text:
    Everhart versus Searle.
    1. Elagg employed Searle to sell land, the compensation to be all above $125 per acre. Everhart agreed in writing with Searle to pay him $500 “for services in assisting to negotiate a purchase” of the land. Searle brought Everhart and Elagg together, and a contract was made for sale of the land at $150 per acre. Everhart and Elagg afterwards consummated the sale themselves. Held, that Searle acting for both without their consent, could not recover the $500 from Everhart.
    2. Searle alleged that the understanding was that the $500 was to give Everhart the preference. Held, that this was selling his discretion, was bad faith to Elagg, and being so no contract would arise out of the transaction.
    3. The fact that Elagg suffered no loss, did not vary the effect, the transaction being against public policy.
    4. Mode of answering points stated in this case.
    March 15th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ.. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Luzerne county: No. '818, to January Term 1872.
    This was an action of assumpsit, commenced May 25th 1870, by James Searle against John T. Everhart.
    On the trial, January 9th 1872, before Harding, P. J., the plaintiff gave in evidence the following paper:—
    “Pittston, Pa., January 15th 1870:
    “ I hereby agree to give James Searle, of Pittston, Pennsylvania, in compensation for services rendered in procuring the sale of certain real estate in said Pittston, Luzerne county, all he can obtain for the said real estate, over and above $125 per acre. The said real estate is known as the Elizabeth Drake property, on the Lackawanna river, near John Marcy’s ‘ old forge.’ This to continue for one year. A. S. Elagg.
    Wilbraham, Mass.”
    He then testified: “ After I made contract with Elagg I then said to Mr. Everhart that I was prepared to sell this property known as the Elizabeth Drake property; could sell Mr. Elagg’s interest in that property. The result of our conversation in reference to the sale was the contract with Everhart,” viz.:
    “$500. “Pittston, Pa., January 17th 1870.
    “ I hereby agree to pay James Searle five hundred dollars; two hundred and fifty on the delivery of the deed, the balance, two hundred and fifty, by note, due in ninety days thereafter, for his services in assisting to negotiate a sale and purchase by me of fourteen of eighteen shares, or all, if he can obtain them conveniently, of the eighteen of a certain piece or parcel of land, situate in Lackawanna township, on Lackawanna river, near the oid forge, known as the Elizabeth Drake property. The fourteen shares now being owned by Captain A. S. Elagg, of Wilbraham, Massachusetts. John T. Everhart.

      “ The offer Everhart made was $150 per aere for the property, and the condition of this agreement was to pay me the $500 additional if I would sell him the property at $150 per acre, instead of selling to other parties. I had offers from other parties.” * * * After receiving the offer and taking this contract with Everhart I saw Mr. Flagg. We decided to sell the property to Mr. Everhart at his offer. I thereupon saw Mr. Everhart and brought him to my house where Mr. Flagg was waiting the result of my efforts to sell the property. We came down to Wilkesbarre and consummated the sale; Flagg, Everhart and myself came down to Wilkesbarre on 18th January 1870. We went to office of Mr. Y. L. Maxwell, and there the papers were executed for sale; papers signed that day or about that time. The price was to be $150 per acre. The contract was executed and the deed prepared for Mr. Flagg to take home with him. * * * Flagg came to Pittston from my letter to him; no arrangement before date of agreement; Everhart proposed to buy the land, and said it was worth $500 more to him than to any one else; did not consider myself agent for Everhart till paper of 17th January 1870; Flagg told me that he wished me to keep oversight of the property, find a purchaser and write to him from time to time. * * * This $500 additional was offered to induce me to let him have the property instead of letting the other parties, who were negotiating for it, have it. I did not consider myself the agent of Everhart, but of Flagg.”
    The land was conveyed to Everhart by Flagg, February 10th 1870. .
    For defendant Flagg testified: * * * “ I had authorized James Searle to sell that land if he could get $125 per acre or more; I would have taken that sum, of which fact Searle was informed; he did not sell it, however, because I found out that he was Ever-hart’s agent to purchase, or to help purchase it of me, and Everhart learning at the same time that he had become my agent to sell, we both refused to have anything more to do Avith him.” * * *
    On cross-examination witness testified: * * * “After giving that authority to Searle I was staying by invitation at his house, and was in his parlor when Mr. Searle came up and informed me that Mr. Everhart was below in his store; I asked him to bring Mr. Everhart up as I wanted to see him; he did bring him up, and we had conversation together on the subject of the purchase and sale of my land$, but we did not meet for the purpose of arranging, it was rather accidental; that was the way and the only time we were ever together in Pittston relative to that sale.”
    The defendant’s 1st point was:—
    “ The plaintiff having, by his own showing, proved himself the agent for the sale of the land at the time he made the contract to act as agent for -the purchase upon which he now sues, has thereby declared himself guilty of constructive fraud.”
    He submitted four other points.
    The court read all the points to the jury and affirmed them, and said further:—

      “ With reference to the 1st point, however, we say to you that assuming the fact to be as stated in the point, we affirm it; but this it is not our province to do. The facts of the case are for you, and should your finding of the particular fact stated in the point correspond with that statement, then the point is well put, and would be affirmed. * * *
    “ Having, in the outset of our charge, answered the points submitted to us by the defendant’s counsel, and having'further briefly called your attention to the testimony, we say to you, in conclusion, that the whole matter at last is involved simply in questions of fact, which are exclusively for your disposition.
    You are to find whether the plaintiff was the agent of Mr. Everhart for the purchase of the land, or whether his contract with him was merely that he Avould give him the preference over other purchasers. James Searle, the plaintiff, had control of the sale of the lands, and he had the right to prefer one purchaser over another. * * * If, therefore, you find that the'contract between these parties was predicated of the basis that the plaintiff should give Mr. Everhart the preference over other purchasers, and that Mr. Everhart was to pay him therefor the sum of $500, then we say to you, that such contract was founded upon a good consideration; and further, that the plaintiff had a perfect right to enter into it and to insist upon its fulfilment.” * * *]
    The verdict ivas for the plaintiff for $553.50.
    The defendant took a writ of error, and assigned for error:—
    The qualification of his 1st point; the part of the charge in brackets, and that the court took “ up the defendant’s written points, and as to each one — except the first — simply reading it over and saying ‘ this is affirmed,’ and then laying them aside and delivering a general charge to the jury, disregarding the principles therein mentioned.”

      A. Rielcetts (with whom was V. L. Maxwell), for plaintiff in error.
    The law does not permit the agent for the sale of a tract of land to become at the same time agent for the purchase of the same: Story’s Agency, § 211; Ex parte Bennett, 10 Ves. 381; Gregory v. Gregory, Cooper 201; Crowe v. Ballard, 3 Bro. C. C. 117; s. c. 2 Cox’s C. C. 253; 1 Lead. Cas. in Eq., notes to Fox v. Mackreth, 196, 214, 3d Am. ed.; Davoue v. Fanning, 2 Johns. Ch. 352; Copeland v. Merc. Ins. Co., 6 Pick. 198; Lazarus v. Bryson, 3 Binney 54; Moody v. Vandyke, 4 Id. 31; Rankin v. Porter, 7 Watts 387; Bartholomew v. Leech, Id. 472; Noel v.
      White, 1 Wright 514. The seller himself cannot become agent for the purchaser: Massey v. Davies, 2 Ves. Jr. 317; Benson v. Heathorn, 1 You. & Coll. C. C. 326; Gillett v. Peppercorne, 3 Beav. 78; Paley on Agency 33, 37. One employed to sell cannot contract with a purchaser for his own private advantage: East India Co. v. Henchman, 1 Ves. Jr. 287, and n. 2; Massey v. Davies, 2 Id. 317, and notes a and 1, 2, Sumner’s ed.; Paley on Agency 38 and notes; Story’s Eq., § 1261. The rule is enforced without regard to the intentions, good or bad, in the particular case, simply upon principles of public policy: Ex parte Bennett, 10 Vesey 381, 385.

      A. T. McQlintock (with whom was O. S. Stark), for defendant in error,
    cited Gould v. Lee, 5 P. F. Smith 99; Barnhart v. Riddle, 5 Casey 96; Aldridge v. Eshleman, 10 Wright 420, as to explaining a writing.
    May 13th 1872,
   The opinion of the court was delivered, by

Thompson, C. J.

The case before us is rather novel. It involves a question whether the same person may be an agent in a private transaction for both parties, without the consent of both, so as to entitle him to compensation from both or either. We have the authority of Holy Writ for saying that “ no man can serve two masters; for either he will hate the one and love the other, or else he will hold to the one and despise the other.” All human experience sanctions the undoubted truth and purity of this philosophy, and it is received as a cardinal principle in every system of enlightened jurisprudence.

The plaintiff below was appointed by one A. S. Flagg, of Massachusetts, agent to sell certain real estate, situate in Luzerne county, Pennsylvania, and was to receive for his compensation all that he might realize over $125 per acre. Two days after the date of this authority, to wit, on the 17th January 1870, he accepted from the plaintiff in error the contract in writing upon which this suit was brought, promising to pay him $500 as therein set forth, “ for his services in assisting him to negotiate a sale and purchase, by Mm of fourteen of eighteen shares, or all, if he can obtain them conveniently, of the eighteen (shares) of a certain piece or parcel of land situate in Lackawanna township,” &c., composed of the same land he was appointed to sell. We need not spend time to argue, what is not susceptible of controversy, that by the terms of the instrument he accepted employment as agent to purchase the same land which he was employed as agent to sell: It is true, the learned judge below, no doubt strongly impressed by the maxim “that the laborer is worthy of his hire,” endeavored to make a distinction in the transaction between an undertaking as an agent, and the sale of a preference to the defendant as a buyer. I ought to say, however, tnat this was hardly his interpretation of the writing, but rather the plaintiff’s explanation of his duty under the contract. But the plaintiff, as a witness on the stand, had no right to construe the language of the written contract on which he had brought his suit. There was nothing left out, and no ambiguity in it, and therefore not within the rule of oral explanation. The interpretation was for the court on the terms of the instrument, and they obviously stipulated for the plaintiff’s services to assist the defendant in negotiating for the shares mentioned, “ or all, if he can obtain them conveniently.” He was thus to be acting with the defendant, or by himself, for the defendant, just as the object in view might demand. This was an agency “pure and simple.” I do not think, however, that the result as to the plaintiff’s claim ought to be at all different from what it is likely to be, on the ground assumed by the learned court; for even on that ground the agent bargained away what his first employer had engaged, viz., his discretion. This was bad faith towards him, and ex maleficio non oritur contractus.

