text:
    McReynolds’s Appeal. Maltby’s Appeal.
    1. Maltby assigned to Kase one-fifth interest in a railroad contract payable in stock and bonds, Kase to pay one-fifth of the cash capital (5150,000), “ as may be required by Maltby,” who was authorized to sell stock and bonds, if necessary to prosecute the work, the profits to be divided amongst the parties in proportion to the cash contributed. Kase being called on by Maltby refused to pay more than one-fifteenth, alleging that no more was required than Maltby had realized from srock and bonds, Maltby completed the contract. Held, that “required” meant “called for” and that Kase was entitled to but one-fifteenth of the profits.
    2. It was agreed that Maltby should “ have the same control over the execution of the work, sale of the stock,” &e., as if the contract had “ never been executed.” Held, that Kase could not question Maltby's exercise of authority except on the ground of want of good faith.
    3. Maltby was partner in a firm with whom he contracted for iron for the road; prices having greatly increased, he by an arrangement “ made in entire good faith” agreed to give an increased price. Held, that he should be allowed for the advance in settling with Kase.
    May 25th 1870.
    Before] Thompson, O. J., Agnew and Sharswood, JJ.
    Appeal from the decree of tbe Court of Common Pleas of Lancaster county: Nos. 86 and 95, to May Term 1870.
    On tbe 28tb of February 1862 Caleb S. Maltby entered into a contract with the Reading and Columbia Railroad Company for the construction of their road from Columbia to Sinking Springs, on the Lebanon Yalley Railroad, for which the company were to pay to Maltby $400,000 in the stock of the company, and $600,000 of their 7 per cent, mortgage-bonds, to be paid pro raid, as the work progressed.

