.
    If it were time that the agency might be inferred from the acts of the husband and wife, even then the credits of $800 and $160 could not be allowed, because Barbara Ruth knew absolutely nothing in reference to the two notes.
    Gerhab executed an obligation in favor of the wife. He knew it, and was fully aware of the fact that it was the wife’s money, and that she controlled it.
    We submit that if a wife’s inheritance can thus be squandered by the husband without her knowledge, married ■women have no protection under the laws of this Commonwealth.
    May 1st, 1882.
   — Per Curiam:

There was no evidence to submit to the jury as to the agency of the husband for the wife. Gerhab knew it was the wife’s money, and Ruth’s declarations were not sufficient to bind her. The assignments of error to the charge are not sustained.

Judgment affirmed.


author: Sterrett', J.

text:
    January Term, 1882,
    No. 370.
    April 18th, 1882.
    Latshaw versus Hiltebeitel, to use, etc.
    1. An entirely immaterial alteration of a non-negotiable written instrument, which places no responsibility on the parties to which they were not subject before the change, does not vitiate it.
    2. R., one of two sisters, R. and C., agreed to lend money to S. S. and his surety executed a sealed note drawn to the order of C., and S. took the note to R. S. then, without the knowledge of the surety, erased the Christian name of C. and inserted that of R., and, upon receipt of the money, delivered the note. Held, in a suit of O. to the use of R. against S. and the surety, that the alteration was immaterial. Held further, the suit having been commenced in the name of R., that the record could be amended so that the plaintiff should be C. to the use of R.

      Before Sharswood, C. J.; Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Montgomery County.

    Debt by Rebecca Hiltebeitel against John G. Swartley and Daniel Latshaw to recover the amount of a sealed note and interest.
    The note was in the following form;
    “Royer’s Ford, April 5th, 1869. “$500.
    “ One year after date we, or either of us, promise to pay Catharine Hiltebeitel or order five hundred dollars, with interest of five and a half per cent, per annum, without defalcation, for value received.
    f 5-CENT \ f 10-OENT \ [ STAMP. J \ STAMP, j John’ G. Swartley. [l.s.] Daniel Latshaw. [l.s.]”
    In the course of the trial, November 17th, 1880, before Ross, P. J., counsel for plaintiff moved to amend the title of the suit as follows: “Catharine Hiltebeitel to the use of Rebecca Hiltebeitel to be named as plaintiff in the action.” Counsel for defendant objected to the motion. The objection was overruled and the amendment allowed under exception.
    The case came on for trial again October 21st, 1881.

      John Hiltebeitel, for the plaintiff, testified:
    “John Swartley came there to borrow some money from my sister; he came to my place; he told Rebecca he would give good security. She called me in to see about it; she told him he could have the money if he has got good security He asked what security she wants? She told him two persons, Abram Bechtel and Daniel Latshaw, one of the two. Then we went up close to his house there on a visit to Mr. Pattison, and he came in there; I mean Rebecca and myself. Swartley came in there and told her he had security, and she asked him who? He said Latshaw. . . . It was on Saturday afternoon. She told him he could come on Monday or Tuesday after the money; the money is ready for him. He came one of those two days; I don’t know which it was exactly any more; I never took particular notice. He came; I was out doing something, and he called me in: he came, and she got the money and paper for us; we counted it; I counted it over twice; Rebecca got the money; I counted the money twice on the table, and so did he too. When that was all done he got the note out, and I told him to read the note; when he came to that mistake I told him about it.
    “ Q. How did he read it ? What name did he read there ?
    “A. He read ‘Catharine’ first.
    “Q. What did you say?
    • “A. I told him it was wrong. He said he could alter that; he would just go and scratch that out and put ‘Rebecca’ there. He did it, and I told him it might make a disturbance; he said he would insure that it would make no disturbance ”
    Rebecca took the note and Swartley took the money. Latshaw was not present.
    This testimony was corroborated by that of Catharine and Rebecca Hiltebeitel.

      Daniel Latshaw, one of the defendants, testified “that when he and Swartley signed the note there was no erasure on it; that the money was to be paid to Catharine Hiltebeitel; that he was security on the note and got none of the money; and that the insertion of the name ‘Rebecca’ over the erasure of the name of ‘Catharine’ was without his knowledge or consent.”