There was plausibility and seeming force in the argument that as Flagg, the plaintiff’s principal in the sale, was not injured by the arrangement with the defendant, there was nothing wrong in making that arrangement. This is specious, but not sound. The transaction is to be regarded as against the policy of the law, and not binding upon a party who has a right to object to it. “It matters not,” it is said, p. 210, of Hare and Wallace’s Notes, 1 Lead. Cases in Eq., “ that there was no fraud meditated and no injury done; the rule is' not intended to be remedial of actual wrong, but preventive of the possibility of it.” This was said of “ any one who acts representatively, or whose office is to advise or operate, not for himself but for others. The principle is general, that a trustee, so far as the trust extends, can never be a purchaser of the property embraced under the trusts without the assent of all the persons interested; and this principle applies to executors, administrators, guardians, attorneys at law, general and special agents, * * * and to all persons, judicial or private, ministerial or counselling, who in any respect have a concern in the sale of the property of others; it extends to sales by public auction, and to judicial sales as well as to private Id. 209 ; and for this innumerable authorities, English and American, are cited. To the same effect is Campbell v. The Pennsylvania Life Insurance Co., 2 Whart. 55; Paley on Agency 32. “ It is a fundamental rule applicable to both sales and purchases, that an agent employed to sell cannot make himself the purchaser ; nor if employed to purchase can be himself the seller. The expediency and justice of this rule are too obvious to require explanation. For with whatever fairness he may deal between himself and his employer, yet he is no longer that which his services require and his principal supposes and retains Mm to be.” It is clear from all the authorities, not only those referred to, but those cited in the notes to Fox v. Mackreth and Pott v. The Same, 1 Lead. Cases in Eq. 172, not here specially referred to, as also in numerous cases in our reports from Lazarus and Others v. Bryson, 8 Binn. 54, that an agent to sell cannot become an agent to buy. It is against the policy of the law that such a principle should hold: Ex parte Bennett, 10 Vesey 381. “ The ground on which the disqualification rests,” it was said in 8 Tomlin’s Brown 72, “is no other than that principle which dictates that a person cannot be both judge and party. No man can serve two masters. He that is intrusted with the interests of others cannot be allowed to make the business an object of interest to himself, because, from a frailty of nature, one who has the power will be too readily seized with the inclination to use the opportunity for serving his own interest at the expense of those for whom he is intrusted. The danger of temptation from the facility and advantage for doing wrong which a particular situation affords, does, out of the mere necessity, work a disqualification.”

We regard the case of the plaintiff below within the principles of these citations, although it doubtless appeared to him as it did to his able counsel and the learned court, that there was nothing of actual or meditated fraud in the transaction; but the learned judge, we think, erred in refusing the defendant’s 1st point, and in charging as set forth in the several assignments of error.

We have no cognisance of the manner in which a judge may have answered points. That must be governed by his own taste and sense of justice. We think, however, that the points should be distinctly read and answered seriatim, and explained, if need be, to an understanding of them by the jury, and then distinctly affirmed, negatived or answered, so that the jury may know that that which has been asserted is or is not the law. From the repeated complaints we have on this subject, we think that care is not always observed in this particular. We have never heard it before in regard to the able and careful judges of the Luzerne district, and we do not know now whether or not the complaint has not arisen out of the over anxiety of counsel, rather than in any want of attention on the part of the court.

From the principles announced, it will be apparent that our opinion is against the right of the plaintiff below to recover from the defendant on the contract sued upon, and therefore we will reverse without awarding a venire de novo. If there be reasons shown hereafter sufficient to authorize a venire, it can be awarded.

Judgment reversed.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Bross versus The Commonwealth.
    1. The Act of December 9th 1783 does not authorize an appeal from an order of the Quarter Sessions, refusing to moderate or remit a forfeited recognisance.
    2. An appeal is given only when the proceedings on a forfeited recognisance are in the Common Pleas.
    3. A certiorari not specially allowed by one of the justices of the Supreme Court, under 33d sect, of Act of March 31st 1860, will not remove an indictment, &c., in the Quarter Sessions.
    4. Commonwealth v. Rhoads, 9 Barr 488, criticised.
    March 16th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Certiorari to the Court of Quarter Sessions of Susquehanna county: No. 334, to January Term 1872, sur appeal from order of forfeiture of recognisance.
    Henry C. Bross, on the 17th of November 1872, was bound over by a justice of the peace in a recognisance with a surety in the sum of $600, to answer a charge of adultery at the January Term of the Court of Quarter Sessions. At that term the grand jury found a true bill against him, and on the 10th of January, he pleaded “Not guilty;” a jury was impannelled; the defendant was called, and not appearing, the recognisance was forfeited. The court ordered the trial to proceed, and issued a bench warrant under which the defendant was brought into court while the trial was progressing, and committed to the custody of the sheriff; he was found guilty, and, on the 15th of January, was sentenced to pay a fine and be imprisoned for nine months. On the same day a motion was made on behalf of the defendant and his surety that the forfeiture be remitted; the motion was refused. On the 23d of February, the defendant “was permitted to appeal to the Supreme Court,” under an order from one of the associate judges, on his own recognisance in $100. He removed the record to the Supreme Court by certiorari.
    Five errors were assigned to all the proceedings of the Court of Quarter Sessions in the case, as appearing on the record.
    In the Supreme Court the counsel for the Commonwealth moved to quash the appeal, which was taken under the Act of December 9th 1783, 2 Smith’s L. 86; 1 Br. Purd. 698, pi. 10, viz.:—
    “ Sect. 2. All recognisances forfeited in any Court of Quarter Sessions of the peace within this Commonwealth, or in the sessions held for the city of Philadelphia, shall and may be sued for and recoverable in the Court of Common ‘Pleas [of that county in which said recognisances shall be forfeited respectively]; which courts may and are hereby empowered to order the said recognisances to be levied, moderated or remitted, on hearing the circumstances of the case, according to equity and their legal discretion.

      “ Sect. 3. Provided, That the Supreme Court of this Commonwealth may hear appeals from such orders or judgments of the Courts of Common Pleas on the said forfeited recognisances at the next ensuing term after such judgment given, but not afterwards, and finally decide on the same.”

      B. L. Blakeslee (with whom was--Little) was for appellant.

      W. BE- Jessup,
    for Commonwealth, on motion to quash, referred to the above Act of Assembly. There was no allocatur by a judge of the Supreme Court as required by Act of March 31st 1860, § 33, Pamph. L. 437, 1 Br. Purd. 383, pl. 36: Commonwealth v. McGinnis, 2 Wharton 113; Commonwealth v. Meyer, 2 S. & R. 463.
    October 23d 1872,
   The opinion of the court was delivered, by

Williams, J.

The Act of December 9th 1783, 2 Sm. L. 86, under which the appeal in this case was taken, makes no provision for an appeal from the orders or judgments of the Courts of Quarter Sessions in refusing to moderate or remit forfeited recognisances. It is true that by its provisions both the Quarter Sessions and the Common Pleas are “ empowered to order the said recognisances to be levied, moderated or remitted, on hearing the circumstances of the case, according to equity and their legal discretion.” But by the express words of the proviso, giving the right of appeal, this court is only authorized to “ hear appeals from the orders or judgments of the Courts of Common Pleas, on the said forfeited recognisances, at the next ensuing court after such judgment given, but not afterwards, and finally decide on the same.” It is clear that under the power conferred by the proviso this court has no authority to hear appeals from the orders or judgments of the Courts of Quarter Sessions on forfeited recognisances, for no such power is given either in express terms or by necessary implication. The express authority given in the proviso to hear appeals from the one court does not imply the grant of power to hear appeals from the other, though both courts are named in the body of the act. The suggestion in the case of The Com’th. v. Rhoads, 9 Barr 488, that from the order of either court there is an appeal, is a mere dictum, not warranted by the language of the proviso or by any other provisions of the statute, which are too plain to admit of any doubt as to their meaning. It follows that the appeal in this case cannot be sustained, nor can we consider the assignments of error under the writ of certiorari. It was not specially allowed by this court, or one of the justices thereof, as required by the Act of 3d March 1860, § 33, P. L. 439, and by its express provisions, is not available to remove the indictment and proceedings thereupon or a transcript thereof.

Appeal and writ of certiorari quashed.


author: Thompson, C. J.