      On the 2d of June 1862 Maltby entered into a contract with Simon P. Kase, agent, reciting Maltby’s contract with the company, by which Maltby assigned to Kase an interest in the contract to the extent of one-fifth, he to furnish “ one-fifth of the cash capital of $150,000 required for the execution of the said contract according to the terms thereof, or in that proportion of such cash capital as may be actually required and used, not exceeding $150,000,” Kase having “already paid one-third, that is to say, $10,000,” and agreeing to pay the balance of the cash “in instalments not exceeding 10 per cent, thereof monthly, as the same may be required by the said Caleb S. Maltby, or his legal representatives; the said monthly instalments shall be due and payable at the same times as those from Robert Crane under contract between said Caleb S. Maltby and him, dated April 10th 1862.”
    The agreement further provided:—
    “ And whereas, in the execution of the work under the said contract it will become necessary to use the stock and mortgage-bonds aforesaid, it is further agreed that the said Caleb S. Maltby be and is hereby authorized to negotiate, sell and transfer the same from time to time whenever in his judgment it is expedient so to do, and in such amounts and at such prices as he may deem expedient. And it is further agreed that the said Caleb S. Maltby shall have exclusive control of the work while in progress, and that he may make such sub-contracts and employ such parties as he may deem proper; — it being the intention of the said party of the second part that the said Maltby shall have the same control over the execution of the work, and stock and bonds so far as the prosecution of the said work may require their sale or other disposition, as he would have had, had these presents never been executed. And it is further agreed upon the completion of the work under said contract, according to its tenor, the stock and bonds, or either that may remain, shall be divided between the said Caleb S. Maltby and the parties who have furnished cash for the prosecution of said work, in proportion to their respective contributions to the cash required and used, it being the intention of the parties hereto, that if the said party of the second part shall not have paid up his instalments as required, his interest in said bonds and stock, in place of being one-fifth shall only be in proportion of the sums actually paid by him to the cash capital required and used aforesaid. And it is further agreed that the said Caleb S. Maltby shall keep regular books showing the expenditures for the said work, which books shall be in charge of the said M. H. Angelí, where they shall be at all times open to the inspection of the said party of the second part. And that the accounts preparatory to a division of the stock and bonds as aforesaid shall be audited by the said M. H. Angelí, whose decision shall be final and conclusive. And it is further agreed that nothing herein contained shall be taken to give to the party of the second part any claim whatever against the said, company, whether it has notice of these presents or not, but that the said Maltby shall be authorized to make all settlements, current or final, with the said company, as though these presents had never been executed.”
    On the 4th of June 1864, the McReynolds filed a bill against Maltby setting out the foregoing contracts, and averring that the contract of June 2d 1862 was made with them through their agent, Kase, and that the defendant completed the contract and received from the company the whole compensation of $400,000 in stock and $600,000 in mortgage-bonds; that the defendant, as the work progressed, sold a large amount of the bonds and received cash for them which, with the sums paid by the plaintiff and others interested in the contract at its date amounting to $50,000, was sufficient to complete the contract with the company without any further advance of cash capital, and that no more was required. They further complained that about the time of their agreement with the defendant, he contracted with the firm of Maltby & Case in which he is a partner for the purchase of iron ‘for the road at $45 per ton, and that he afterwards, without the consent of the plaintiffs, paid Maltby & Case $64 per ton for a large portion of the iron, and wrongfully charged the plaintiffs with the advance. They averred that large profits were made on the contract of which the plaintiffs were entitled to receive one full fifth part; that the defendant held a large amount of the stock and bonds of the company of which the plaintiffs were entitled to one-fifth, but that the defendant refused to pay them the one-fifth of the profits of the contract or transfer to them one-fifth of the stock and bonds, alleging that the plaintiffs have forfeited their right to all except one-fifteenth of each.
    The prayer was for an account; payment of the balance due on the profits and the transfer of one-fifth of the stock and bonds, and for further relief.
    Maltby by his answer admitted entering into the contract with S. P. Kase, but denied that it was entered into with the complainants through Kase, and never heard of complainants’ connection with it till he saw the bill; he denied that the sums realized from the bonds and the $50,000 paid by Kase, plaintiffs and other parties’ interest were sufficient to complete the work, and averred the $50,000 were wholly insufficient, and a larger cash capital had to be furnished before the contract could be completed; that the cash capital actually furnished and used was $150,000, of which Kase supplied $10,000, Robert Crane $15,000, M. M. Strickler $10,000, who were each interested to the extent of one-fifth, and the defendant $115,000 over and above the amount realized from the sale of stock and bonds; that in consequence of $50,000 being insufficient to complete the contract he called on the parties interested for further instalments; that all the parties had paid except Kase, who refused and had not then paid; that still further instalments were called in when Crane paid; but Strickler being unable to pay agreed to reduce his interest accordingly, but Kase refused to pay. The answer further averred that the defendant having entire control over the work as if his contract with Kase had not been executed, contracted verbally with the firm of Maltby & Case of which he was a partner, for $45 per ton under the understanding of the firm that the contract would be completed within the year 1862 according to the contract with the railroad company; that the contract for the iron was not to be indefinite as to time ; that circumstances having prevented the completion of the contract within 1862, the company extended the time, and it became necessary to make a new contract. Accordingly one was made subject to all contingencies at $64 per ton. He admitted that profits had been made from the contract which, with all other matters connected with the contract, had been audited by Angelí, and averred that the defendant was ready to hand over to Káse whatever appeared to be due them on their contract which was one-fifteenth and no more, and prayed that the account as stated by Angelí and annexed to the answer might be declared to be binding. He averred that he had fully settled with Strickler, he accepting one-fifteenth in consequence of his inability to pay his instalments, and with Crane. He averred that the plaintiffs being strangers to the contract had no right to an account as prayed for, and if they had, they are bound by the account stated by Angelí.
    On the 18th of May 1864, Angelí as auditor reported an account, subject to certain exceptions specified, to Maltby, Crane, Strickler and Kase. He reported that “ the whole amount of $150,000, cash capital (provided for in the several contracts between C. S. Maltby and those admitted by him to a participation in his contract with said company), had been at different times called for and paid in as follows :—
    Robert Crane, . .... $15,000
    M. M. Strickler, ..... 10,000
    O. S. Maltby,.....115,000
    S. P. Kase, agent, .... 10,000”
    After showing the amount of profits and the assets consisting of cash, railroad stock and bonds to be in the aggregate $578,462.09, he divided them in these proportions:—
    Robert Crane, 15-150ths . $57,846.27
    M. M. Strickler, 10-150ths . 38,564.14
    C. S. Maltby, 115-150frhs . 443,487.60
    S. P. Kase, agent, 10-150ths . 38,564.14

      On the 20th of February 1865, he made another report showing for further “ distribution, $10,065.01 which I divide on the same basis as that made on the 18th day of May, A. D. 1864, above referred to, viz.:—
    O. S. Maltby, 115-150ths . $7716.51
    Robert Crane, 15-150ths 1006.50
    M. M. Strickler, 10-150ths 671.00
    S. P. Kase, agent, 10-150ths 671.00”
    A replication was filed, and N. Lightner, Esq., was appointed examiner. On the coming in of his report he was appointed master.
    He found amongst other things as follows: On the 25th of September 1862 Angelí, on behalf of Maltby, gave Kase notice that “ five monthly payments of 10 per cent, each, now past due, * * * must be paid on or before the 1st day of November next,” and requested Kase to pay $10,000 before that day.
    Kase replied under date of October 29th 1862: — ■
    “ Mr. C. S. Maltby.
    “ Dear Sir: I have received notice to pay a- further sum on our contract with the Reading and Columbia Railroad Company; but after carefully examining our books and accounts, I find there is money enough on hand to complete the contract, and therefore none can be required from your co-associates. If I am convinced that I am in error, I will pay promptly and most cheerfully.”
    Maltby replied to Kase, November 6th 1862:— * * *

