text:
    Bole versus Bogardis et al.

    1. Plaintiff in execution issued a second pluries fi. fa., and on the allegation that said writ was prematurely issued, the court granted a rule to show cause why the same should not he set aside at the costs of the plaintiff. The writ was returned pending the rule, hut, while it was yet undisposed of, the plaintiff issued a third pluries fi. fa., which the-court, on motion, set aside, on the ground that it could not issue pending the aforesaid rule. Held, that this action of the court was erroneous.

      % Held, also, that the court erred in setting aside the vend. ex. issued in pursuance of said third pluries fi. fa.
    November 21st 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1877, No. 295.
    Nicholas Bogardis and William Ray gave their judgment note at sixty days to William R. Bo'le, on which judgment was entered for $2520 on the 2d of April 1874. A fi. fa. was issued on this judgment to No. 90, November Term'1874, which, with an alias and pluries fi. fa., were subsequently returned by order of attorney, the defendants having obtained extensions of the time of payment. On the 10th of January 1876, a- second pluries fi. fa. issued. On the 31st of January the defendants came into court and made affidavit that they had from time to time obtained an extension of the time of payment of this judgment by the payment of the interest; that the last payment had paid the interest up to February 3d 1876, and that in consequence there was nothing due on the judgment at the time the execution issued, and they therefore moved for a rule to show cause why the execution should not be set aside at the costs of the plaintiff. On the 10th of April 1876, the writ was returned by order of the court, and on the 18th of December 1876 the rule was made absolute. On the 11th of October 1876, the plaintiff issued a third pluries fi. fa., by virtue of which the sheriff levied upon certain real estate and advertised it for sale. This writ was returned on the 13th of November “not sold, because of plaintiff’s error in issuing on stayed judgment,” which return was subsequently amended .by leave of court, so as to read “ writ returned by order of attorney.” On the 19th of December a venditioni exponas, with fi. fa. attached, was issued to No. 139, January Term 1877. On the 5th of January 1877, defend- . ants moved the court for a rule to show cause why the levy upon said third pluries fi. fa. "and the vend. ex. with fi. fa. attached should not be set aside at the cost of the plaintiff, and all proceedings stayed, oh the ground that the third' pluries had issued during the pendency of the rule to set' aside the second pluries, and for the reasons that the vend. ex. was a part of-a fi. fa. irregularly issued, and that there was no fi. fa. to support said vend. ex. Both these rules the court made absolute, which were the errors assigned by plaintiff, who took this writ.

      J. B. Brawley, for plaintiff in error.
    — There was no order of court to stay proceedings on the judgment, and as it was valid and overdue the plaintiff was entitled to an execution to collect the same. When the second pluries writ was returned the exigency of the rule to set it aside was met, and it is a hardship to further debar the plaintiff of his remedy. The writ of vend. ex. is, in legal contemplation, issued by the court itself, or by its permission, Crawford v. Boyer, 2 Harris 384, and if the action of the court in granting a rule to set aside the second pluries fi. fa. can, upon any theory, be considered as interfering with the plaintiff’s right to issue an execution, the issuing of a venditioni exponas may be regarded as evidence of the court’s permission or approval to issue the fi. fa. under which the levy was made, just as the issuing of a venditioni was regarded as evidence of the court’s approval of an inquisition in Crawford v. Boyer, supra.

      Q-eorge F. Davenport, for defendants in error.
    — The plaintiff was not entitled to the third pluries writ while the rule to' set aside the second at the costs of the plaintiff was still pending and undetermined. The rule by necessary implication stayed the writ and all proceedings on the judgment until the court had disposed of the rule. If the court was right in setting aside the fi. fa., then a like action in regard to the vend. ex. was a necessary consequence, for the latter referred to the former and was a part thereof: Neil v. Colwell, 16 P. E. Smith 216; Lippincott v. Tanner, 1 Miles 286.
    January 7th 1878.
   Mr. Justice Sterrett

delivered the opinion of the court,

The payment of interest in advance to the 3d day of February 1876, ipso facto, extended the payment of the judgment until that date. The second pluries fi. fa. was therefore prematurely issued on the 10th of January, and the court was clearly right in granting the rule to show cause why it should not be set aside at the costs of the plaintiff. The writ was returned, by order of court, on the 10th of April, and on the 18th December following the rule was made absolute, and the plaintiff thereby fixed for the costs. In the meantime, however, there was no order staying proceedings on the judgment. It became ripe for execution at the expiration of the time to which the interest had been paid. On the 11th of October 1876, the third pluries fi. fa. tvas issued and returned by order of plaintiff ’s' attorney on the 13th of November, with levy on real estate. It is true the original return of the sheriff was different; but it was erroneous, and, by leave of court, was amended so as to conform to the facts. Then, on the 19th day of December, the day after the cost of the former execution was imposed on the plaintiff, the venditioni exponas, with fi. fa. attached, was issued to the next term. In January 1877, the court set aside the third pluries fi. fa. and then the vend, ex., both at the cost of the plaintiff. It is claimed that this was error.