      John G-. Swartley, the other defendant, testified that he and Latshaw executed the note, and he continued:
    “ I went over to Hiltebeitel’s and handed it there. I went in the house and showed the girls, two of them, the note, Rebecca and Catharine, and John was there in the room too. I told them here I had got a note from Mr. Latshaw. They looked over the note. Catharine looked over the note, and they took the note and looked over it, and I showed them here is Latshaw’s name on. The note was not read through. I just showed them I got the note from Latshaw, and then they went and fetched the money.
    “Q,. Who brought the money?
    • . “A. Catharine; they were both upstairs; she brought the money down and threw it on the table.
    “ Q. Hid she give the money to you ?
    “ A. Yes, I took the money and counted it and put it in my pocket and she took the note.
    “ Q,. Who took the note?
    “A. Catharine.
    “Q. What did she do with it?
    “ A. That I don’t know.
    “ Q. Did she take it away from you ?
    “A. Yes.

      “Q. What condition was the note in?
    “ A. Just exactly as I took it from Mr. .Latshaw’s house.
    “ Q,. How was it when you took it from Mr. Latshaw’s house?
    “A. It was wrote for Catharine Hiltebeitel.
    “ Q,. Both Rebecca and John Hiltebeitel swear that they said that it was not for Catharine; Catharine didn’t loan the money, but Rebecca loaned the money; and that you then sat down and crossed out Catharine’s name and wrote Rebecca above. Is that true or not?
    “ A. No, it is not true; I was never asked to do it.”
    He further testified that he saw the note every time he paid the interest, until 1879, and that the last time he saw it, it was just as it was when he took it there from Latshaw, payable to Catharine Hiltebeitel. Her name was not crossed out and Rebecca’s name was not written there.
    Counsel for defendant asked the Court to charge the jury, inter alia:

    1st. The defendant asks the Court to charge that the alteration of the note by the crossing with ink the name of Catharine and writing Rebecca above, is a material alteration, and avoids the note as to the surety Latshaw.
    2d. If the note was altered before delivery, but, after it had left Latshaw’s hands, in the presence of Kebecea, and taken by Rebecca, and money paid over to Swartley, said alteration being without Latshaw’s knowledge or consent, the plaintiff cannot recover against Latshaw, the surety.
    4th. Any alteration of the note by Swartley, after the note was delivered to Swartley by Latshaw without his (L.’s) consent, is not binding on Latshaw, and avoids the recovery on the note as to him.
    5th. That when the security, Latshaw, signed the note, he had a right to have it delivered unaltered to the plaintiff, and, if altered, the plaintiff was bound to know that it was rightfully done by Latshaw’s consent, and, if not, she cannot recover against Latshaw.
    The Court declined the first, second, and fourth points, and answered the fifth as follows:
    “This is true, if there had been*a material alteration. It is not true, under the view of the Court, that the alteration under the evidence is immaterial.”
    The Court charged the jury, inter alia:

    “Mr. March, the very zealous counsel for the defendant, saw that he had an advantage, and, after all the testimony was taken, it was apparent that Rebecca Hiltebeitel had no right whatever to recover against Daniel Latshaw, for he had never promised to pay her any money, and he had never agreed to or assented by any act of Ms to the change. Well, Mr. Hunsicker found himself driven to the wall and that he could not recover, and then Mr. Hunsicker moved to amend the suit by bringing the suit in the name of the party to whom Mr. Latshaw gave the note, and he added, as he had a right to do, that, if recovered, the money was to go to Rebecca, but he sues in the name of the party to whom Mr. Latshaw gave the note. Now, how is Mr. Latshaw hurt? He contracted to pay. He don’t pay a particle sooner than he contracted to pay. He has every right of set-off against Catharine that he would have had if Mr. Swartley had not foolishly altered this note and these people foolishly taken it, because no man ought to subject himself to the difficulties and dangers which lie about a note with a manifest patent alteration upon its face. I say to you, gentlemen of the jury, for your own private benefit in your business, that whenever you want a note altered, and there are two drawers to it, that the only plan to make it safe is to take a new note, clean and clear, and get rid of one of these altered notes. [Now then, gentlemen, inasmuch as it is agreed that this note was given to Catharine, and inasmuch as this suit is brought by Catharine, and inasmuch as amendments have been made restoring the name of Catharine to the note and obliterating, for all legal purposes, the name of Rebecca, I charge you distinctly that there is, under the facts and circumstances in this case, no material alteration within the law, and therefore the plaintiff is entitled to recover.”]
    October 21st, 1881. Verdict for the plaintiff for $636.55, on which judgment was afterward entered.
    The defendant, Latshaw, then took out a writ of error, assigning as errors: First, that the Court erred in allowing the suit and pleading to be amended to the use of Rebecca. Inasmuch as Catharine was stricken out by the parties without the knowledge or consent of Latshaw, no action of the Court could restore her name for any purpose; second, third, fourth, and fifth, that the Court erred in refusing to affirm the defendant’s first, second, fourth, and fifth points as above; sixth, the portion of the charge within brackets; and, seventh, in withdrawing the case from the jury and directing a verdict for the plaintiff.