      “ Your failure to make the payment of $10,000 on the 1st instant, on construction account of the Reading and Columbia Railroad, as required by me from you, has subjected me to much inconvenience, and compelled me to raise an additional amount of $10,000 to supply the deficiency. Your interest, therefore, at this time, in my contract with the Reading and Columbia Railroad Company, as shown by our stock account and agreement, is one-tenth part thereof.”
    On the 8th December 1863 Maltby wrote to Kase :—
    “ You are hereby required to pay to M. H. Angelí, &c., on the 19th of December 1863, $2500, it being one-tenth of the sum of $25,000 needed at that time, and being your proportion of said sum.”
    Kase replied, December 18th 1863 :— * * *

      “ In your notice of December 1863 you assume that my interest is but one-tenth, which assumption is not in accordance with the facts, but is contrary to our written contract dated the 2d of June 1862. I am prepared to pay the assessment in proportion to the one-fifth in your contract with the company, but decline payment upon the ground of owning but one-tenth interest in your contract as aforesaid, and shall be happy so to pay on being satisfied that the money is actually required to be used in the completing of your contract with the Reading and Columbia Railroad Company, as dated the 28th day of February 1862. I have examined the books and accounts of the expenditures and receipts of money belonging to us jointly, and which has been disbursed by you, and have failed to ascertain that you need any additional money to complete our contract with the Reading and Columbia Railroad Company.”
    On the 12th of January 1864 Maltby wrote to Kase:—
    “ It becomes necessary to call in the final assessment from the co-contractors to build the Reading and Columbia Railroad, amounting to $25,000, your interest in said contract being 8 per centum of the whole amount; the amount due from you is $2000, which you are required to pay to M. H. Angelí, at his office in Columbia, Pennsylvania, on the 19th day of January 1864.’
    Kase replied, January 15th 1864:— * * *
    “ You assuming that amount (8 per cent.) to be the share of interest I represent, proportionate to the raising of $25,000, which assumption is not the fact, as you have assigned one-fifth of your contract to me as agent, I decline payment upon any such assumption; you having assumed that my interest is one-eighth per centum of the whole amount as declared in your notice of January 12th 1864. I am ready to pay my proportionate share of money in accordance with said contract with you, as dated the 2d of June 1862, if assessed in accordance with the facts as exhibited by our agreement. On examination of our books, I am well satisfied that, if a strict application of our funds in your hands to the payment for the work and material necessary to finish our contract with the Reading and Columbia Railroad had been strictly applied for that purpose, we have more than sufficient to complete our contract.” * * *
    The master found that Maltby had paid the assessments which Kase failed to pay, and also those of Strickler when he failed to pay, and Crane had paid his assessments. He found also the reports of Angelí, the auditor, as given above.
    On the 10th of April 1862 a verbal contract was made between Maltby & Case and C. S. Maltby for all the iron necessary to complete the railroad at $45 per ton; the rails to be delivered as needed, and to be paid for monthly. The firm of Maltby & Case consisted of Caleb S. Maltby, the defendant, and William Gr. Case. Case was president of the railroad company. Crane was the superintendant for Maltby in building the road.
    On the 4th of March 1863 Maltby & Case gave the following notice:—
    “Robert Crane, Esq., Agent.
    “ Dear Sir: In consequence of the depreciation of the currency of the country, we are compelled to ask an advance in the price of the railroad iron we are furnishing for the Reading and Columbia Railroad, and will not furnish more than enough to lay the track to Litiz at present prices.”
    Soon after this, Mr. Maltby visited Columbia, and a consultation was held on the subject-matter of the above notice; M. M. Strickler, Caleb S. Maltby, William G. Case, and Robert Crane being present. Simon P. Kase was not present, nor does it appear that he was notified or invited to be present.
    The interview resulted in a proposition being made by William G. Case, on behalf of the firm of Maltby & Case, and accepted by the other parties in interest, that the firm of Maltby & Case should “ furnish the balance of the iron needed to finish the road at $64 per ton, cash, without regard to further depreciation of the currency, being $19 per ton more than the price fixed by the first contract.”
    At this date the market price of railroad iron was from $70 to $72 per ton. * * *
    Kase being informed of this arrangement, on the 12th of March 1868 addressed to Maltby this note:—
    “ You are hereby notified that you must insist on a faithful observance of the terms of purchase of railroad iron from Maltby & Case, for the Reading and Columbia Railroad, to wit, at $45 per gross ton for rails, and that I will in no event allow you on settlement a greater price than that named.”
    The arrangement for increase of price of the iron was consummated. There' were about 1843 tons, all that was needed to January 1st 1863, delivered at $45, and about 1872 tons at $65 per ton.
    The master reported that the decision of Angelí, the auditor, was not conclusive; that his “ decision,” as mentioned in the contract, meant a “finding or result of Mr. Angell’s labors as an accountant, and not the exercise of any supposed judicial authority given him. It was his duty to investigate the books of the contractor, * * * but when he proceeded to make a division of these assets, declaring the proportionate shares of the respective parties therein, he went beyond his province.”
    The master further found “ that the interest of S. P. Kase in the assets upon the completion of the contract was not one-fifth, but one-fifteenth only.”
    As to the question whether Maltby should be allowed for the advanced price paid for the iron, the master reported:—
    “ The road was to be finished by January 1st 1863; rails had nominally risen from $45 to $72. The firm of Maltby & Case refused to deliver after that date at $45, ‘ in consequence of the depreciated state of the currency.’ Maltby, with the concurrence of Crane and Strickler, made a new bargain with the firm for the balance of the iron that might be needed at $64, ‘ without regard to further depreciation of the currency.’ S. P. Kase. did not assent, but protested against this change of price. The defendant, notwithstanding, allowed to-Maltby & Case $64 per ton for all the rails delivered under the second bargain; and the plaintiffs now in their bill ask that the defendant shall account to them for the* one-fifth of the excess price paid as above stated. The defendant answers that he is not so liable, because the contract was 4 not indefinite in point of time,’ and alleges that under his agreement with Kase ‘ such increased price was properly chargeable in account between himself and the parties interested.’ Without going into the question how far time entered into the first contract as an element affecting its operation, is not the action of the defendant in this matter justified on equitable principles, in view of the full authority possessed by him in the premises ? Strip the transaction of the somewhat embarrassing fact that the' contractor was at the same time buyer and in part seller, and suppose him to have had no interest in the rolling-mill. When the firm refused to deliver longer at $45 — on a plea certainly not altogether without force — the defendant had but one alternative, either to stop the work for want of rails, or bargain anew on the best terms obtainable. In this latter course he could see the promotion not only of his own interest in the work under progress, but as well the true interests of all concerned with him, including his refractory associate himself. Does the fact that the contractor was at the same time buyer and a member of the selling firm, affect the question ? Only so far as it may require the clearer exhibition of good faith on his part. But in this, as in every other act of the defendant, no charge of had faith is or can be imputed.
    “ The master views S. P. Kase in this undertaking as a silent-partner, agreeing to contribute to the capital employed, surrendering to the contractor the entire and exclusive control of the enterprise, with no right in himself to direct, counsel or interfere; but only entitled in the end to his fair proportion of the profits.”
    The master reported that the plaintiffs were entitled to one-fifteenth of the assets in the hands of the defendant, and that he “ must pay over and deliver to the plaintiffs:
    “ One-fifteenth of cash and cash items, .... $12495.38 813.03
    “ first mortgage-bonds on hand, . 29,500.00 1966.67
    “ “ due, . . . 120,000.00 8000.00
    “ E. & O. E. E. stock,..... 386,000.00 25,733.33
    “ cash due as of April 1st 1864, . 30,766.71 2051.11
    “ cash as of February 1865 . . . 10,065.01 671.00
    With interest on this last sum from February 20th 1865.
    With interest on the other cash sums of $813.03, and $2051.11 from April 1st 1864.
    With all coupons on bonds maturing after April 1st 1864.”
    The plaintiffs filed twelve exceptions amongst which were the following:— to the master’s report,