The only ground upon which the court appears to have proceeded in making these orders, was that the third pluries fi. fa. had been issued pending the rule to s'et aside the former writ at the plaintiff ’s cost. As we have seen, that execution had been returned by order of court. This practically disposed of the writ, and all that remained to be determined was the question of costs, and this was rightly disposed of before the vend. ex. issued. The pendency of the first rule, as to costs merely, did not operate as a stay of proceedings on the judgment after it became ripe for execution; and while the plaintiff had no right to collect these costs, he could have been restrained from doing so, if necessary, without making the orders now complained of. Indeed, there is nothing to show that he was attempting to collect more than he was entitled to when his executions were stricken down. In contemplation of law the vend, ex. was issued by the court itself, or by its permission, and we cannot presume that the costs of the former writ, which had been imposed on the plaintiff the day before, were taxed against the defendant. He was not prejudiced or likely to be injured by anything that was done after the prematurely issued writ was returned by order of the court. We think the learned judge erred in setting aside the writs.

The orders of court setting aside the third pluries fi. fa. and venditioni exponas, at the cost of the plaintiff, are therefore reversed and set aside, and the record remitted.


source: Caselaw Access Project

author: Mr. Justice Sharswood

license: Public Domain

text:
    Wolford and Wife versus Herrington.
    1. Where one has a hona fide claim, whether valid or not, to certain land, J and is induced to confide in the verbal promise of another that he will purchase the same for the benefit of the former at a sheriff’s sale, and in pursuance of this arrangement allows him to become the holder of the legal title,
    a subsequent denial of such promise by the purchaser is such a fraud as will convert him into a trustee ex maleficio.

      2. 1'he ruling in Wolford v. Herrington, 24 P. F. Smith 211, that the purchaser would he a trustee ex maleficio, even if the party to whom he made the verbal promise had no interest in the land, reconsidered and overruled.
    3. Beegle v. Wentz, 5 P. F. Smith 369, and Boynton v. Housler, 23 Id. 453, followed.
    November 21st 1877.
    Before Agnew, O. J., Sharswood, Merour, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1876, No. 58.
    Ejectment for twenty-five acres of land, brought by John Wolford and Bachel, his wife, in right of the wife.

      The premises in controversy were originally purchased by Wolford from James Muse. There being some difficulty about the title, Mrs. Wolford subsequently paid the purchase-money out of her separate estate, and received a deed therefor from P. K. Muse, his father, James Muse, having in the meantime died. This deed Mrs. Wolford failed to record. The premises were afterwards sold as the property of John Wolford on a judgment in favor of one Ellsworth against John B. Wightman and John Wolford. Previous to the sheriff’s sale, September 18th 1867, Edward Herring-ton went to the house of John Wolford and advised Wolford and his wife not to rely on the title of Mrs. Wolford, but to allow him to attend the sheriff’s sale, and purchase in the land for Mrs. Wolford, and offered to give Mrs. Wolford two years, or longer, to redeem the land. To this Mrs. Wolford objected, saying she had a deed to the land, and if she had to borrow the money she could procure it of Abijah Randolph. Herrington replied that he was willing to give longer time for the repayment of the money than Randolph ; and as a result of this conference, Herrington agreed with Wolford and his wife to attend the sheriff’s sale, to act for the Wolfords and take charge of the business for them, to bidin the land for Mrs. Wolford, and give her two years in which to redeem it, and this agreement was to be put in writing before the sheriff’s sale. The agreement was talked over between the parties in the presence of John B. Wightman and others, the day before the sheriff’s sale, when Herrington was on his way to Meadville to transact this business for the Wolfords, and it was then agreed that the arrangement was to be put in writing, before the time of the sheriff’s sale. The agreement was drawn up; Herrington, however, did not sign it, saying that he would wait until after the bid-dings and sale, and that he would sign it then ; and when he had bid off the land he evaded signing it, saying he would sign the writing when the deed was acknowledged. The Wolfords, in consequence of this arrangement with Herrington, did not attend the sheriff’s sale, and the land was sold to Herrington for $650,- a price far below its real value.
    Several times afterwards Herrington was requested to sign the agreement, but always refused. Interest was offered him from time to time, but he declined to receive it except as rent. Within two years after the sale the principal and interest were tendered him, but he refused to accept unless a fee of $50 was paid to his attorney for his services. In 1871 Edward Herrington died, and in October 1872, his son, Dewitt C. Herrington, brought an action of ejectment against John Wolford for the premises in dispute. At the trial the foregoing facts were disclosed, but the deed to Mrs. Wolford was not produced, and the court being of the opinion that there was not sufficient evidence to establish a title in Mrs. Wolford, directed a verdict to be found for the plaintiff. The case was taken to the Supreme Court by the defendant, who assigned this instruction of the court as error, and after argument, in October 1873, before Read, O. J., Agnew, Sharswood, Williams and Mercur, j J., an opinion was delivered by Sharswood, J., Agnew and Williams, JJ., dissenting, wherein it was held, under the authority of Beegle v. Wentz, 5 P. F. Smith 369, and Boynton v. Ilousler, 23 P. F. Smith 453, that as Mrs. Wolford had a claim to the land by an unrecorded deed, whether it conveyed a good title or not, Herrington was, under the facts of the case, converted into a trustee ex maleficio, and further, that the testimony in the case was sufficient, if believed, to make Herrington a trustee ex maleficio, independent of any title in Mrs. Wolford. The judgment was accordingly reversed, with the'suggestion that on the new trial Mrs. Wolford should also be made a defendant. (See report of case, 24 P. F. Smith 313.) At the second trial the same ruling was substantially made by the court, Lowrie, P. J., with a verdict and judgment again for the plaintiff. The ease was again argued, on substantially the same grounds, in this court, at October and November Term 1874, before Agnew, C. J., and Sharswood, Williams, Mercur and Gordon, JJ., and upon consultation, Williams, J., being absent, the judges being equally divided, the judgment was affirmed (not reported.) Herrington then took possession of the property, and in March 1875, the plaintiffs brought this action. At this trial, which was again before Lowrie, P. J., the plaintiffs, together' with the evidence produced at the former trials, put in evidence the deed of P. K. Muse to Mrs. Wolford, dated the 15th of December 1862, for the property, the consideration named therein being $450. Mrs. Wolford testified that she obtained the money thus paid from several of her relations, it being her desire to make the property secure, as there was some dispute about her husband’s title. The following, among other points, were submitted by the plaintiffs, to which are subjoined the answers of the court:—
    1. That if they find that Mrs. Wolford had a deed from P. K. Muse for the land in question, and that she was induced to confide in the verbal promises and agreement of Edward Herrington, that he would attend the sheriff’s sale and bid off the land for her, and that in consequence he was allowed to obtain the legal title to the same, his denial of the confidence is such a fraud as will make him a trustee ex maleficio.