text:
    Sweetzer’s Appeal.
    1. Sweetzer being embarrassed, and owning real estate against which were liens, and Jiffkins being liable for him, under an agreement his real estate was sold at sheriff’s sale under one of the liens, to Scranton, who conveyed the land to Jiffkins, who mortgaged it to Scranton for a loan to pay the liens — Jiffkins to hold the property for five years, appropriate the income to pay the liabilities, and at the end of the time reconvey to Sweetzer, upon his paying any balance including compensation for Jiffkins’s trouble. Held, that the transaction was a mortgage, and after the five years Sweetzer was entitled to a reconveyance on paying any balance which might be due Jiffkins.
    2. The object of such transaction may be shown by parol; it is not obnoxious to the Statute of Frauds, having never been a conveyance, but a security merely.
    3. Such mortgage may be effected through a sheriff’s sale, as well as by a direct deed.
    4. The transaction being to procure a loan on Sweetzer’s property and not to make a sale, it would be fraud to permit it to fail.
    March 15th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Ag-new, J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Luzerne county: In Equity: No. 304, to January Term 1872.
    This was a bill filed, June 20th 1868, by Addison Sweetzer against James Jiffkins, James Jiffkins, Jr., and Thomas Jiffkins.
    The bill charged that the plaintiff was owner of a piece of land on Lackawanna Avenue in Scranton, Luzerne county, on which was erected a building known as “ Washington Hall,” and desiring to borrow the sum of $18,000 on the security of the land and building, about February 2d 1863, effected an arrangement by which $12,000 were borrowed from William E. Dodge, of New York, and the remainder from the defendants; and in order to effect a transfer of bis said real estate, so that it should be an unencumbered security, it was arranged that it should be sold by the sheriff to Joseph'H. Scranton; that he should transfer the title to the defendants, they to give a mortgage on it for $12,000 to Secure Dodge’s loan, and the defendants for their security were to have possession of the premises for five years, and receive the rents and profits which were to be applied, first to the expenses of carrying out the arrangement, then the indebtedness due to themselves, and afterwards the money due to Dodge, and at the end of the five years to account to plaintiff for all the moneys received by them from it, and reconvey it to the plaintiff upon his payment of any money that might be due to them, allowing them a reasonable compensation for their services. Scranton purchased the property at sheriff’s sale for the nominal sum of $50, persons who were present at the sale being prevented from bidding by representations by tbe counsel of all the parties; the sale was made only to carry out the above-mentioned arrangement as security on the property for the loan; the arrangement was fully perfected, and the defendants went into possession of the property about the 2d of March 1863. At the end of the five years the plaintiff demanded from the defendants an account and a reconveyance of the property, he being then and always since ready to pay what might be due the defendants, and in all respects comply with his agreement with them; they refused to render an account, make a settlement or reconvey the property.
    The prayer was for an account of rents and profits; that the plaintiff may be permitted to redeem the premises upon paying what may be due the defendants, and that the defendants reconvey the premises to him, and for further relief.
    The defendants denied in detail the substantial allegations of the bill, admitting that they went into possession of the premises as averred in the bill, but as bond, fide purchasers of them. They also pleaded the Statute of Frauds.
    Testimony was taken by an examiner. The case was afterwards referred-to George R. Bedford, Esq., as master.
    The synopsis of the evidence in the opinion of Chief Justice Thompson, with the findings of the master, will sufficiently elucidate the principles decided in the case.
    The master’s findings of fact were:—
    “ 1. That prior to March 2d 1863 the plaintiff was the owner of certain real estate known as the Washington Hall property, situate in the then borough of Scranton, and fully described in the bill filed in this case.
    “ 2. That at the time mentioned Sweetzer was largely involved, and being much pressed, he discussed with his friends a plan for putting his property in the hands of some one of them, and obtaining upon the same a loan of $12,000 for five years.
    “ 3. That at this time these defendants were creditors of the plaintiff, and, in addition, were liable for him as endorsers to a considerable amount; and that Thomas Jiff kins, one of the defendants, is his brother-in-law, and was on very intimate terms with him in matters of business.
    “4. That in pursuance of the plan spoken of, the plaintiff applied to Joseph H. Scranton to negotiate in New York a loan of $12,000, to be secured by mortgage upon the Washington Hall property.
    “ 5. That the matter was pending for some time, and finally William E. Dodge, the party applied to, declined to make the loan, the security not being deemed sufficient.
    “ 6. That upon failure of this negotiation all efforts upon the part of the plaintiff] Sweetzer, to obtain said loan were abandoned, and not again renewed.
    “ 7. That thereupon the plaintiff would seem to have given up all hope of saving anything, his principal anxiety now being to protect the Jiffkins, who had stood his friends, and to see all his debts paid, and he left free from any further annoyance and demand on their account.
    “ 8. That in this state of affairs it was arranged that these defendants should take the Washington Hall property and assume and pay Sweetzer’s entire indebtedness.
    “ 9. That in order to enable the Jiffkins to carry out this arrangement, and pay the debts of the plaintiff, it was necessary to obtain a loan of $12,000, and this was ultimately furnished by William E. Dodge, through Mr. Scranton, upon the execution by these defendants of a mortgage upon the Washington Hall property and their other real estate in the borough of Scranton.
    “ 10. That at the time there were a considerable number of liens on the property, and therefore, in order to vest the title properly in these defendants discharged from prior encumbrances, and enable them to secure the proposed loan by a mortgage on these premises and their other real estate, which should be a first lien, it was decided that a sheriff’s sale should be had upon the writ then in the sheriff’s hands issued on judgment ‘ Breck assigned to Malven v. Sweetzer.”
    “ 11. That said sale was made by the sheriff on the 2d day of March 1863, and the property bid off at the price of $50, in the name of J. H. Scranton, and that said Scranton, very soon thereafter, conveyed the same to these defendants, naming as the consideration $18,000; that no money was paid by said defendants, but that they executed a mortgage upon the Washington Hall property and their other real estate for same amount of $18,000, payable in five years, that sum being made up of the loan of $12,000, together with interest added at the rate of 10 per cent, from the date to the maturity of the mortgage, and that said mortgage was assigned to William E. Dodge by said Scranton.
    “ 12. That the loan obtained from Mr. Dodge was applied by these defendants to the payment of the indebtedness of Mr. Sweetzer, and that in addition thereto they paid, or assumed to pay, over $6000, in all making over $18,000 paid by them on account of such indebtedness, which represents the actual consideration paid for the Washington Hall property.
    “13. That most of the judgments standing against Sweetzer have since the sale been satisfied of record, but that some of them in favor of Jiffkins, as assignees of the several plaintiffs, remain open and unsatisfied, but that more than seven years have elapsed since the entry of the last-mentioned judgments, and that no attempt has been made to collect or revive them.
    “ 14. That at the time of the sheriff’s sale the property in controversy was worth about $18,000, with usual allowance of time for payment, but that at a judicial sale it would not in any event have brought more than $15,000; that its present varne is about $40,000. . _ ■
    _ “ 15. That parties were discouraged from bidding at the sheriff’s sale by representations made by Thomas Jiffkins or Mr. Sherrerd (the attorney conducting the sale), or both, that the sale was for the benefit of Mr. Sweetzer.
    “ 16. That prior to the sheriff’s sale, but after the writ was in the sheriff’s hands, the defendants, or some of them, gave the plaintiff to understand that he should have the right to redeem, and entitle himself to a reconveyance of the Washington Hall property, provided that within five years he should reimburse these defendants for their trouble, and for expenditures made by them in the meantime, and that such understanding was to be reduced to writing, which, however, was never done.
    “17. That Sweetzer made provision and was ready to make settlement according to the terms of the understanding above stated, but upon his offering to settle, and demanding the reconveyance, the same was refused. * * *
    “ Upon the failure of his (plaintiff’s) negotiations all parties, it would seem, became alarmed, the plaintiff, because he was liable to have his property swept from him at a sheriff’s sale for a merely nominal price, leaving him oppressed for life, it might be, with a burden of debt unprovided for: the defendants, because they found themselves responsible for a large amount on Sweetzer’s account, and fearful lest they might be involved in the ruin which threatened him. Seeing little prospect of being able to save anything for himself, the plaintiff was at least anxious to save his friends from loss, and have his debts paid. It was thereupon arranged that these defendants should take the Washington Hall property and pay the indebtedness of the plaintiff. As there was a number of liens against the property, it was deemed advisable that a sheriff’s sale should be had on the writ. This was done, and ultimately the legal title to the property in question was vested in these defendants. Did any equity remain in the plaintiff? The loan which was obtained was furnished, as the master conceives, solely on account of the defendants. They included in their mortgage, not only the property purchased at the sheriff’s sale, but also all their other real estate situated in Scranton. It may be true that Sweetzer took some part in the negotiation for the loan which was ultimately procured, but he was no farther interested in it than that it would enable the defendants to carry out the arrangement, to wit, the taking the property and paying the debts. The plaintiff alleges, and has introduced considerable testimony to prove, that the defendants, or some of them, agreed that he should have the right to redeem at the end of five years upon reimbursing them for their outlays, &c., and that thereupon he should have the right to a reconveyance, and that the understanding was to be reduced to writing. In the depressed condition of Sweetzer, it is probably true that the defendants, or some of them, promised to reconvey upon the terms alleged, though the proof as to this is contradictory, but it may well be doubted whether any such promise imposes such an obligation 'as will be enforced by a court of chancery. The alleged contract is denied by the defendants under oath, and against its enforcement in any event they interpose the plea of the Statute of Frauds.” * * *
    “ Another objection to granting the relief asked for by the plaintiff is that the alleged contract is wanting in the element of mutuality, one party bound and the other not, the plaintiff under no obligation to take the property if it declined in value, or did not yield what it cost the defendants. A court of equity will not enforce such an arrangement as a contract, there being no reciprocal obligation.

      u Is there anything in the case to establish a trust ex maleficio ?

    “ The promise to reconvey was prior to the sheriff’s sale, but after the writ was in the sheriff’s hands. As the master believes, the transfer of the property to these defendants was not dependent on any agreement to reconvey. His financial troubles rendered the plaintiff helpless, and he had the only alternative of seeing the property pass into Jiffkins’s hands for a full consideration, and the amount applied to the payment of his debts, or of having it struck down at a sheriff’s sale to some other party for a price probably much below its value. The purchase by the defendants, then, was of advantage to the plaintiff, in that it saved his property from sacrifice. The master takes the ground that the failure of the defendants to observe their part of the alleged agreement left the plaintiff in no worse condition than if the same had not been made, for if the defendants had declined to make it, the result to the plaintiff must have been the same, or less favorable, as his property was already levied upon, and was ultimately sure to be sold, either with or without his consent, for the payment of his debts. The attempt to establish the trust, so far, is by an endeavor to prove fraud by the agreement, and then give effect to the agreement, if at all, upon the ground of fraud, which is, as has been said, reasoning in a vicious circle: 2 Lead. Cas. in Eq. 706, and cases cited. In the view of this case taken by the master, nothing had transpired up to the time of the sheriff’s sale to establish a trust ex'maleficio, and unless there was something in the circumstances attending the sheriff’s sale, or what subsequently occurred, to create such trust, none exists.
    “ It seems to be pretty well settled that one of these defendants, and the attorney who conducted the sale, discouraged bidding, and represented it to be for Sweetzer’s benefit in • order to keep the price down. If this injured Sweetzer, or any creditor, the conduct might have the effect claimed for it, but the price did not represent the consideration actually paid by these defendants, and the statement made to other bidders was obviously for the purpose of saving sheriff’s costs, and, so far, was of benefit to Sweetzer. Moreover, no creditor could be injured, for these defendants assumed to pay all the claims, and held assignments of many of them. Sweetzer was not injured, for the apparent reason that a bid upon the property to its full value could not benefit him, as the lien then controlled by Jiffkins amounted fully to such value. Most of the judgments against him were satisfied of record immediately after the sheriff’s sale. It is true that some of them, standing in the name of these defendants as assignees, have not been satisfied, and still apparently remain open against the present plaintiff, and this, it is claimed, is evidence of fraud. Though more than five years have elapsed since the entry of such judgments, no attempt has been made to either collect or revive them, and the omission to satisfy cannot be considered as very serious.
    “ Taken altogether, the evidence of fraud on the part of these defendants is very meagre. In the opinion of the master, they paid a full consideration for the property, and in order to take the same, and carry out the arrangement for paying the plaintiff’s debts; they assumed a grave responsibility in the then depressed condition of finances throughout the country, and put in jeopardy all the real estate of which they were the owners. Had property declined in value, the load would doubtless have proved too much for them, for the plaintiff, though he might subsequently become abundantly able, was not bound in any event, according to the terms of the agreement which he sets up, to take the property back and reimburse the defendants. The latter took the entire risk of fall of value, and it seems only right that in the absence of positive proof of mala fides, they should profit by the rise.