      “ 1. The master errs in deciding that plaintiffs’ interest in the contract is but one-fifteenth, instead of one-fifth.
    “ 8. The master errs in supporting defendant’s charge of railroad iron at $64, instead of $45 per ton, as contracted for.
    “ 9. The master should have charged defendant with the difference between $45 and $64 per ton on all the railroad iron charged by defendant at the latter rate.”
    The court overruled the 1st exception, and sustained the 8th and 9th, and directed that the basis of the settlement should be at $45 per ton for all the iron, and that on that account there should be $2345.58 added to the amount awarded by the master to the plaintiffs and decreed accordingly.
    Both plaintiffs and defendant appealed to the Supreme Court.
    The plaintiffs assigned for error:—
    1. Overruling their 1st exception to the master’s report.
    2. The court should have awarded the plaintiffs three times the amount awarded in the decree.
    The defendant assigned for error that the court erred in sustaining the 8th and 9th exceptions to the master’s report.

      I. E. Hiester, J. W. Maynard and T. E. Franklin (with whom was S. P. Wolverton), for McReynolds.

      H. M. North and J. H. B. Latrobe, for Maltby.
   The opinion of the court was delivered, July 7th 1870, by

Sharswood, J.

— These are appeals by both parties from the final decree of the Court of Common Pleas of Lancaster county upon bill, answer, proofs and *he report of a master in equity.

The decision of the master as to the effect of the settlement by M. N. Angelí appears to have been acquiesced in by Mr. Maltby. The point has not been made and discussed here, and we give no opinion upon it. I mention this to preclude any inference which might be drawn from its being passed' sub silentio. For myself, I am unable to see that, when it is expressly agreed that the accounts of a copartnership or joint undertaking shall be audited by a person named, whose decision shall be final and conclusive,” the reference does not include every question of law and fact necessary to the ascertainment of the balance — which is the evident object of the audit. Let that pass, however.