    Ans. “ Refused.”
    2. That if the jury find that Mrs. Wolford had an unrecorded deed for the land in question, and that on the eve of the sheriff’s sale, Herrington, knowing of the deed, told her that her title was doubtful, and then and there promised and agreed with her and her husband that he would attend the sheriff’s sale and buy the land for her, and that he would execute a writing before the property was struck off, declaring that he bought it for her and giving her time for the redemption thereof, and that in consequence of such agreement he was allowed to obtain the legal title to the same, his refusal thereafter to comply was such a fraud as would make him a trustee ex maleficio.

    Ans. “ Refused.”
    3. That if the jury find that Mrs. Wolford had a claim to the land in question, whether valid or not, and that Edward Herring-ton did agree with her and her husband to attend the sheriff’s sale for them, and bid off the land for her ai;d give her time to repay him the amount bid for the same, and that this agreement was tobe put in writing by Herrington before the property was bid off, and that Herrington avoided giving the writing before the bidding, by promising that he would do so after the sale and confirmation of the sheriff’s deed to him, his refusal to comply thereafter with said agreement would be such a fraud as would make him a trustee ex maleficio.

    Ans. “ Affirmed. But not so if Mrs. Wolford knew that her deed was good for nothing and declined to record it.”
    6. If the jury believed that Mrs. Wolford had an unrecorded claim to the land in dispute, and was seeking friends to enable her to save it from the effects of a sheriff’s sale, and then Edward Herrington volunteered to buy it in for her, and transfer the title to her in one, two or three years, and give her a writing to this effect as soon as he got the sheriff’s deed, and that was agreed to by her, and he did so buy it in, he thereby became charged to hold the land as trustee for her, and is bound to convey it to her on being refunded his money and interest, within the time agreed upon, or in a reasonable time afterwards. • If you find -the facts to be so, and that the plaintiff tendered the amount due to Herrington on his purchase, you will find for the plaintiffs, the said tender having been followed up by bringing the money into court.
    Ans. “ Affirmed, with the qualifications already stated to you. But such an arrangement with a mere stranger, having no color of right, would not be binding.”
    Verdict and judgment, for the defendant, and plaintiffs taking this writ assigned as errors, among others, the foregoing answers to their points.

      William R. Bole, for plaintiffs in error.
    — This case is within the rules laid down in Beegle v. Wentz, 5 P. E. Smith 369, and Boyntons. Housler, 23 P. E. Smith 453, and the questions involved have been decided in Wolford v. Herrington, 24 P. E. Smith 311.