      “ From the views above indicated, the master is of the opinion that the plaintiff is not entitled to the relief prayed for, but that the defendants should be decreed to procure satisfaction to be entered upon the record of all unsatisfied judgments against the plaintiff, which were subsisting claims at the time of the sheriff’s sale, and that otherwise the bill should be dismissed.” * * *
    Exceptions were filed to the master’s report, which after argument were confirmed by the court, Dana, J., delivering the opinion dismissing the plaintiff’s bill with costs.
    The plaintiff appealed to the Supreme Court. Three of the errors assigned were:—
    1. Not treating the transfer of the property to the defendants as a security for the loan of money.
    2. Treating said transfer as a purchase by them in consideration of payment of plaintiff’s debts.
    4. Not finding that the defendants were trustees ex maleficio.

      A. Bichetts [witn whom were S. Woodward and A. T. MoQlintooh), for appellant.
    A deed absolute on its face may be shown by parol to be merely a security for a loan of money, whatever may be the form of conveyance adopted: Kunkle v. Wolfersberger, 6 Watts 126; Hiester v. Madeira, 3 W. & S. 384; Houser v. Lamont, 5 P. F. Smith 311; Harper’s Appeal, 14 Id. 315.
    And is not a violation of the Statute of Frauds (3 Lead. Cases in Eq. Am. notes to Howard v. Harris, p. 630), the appellees taking assignments of the judgments not paid by the loan from Dodge, and keeping them open designedly, is evidence that it was a mortgage: Hamet v. Dundass, 4 Barr 178. Even if the evidence should not be considered sufficiently definite to warrant a decree for specific performance upon it alone, yet its clear reference to arrangements made by appellant and Scranton and James, Jr., with regard to this building, &c., is sufficient to open the door for the admission of parol evidence: Wanchford v. Fotherley, 2 Freeman 201; s. c. 2 Vern. 322; Tawney v. Crowther, 3 Bro. C. C. 161, 318 Huddleston v. Briscoe, 11 Ves. Jr. 583; Forster v. Hale, 3 Id. 696; Cookes v. Mascal, 2 Vern. 34, 200, and compare Hollinshead v. Allen, 5 Harris 275, and Raybold v. Raybold, 8 Id. 308.
    If the transfer of title was for the purpose of securing a loan, the law raises an equity of redemption in appellant without any agreement to that effect: Co. Litt. 205, a, note 1; Rankin v. Mortimere, 7 Watts 372; Heister v. Madeira, 3 W. & S. 384; Colwell v. Woods, 3 Watts 188.
    The defendants agreed to execute a written defeasance and deliver the same to plaintiff, which, after obtaining possession of the property, they refused to do. This was such a maleficium as would make the party a trustee: Anonymous, Skin. 142; Maxwell v. Monlacute, Prec, in Chan. 526; Young v. Peachy, 2 Atk. 254, 258; Joynes v. Statham, 3 Id. 388, 389; 3 Wooddes Lect. 57, p. 429; Washburn v. Merrills, 1 Day 139. So the prevention of bidding at the sheriff’s sale, by direct representations : Brown v. Dysinger, 1 Rawle408 ; Haines v. O’Connor, 10 Watts 313; Hill on Trustees, p. 96, note 2.

      J. Handley and II. M. Hough, for appellees.
    To constitute an absolute deed a mortgage the proof must be “ clear, definite, unequivocal Charnley v. Hansbury, 1 Harris 16, and cannot be effected through a judicial sale: Fox v. Heffner, 1 W. & S. 372. This court will not strain evidence in order to extend exceptions to the Statute of Frauds, but will rather restrict such exceptions. Poorman v. Kilgore, 2 Casey 365. When there is- no mutuality in a contract executory, a court of equity will not enforce it either as a contract or as creating a trust: Adams Eq. 82; Bodine v. Glading, 9 Harris 50, 53; Wilson v. Clarke, 1 W. & S. 554; Fox
      v. Heffner, Id. 374; Corson v. Mulvany, 13 Wright 88; 2 Story Eq. 41; Kellum v. Smith, 9 Casey 158.
    Chancery will not decree against the words of the Statute of Frauds, upon mere parol proof, where that proof is contradictory: Rowton v. Rowton, 1 Hen. & Mum. 91; Charnley v. Hansbury, 1 Harris 21; Greenlee v. Greenlee, 10 Id. 226; Burns v. Sutherland, 7 Barr 103. The contract set out in the plaintiff’s bill is within the Statute of Frauds and the Act 22d April 1856. A judicial sale is within the statute: Fox v. Heffner, 1 W. & S. 372; Jackman v. Ringland, 4 Id. 149; Barnet v. Dougherty, 8 Casey 371; Kellum v. Smith, 9 Id. 164. An agreement to reduce to writing will not take the ease out of the Statute of Frauds, nor is it ground upon which to establish a trust ex maleficio: 2 Story Eq. 93, and note; Lester v. Foxcript, 2 Smith Leading Cases in Eq., 636 note, and Lord Brougham, 2 H. L. Cas. 158.
    May 13th 1872,
   The opinion of the court was delivered, by

Thompson, C. J.

The origin of this controversy arose out of the pecuniary embarrassment of the plaintiff, who is the appellant about 'the year 1862 or 1863, and which resulted in an effort on his part to borrow a sum of money of about $12,000 to relieve himself. He applied to several gentlemen for this purpose, and having failed, applied to Joseph H. Scranton, Esq., of the city of Scranton, and urged him to make an effort in New York or elsewhere to procure for him such a loan on mortgage of his Washington Hall property in the city of Scranton. Mr. Scranton says he told him on one occasion that in the depressed condition of real estate in Scranton, it would be difficult to get New York parties to make loans upon it, but that he would do anything in his power to promote his wishes and secure his interests. He says, he, the appellant, made repeated applications subsequently to him about the loan, and that he, Scranton, held several conversations with Mr. Sherrerd, the attorney for “our company,” the Lackawanna Iron and Coal Company, with regard to the title and security the Washington Hall property would afford, and that he became satisfied that it would be inexpedient to attempt to procure a loan for the sum mentioned, and for the time proposed five years, on its security, and the matter was virtually dropped.

Afterwards, Scranton says, Thomas Jiffkins came to him and stated that Sweetzer was in trouble in regard to his indebtedness, which was mostly in liens on this property, and that he was very considerably indebted to their firm, of Jiffkins & Sons, besides liabilities incurred by them as endorsers for him, and unless something could be done by which these judgments could be satisfied or arranged, they, the Jiffkins, “ would be swamped.” “ I,” the witness says, “ told him I was tired of making efforts to borrow the $12,000 upon the property, but that if he and Sweetzer would see Sherrerd and arrange so that the title would be secure, viz., of the Washington Hall property, and Jiffkins would give a judgment which would cover their property also, I would probably be able to make a loan. Still later I was informed it was arranged, that the property was to be sold at sheriff’s sale, and which I understood was done. I was not there. It was bid off by Mr. Sherrerd in my name. Subsequently Jiffkins’s judgment-bonds were given and the loan was obtained.” That is to say, the loan was obtained on a mortgage of the Washington Hall property, bid in as above stated for Scranton at $50, and conveyed by him to Jiff-kins for $18,000, upon which they, the Jiffkins’s, gave a mortgage for $16,200, due in five years, including interest at the rate of 10 per cent, per annum. The mortgage was accompanied by the bonds of the Jiffkins’s, together with a bond for $1800, to make up the consideration in the deeds. The loan was in fact $12,000, the sum originally attempted to be obtained by Sweetzer on the property, the included interest for five years making that sum or near it.

As further showing the nature of the transaction, Mr. Sherrerd, a witness for the defence, says, alluding to the failure o’f obtaining the loan for Sweetzer, that “ subsequently to this, Mr. Scranton applied to me professionally with reference to a loan to be effected by the Messrs. Jiffkins, who proposed to take the property and secure it (the loan) by a lien, not only upon that property, but upon other property they held in Scranton.” This was what Scranton had suggested to Thomas Jiffkins before the sale of the property of Sweetzer had taken place; and Scranton’s movement to have the property placed in other hands than that of Sweetzer, accords with Scranton’s advice to Sweetzer to this effect, and was with a view to befriend both Sweetzer ,and the Jiffkins’s. After this conference or conferences on the subject, Mr. Sherrerd says “ we came to the conclusion that the property itself, together with a lien on Jiffkins’s other property, with a policy of insurance on the buildings of Washington Hall, would undoubtedly be safe, whereas that property alone might not be entirely safe. I suggested, then, as a means of effecting the transfer, that a sale should be made by the sheriff on the writ then in his hands, and on which the property was then advertised, to the best of my knowledge and belief. I am positive that I suggested a sheriff’s sale, but whether it was then advertised or not, I am not certain. I suggested that Scranton should become the purchaser at the sheriff’s sale; should then convey the property to the Messrs. Jiffkins, and take a mortgage from them for the amount of the purchase-money, thus making it undoubtedly the first lien on the property.”'