The first, and most important, question is as to the construction of the contract of June 2d 1862. That instrument is drawn with the care and skill of a lawyer, and leaves scarce a loop to hang a doubt upon. The consideration of the agreement by Maltby to admit Kase to a participation in his contract with the Reading and Columbia Railroad Company was his furnishing one-fifth of the cash capital of $150,000 required for the execution of the said contract, or in that proportion of such cash capital as may be actually required and used not exceeding $150,000, and Kase agreed “ to pay up the balance of the cash to be paid as aforesaid in instalments not exceeding 10 per cent, thereof monthly, as the same may be required by the said Caleb S. Maltby or his legal representatives.” It is very clear, that by the word “required,” as here used, is meant called for,” and this is confirmed when we turn to another clause of the contract, in which it was agreed that Maltby was to “ have exclusive control of the work while in progress;” was to negotiate, sell and transfer the stock and bonds which he might receive from the railroad company, “ whenever, in his judgment, it is expedient so to do, and in such amounts, and at such prices, as he may deem expedient.” “It being the intention of the said party of the second part that the said Maltby shall have the same control over the execution of the work, and stock and bonds, so far as the prosecution of the said work may require, their sale or other disposition, as he would have had had these presents never been executed.” The substance of the agreement evidently was that, so far as his interest was concerned, Ease constituted Maltby his attorney in fact, with the .amplest powers and discretion to act in the matter as he should deem best. Whether he might have carried through the contract with less cash capital; whether it would have been better to have disposed of stock and bonds; whether it was right to assent to the sale by the company of a part of the bonds; — were all matters within the scope of the discretionary powers which Ease had agreed to intrust to Maltby. He cannot now question their exercise, except on the ground of a want of good faith, which is not and cannot be pretended. The fact that Maltby himself paid up in cash, as called in, to the cashier appointed by the parties, not only his proportion of the capital required, but that portion which Ease refused to pay, would of itself be conclusive of that question. Nor is there anything in the suggestion that the call of September 25th 1862 for five monthly instalments was premature and unauthorized. By the terms of the contract, the monthly instalments were to be due and payable at the same times as those from Robert Crane, under contract between said Caleb S. Maltby and him, dated April 10th 1862. It is evident that on the 25th of September 1862 there were then past due five instalments, dating from April 10th. Nor can it be supposed that the intention of the parties was that the money could be called for only in separate monthly instalments. The nature of the works precludes such an idea, and there is nothing in the language of the instruments which demands it. “ In instalments not exceeding 10 per cent, thereof monthly, as the same may be required.” The rate was fixed to be ten per cent, monthly, but the instalments were to be as the same might be called for by Maltby. These considerations dispose of the appeal of the complainants, which is accordingly dismissed.

The remaining question is raised by the appeal of Mr. Maltby. He was a partner of W. G. Case in a firm of Maltby & Case, iron-masters, who had made a verbal contract to supply all the iron necessary to fulfil the contract with the Reading and Columbia Railroad Company at $45 per ton. They did so during that year in which, by its terms, the road was to be completed. Mr. Maltby procured an extension of time, and then his partner, Mr. Case, refused to go on supplying the iron on the original terms, the depreciation of the currency having caused an advance in the meantime of the price of iron to $70 or $72 a ton, alleging that he was bound only for the year. Mr. Maltby consulted the other parties interested in the work, and with their approbation, except Mr. Kase, a new contract was made for the supply of' all the iron which might be needed until the road was finished at $64 a ton, which would be about equal in gold to the original sum stipulated. The master below reported that this new arrangement was made in entire good faith on the part of Mr. Maltby. The learned court below admit that if it had been made with a firm in which Mr. Maltby was not interested it would have been unimpeachable. But they thought that, inasmuch as he was a member of the firm, it could not be sustained. We conceive, however, that the master was perfectly right in the view which he took of the question. “ Does the fact that the contractor was at the same time buyer and a member of the selling firm, affect the question ? Only so far as it may require the clearer exhibition of good faith on his part. But in this, as in every other act of the defendant, no charge of bad faith is or can be imputed.” It is evident that Maltby personally made nothing by this new arrangement. His interest in the contract greatly preponderated over his interest in the firm, and we are now, as in the other questions in the cause, not to overlook the fact that Kase had agreed that Maltby was to make such sub-contracts and employ such parties as he might deem proper, and to have the same control over the execution of the work as if he had been the only party interested. Under such ample powers, the exercise of his discretion could only be questioned by his associates in the enterprise on the ground of bad faith. We think, therefore, that the court below erred in sustaining the 8th and 9th exceptions of the complainants to the master’s report, and in decreeing that Maltby should have credit for the iron furnished subsequent to the new contract only at the rate of $45 per ton.

Appeal of the complainants, John MeReynolds and Hugh W. MeReynolds, dismissed with costs.