      M. Park Davis and D. C. McCoy, for defendant in error.—
    The deed of Mrs; Wolford gave her no title, and she is in precisely tbe same condition as any other stranger to the title. A promise to purchase at a sheriff’s sale for the benefit of a defendant in execution will not constitute the purchaser a trustee unless the purchase was made with the money of defendant: Barnet v. Dougherty, 8 Casey 371; Kellum v. Smith, 9 Casey 158; Jackman v. Ringland, 4 W. & S. 149; Williard v. Williard, 6 P. F. Smith 119.
    In the cases of Beegle v. Wentz and Boynton v. Housler, supra, cited by the plaintiffs, the person setting up the trust had an interest not only in the land, but the title. And in each there was a direct consideration for the promise.
    January 7th 1878.
   Mr. Justice Sharswood

delivered the opinion of the court,

When this cause was in this court before on a former ejectment (24 P. F. Smith 311), there was no evidence of Mrs. Wolford’s title to the land except her own parole testimony. The deed was not in evidence. The majority of the court thought, however, that there was evidence which ought to have gone to the jury that she had a bona fide claim — whether her title was good or bad — and if she had such a claim the case fell within the principle of Beegle v. Wentz, 5 P. F. Smith 369, and Boynton v. Housler, 23 Id. 453.

All after this in the opinion filed in that case was certainly extra-judicial, not necessarily involved in the decision, and I will frankly acknowledge that subsequent examination and reflection have satisfied me that I was in error in the position that Herring-ton would have been a trustee for Mrs. Wolford even if she had no interest. I was induced to form this conclusion by a course of reasoning which I now think fallacious ; that because a long line of cases -had settled that when, at the'execution of a writing, the party to whom it was delivered has promised to execute another, and on the faith of which the first was executed, the refusal subsequently to perform the promise was a fraud which would let in parole evidence of the transaction, to reform the writing. I inferred that it would also be a fraud, under the Statute of Frauds and Perjuries, and make the party delinquent a trustee ex maleficio. But these cases are inapplicable. Had Mrs. Wolford been an entire stranger to the title, or the defendant in the execution, as whose property th'e land was about to be sold at sheriff’s sale, then the determination in Jackman v. Ringland, 4 W. & S. 149, and Barnet v. Dougherty, 8 Casey 371; Kellum v. Smith, 9 Id. 158; Robertson v. Robertson, 9 Watts. 32, ruled the case.

Upon the trial of this cause in the court below, the deed of P. K. Muse and wife to Mrs. Wolford, dated December 15th 1862, was in evidence. It expressed a consideration of $450, and Mrs. Wolford testified that she had paid that sum with her own money, which had been given to her by her parents and friends for the purpose. She was living on the land with her husband, who had a prior and perhaps better title. There was certainly sufficient evidence for the jury that she had a bona fide claim to the land. The case of Beegle v. Wentz and Boynton v. Housler, supra, settle that where one having any interest (except the defendant in the execution) is induced to confide in the verbal promise of another that he will purchase for the benefit of the former at a sheriff’s sale, and in pursuance of this allows him to become the holder of the legal title, a subsequent denial by the latter is such a fraud as will convert the purchaser into a trustee ex maleficio. It is true that in these cases the interest of the cestui que trust was not questioned. But while it is clear that a mere pretended claim, trumped up for the occasion, would be of no avail, it is different where the claim is bona fide. Five years before the transaction in question Mrs. Wolford, with the advice and assistance of her friends, had bought an outstanding title to her husband’s land, which was her and his home. She was anxious to protect it, and for that purpose, to procure some friend to purchase her husband’s interest at the sheriff’s sale. The defendant offered to advance the money to buy the property, and hold it in trust for her. She had a friend she said who would let her have the money for one year.

Herrington said he would allow her two years in which to repay him. She spoke of having a writing drawn, setting forth the agreement. He said he would have his lawyer draw one and send it to her. The writing was drawn. Wigbtman, a friend of Mrs. Wolford, asked him at the sale to sign it. He said, “ Wait till I bid it off, then I will sign it.” After the sale he was again asked for the writing. He said, “ Wait till I get my deed, then I will sign it.” After he got the deed he was asked several times to do so, but refused. This was the testimony of Wightman, and it was confirmed by other witnesses.

The plaintiff was entitled to an unqualified affirmance of the first, second, third and sixth points. There was no evidence that the claim of Mrs. Wolford was not bona fide, or that she knew that her deed was good for nothing, and therefore did not record it. Herrington told her it would cost her some trouble, and she had better let him bid it off. All that can be inferred is that she thought it doubtful. Had she considered it a perfectly good title, independent of her husband’s, there would have been no necessity of protecting herself by having the property bid off for her. Even if she knew that the title was bad at the time of the sheriff’s sale, that would not show that she had not purchased it in good faith five years before.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Trunkey

text:
    Greenwald & Co. versus Kaster.
    1. The rule of the common law that a release of one partner operates as a release of his co-partners does not apply where it is manifest that the intention was to confine the release to the one partner.
    2. Where a firm debt is contracted in Pennsylvania and judgment therefor is recovered in that state against one partner alone, and afterwards a release is executed to the other partner in another state, the>effect of the release upon the judgment is to be determined by the law of Pennsylvania.
    January 7th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 3; of Philadelphia county: Of January Term 1877, No. 206.
    This was a feigned issue, ordered upon the opening of a judgment which had been obtained by Greenwald & Co. against Lazarus H. Kaster, in assumpsit, for goods sold and delivered. Defendant pleaded payment. The facts are sufficiently stated in the opinion of this court.