This it is plain was the mode adopted to create a mortgage on the plaintiff’s property on which the desired loan of $12,000 might be obtained, and it is abundantly shown that the object was to save the property from sale on unfriendly process. By this means also, the Jiffkins were expected to be eventually secured from being “swamped” as they feared. The whole scheme was a means to effect an object, and that, as already said, to save Sweetzer’s property from sale and the Jiffkins from ruin, viz. by a loan on the property of the former, strengthened by the bonds of the latter.

Now what was the transaction in this view of it ? An adverse sale and absolute transfer of Sweetzer’s property, or only a mode of pledging it to raise money to satisfy creditors, leaving an equity of redemption in Sweetzer ? If it was the latter, the deed to Scranton was affected with the defeasance agreed upon, and so was his deed to the Jiffkins, who knew all about the arrangement. It gave to the Jiffkins only the power to mortgage it, instead of Sweetzer. It put them in Sweetzer’s stead so far as mortgaging the property was concerned. The purpose of this was to secure a loan for the benefit both of Sweetzer and them, keeping Sweetzer out of sight, for reasons of policy, but in fact using his property for the purpose. This is just the nature of the scheme devised by Sherrerd, assented to and acquiesced in by Sweetzer and the Jiffkins, as well as the creditors of the former. It is no objection to this construction of the transaction that it was effectuated through the medium of a sheriff’s sale. That was needed, and did not in the least change the real character of the transaction. Authority is not needed to prove this.

It is not at this day an open question, that a conveyance absolute on its face may be shown to be a security for money loaned, and that this may be made to appear by oral testimony: Kunkle v. Wolfersberger, 6 Watts 126; Hiester v. Madeira, 3 W. & S. 384; Houser v. Lamont, 5 P. F. Smith 311; Harper’s Appeal, 14 Id. 315, and numerous other cases to the same effect. The rule does not impinge on the Statute of Frauds, for the deed, if the proof be sufficient, was never a conveyance, but simply a security for money. It was necessary so to hold the law to prevent frauds. If the entire arrangement shows the purpose of a transfer of property, by deed or otherwise, to be as security merely, it would be simply hypercritical to contend that this would not be evidence of the fact as fully as if expressly declared in so many words. Deductions from facts, accurately drawn, may establish a fact as conclusively as words; nay, more certainly. Unaided by corroborative declarations, and alone on the undisputed details of the arrangement in this case, it seems to us that but one conclusion upon the testimony is possible, namely, that the sole object of the transaction was to procure a loan of money on the property of plaintiff, now in dispute, and not to effect a sale of it. This being the purpose, it would be a fraud on him to permit it to fail. Equity will not allow this.

But testimony aliunde which must be regarded; is superabundant to relieve the mind of doubt as to the nature of the transaction. A. S. Halstead testifies to his presence at a conversation between Sweetzer and one of the members of the firm of Jiffkins & Sons, in which it was agreed that an arrangement was to be made by which there was to be a transfer of the property in question to the Jiffkins, in which a loan was to be obtained to pay off the liens on it; that the Jiffkins were to hold the property, collect the rents for five years, he thinks, to pay debts, keep the property in repair, keep an account of moneys collected, and moneys expended on the property, and at the end of that time Sweetzer was to settle with them, pay them for their trouble, pay up all indebtedness against the property that might remain, and they to reconvey it to him. “Afterwards,” says the witness, “ I understood from a conversation between the Jiffkins and Sweetzer that they had entered into the arrangement, and subsequently that the property was sold at sheriff’s sale; and I understood from the first conversation that the transfer was to be made in this way.” This witness does not appear to have been discredited in any manner, but' is substantially corroborated by Moore, Colley, Burt, Sweetzer, Hetzel, Fitzgerald, Hurd, Welsh, Freeman, Nat. Halstead and others, who testify to conversations and declarations of the Jiffkins, that they held the property only for a term of years, in trust for Sweetzer, and that they would make no further repairs on it,&c. It is also an uncontradicted fact, that they retained in the building its furniture, which did not pass to them by the sale, and as some evidence of the understanding of all parties, Sweetzer’s wife took care of the building, sweeping and cleaning it for a considerable length of time after the mortgage was executed on the property by the Jiffkins, and they in possession of it under the arrangements referred to.

Also, as conclusive of these views of the arrangement, is the fact that the creditors, at least some of them, stood by and saw the property sold free and. clear of their liens, and neither counsel nor parties interposed an. objection. This cannot be accounted for, we think, in any other way than as alleged by the plaintiff’s counsel, that at the time of the sale it was made known to creditors that the property was simply being put in a shape to bring money on mortgage to pay Sweetzer’s debts. The master finds that at the sale the Jiffkins, Sherrerd and Sweetzer all represented that the sale was merely an arrangement for the relief of Sweetzer.

It would be preposterous to suppose that the property would have been allowed to go for $50, when the liens were large and numerous, not fixed liens, and therefore liable to be discharged by the sale, unless some well understood arrangement existed that the sale would enure to their benefit. The arrangement referred to, and prayed by Halstead and by the declarations of defendants as proved, accounts for this. Other facts corroborate this also. For instance, the costs of the sale were paid by Sweetzer after the sale. Judgments were bought up by the Jiffkins against Sweetzer, which were liens on this property, and assignments were • taken leaving them in full force against the property up until the hearing of this case, and perhaps yet. Why would the owner of property keep judgments on foot against his own property ? This fact is implicative of an arrangement to hold the property, as the testimony of Halstead and others expressly prove was the contract.

We are not troubled with the position suggested by the learned judge, viz.: that the contract set up by the plaintiff wants mutuality, and is therefore not within the redress sought. The answer to this is, that the plaintiff can have no redress without submitting to be bound as if by contract signed, and is sufficient to meet the objection. The nature of the transaction being once ascertained, the appropriate remedy follows. If the transfer of the property in the case was for the purpose of pledging it on mortgage, redemption in equity follows, and it will only be allowed on doing equity all around. The difficulty suggested cannot prevent it, else, the principle itself would be subverted.

A fact which I have hitherto omitted to notice, and which ought not to be overlooked, is the writing agreed by the Jiffkins to be given to Sweetzer of his continuing interest in the property; in fact the defeasance of the mortgage. The testimony of Sweetzer is positive as to this agreement, and is corroborated by Sherrerd, who says that on the day of the' sheriff’s sale one of the Jiffkins told him that Sweetzer was demanding the writing, and that he told Jiffkins he must give no writing; that it might give Sweetzer’s creditors a hold on the property. The witness cannot recollect whether Sweetzer asked him for the writing on that day, but recollects that he spoke to him about it several times.

How in the nature of things could all this be, if the transaction was, as the defendants allege it to have been, viz., an absolute sale to the Jiffkins? But it is just what would have occurred according to th.e plaintiff’s theory of the case. It was bad faith on the part of the defendants to refuse the execution* of such an agreement, and they will not be allowed any advantage from it. On the proofs, and substantially by the master’s finding, a writing was to be given to the plaintiff, showing his continuing interest in the property, which had been agreed upon before the sale. And the only reason given for refusing it, was that given by Sherrerd, that it might give the creditors a hold on the property as Sweetzer’s, and break up the arrangement made in the matter for his benefit, and that of the Jiffkins. That such an agreement was promised the plaintiff before the sale, is plainly deducible from the testimony, and this also proves that the arrangement was a pledge of the property as security, and not a sale of it. This is our judgment upon the whole facts in evidence, and it is a satisfaction to know, that in acting upon it, we take not a dime from the defendants that in equity they ought to retain, for they must he reimbursed all outlays after accounting for all moneys received, before they will be decreed to convey to the plaintiff. If any balance be due the defendants it must be paid, and then the plaintiff will be entitled to a conveyance of, and repossess his property.

We are aware that this convicts the master and courts of error in their conclusions upon the testimony; that is to say, we think their deductions from the facts constituting the transaction, were erroneous; that the whole taken together should have led to a different result. We feel convinced that the preponderance of testimony, that is, that which should properly lead to a true result, was with the plaintiff, and therefore we must reverse the conclusion arrived at below.

Now, to wit, May 18th 1872, the decree of the court below dismissing the plaintiff’s bill is reversed, and the bill is ordered to be reinstated, the case to be referred by the court below to the same master, or some other, to take an account of the rents, issues and profits received by the defendants from the property in question, together with an account of debts paid by them due by the plaintiff, with an equitable allowance for services rendered by the defendants; ascertaining the amount due by either party to the other, if any, so as to enable the Court of Common Pleas to make a final decree in the premises according to equity.


author: Per, Curiam.

text:
    Lower Macungie Township versus Merkhoffer.
    1. Miners had excavated into the side of a road, making a precipitous bank; no guard was put up; a wagoner in driving along the road broke the bank; his wagon and team fell over and were injured. Held, to be negligence by the supervisors for which the township was liable.
    2. It was not a defence that the driver by careful driving could have avoided the accident.
    3. A highway must be kept in such repair that skittish animals may be employed without risk.
    March 18th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lehigh county: No. 412, to January Term 1870.
    This was an action on the case for negligence, brought to April Term 1868, by Philip Merkhoffer against The Township of Lower Macungie.