Appeal of Caleb S. Maltby sustained, and decree reversed, and ordered that the records be remitted to the court below, that a final decree may then be entered in conformity with this opinion, the costs of this appeal to be allowed as a credit in the account with the appellee.


source: Caselaw Access Project

author: Agnew, J.

license: Public Domain

text:
    Omohundro’s Estate.
    Evidence from acknowledgment and cohabitation, in connection with other circumstances in this case, insufficient to establish a previous marriage between a master and a slave emancipated by will.
    May 26th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ.
    Appeal by the Commonwealth from the decree of the Orphans’ Court of Lancaster county in the distribution of the estate of Silas Omohundro, deceased.
    The decedent was a resident of Richmond, Virginia, where he died about July 1st 1864, leaving real estate in Pennsylvania. He left a will dated at Richmond, March 16th 1864, and proved there on the 4th of July; admitted to probate by the register of Lancaster county, Pennsylvania, on the 4th of November 1865, and letters of administration c. t. a. granted to William Carpenter.
    The parts of the will material t'o the case are as follows :—
    “ In the first place I do absolutely emancipate and for ever set free, from all manner of servitude, my woman, Corinna Omohundro, and her five children, Alice Morton Omohundro, Colan Omohundro, Riley Crosby Omohundro, William Rainey Omohundro and G-eorge Nelson Omohundro, and who are also my children. I give and devise to the said Corinna Omohundro, for and during her natural life and for her sole use and benefit, my entire lot on Seventeenth street, in the city of Richmond, with all the buildings thereon and other improvements, including the jail. This lot I give the said Corinna as a place of residence, but if after my death she should prefer to live and reside in the city of Philadelphia, then in lieu and stead of said lot on Seventeenth street, I give her, for her life, two adjoining lots, &c. * * * in Philadelphia ; whichever of these lots she may select as her residence, &c., * * * I desire it for her sole exclusive use and benefit, so that if she should marry this devise shall in no wise be for the use or benefit of her husband, or the property be in any wise subject to his debts, contracts or control. I give to the said Corinna all my household and kitchen furniture of every kind, including silver plate and glass; I also give her all her wearing apparel of every kind, and the gold watch, chain and other appendages thereto which she now has in her possession; also I give her the two diamond finger-rings and diamond cross she now uses and all other pieces of jewelry she now has or may have in her possession at the time of my death. At the death of the said Corinna Omohundro, I authorize and direct my executor, hereinafter appointed, to sell such of the lots before mentioned, and devise to. her for life, as she may select as her residence, upon such terms as she may think proper, and divide equally the proceeds of said sale between her said children, Alice Morton Omohundro, Colan Omohundro, Riley Crosby Omohundro, William Rainey Omohundro, George Nelson Omohundro, and any other child she may have at the time of my death.
    “ I give to the said Colan Omohundro (my gon) my gold watch and chain and appendages attached thereto.
    “ I emancipate and set free from all servitude whatever, my woman Agnes and her two children, Virginia and Waverly. I authorize, &c., my executor to sell the' rest and residue of my whole estate, both real and personal, and collect whatever money may be due me, and to divide equally the proceeds, &c. * * * between the said Corinna Omohundro, Alice Morton Omohundro, Colan Omohundro, Riley Crosby Omohundro, William Rainey Omohundro, and George Nelson Omohundro, &c. * * * And as Corinna Omohundro has always been a kind, faithful and dutiful woman to me, and an affectionate mother, and will continue to be so, and bring up her children in a proper manner, I direct my executor to pay over to her semi-annually, the interest arising upon the investments he may make of the legacies given to her said children, that she shall apply the same to her and their support, maintenance and education, paying, &c. * * * Should either of my said children, Alice M. Omohundro, &c. * * * die, &c.
    “ In conclusion, I declare my sole purpose in making this my last will, is to give my whole estate, of whatever it may consist (except Agnes and her children), to Corinna and her children, in the manner specified in it. And as my good friend, Richard Cooper, of Warren ton, Eauquier, Virginia, knows this, I appoint him my sole executor, and beg that he will qualify as such.”
    The administrator c. t. a. settled an account which was confirmed June 18th 1866, showing in his hands a balance of, $6549.76, arising from sales of real estate in Pennsylvania.
    The distribution was referred to George M. Kline, Esq., as auditor. Before him the Commonwealth claimed to have collateral inheritance tax, on the ground that Corinna and the children were not the widow and lawful children of the decedent. The auditor so found, and reported in favor of the Commonwealth. The Orphans’ Court confirmed the report. There was no appeal from the decree of confirmation.
    The administrator c. t. a., February 13th 1869, filed a final administration account, which'showed in his hands abalance of $21,592.18, the proceeds of real estate in Pennsylvania. It was referred to H. B. Swarr, Esq., as auditor for distribution. Before him the Commonwealth claimed that the fund was subject to collateral inheritance tax, which was resisted by Corinna Omohundro and her chidren, she claiming to have been the wife of the decedent.