      Walter J. Budd, for plaintiff in error.
    — The principle of the common law, that a release of one joint obligor or partner operates as a release of all, is applicable only to technical releases under seal: Bennett v. Cadwell, 20 P. F. Smith 253; Burke et al. v. Noble, 12 Wright 168; Solby et al. v. Forbes et al., 6 E. C. L. R. 11; Thompson et al. v. Lack, 54 E. C. L. R. 540. The release to Eckhouse was not under seal. The proceedings to open the judgment were an application for the exercise of the equity powers of the court. There was no equity in the application. The defendant relied on a purely technical defence to release him from the payment of an honest debt, and the court permitted him to prove, under the plea of payment, not that he had ever paid the judgment, or any part thereof, or any facts which in conscience and equity were equivalent to payment; but that the plaintiffs had accepted from Eckhouse, his former co-partner, a sum of money as his share of, and had given him a qualified release from, a debt which, at common law and in the Indiana court, was discharged as against him by this judgment.

      Sharp Alloman, for defendant in error.
    — By the law of Indiana a release of one partner is a release of all, and the release being effective by the law of the place of its delivery, is effective everywhere: Story on Conflict of Laws, sect. 411; Burge on Suretyship 301; Searight v. Calbraith, 4 Dallas 325; Born v. Shaw, 5 Casey 288; Allshouse v. Ramsey, 6 Whart. 332; Levy v. Levy, 2 W. N. C. 117.
    [Sharswood, J. — Which is to be applied, the law of the forum, or of the locus of the contract ?
    Agnew, C. J. — What would be the effect of the law of Indiana, upon a judgment which is fixed by the law of Pennsylvania ? Is not greater effect to be given to the judgment than to the release; and will a payment by a less solemn instrument suffice to release the other partner ?]
    The authority was to “compromise and compound” the claim against Josfeph Eckhouse, as late partner in the firm of Easter & Eckhouse, reserving all rights, claims and liens against Lazarus Easter, &c. The release, in terms, reserves all rights against Easter; but it followed, as a legal consequence to the release of Eckhouse, that Easter should be released. The law does not allow Easter to invoke the release so much in his own protection as in protection of Eckhouse. If recovery were allowed against Easter, he would have a right of action over at common law, against Eckhouse, independent of their agreement for contribution; and thus the release to the latter would be a nullity.
    January 21st 1878.
   Mr. Justice Trunkey

delivered the opinion of the court,

Lazarus PI. Easter and Joseph Eckhcuse, late partners, doing business in the state of Indiana, contracted a debt for goods, purchased of E. Greenwald & Co., in Philadelphia. In the action brought for recovery of that debt, judgment was taken against Easter for want of appearance. The summons was returned “nihil habet” as to Eckhouse. Afterwards suit was brought against Eckhouse in Indiana. The plaintiffs, by their attorneys in fact, on the 4th February 1875, in consideration of $700 paid by Eckhouse, released all rights of action against him, and surrendered all claims on account of indebtedness of him, or of. the firm of Kaster & Eckhouse, reserving all rights, claims and liens against said Kaster by reason of their judgment against him in the District Court of Philadelphia, for the sum of $4547.98. Upon Raster’s application an issue was ordered to determine- the question whether that release operated as a satisfaction of the judgment. At the trial of the issue-the learned judge instructed the jury to find for the defendant, for the reason that a release to Joseph Eckhouse, the defendant’s partner, executed in Indiana, is a release of both. .This direction is assigned for error, and is the only assignment that requires consideration.

Though the writing is not a technical release, and possibly cOuld be construed as an- agreement not to sue, it may be conceded that, by the laws of Indiana, it is a valid release, and governed by the principles of the common law. The rule that a release of one joint obligor or promisor operates as a release of his co-obligors or promisors -has long been confined to technical releases, and these, by means of recitals and provisos, may be limited to one alone. In Solby v. Forbes, 6 E. C. L. R. 11, a release of one of two partners, with a proviso that it should not prejudice the releasor’s claim against the other, was held not to be a discharge of the other. And in Thompson v. Lack, 54 Id. 540, the release of one of two joint and several obligors, with a pro viso,, was held not a release of the other; because the whole deed should be.looked at in order to see the intention of the parties, and when the intention of the parties is clear, strong grounds should be laid to- induce the court not to give effect to the deed according to such intention. So in Burke et al. v. Noble, 12 Wright 168, it was held that a release of one of several joint debtors on payment of his proportion of the debt does not discharge the others, if it was not the intention of the parties. If a deed can operate in two ways, one consistent with the intention and the other repugnant to it, courts will ever be astute so to construe the law as to give effect to the'intent. Therefore, by the rules of the common law, the intention of the parties, clearly expressed in the release to Eckhouse, shall -have effect.