      The cause of action was the loss by the plaintiff occasioned by his team and wagon having been precipitated into an excavation on the side of a public road, by which he lost a mule and had his harness and wagon injured. The road at the point where the injury occurred was about 23 feet wide; the excavation had been made by mining for ore by the Allentown Iron Company; there was no fence or other guard at the place of the excavation, and the road was there somewhat descending; in driving down the road the front wheel on the left or near side of the wagon sank into the ground near the edge of the bank which gave way; the wagon and team went over, and one of the mules was so badiy injured as to be worthless. The plaintiff gave evidence also for the purpose of showing that the road at that point was in a dangerous condition.
    There was evidence for the defendant that at the time the accident occurred, the driver, Schlicher, was behind the wagon, at the lock; that one of the mules was skittish, and being frightened at some cattle, shied as the wagon was passing the place where the accident happened; that the driver was not accustomed to driving, and the accident occurred by his negligence. They gave evidence also for the purpose of showing that the wagon and team belonged to the Allentown Iron Company, by whom the excavation into the side of the road had been made. It appeared that the team had belonged to the company; it had been sold to the plaintiff for $1700; he was to pay $50 per month till it was paid for; at the time of the accident he was hauling for the company, and had then paid $902 on account of the purchase-money.
    The case was tried January 13th 1870, before Longaker, P. J. On the trial the defendant made the following offer of evidence:—
    “ That the Allentown Iron Company having an interest in this team, made this excavation, or caused it to be made, and that at the time of the accident the team was hauling ore for the company.”
    The court rejected the offer, and sealed a bill of exceptions.
    The plaintiff submitted these points, both of which were affirmed:
    1. If the injury to plaintiff’s team were owing either to township’s not maintaining road of sufficient breadth, or to improperly allowing excavation in road, or to neglect in not maintaining guards along such excavation, or to several or all of these causes combined, without proof of concurrent negligence on the part of the plaintiff or his employees, plaintiff would be entitled to a verdict.
    2. Plaintiff would not be prevented from recovering by the injuries being caused by negligence of defendant, concurrently with the accidental fright of his team, unless ordinary care of plaintiff or his employees would have prevented injuries from such accidental frightening.
    The following are points of the defendant with their answers:—

      5. If the fact of the plaintiff’s mules being in the habit of shying contributed to the accident, plaintiff cannot recover in the absence of proof, that plaintiff did not know of such vice and had had no reason to suppose that such vice existed, and that he was in no fault in not knowing it.
    Answer: “ I cannot affirm this point. If the shying of the mule was an unavoidable accident and such as a reasonable foresight could not provide against, and the damage was occasioned by accident and not by negligence of the plaintiff, the plaintiff will be entitled to recover; where plaintiff knows such vice to exist, it is his duty to use ordinary care to provide against accident that may result therefrom.”
    6. If the jury believe that Schlicher did not manage the team with the skill required to drive a team such as he then had, the plaintiff cannot recover.

      “ Answered in the affirmative. Unless you find that the damage was occasioned as the result of unavoidable accident on the part of the driver.”
    7. The plaintiff cannot recover unless he show affirmatively that the injury was caused wholly and exclusively by negligence on the part of defendant.
    Answer:' “ The plaintiff must satisfy you from all the evidence in the cause that the damage was occasioned by no negligence of his own or his teamster; if plaintiff is free from negligence, and you find negligence on the part of the township, your verdict must be in favor of the plaintiff unless you find he had no property in the mules as bailee or a qualified purchaser.”
    The court charged: * * *
    “ The law has been declared by the Supreme Court, that 1 an excavation in a street or road, made for a lawful purpose, must be fenced and lighted, and a dangerous bridge must be closed.’ [So here, if you find there was an ore-pit dug alongside of and into this road, so as to endanger the public travel, it was the duty of the supervisors to have filled it, and until it was filled up, they were bound to put up guards, or some suitable index to warn and notify the public, so that the traveller might protect himself from danger by using more than ordinary care. The want of a guard or an index of warning will hold the township liable to negligence, if you find the fact, that the pit was dangerous to the public travel.] [The fact that other teams were constantly passing along this road and with apparent safety, is- a circumstance from which the plaintiff had the right to infer that he also could pass there with like safety] to his team, and in so doing he was bound only to exercise the ordinary care and diligence required to pass over the ordinary roads in that locality; unless you find that the teamster or the plaintiff knew this was a dangerous point, which required more than ordinary care in order to avoid a tumbling into the pit while passing it. * * *
    “ The plaintiff had a right to drive a shying mule, but knowing of that vice, he must exercise greater care than would be required where the animals possess no such vice. [It would be a folly to declare the law to be that roads need' not be so kept in repair as to avoid accident from the ordinary shying of horses. It is a matter of common information that horses will shy at different objects, and it therefore becomes the duty of the supervisors so to keep the roads, that teams will not be overset by this vice in horses, and if any damage be sustained from this source the result of unavoidable accident upon the part of the plaintiff, and caused by the negligence of the defendant, the defendant will be liable to respond in damages.] If therefore you find negligence upon the part of the defendant, and no negligence upon the part of the plaintiff or his teamster, your verdict must be for the plaintiff, otherwise for the defendant. * * *”
    The verdict was for the plaintiff for $422.81.
    The defendant removed the record to the Supreme Court.
    The assignments of error were : — •
    1, 2. Affirming plaintiff’s points.
    3, 4, 5. Not affirming defendant’s 5th, 6th and 7th points.
    6, 7, 8. The parts of the charge in brackets.
    9. Rejecting defendant’s offer of evidence.

      E. Albright and J. D. Stiles, for plaintiff in error.
    If the shying of the mule contributed to the injury, unless the plaintiff used more than ordinary care, he cannot recover: 2 Hilliard on Torts 403. A township is not liable for the neglect of supervisors: Yealy v. Fink, 7 Wright 212; White v. Phillipston, 10 Met. 108; Riddle v. Proprietors of The Locks and Canals, 7 Mass. 187; Mower v. Leicester, 9 Id. 247; Biglow v. Randolph, 14 Gray 541; Angell & Ames on Corp., §§ 23, 24, 35, 629; Fowle v. Alexandria, 3 Pet. 409; 2 Kent’s Com. 221; Merchants’ Bank v. Cook, 4 Pick. 405; Russell v. Devon, 2 T. R. 667; Hawkes v. Kennebeck, 7 Mass. 462; Brewer v. New Gloucester, 14 Id. 216; Adams v. Wiscasset Bank, 1 Greenl. 361.

      E. A. B. Baldwin and O. M. Bunk,

    for defendant in error, as to liability of municipal corporations for injuries from defective highways, cited Humphreys v. Armstrong Co., 6 P. F. Smith 209; 2 Hilliard on Torts 403-405; Palmer v. Andover, 2 Cush. 600; Howard v. N. Bridgewater, 16 Pick. 189; Dean v. New Milford, 5 W. & S. 545; Act of June 13th 1836, Pamph. L. 556, 2 Br. Purd. 1276, pl. 43.
    March 25th 1872.
   The judgment of the court was entered

Per, Curiam.

We have considered the bills of exception in this case, and find them free of error. That the township was answerable in its corporate capacity for the injury complained of inrthis case, in the absence of satisfying proof of negligence on part of the plaintiff, is a well settled rule in this state. The finding of the jury has acquitted him of that, and he was consequently entitled to a recovery compensating his injury. It was not a defence to the township to show that by careful driving accident might have been avoided at the place in question. That would fall far short of what is the purpose of a public highway. It must be kept in such repair that even skittish animals may be employed without risk of danger on it, by reason of the condition of the road. The law provides the means for repairing the roads, and if it be not done, and injury ensue, it would be wrong that individuals should suffer for the default of the public officers. The law does not cast this burthen upon them. The testimony rejected, and of which the last assignment of error is predicated, is not sustained.

Judgment is therefore affirmed.


text:
    Ueberroth versus Riegel and Brother.
    1. An order was: “ Please give the bearer, Henry Pink, the goods which he will select, not exceeding over five hundred and fifty dollars, on my account." Held, not to be an agreement or establishing a contract until assent was • given for the delivery of the goods, and it did not require a stamp.
    2. Goods having been delivered to Pink on the order, the drawer was liable as principal, not as guarantor.
    3. That the goods were charged to Pink was evidence that they had been delivered to him primarily on his own responsibility, but not conclusive.
    March 18th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lehigh county: No. 82, to July Term 1870.
    This' was an action of assumpsit by John Riegel and Stephen Riegel, trading as Riegel & Brother, against Jacob J. Ueberroth. The writ was issued December 17th 1868.
    The cause was tried, April 18th 1870, before Longaker, P. J.
    The plaintiffs, under objection that the paper was not stamped, and exception, gave in evidence this paper:—
    “ Eriedensville, Dec. 15th 1865.
    “ Riegel & Bro.
    “ Sirs: Please give the bearer, Henry Pink, the goods which he will select, not exceeding over five hundred and fifty dollars, on my account.
    J. J. Ueberroth.”

      They gave evidence by a clerk in their store that in December 1865, they had delivered goods to the amount of $587.50 to Fink on the foregoing order, and had charged them on their books to Fink.
    The defendant gave evidence that the debt could have been collected from Fink during nine months after the delivery of the goods.
    The defendant’s 4th point, which was answered in the negative, was as follows:—
    If the' charge of goods to Henry Fink satisfy the jury that plaintiffs accepted Fink as the principal debtor and Ueberroth as guaranteeing payment, the defendant, if liable at all, can only be liable as guarantor upon notice of acceptance, and» after the exercising of due diligence in collecting of Fink.
    The court instructed the jury also: “ that the defendant, by the written paper, was a surety, and therefore the only question of fact is, were the goods delivered.”
    The verdict was for the plaintiffs for $690.25.
    On removing the record to the Supreme Court the defendant assigned for error, the admission of the order in evidence, the charge of the court, and denying the defendant’s point.

      O. J. Bh'dman, for plaintiff in error.

      R. BJ. Wright, Jr. (with whom was Ii. B¡. Wright), for defendants in error.
    October 17th 1872,
   The opinion of the court was delivered, by

Williams, J.

The written order on which the goods in this case were delivered, is not such an instrument as requires a stamp to render it admissible in evidence under the provisions of the Stamp Act. It does not come within the description of any of the instruments, specifically mentioned in the schedule, upon which a stamp duty is imposed, and therefore it is not subject to a stamp tax unless it is taxable as an “ agreement or contract not otherwise specified” therein. Put it is clear that it is not an agreement or contract within the meaning of this provision of the statute. It is simply an order or request to deliver on the writer’s account such goods to the bearer as he might select, not exceeding the specified amount. It contains no promise or engagement whatever, and per se it establishes no contract relation between the parties. No such relation was constituted between them, nor could it be, until the plaintiff’s assent to it by the delivery of the goods as requested. The obligation of the defendant to pay for the' goods does not arise out of an express promise to pay, but from a promise implied in law. The order, then, is not a complete contract in itself, and it was not offered in evidence as such. It is only a link in the chain of evidence to establish a contract; and without the oral evidence to supply the other links of the chain, showing the acceptance of the order by the delivery of the goods, no obligation or contract would arise or be established between the parties. It is manifest that the “ agreement or contract not otherwise specified” in the schedule, and made subject to a tax of five cents, is, and was intended to be, a contract creating an obligation, or showing a liability on its face, and complete in itself by the assent of the parties thereto. The order in question is wanting in these essential elements, and therefore is not such an agreement or contract as requires a stamp to make it admissible in evidence under the statute, even if its provisions are obligatory, as a rule of evidence, on the state courts.