      The following was the evidence on this point. — William Car-, penter testified that in 1857 the decedent introduced Corinna to witness as his wife, having with them at the time two children, who he said were their children; he also introduced Mrs. Cheat-ham to witness as his wife’s sister. This was in Lancaster, decedent being then a resident of Virginia; she lived with him there; they were in Lancaster a week or ten days; she returned with him to Virginia.
    Michael O. Kline said he met the decedent on many occasions during 1857, 1858 and 1859. Corinna made two visits with him and his children to Lancaster, he living at the time in Virginia; he introduced Corinna to witness and his family as his wife; two of the children were living with Mrs. Cheatham, whom he called his sister-in-law; he manifested great anxiety on their behalf.
    A. W. Rand, of Philadelphia, testified: — “ I was personally acquainted with Silas Omohundro, in his lifetime; he formerly resided in Richmond, Virginia; I am also personally acquainted with Corinna Omohundro, his wife, and with his children; I have had business transactions with the said Silas Omohundro, late deceased; I have met him and his wife and family in Philadelphia on different occasions; the said Silas Omohundro and the said Corinna Omohundro lived together as man and wife; she was introduced by him in society as his wife, in conversation, in presence of deponent and others, anddn presence of their children he called her wife, and on every occasion acknowledged her as his wife, both in public and in private; they were looked upon and regarded as man and wife by those with whom they associated.”
    The auditor found “ That Silas Omohundro and Corinna Omohundro were married, and that she is the lawful widow of the decedent, and that their children named in the will as legatees, the issue of this marriage, are legitimate.

      “ From this it results the Commonwealth is not entitled to a collateral inheritance tax on any of the legacies to the widow or children of decedent.”
    After exceptions on behalf of the Commonwealth, the Orphans’ Court confirmed the report of the auditor.
    This was assigned for error on appeal by the Commonwealth to the Supreme Court.

      F. Franklin and F. Carroll Brewster, Attorney-General, for the Commonwealth, appellant.
    — The former finding is conclusive of the question: Lewis v. Nenzel, 2 Wright 222; Man v. Drexel, 2 Barr 202; Souter v- Baymore, 7 Id. 415; Walker Township v. W. Buffalo Township, 1 Jones 95; Aspden v. Nixon, 4 Howard 467; Railroad Co. v. Erie, 1 Grant 212; Tams v. Lewis, 6 Wright 410.

      I. E. Hiester and W. W. Brown, for appellees,
    cited 3 Chitty’s Pl. 929, 930; 1 Greenl on Ev., § 532.
   The opinion of the court was delivered, July 7th 1870, by

Agnew, J.

— It seems to us the auditor made a plain mistake in inferring a marriage between Silas Omohundro and Corinna his slave from the testimony of those who heard him declare her to be his wife while on their visits to Pennsylvania. The fact of marriage is contradicted by the will and by all the circumstances. Corinna and her children both claim under this will the property which is sought to be taxed as a collateral inheritance. Nowhere in the will is she denominated his wife, or is it intimated that she sustained such a relation to him, while he expressly calls her his “ woman,” and emancipates her and her children from all manner of servitude. At one place the will speaks of her as a “ kind and faithful woman to him,” and at the same as an “ affectionate mother to the children” whom he acknowledges as his, presenting her relations to himself and the children in strong contrast. He uses similar language in respect to another female slave whom he emancipates — “ his woman Agnes, and her two children, Virginia and Waverly.” He stamps upon his will still more clearly his meaning and intent in its final paragraph when he says, “In conclusion I declare my sole purpose in making this my last will is to give my whole estate of whatever it may consist (except Agnes and her children) to Corinna and her children in the manner specified in it.” It is evident that he knew that Corinna and her children sustained no legal relation to him, which could entitle them to his estate without a will; and the exception of Agnes and her children out of his property exhibits the relation of servitude she sustained to him, a relation existing and described in the same language on part of Corinna.

' Independently of the will the circumstances repel a presumption of marriage. Silas Omohundro lived in a slave state, Corinna was his slave, and three of his children were born as early as 1857. There is no probability, owing to this relation, of a prior emancipation and actual marriage, while not a word of proof has been given of their cohabitation as husband and wife in Virginia. The proof should come from Virginia, and not from Pennsylvania, where Corinna came merely on a visit twice in his company. That he should call her his wife in this state is not strange. He could not indulge in the practice of concubinage with her in this state, as he had done in Virginia, without subjecting himself to reproach, and perhaps to banishment. The evidence of marriage relied on by the auditor was very weak, and was overborne by the will and the nature of the circumstances.