      George W. Rogers and Franklin March, for plaintiff in error.
    Was the alteration apparent upon the face of the note in suit material? The uniform rule seems to be that any alteration affecting its identity, varying the language which it speaks, the amount, time, or-terms of payment, names of parties, etc., avoids it as to those not assenting thereto. The following alterations have been held to be material:
    The alteration of a date: Stephens v. Graham, 7 S. & R., 505; Heffner v. Werrich, 8 Casey, 423. Although it be a true date: Miller v. Gilleland, 19 Penna. Stat. Rep., 119. The addition of new surety without consent of the original one: Gardner v. Walsh, 5 El. & Bl., 82; McVean v. Scott, 46 Barb., 379. The addition of a new maker to a several note: Wallace v. Jewell, 21 Ohio Stat., 163. The erasure of the name of one of the payees: 2 Pars, on N., 156. Inserting the words “or order,” or, “or bearer:” Booth v. Powers, 56 N. Y., 22. Changing or adding place of payment: Simpson v. Stackhouse, 9 Barr, 186; Hill v. Cooley, 10 Wr., 259. Changing amount even if diminished: Portage Bank v. Lane, 8 Ohio Stat., 405. Interest to be paid annually*. Hurlbut v. Fisher, 13 Ohio Stat., 364; Kountz v. Kennedy, 13 P. F. Smith, 187; Craigshead v. McLoney, 14 Pittsburgh Leg. Jour., 194.
    If Latshaw, the surety, is compelled to pay, and he should pursue the principal, Swartley, before he could recover, he would be compelled to show that the alterations were assented to by him. A witness may be dead or absent.
    Any alteration affecting the identity of the paper avoids it: Stephens v. Graham, 7 S. & R., 505; Neff v. Horner, 18 P. F. Smith, 331.
    The Court also erred in not submitting to the jury to find out as fact whether the alteration was made with the knowledge or consent of Latshaw, or whether he knew of and assented to it. The Court had no right to decide the law and the facts both. The judge assumes that the note was given to Catharine; the evidence, undisputed, is that she never saw it. How the amendment of the suit could restore the name of Catharine, or obliterate the name of Rebecca from the instrument sued upon, we are unable to see.
    If the Court be correct in the charge above, then np alteration will avoid an instrument, for upon the trial the Court can strike out the alteration or restore the paper to its original condition, and all complaint is at an end.

      Charles JETunsieker, for defendant in error.
    Amendments are liberally allowed: Ward v. Stevenson, 3 Harris, 21; Druckenmiller v. Young, 3 Casey, 97; Meason v. Kaine, 17 P. F. Smith, 126 ; Downey v. Garard, 12 Harris, 52.
    The money was furnished on the credit of Latshaw entirely, and the only question now before the Court is whether he can lawfully escape the payment of his honest debt: Ogle
      v. Graham, 2 P. & W., 132; Sigfried v. Levan, 6 S. & R., 308; Wiley v. Moor, 17 S. & R., 438; Beary v. Haines, 4 Wharton, 20; Kountz v. Kennedy, 13 P. F. Smith, 187.
    Now outside of all cases, and inside of them all, the bottom principle is, that the alteration must be material. Now test this: What possible difference could it make to Latshaw whether he paid the money to Rebecca or Catharine?
    The contract was a specialty and was not negotiable as a promissory note, and, as the suit stood, he had a right to show how he was injured. He showed no injury, could show none, and therefore the Court thought that it was his bounden, legal, as well as honest, duty to pay the debt.
    October 2d, 1882,
   The opinion of the Court was delivered by

Sterrett', J.