Aside from the principles stated, how is Kaster discharged from the judgment ? The debt was contracted and judgment thereon obtained in Pennsylvania. By the law of this state the plaintiffs could compromise with and discharge Eckhouse from his proportion of the debt, which would be deemed as payment to them of such proportion, without prejudice to their right to recover the other portion from Kaster, and without prejudice to his right for contribution against Eckhouse. As to the extent of contribution, on settlement between Kaster and Eckhouse, we say nothing No act has been done to defeat the right. The judgment fixed Kaster for the whole indebtedness. The plaintiffs are considered as having received half of it from his former partner, and, in equity, have no claim for more than half the judgment. When Raster comes and demands discharge from the whole, upon averment that he himself has paid no part of it, but that, for a small sum, they released Eckhouse, expressly reserving their rights against him on the judgment, he makes an unconscionable claim, which should not be granted, except in obedience to positive law. No law requires courts to open their judgments to such end. Had the plaintiffs entered credit for a moiety of the judgment, there would have been no reason for an issue.

The jury should have -been instructed to find for the plaintiffs for one-half the amount of the judgment.

Judgment reversed, and venire de novo awarded.


author: Mr. Justice Paxson

text:
    Whitaker versus Houghton.
    1. In trover after the plaintiff has demanded his goods and the defendant refused to deliver them, he is not hound to accept a tender of them where they have deteriorated in value since the* conversion.
    2. AYhere one demands his chattels and there is such a withholding of them as amounts to a conversion, a right of action accrues which will not be divested by a subsequent offer to return the goods or a notice to plaintiff to come and take them away.
    January 7th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodavard and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1876, No. 53.
    Trover by Thomas Houghton against Robert Whitaker, to recover damages for the conversion of certain moulds, tools and materials for the manufacture of glassware. Plea, Not guilty.
    Whitaker owned a glass factory, which he let to Philip Keen for two years from March 1st 1870. Keen was working with Houghton under an agreement, and had received from the latter certain moulds and materials, some of which were in use and the rest stored away and nailed up in the factory. Keen became embarrassed, and the goods on the premises were seized and with the lease sold by the sheriff. Upon notice from Houghton, his goods, which were stored away, were set aside and not sold. A short time after the sale, Houghton demanded his goods from Whitaker, who said he did not know anything about them. It appeared that subsequently, when another demand was made, he answered that no property should be moved from the premises. About three weeks after the sale, however, he sent a notice in writing to Houghton, to come and take away his moulds and any goods he had on the premises. The plaintiff testified that after receiving this notice, not immediately, but, on account of sickness, as soon as he could, he went to the factory and found his goods honey-combed, thrown out into the yard, rusted and worthless. This was four or five weeks after the sale, and the premises were in possession of new tenants. There was no evidence to show that Houghton had accepted the offer to return the goods.
    At the trial, before Hare, P. J., the defendant submitted the following point, which was refused :—
    If the jury believe the defendant requested the plaintiff to take his goods in question, even if they believe the defendant before refused to let him take them, the plaintiff can recover only such damage as occurred to the goods, if any, between the time of the demand and the request, and for their detention during that interval, and not the value of the goods.
    In their general charge the court, inter alia, said :—
    “ A demand and a refusal are not a conversion, but evidence from which a conversion may be inferred- A clearly expressed demand on one who has the goods of another in his possession, followed by an unequivocal refusal to surrender them to the owner, are prima facie evidence of a conversion, and may be conclusive if it appears that the plaintiff was thereby deprived of his property. Where one demands his chattels, and there is such a withholding of them as amounts to a conversion, a right of action accrues which will not be divested by a subsequent offer to return the goods or a notice to the plaintiff to come and take them away. But such a notice may be taken into consideration by the jury in determining whether the previous refusal was absolute and amounted to a conversion.”
    The verdict was for the plaintiff for $1400, and after judgment' thereon the defendant took this writ, assigning for error the refusal of the above point and the foregoing portion of the charge.

      George L. Grawford, for plaintiff in error.
    — While refusal to deliver goods on demand is evidence of conversion, yet if the defendant afterwards, before suit brought, makes a tender of them, it is a bar to the action: Addison on Torts 500; 2 Hilliard on Torts, sect. 13, p. 121. If the property is delivered to plaintiff before suit brought, only nominal damages can be recovered. The only modification to this rule is where between the conversion and return of the property claimed special damage has been incurred, and in such case this special damage must be distinctly alleged in the declaration: Sedgwick on Damages, 6th ed., p. 614; Hayward v. Seaward, 1 Moore & Scott 459; Evans v. Lewis, 3 Dow 819; Thomson v. Six Penny Savings Bank, 5 Bosworth 293. Where trover has been brought for a specific chattel of ascertained quantity and quality, and unattended with any circumstances that can enhance the damages above the real value, the courts will make an. order for staying the proceedings upon delivering it to the plaintiff, and payment of costs: Moon v. Raphael, 2 Bing. N. C. 315; Wintie v. Rudge, 5 Jurist 274; Coombe v. Sansom, 1 Dow. & Ryl. 201; Plevin v. Henshall, 10 Bing. 24; Kaley v. Shed (Shaw J.), 10 Metc. 319; Rutland & Washington Railroad Co. v. Bank of Middlebury, 32 Vt. 639.
    In Rank v. Rank, 5 Barr 211, trover for goods which the plaintiff received after suit brought, the measure of damage was held to be the difference in value at the time of conversion and that of delivery. And in Mclnroy v. Dyer, 11 Wright 120, an action of trespass, Strong, J., said, what the law seeks to secure in an assessment of damages to an injured party is compensation ; that though there were a complete conversion, and though the general rule in the measure of damages is the value of the goods at the time of conversion — or the highest value at any time between the conversion and the trial — yet if they have been regained by the plaintiff before the trial, that fact goes in mitigation of damages.