If the goods were delivered to Eink on the defendant’s order, it seems to us that he was liable for them, not as surety or guarantor, but as principal debtor. The fact that the goods were charged to Eink is evidence that they were delivered to him primarily on his own responsibility, but it is not conclusive. They may have been charged to him to denote the plaintiffs’ intention to hold him responsible for them in case of the defendant’s failure to pay for them. But he this as it may, the testimony of the entry clerk was direct and positive that they were delivered on the defendant’s order. Whether the goods were delivered to Eink on his order or not, is a question which the court submitted to the jury, for so we interpret the brief note of the charge contained in the record, and-so the jury must have understood it. There was no denial or question of the actual delivery of the goods to Eink. The only question was, whether they were delivered to him on the defendant’s order; and the court instructed the jury in substance that if they were, then he was liable to them as surety. But if he was not liable for them as surety, he was clearly liable for them as pi’incipal debtor, and the error, if one, did the defendant no harm. In no aspect of the case can his liability be regarded as that of a mere guarantor. The jury having found that the goods were delivered to Eink on the defendant’s order, he is clearly liable for their price, and there is no such error in the charge as calls for a reversal of the judgment. It must therefore be affirmed.

Judgment affirmed.


author: Sharswood, J.

text:
    Hunter versus Nolf.
    1. Plaintiff and defendant .being applicants for appointment as U. S. assessor, plaintiff agreed to withdraw, defendant agreeing if he should be appointed to divide the receipts. Held, that the contract was against public policy, and the plaintiff could not recover for services rendered.
    2. An alleged agreement after the appointment on the same terms held to be void as being in pursuance of the original contract, which could not be ratified.

      March 18th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Ahnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lehigh county: No. 178, to January Term 1871.
    This suit was in assumpsit, and was brought March 28th 1868, by Charles Nolf against Joseph Hunter. Prior to October 1st 1866, the plaintiff and defendant, being applicants for the office of assistant assessor under the United States revenue laws for a division in the Sixth Collection District of Pennsylvania, it was agreed between them that the plaintiff should withdraw his application, and if the defendant should receive the appointment, they should perform the duties jointly and share the receipts equally. The plaintiff withdrew and the defendant was appointed; the plaintiff afterwards assisted in performing the duties ; he brought this suit for services in performing those duties. Independently of the contract previously to the appointment, the plaintiff alleged that the defendant, after being commissioned, contracted with him for the performance of the services for which the suit was brought.
    On the 8th of November 1870, the case was tried before Longaker, P. J.
    The plaintiff testified that the contract as above stated had been made between Mm and the defendant. He testified also, that shortly after the appointment the defendant employed him until April 1st 1867, in duties of the office of assessor; he testified as to the value of his services; he said they had a regular contract, which was that “if I would help to do the regular business he would give me half. This was spoken of before and after he had the appointment. * * * The contract was I should have one-half the proceeds; I claimed to be a partner in the assessing office with Hunter; I could not claim to be a partner because only one man could get the office; I claim one-half the proceeds because he offered me that; after he got his commission we agreed again; it appears that the consideration of the contract was that I should withdraw being an applicant; the bargain was spoken of after I commenced performing the duties of the office.” He further testified that he had received sums of money from defendant in October and November, which he said were “one-half” of those months, and also offered plaintiff what he said was “one-half” for December.
    W. Stoltzenbach. testified that the parties came to Ms office; defendant said they were making assessments ; he had employed the plaintiff to assist him in making assessments and distributing blanks.
    The defendant submitted a number of points, raising the questions whether the contract was illegal and whether there was evidence of a contract made after the commission was issued. The court charged that the original contract was illegal, and submitted to the jury in answer to the points, whether there was a contract subsequently to the commission.
    The court further charged:—
    “ The contract — if you find there was one — for the alleged services rendered, you will inquire for its consideration, and at what time it was entered into. If it were made prior to the obtaining of the commission by Hunter and in consideration that the plaintiff should withdraw his application for the office of assistant assessor of the United States, so that the defendant might receive the appointment, then the contract is void and cannot be enforced in this trial. If, therefore, the plaintiff rendered services after the defendant was commissioned with the expectation that he was to be paid therefor by virtue of a contract entered into prior to the appointment of the defendant, he cannot recover. It was the plain duty of the plaintiff to know the law and the illegality of his contract before .he rendered services. If, however, you can reasonably find from the testimony that these services were not by virtue of that which took place before the appointment of the defendant, and the defendant was obliged to have the aid of some one, and he selected the plaintiff to perform those services and the services were performed by reason of said new engagement, or any new contract, either express or implied, after the commission was issued, then the plaintiff may recover what his services have been shown to be reasonably worth.”
    The verdict was for the plaintiff for $106.06. The defendant took out a writ of error, and assigned for error the instructions of court.

      JE. Hollen and J. B. Stiles (with whom was Gc. H. Rupp), for plaintiff in error,
    as to the illegality of the contract cited Clippinger v. Hepbaugh, 5 W. & S. 315; Hatzfield v. Gulden, 7 Watts 152; Bogle v. Kreitzer, 10 Wright 465. Whatever arrangement may have been made after the commission issued, the services were rendered in pursuance of the original contract, and therefore void: filson v. Himes, 5 Barr 452.

      G. B. Sehall and O. J. JErdman, for defendant in error.
    May 13th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

It is an undisputed fact that Hunter and Nolf, both being applicants for the office of assistant assessor of the United States, it was agreed between them that if Nolf should withdraw and Hunter receive the appointment, they would jointly perform the duties, and equally divide the receipts. It is undisputed law that such a contract is illegal as against public policy, and cannot be enforced. So the learned judge below instructed the jury, but he left it to them to decide as a question of fact whether a new contract was not made after Hunter received the appointment, and that if so Nolf could recover. If there was a new contract it was certainly precisely the same in its terms as that made before the appointment. Nolf himself was examined as a witness, and throughout his testimony insisted on the original contract as that upon which he claimed. “ We had,” said he, “ a regular contract.” “Our regular contract was this: he offered me, if I would help to do the regular business, he would give me half; this was spoken of before and after he had the appointment.” Does it in the least degree shake this testimony that Nolf testified “Joseph Hunter in the month of October 1866 employed me to make assessments,” or that Captain Stoltzenbach testified that Hunter told him “ he had employed Nolf to assist him in making assessments.” Even if there had been an express contract on entirely different terms than those agreed upon before, it ought to be viewed with a considerable degree of suspicion as an attempt to evade a sound and salutary rule of public policy — but here there is no pretence of any other or different contract. The payments made under it, as it clearly appears, were in accordance with its terms — not a quantum meruit, but one-half the receipts. Nolf testifies: “ For October I got $15. Hunter said it was one-half of what he received for that month ; he gave me $30 for November, and said it was one-half of that month; for December he offered $30, and said it was one-half for that month.” How can it be pretended, after such testimony by the party himself, that there was any evidence of a new and different contract ? A mere confirmation of the old one could not certainly cure the vice which was inherent in it. It would practically annul the principle so to hold. We think, therefore, that there was error in the submission of the question to the jury whether there was a new contract after Hunter’s appointment, because there was no evidence of it, not even a scintilla, much less such as would justify a jury in finding for the plaintiff.

Judgment reversed, and venire facias de novo awarded.


text:
    Stopp versus Smith.
    1. In tort the plaintiff cannot in the verdict for damages, recover compensation for the trouble and expense of establishing his right.
    2. In tort only such damages can be recovered as arose out of the injury.
    3. Barnett v. Reed, 1 P. F. Smith 190, remarked on: Good v. Mylin, 8 ' Barr 51, adopted.
    March 18th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas .of Lehigh county: No. 403, to January Term 1871.

      This was an action of trespass q. c. f., brought August 13th 1870, by Walter C. Smith against John Stopp.
    The alleged trespass arose under the following circumstances:—
    The plaintiff and defendant owned adjoining lots, on which houses were erected; between the first stories of the houses was an alley 32 inches in width, of which the parties had a joint use. The defendant alleging a contract with plaintiff to erect an awning in front of both houses, against the plaintiff’s objection, proceeded alone to erect the awning, fastening it to the wall of the house. The plaintiff asserting that the defendant had no right to do so, brought this action of trespass.
    The only questions raised by the assignment of error and discussed in the Supreme Court arose under the following instructions of Longaker, P. J.:—
    “If, however, you are satisfied that a trespass was committed, you are warranted in allowing the plaintiff as damages, a reasonable compensation for his necessary expenses in carrying on this suit, together with his counsel fees. As regards these expenses you will exercise your own judgment in fixing the amount.”
    The jury found for the plaintiff $33.58 damages.
    The defendant removed the record to the Supreme court.

      8. A. Bridges, for plaintiff in error.
    The plaintiff’s expenses were not to be estimated in the damages: Good v. Mylin, 8 Barr 51.

      P. Wyelcoff and JE. Harvey, for defendant in error.
    Every one shall recover damages in proportion to the prejudice which he hath sustained: Fetter v. Beale, 1 Ld. Raym. 692; Bussy v. Donaldson, 4 Dallas 206; Seely v. Alden, 11 P. F. Smith 302.
    Compensatory damages are proper when there is no actual malice, and are such as indemnify the plaintiff, including injury to property, loss of -time and necessary expenses, counsel fees and other .actual loss : Barnett v. Reed, 1 P. F. Smith 190.
    May 13th 1872,
   The opinion of the court was delivered, by

Thompson, C. J.