There is no conflict of testimony as to any of the facts or circumstances material to this case. It clearly appears that the Christian name of the payee in the note, as originally written, was erased, and that of her sister interlined by Swartley, the principal obligor, solely for the purpose of correcting a mistake; and thus making the instrument conform to what he and his surety, the plaintiff in .error, undoubtedly intended at the time they executed it. Miss Rebecca Hiltebeitel, one of the sisters, had agreed to lend Swartley five hundred dollars for one year, at five and a half per cent., and accept as security therefor his note, with plaintiff in error as surety. To this arrangement the latter assented, and, intending no doubt to carry it out in good faith by uniting in an obligation to secure the loan, he signed the note in suit and gave it to Swartley to be delivered to the lender on receipt of the money. When the latter was about to deliver the note, it was discovered that the Christian name of the payee should be Rebecca instead of Catharine, and, for the purpose of carrying out the undoubted intention of all parties, he made the alteration upon which the surety bases a purely technical and ungracious defence. If either the rights, duties, or obligations of any of the parties, as they were understood and intended by them, were in any manner changed by the alteration, it would be material, and as to the party affected thereby, and not consenting thereto, the instrument might be avoided; but no such change of relation or interest was effected by the alteration complained of. The plaintiff in error agreed to become surety for the loan, and, in signing the note,'intended to make himself liable as such to the lender.

The verdict and judgment imposes on him that measure of liability and no more. -In Kountz v. Kennedy, 13 P. F. Smith, 187, it is said: “If the alterations toe made fraudulently or with an illegal intention, or if the original words cannot be restored certainly, or if any party has become interested in the note or affected by it, or related to it, since the alteration, in such a way that the restoration will do any wrong to this party, in either of these cases we should say, the party must abide by the alteration he made and accept the consequences of it. But, unless one of these reasons exist, we are not aware of any good and sufficient argument for refusing to permit him to restore the instrument to its original form and force.” While the authorities on the subject of the alteration of written instruments are not entirely harmonious, they all appear to agree that an alteration, entirely immaterial, which places no responsibility on the parties to which they were not subject before the change, does not vitiate the instrument, especially if it be nonnegotiable.

In the language of a learned text-writer: “The holder of a note has no right to make an alteration in it to correct a mistake, unless to make the instrument conform to what all the parties to it agreed or intended it should have been. To such an alteration as this, perhaps, the intention of the original parties would be implied by law:” 2 Parsons, Notes and Bills, 270.

In view of the undisputed evidence in this case, there was no error in holding that the alteration did not release the surety, nor was he in any manner prejudiced by the amendment that was allowed by the Court. The several assignments are not sustained.

Judgment affirmed.


text:
    MONROE COUNTY.
    July Term, 1881,
    No. 118.
    March 8th, 1882.
    Place versus Proctor.
    A deed, creating a right of way, conveyed a lot “ containing fifty feet on the race which leads to the grist-mill of the parties of the first part, and fifty feet in the rear of said race on the north side thereof;.....also the privilege of water in the said race sufficient to keep in operation a fulling mill and carding machine, about to be erected by the parties of the second part on the above-described lot or piece of land, the water to be taken from the said mill-race near a certain maple stump on the bank of said race; also a privilege of a road to cross the said race near said grist-mill to the land above described, and from thence to the main road.” There being a contention as to whether the right of way lay across the head race leading to the mill, or across the tail race immediately below and adjoining the mill, it was held that there was a latent ambiguity in the deed, that parol testimony to determine the location of the road was clearly admissible, and that contemporaneous construction by the parties was entitled to great weight.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Monroe County.

    Case by Matthew Proctor against Jacob II. Place, to recover damages for obstructing a road over which the plaintiff claimed a right of way.
    Upon the trial in the Court below, before Dreher,P. J., the following facts appeared:
    June 1st, 1833, Simon Heller and wife, and William Clark and wife, conveyed to Chauncey Dimmiek and John A. Dimmiek a lot of land “containing fifty feet on the race which leads to the grist-mill of the parties of the first part, and fifty feet in the rear of said race on the north side thereof, being the same piece of land on which the parties of the second part have made a foundation for the erection of buildings near the said grist-mill; also the privilege of water in said race sufficient to keep in operation a fulling mill and carding machine, about to be erected by the parties of the second part on the above-described lot or piece of land, the water to be taken from the said mill-race near a certain maple stump on the bank of said race; also a privilege of a road to cross the said race near said grist-mill to the land above described, and from thence to the main road ; also tbe privilege of a tail race for the fulling mill about to be erected"by the parties of the second part, to intersect the main creek near the tail race of said grist-mill ;■ also the privilege of the banks of the tail race from said grist-mill to the main creek, for the purpose of erecting tenter bars for dyeing cloth.”
    May 1st, 1857, the- grantees conveyed the property to Proctor, the plaintiff, describing it as “ being the same piece of land conveyed by Simon Heller and William Clark to Chauncey and John Dimmiek, deed bearing date June 1st, 1833, on which a building for fulling and carding, now in the occupancy of the second party, also the privilege of water in said race sufficient to keep in operation a falling mill and carding machine, the water to be taken from the mill-race near a certain maple stump, or where it formerly stood on the bank of said race; also the privilege of a road from the above-described lot to the main road to cross their tail race near their grist-mill; also the privilege of a tail race from the fulling mill to intersect the main creek,” etc.