      John F. Young and F. Goppee Mitchell, for defendant in error.
    —The question raised by the point which the court declined to affirm was, what is the effect of an unaccepted offer to restore the goods, coming after a demand and refusal to deliver them ?
    In Hanmer v. Wilsey, 17 Wend. 91, it was distinctly held, 1. That an offer to return the goods need not be accepted; and 2. That an unaccepted offer cannot be received in mitigation of damages. See also Higgins v. Whitney, 24 Wend. 380; Gibson v. Humphrey, 1 Cr. & Mees. 544. The court refused in Tucker v. Wright, 3 Bing. 601, to entertain a motion to stay proceedings on delivery of the goods and payment of costs.
    In Moon v. Raphael, 2 Bing. N. C. 310, cited by plaintiff in error, the goods had been accepted by the plaintiff without condition, and the court allowed nominal damages only, because no special damage had been laid in the declaration. So much of that decision is not law here, for it was expressly held in Rank v. Rank, 5 Barr 211, that special damage actually suffered might be recovered, although not formally averred.
    In Rutland and Washington Railroad Co. v. The Bank, cited on the other side, the goods in question were the bonds of plaintiffs, for which they were liable in full,'and which therefore could not have suffered any deterioration as to them, and it was held that the plaintiffs were bound to accept them when tendered; but it was distinctly said that such a rule would not apply where the goods had •deteriorated in value, or where there was any question as to their value. To the same point are Stickney v. Allen, 10 Gray 352; Edmondson v. Nuttall, 34 L. J. Com. Pl. 102; Munson v. Mun-son, 24 Conn. 115; Finch v. Blount, 7 C. & P. 478; Alsager v. Close, 10 M. & W. 584.
    January 21st 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

There was some evidence in the case that the goods in controversy had been injured prior to the offer to return them to the plaintiff. Houghton (plaintiff) says in his cross-examination: “ After receiving the notice from Mr. Whitaker, not immediately, but on account of sickness, as soon as I could', I went to the factory and found my goods honey-combed, thrown out in the yard, rusted and worthless. This was some four or five weeks after the sale.” In view of such evidence it was not error to decline the defendant’s point. Had the plaintiff accepted the tender or offer of the goods the measure of damages indicated by the point would not have been inaccurate. Thus in Rank v. Rank, 5 Barr 211, where the goods had been unconditionally received by the plaintiff after suit brought, the measure of damages was held to be the difference in value at the time of the conversion and that of the delivery. And it may be stated generally that in an action of trover, where the goods have been accepted or regained by the plaintiff, such fact goes in mitigation of damages. He cannot accept a return of his goods and yet'recover their full value. We need not refer at length to the authorities cited in support of the proposition, that in trover a plaintiff is bound to accept a tender or offer to return the property. In nearly all of them there was no deterioration of it after conversion. This was so in Rutland & W. Railroad Co. v. The Bank, 32 Vt. 639, where the property consisted of the bonds of the plaintiffs, for which they were liable in full, and which therefore could not have suffered any deterioration as to them. It was held that plaintiffs were bound to accept them when tendered; but it was distinctly said that such a rule would not apply where the goods had deteriorated in value. This principle runs through most of the cases. Whether a plaintiff in trover is bound under all circumstances to accept a return of the goods, is a question not necessary to a decision of this case. It is sufiicient to say that under the evidence the plaintiff was not bound to accept the offer, and that the measure of damages, based upon the affirmative of this proposition, was not the correct one. Hence 'it was not error for the learned president of the court below to say: “ Where one demands his chattels, and there is such a withholding of them as amounts to a conversion, a right of action accrues which will not be divested by a subsequent offer to return the goods, or a notice to the plaintiff to come and take them away.” This is entirely accurate, • whether we view it as an abstract proposition or an instruction upon the evidence in the case. At most a tender could only affect the measure of damages; it does not go to the right of action. However it may be in the case of an offer to return an article that has sustained no injury, it is clear, both upon reason and authority, that an offer to return property that has been damaged while in the possession of the .wrongdoer, imposes no obligation upon the injured party to accept it.