We regard the first and principal assignment of error as conclusively ruled by the case of Good v. Mylin, 8 Barr 51. It was there held, expressly overruling Wilt v. Vickers, 8 Watts 227, and Rogers v. Fales, 5 Barr 159, “ that it was error to instruct the jury in cases of tort to include in their verdict damages to compensate the plaintiff for the injury actually sustained and for the trouble and expense of establishing his right.” In the case in hand the instruction was similar. “ If you are satisfied that a trespass rvas committed, you are warranted in allowing the plaintiff, as damages, a reasonable compensation for his necessary expenses in carrying on this suit, together with counsel fees.” So to charge was to forget that only such damages could be recovered as arose out of tbe injury, and not to allow them as a consequence of bringing the suit. This was wrong in logic as well as in law. It is true the learned judge below had a show of support in the case of Barnett v. Reed, 1 P. F. Smith 190. But the assent to the charge of the court below there, which embraces it, had reference doubtless to other distinctions in regard to damages arising in the case, rather than to a restitution of the principle exploded in Good v. Mylin, which like it, was also an action on the case. Adhering to the rule of the case of Good v. Mylin, we hold the court erred in the instructions referred to, and the judgment must be reversed.

The other two assignments of error need not be noticed, as they are predicated of that which was not proper, to go to the jury for any legal purpose in the case.

We cannot help the defendant in error by any of the modes suggested, excepting we might, perhaps, by expressing the hope that he will not litigate this very small cause of controversy further; but that is for him to say.

Judgment reversed, and venire de novo awarded.


text:
    Arnold et al., Post No 13, G. A. R. versus The Macungie Savings Bank.
    1. Hamersly deposited in bank the proceeds of an excursion, to the credit of himself and two others, as “ trustees of Post 13, G. A. R the bank paid the deposit to Hamersly, after notice by the Post not to pay him. In a suit by the Post against the bank, the evidence was conflicting on the question of ownership. The court charged that if the plaintiffs did not satisfy them by evidence stronger than the defendants’, that the money belonged to them, the verdict should be for the defendants. Held, to be error.
    2. The money being deposited to the credit of the Post, primS, facie belonged to it, and the burden w.as on the defendant to show that it belonged to Hamersly.
    3. Hamersly being on the stand was asked: “ Did you receive one-half of the profits of this excursion, a portion of which is the amount in dispute, and had you proposed before to the Grand Army of the Republic that they should have one-half of the profits ?” Held, that the question was pertinent as bearing upon the question of the ownership of the fund.
    March 18th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnbw, J., at Nisi Prius.
    Error to the Court of Common Pleas of LeJiiah county: No. 37, to July Term 1871.
    This was an action of assumpsit brought February 25th 1870, by Jacob A. Arnold and thirteen others, “partners trading as Post No. 13, Grand Army of the Republic, against the Macungie" Savings Bank.” The suit was brought to recover a sum of money deposited in the bank in the name of “ W. W. Hamersly, H. 0. Hunsberger and T. T. Apple, trustees of Post No. 13, Grand Army of the Republic.”
    The case was tried April 12th 1871.
    For the plaintiffs, W. C. Lichtenwalner, cashier of the bank, testified that a deposit of $190 was made in the bank by W. W. Hamersly in the names of the persons above named, as trustees of Post No. 13, &c.; at the time of the deposit Hamersly said il was to be credited to Post No. 13, &c.; the witness gave Hamersly a certificate of deposit; $40 had been drawn out by Hamersly ; in July and August the bank received the following notice at its date:—
    “ Headquarters Post No. 13, G. A. R.,
    “Allentown, Pa., Sept. 23d 1869.
    “ On motion it was resolved, that the Macungie Saving .Institution be hereby notified that the money deposited by W. W. Hq,mersly, in favor of the trustees of the G. A. R., shall not be paid to any one unless by an order from the Post, signed by the Post Commander and attested by the Adjutant, in favor of the Q. M. of the Post.
    “ A. J. Laubach, M. D., Post Commander.
    “ Attest:
    “A. J. Helfrich, Post Adjutant.”
    On the 30th of September $150 was paid to Hamersly and the certificate returned; when he made the deposit he said the money was his own; that it was the proceeds of an excursion; he at first gave his own name as trustee, and then at the suggestion of the witness added the other two.
    The plaintiffs then rested.
    The defendant gave evidence by the same witness that Hamersly said at the time of the deposit that he had realized the money from an excursion in which he and one Schaffer were concerned, and that he wished the money placed so that he could draw it when he wanted it.
    Hamersly testified that the money was realized from an excursion by Schaffer and Stem and witness; he had proposed that the Post should receive one-half the profits if the members would sell 160 tickets; the Post accepted the proposition, and appointed a committee of three, and then discharged the committee; the Post had no interest in the excursion when it took place; “ I considered the Post as having forfeited their agreement; I did not act as agent of the Post, what I did in the matter I did for myself; I deposited the money in the names of the trustees, because I intended to give it for charitable purposes.”
    Plaintiffs on cross-examination proposed to ask witness “ did you receive one-half of the profits of this excursion, a portion of which ■is the amount in dispute, and had you proposed before to the Grand Army of the Republic that they should have one-half of the profits?” Objected to by the defendants, rejected by the court, and a bill of exceptions sealed.
    There was other evidence corroborative of Hamersly’s.
    The plaintiffs in rebuttal gave evidence from witnesses and the minutes of the Post that Hamersly proposed to the Post in April 1869 that they should join some railroad men in an excursion to Central Park, New York; the proposition was accepted and Hamersly and two others appointed a committee of arrangements; the persons in whose names the money was deposited were appointed trustees of the fund; there was no proposition that 160 tickets should be sold by the Post; the enterprise was not abandoned by the Post; the committee was not discharged.
    There was other evidence corroborative of this testimony, and also that Hamersly had asked permission to appropriate part of the fund to the Avondale sufferers.
    The following were points of plaintiffs which were denied by the court:—
    2. If the court believe that W. W. Hamersly, Dr. S. S. Apple and H. C. Hunsberger were trustees for plaintiffs, and that the money was deposited in their names, the jury are warranted in believing the money so deposited was the money of the plaintiffs, unless the contrary is established by evidence that is clear, positive and conclusive.
    3. If the jury believe that the sum of one hundred and fifty dollars was deposited in the bank of defendant by the plaintiffs, and that the deposit was made in the name of the plaintiffs,' the plaintiffs have the right to control the fund as their own. And if after notice the defendants pay out said fund to unauthorized parties, they are liable to the plaintiffs as owners of the fund.
    The court (Longaker, P. J.) further charged:— * * *
    [“You have also heard the plaintiffs’ witnesses, and it is for you to find from all the testimony in the cause whether the plaintiffs have satisfied you by proof stronger than that of the defendant, that the fund deposited belonged to them.] If they have so satisfied you, your verdict will be for the plaintiffs. If they have not so satisfied you, your verdict will be for the defendant generally.” * * *
    “ It is alleged that the money was a gift to the plaintiffs, even if they were not entitled to it as being parties to the transaction out of which it was realized. [To constitute a gift inter vivos, there must be an actual delivery of the fund itself, or an actual assignment and surrender of the certificate. You will determine under all the evidence whether] or not this fund, even if it were realized by Col. Hamersly individually, was delivered to the plaintiffs to be theirs absolutely — if it was not they cannot recover upon the assumption of a gift. You will therefore take the case and, say whether under all the testimony you are satisfied by proof stronger than that of the defendant that this money was the property of the plaintiffs. If it were not, the defendant will be entitled to your verdict.”
    The verdict was for the defendant.
    The plaintiffs took a writ of error and assigned for error: the denial of their points; the refusal to allow the question proposed to Hamersly, and the parts of the charge in brackets.

      IT. 0. Ilunsherger and O. J. JSrdman for plaintiffs in error.
    A deposit made by a depositor as agent is primá facie the property of the principal: Bank of Northern Liberties v. Jones, 6 Wright 536; Frazier v. Erie Bank, 8 W. & S. 18; Jackson v. Bank U. S., 10 Barr 61; Bank U. S. v. Macalester, 9 Id. 475; Stair v. The York National Bank, 5 P. F. Smith 364; F. & M. National Bank v. King, 7 Id. 202. The question asked of Hamersly was as to part of res gestee: 1 Starkie on Evidence 31, 67, 87, 466.
    6r. B. Schall, F. A. B. Baldwin and Q. M. BunJe, for defendant in error, cited 1 Greenl. Ev., sect. 1, 13.
    October 23d 1872,
   The opinion of the court was delivered, by

Williams, J.

This action was brought to recover one hundred and fifty dollars, the residue of a larger sum deposited in the bank by W. W. Hamersly, to the credit of the plaintiffs’ trustees, of whom he was one, and to whom the bank paid the money after notice from the plaintiffs not to pay, or to any one unless by an order from the Post, signed by the Post commander and attested by the adjutant, in favor of the quartermaster of the Post. The whole controversy on the trial was in relation to the ownership of the fund — whether it belonged to the plaintiffs or to Hamersly — ■ and the court submitted the question to the jury, with the instruction that if it belonged to the plaintiffs they were entitled to recover ; but if it did not, the verdict should be for the defendant. This instruction was clearly right, and the plaintiffs do not complain of it. But they allege, and, as we think, not without good reason, that the court erred in charging the jury: “It is for you to find from all the testimony in the cause, whether the plaintiffs have satisfied you by proof stronger than that of the defendant, that the fund deposited belonged to them. If they have so satisfied you, your verdict will be for the plaintiffs. If they have not so satisfied you, your verdict will be for the defendant generally.”

Primá facie, the money belonged to the plaintiffs, as it was deposited to the credit of the trustees. The burden of proof was, therefore, on the defendant of showing that it did not belong to them, but that it belonged to Hamersly, to whom it had been paid, and the court should have instructed the jury that the burden of proof was on the defendant, and if the evidence failed to satisfy them that the money belonged to Hamersly, their verdict should be for the plaintiffs.

We also think there was error in ruling out the question put by the plaintiffs to Hamersly on his cross-examination. The plaintiffs clearly had the right to put any question to him touching the ownership of the fund. As an answer to the question might have shed some light on the subject-matter in controversy, the question was clearly pertinent, and it was error to exclude it.

The other assignments of error ar£ not sustained, and there is nothing in any of them requiring special notice.

Judgment reversed, and a venire facias de novo awarded.-