      The title to the grist-mill and the tract of land over which the right of way was granted became vested in the defendant, Place.
    The plaintiff claimed the privilege of a road across the tail race of the mill, and in immediate proximity to the mill.
    The defendant claimed that under the deed creating the right, the privilege was confined to a road across the head race, above the mill.
    The plaintiff offered in evidence the deed from Dimmick et al. to Proctor, the plaintiff. The defendant objected to so much of the deed as describes the road as across the tail race, and to that part of the deed relating to the location of the road.
    The objection was overruled, and the deed admitted under exception.
    The plaintiff testified, inter alia:

    “ I first went there something like forty-five years ago; then on I used the road and bridge up to time I sold to Nutall, March 1st, 1858.”
    The defendant objected to any evidence showing the use of the highway in question across the tail race to defendant’s grist-mill, immediately below the mill.
    This objection was made to any such evidence given or to be given by the witness on the stand, or any other witness that might be called by the plaintiff, and was made thus generally to avoid trouble of formal objection and exception to each witness as called.
    The objection was overruled, and an exception noted.
    The plaintiff then produced a number of witnesses who testified as to the use by him and his predecessors in title of the road across the tail race, from about the year 1882 down to the time the defendant shut the road up in 1877.
    The defendant produced a number of witnesses vrho testified that there was no bridge at this point from 1841 to 1858 which could be driven across. The January freshet of 1841 carried away a bridge which had been there. In the fall of 1858 the defendant put there some large stones, with poles and straw on them, to keep frost out of the wheel-house of the mill.
    The Court charged the jury, inter alia :

    " The contention between the parties is as to the location of the road or right of way granted by this deed. The defendant claims that the description in the deed fixes the location of the road in its relation to the mill and race — where it is to cross the race — above the mill and across the race at the forebay. The plaintiff contends that the road, as granted by the deed, crosses the race below the mill, being across that part usually called the tail race, immediately where the water from the wheel passes from under the grist-mill. The deed from Heller and Clark calls for the fifty feet on the race which leads to the grist-mill, on the north side of the race; and on this fifty feet the Dimmicks erected their fulling mill and carding machine. The deed also grants the privilege of water in said race sufficient to keep in operation a fulling mill and carding machine, and provides that the water is to be taken from said mill-race near a certain stump on the bank of the race. Evidently this means that the water is to be taken from the head race. Then follows next in order the grant of the right of way in these words: ‘ Also a privilege of a road to cross said race near said grist-mill to the land above described, and from thence to the main road ;’ and then follows the grant of a privilege in these words: ‘Also the privilege of a tail race for the fulling mill about to be erected by the parties of the second part to intersect the main creek near the tail race of said grist-mill; also the privilege of the bank of the tail race from said grist-mill to the main creek for the purpose •■of erecting tenter bars for dyeing cloth/ Evidently the parties intended that the road should pass near the grist-mill, whether it should be located above or below the mill. In the description of the land and the water privilege the deed calls for the race leading to the mill, and then come the words ‘ also a privilege of a road to cross the said race-near said grist-mill/ Said race, this is the same as ‘the aforementioned race.’ That would be the race leading to the grist-mill; or, in other words, the head race. [There is, however., some ambiguity in the description of the road, and as to the intention of the parties, and I don’t feel at liberty to give you positive instructions that the plaintiff is bound to cross the race above the mill, and will leave the question of the location of the road to be determined by the jury under all the evidence in the cause. The question has respect to the intention of Heller and Clark and the Dim-micks, when the deed of June 1st, 1833, was made and delivered.] The plaintiff contends that the use of the road across the tail race, immediately at the mill, by the Dim-micks and himself, shows that it was intended by Heller and Clark that the road should be there. The fulling mill was erected in 1833 or 1834. The owners of the fulling mill used this road across the tail race from the time of the completion of that mill down to January, 1841. This is admitted by the defendant. It is also admitted by the defendant that the owners of the fulling mill used this road from 1858 to some time in 1876, excepting three years, from 1862 to 1866, when there was no business carried on by the owners of the fulling mill in consequence of its having been burned down. The plaintiff alleged that he continuously used the road below the mill from the time he went there, in 1845, down to 1876. From this user of the road the plaintiff contends that the jury will be warranted in finding that the grant of the road as understood and located by the parties was across the tail race below the mill.
    “ The defendant, relying upon the description in the deed as indicating the head race, contends that the fact of the use of the road below the mill does not show an intention on the part of the grantors, Heller and Clark, to have the road located across the tail race; that that road having been made and a bridge placed across the race for the use of the owners and customers of the grist-mill, and happening to be there, when the fulling mill was erected, the owners of the fulling milL simply used it because it was convenient for them to do so ; and, further, the defendant alleges that in January, 1841, the bridge was so damaged by a high freshet that it could not be used, and was not passed over with teams, and so remained until 1858, when the defendant, or his predecessors in title, erected the present structure, not for use as a bridge, but to protect his water-wheel from frost; and that the owners of the fulling mill during, those seventeen years did not cross the tail race immediately below the mill with teams, but'at a point lower down where the two tail races of the fulling mill and grist-mill intersect. From these facts the defendant argues that the use by the plaintiff' and his predecessors in title of the road below the mill was simply for their convenience, and by sufferance of defendant and his predecessors in title.
    “ [Now we propose to leave to you, gentlemen of the jury, the question of the true location of this road across the race of the grist-mill, as granted by Heller and Clark to the two Dimmicks.]; The plaintiff has given in evidence the deed from John A. Dimmick to him, dated May 1,1857, in which this road or right of way is described as crossing the tail race. This deed conveyed to the plaintiff no greater or other right than Dimmick had. If Dimmick did not then have the right of way across the tail race, by virtue of the deed from Heller and Clark, he could not grant a right of way at that point to the plaintiff. [We are therefore thrown back to the deed from Heller and Clark to the two Dimmicks to ascertain the location of the road. You must fix the location of the road from that deed, in the light of the acts and conduct of the parties contemporaneous with and subsequent to the making of the deed.] ”