Judgment affirmed.


author: Per Curiam.

text:
    Cather versus Bray et al.

    1. In an action of replevin, where the verdict is for the defendant, the failure of the jury to find the value of the goods or the amount of rent in arrear will not prevent the entry of judgment thereon for defendant.
    2. In an action of replevin in Court No. 2 of Philadelphia county,for goods distrained for October’s rent, the verdict was for defendant. Before the entry of judgment on this verdict, in Court No. 4, of the same county, in another action of replevin, involving the right for November’s rent of the same premises, the verdict was for plaintiff. The plaintiff entered judgment on the verdict in Court No. 4, and moved for an arrest of the judgment in No. 2, on the ground that the entry of judgment in Court No. 4 was conclusive upon Court No. 2, Held, that this was no ground for an arrest of judgment, and the court properly entered judgment on the verdict for defendant.
    January 7th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkev,'JJ.
    Error to the Court of Common Pleas, No. .2, of Philadelphia county: Of January Term 1877, No. 182.
    Replevin brought by John Cather, on the 13th of November 1875, against John Bray, landlord, and Henry H. Dambly, bailiff. The return of the sheriff was:—
    “ Replevied as commanded, summoned H. IT. Dambly and nihil habet as to J. J. Bray, and property so replevied delivered to plaintiff.”
    The plaintiff filed the usual declaration, and Bray filed an avowry, which set forth that he had demised certain premises to plaintiff, at an annual rental of $420, payable monthly; and that the goods had been taken as a distress for the rent for the month of October 1875, which was unpaid. Dambly made cognisance as bailiff of defendant. The plaintiff pleaded that the defendants had entered and evicted him from part of the premises, on the 6th of September 1875, before any of the rent was due. The defendants filed a replication, and issue was joined. The cause was tried on the 20th of October 1876, and the jury found a “verdict for defendants,” without finding the value of the goods, or the amount of rent in arrear. Before the verdict was rendered in No. 2, another action of replevin had been instituted in the Court of Common Pleas, No. 4, to try the right of the defendant to distrain for the November rent for the same premises, in which a verdict was given for the plaintiff. After the verdict in No. 2, the plaintiff entered judgment on the verdict in No. 4, and. then filed a motion in No. 2, in arrest of the judgment in that court, on the ground that, the suit in No. 4 having been between the same parties, and for the same subject-matter, the judgment therein was conclusive. The court struck off the motion, and entered judgment for defendant on his verdict. Plaintiff then took this writ, alleging that the court erred in entering judgment upon a verdict which was incomplete and did not dispose of the issue, and in entering judgment on said verdict after the entry of judgment in No. 4.

      JEdward B. Worrell, for plaintiff in error.
    — A verdict must be responsive to the issue: Bonnaffon v. Thompson, 2 Norris 462. A verdict in debt, finding no specific sum, is void: Miller v. Hower, 2 Rawle 153; Weidel v. Roseberry, 13 S. & R. 178; Schmertz v. Shreve, 12 P. F. Smith 457. The issue had been once determined in Common Pleas, No. 4, and the judgment therein was conclusive upon Court No. 2: Marsh v. Pier, 4 Rawle 288.

      Walter J. Budd, for defendants in error.
    — The failure of the jury to find the value of the goods and the amount of rent in arrear does not prevent the entry of the comm on-law judgment de retorno habendo on the verdict: Albright v. Pickle, 4 Yeates 264; Smith v. Aurand, 10 S. & R. 92; Turbill’s Case, 1 Saunders Rep. 95, n. 3, and Weidel v. Roseberry, cited by plaintiff in error, which is express authority for sustaining the judgment in this case.
    It was plainly the duty of the plaintiff, if he had intended to rely upon the verdict rendered in his favor in No. 4, to have entered judgment thereon before the trial in this case, and to have put it in evidence, or, by suitable plea, put it on the record. Whether it would have operated as a bar or estoppel to the defendants, could then have been passed upon by the- court below, and its action brought here for review by either party. The “public policy” he now invokes, and his duty to the court below, as well as his own interest, demanded such a course.
    January 14th 1878,
   The judgment of the Supremé Court was entered,

Per Curiam.

— The defendants avowed for rent, after a replevy of the goods and delivery thereof to the plaintiff, and accepted a verdict for the defendants without more, by entering judgment thereon. Whether this verdict and judgment will avail him in the end, we are not now called upon to say. But if there be error in this, it is one of which the plaintiff cannot complain. He has his goods.

The other error insisted upon is not available. This action was for the distress for the rent of October. The action in the Common Pleas, No. 4, was for the distress for the rent of November. The latter action was not concluded by judgment until the 17th of November 1876, after the verdict had been rendered in the present action in October previously. The second suit, on account of the November rent, was neither pleaded nor given in evidence, if indeed it could have been.. Clearly, it was not' matter which could be set up in arrest of judgment on the verdict of the previous October, for a different month’s rent.

We discover no error in the record, and the judgment is therefore affirmed.