      December 20th, 1881. Yerdict for the plaintiff for $37.91, upon which judgment was entered.
    The defendant then took out a writ of error, assigning that the Court erred in admitting in evidence the deed from Dimmick et al. to Proctor, in admitting evidence of the use of a highway across the tail race, and in those portions of the charge within brackets.

      L. M. Burson, for plaintiff in error.
    The plaintiff could in no way get a right from Dimmick unless he had the right to convey. Before the deed was evidence this must have been shown: Insurance Co. v. Rosenberger, 3 W. N. C., 16 ; evidence of what took place at the tail race was entirely irrelevant.
    There was no ambiguity in the description of the deed, and it was error for tlie Court to leave the whole question of facts and law to the jury: Potts v. Wright, 82 Penna. State, 498 ; Beatty v. Insurance Co., 2 P. F. Smith, 456.

      8. Holmes, for defendant in error.
    The language of the deed is inartificial and vague. It does not state where the road is to cross the race. The road obstructed by the defendant crossed the “ said race ” immediately below the mill. It was a clear latent ambiguity : Phila. Life Ins. Co. v. American Life, etc., Ins. Co., 11 Harris, 65 ; Stub «. Stub, 3 Barr, 254; Bertsch v. Navigation Co., 4 Rawle, 130 ; Nixon v. McCallmont, 6 W. & S., 159 ; Gould v. Lee, 55 Penna. State, 99.
    The parol evidence was conflicting, and it took the whole case to the jury : Edelman v. Yeakel, 3 Casey, 26 ; Miller v. Fichthorn, 7 Casey, 252; Reynolds v. Richards, 2 Harris, 205; Beatty v. Insurance Co., 2 P. F. Smith, 456; Sidwelí v. Evans, 1 Penna., 386; Curcier v. Insurance Co., 5 S. & R., 114; Stoever v. Stoever, 9 S. & R., 434.
    March 27th, 1882.
   — Per Curiam:

There was certainly a latent ambiguity in the deeds: “ A road to cross the said race near grist mill,” might have intended either the head or fail race. Under such circumstances, parol evidence was clearly admissible and the contemporaneous construction of the parties was entitled to great weight.

We think, therefore, that the question was fairly submitted to the jury.

Judgment affirmed.