The decree of the Orphans’ Court is therefore reversed, and it is decreed that the Commonwealth is entitled to the collateral inheritance tax, to be levied and collected of the estate of the testator, found within this state, according to law; and the record is ordered to be remitted to the Orphans’ Court of Lancaster county to carry this decree into effect, the costs to be paid out of the estate.


text:
    Grubb’s Appeal.
    1. Parties owned ore-land as tenants in common; they entered into partnership in manufacturing iron and bought other real estate. The proceeds from the land and the purchase-money of the real estate were carried into the firm books with the partnership transactions. 'Held, that these circumstances did not make the land and the proceeds firm property.
    2. Each party used the ore without requiring the other to account and there was no known excess to be paid for as the business progressed. Being a voluntary delay of both, interest was properly chargeable only from the time the balance was struck.
    3. 0., one partner, contracted to sell ore from the common property to H. for a particular furnace, to be paid for in iron from that furnace, E., the other party, declining to join. E. and P. afterwards bought Ilfs furnace, so that he could not furnish iron. Held, that the contract with H. did not run with the land, and E. after the purchase was not responsible to O. on it.
    4. E. gave indemnity to H. against damages to O. for failing to fulfil his contract. Held, that this created no liability on E. to C. on account of U.'s contract.
    5. The indemnity created no privity between E. and O.
    May 26th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ.
    In the matter of the accounts of Edward B. Grubb and Clement B. Grubb, trading as E. & C. B. Grubb, sur exceptions to the report of the master appointed by the Supreme Court in appeals from the decrees of the Court of Common Pleas of Lancaster county: In Equity: No. 49 and 74, to May Term 1869.
    On the 1st of August 1860, a bill was filed by Edward B. Grubb against Clement B. Grubb; the plaintiff having died, E. Burd Grubb, his administrator, was substituted.
    The bill set out that H. B. Grubb died intestate, seised of several tracts of land in the counties of Lebanon, Dauphin, Lancaster and York, including one-sixth of the Cornwall ore-banks in Lebanon county and the right to dig and carry away ore from lands adjoining the banks, and the right to all the ore in the Chestnut Hill ore-bank, in Lancaster county; on this real estate there were a furnace and two forges; that H. B. Grubb left to survive him a widow and seven children, amongst whom were the plaintiff and defendant, and that under proceedings in partition in 1836, the real estate, including the ore-rights, was adjudged at the valuation of $175,000 to the plaintiff and defendant, who entered into partnership in mining ore and manufacturing and selling iron, and brought the whole of the real estate into partnership, which continued till 1855, when it was dissolved by the defendant; that the interest and part of the shares of the widow and heirs of H. B. Grubb were paid by partnership funds; that with partnership funds the firm erected three other furnaces and for partnership purposes they purchased the fee of the Chestnut Hill ore-bank; that their interest in the Cornwall and Chestnut Hill ore-banks, and all the other real estate, had always been held in partnership, and they had worked the ore-banks for partnership purposes and with partnership funds, employed agents, kept books of account amounting to not less than $2,000,000, and no account had been settled between them; that plaintiff had on some occasions sold iron in his own name, but always for the firm, and had always been ready to account for that as ore taken for his separate use; that the defendant claimed the right to take ore for his exclusive benefit, and had sold ore and made contracts for sale, and pretends that by accounting for the ore at a price less than its value, and than he received for it, he is entitled to the profit of its sale for his own use, and refuses to allow the firm or the plaintiff to participate in the profit, and would not account; that in 1853 the defendant erected a furnace near the Chestnut Hill bank, and had since taken ore to supply it from that bank, and although the ore thus taken by the defendant had, up to the dissolution in 1855, been mined at the expense of the firm, the defendant refused to account for it except as above stated; that the defendant in 1855 gave notice that he dissolved the firm, but the ore-banks and other property were undivided, and he continued to use and sell the ore for his own benefit without accounting for it; that under a bill filed by R. W. Coleman for an account of ore taken from Cornwall banks, a decree had been made against the other owners for an account at the market value, by which the interests of the plaintiff and defendant therein were made a unit, and the plaintiff was jointly chargeable with ore taken by the defendant, but the defendant would not allow the plaintiff any of the ore taken by him or the proceeds, nor make any settlement; that there-remained charged on the real estate and ore-banks $30,000 unpaid purchase-money and the balance of the share of one of the heirs; that judgments were obtained, and the real estate about to be sold, and although the liabilities could be paid out of the property, and the defendant, because of his indebtedness to the plaintiff in a larger amount, should have paid the whole, the plaintiff consented to make an arrangement with the defendant to pay the liabilities and raised his own share, when the defendant refused to carry Out the arrangement; that the liens were transferred to Brooke & Coates (Brooke being a brother-in-law of the defendant), who demanded that the plaintiff should pay one-half of the liens from his separate estate, or else they would sell property no longer belonging to the defendant; that there were other debts of the firm for which judgments had been obtained, and although the defendant had consented that one tract should be sold in separate parts to pay these debts, he afterwards refused to have it sold except as a whole, which would be equivalent to preventing a sale except at a great sacrifice; that the plaintiff was about effecting an arrangement by which the debts would be speedily paid by the sale of ore, but the defendant claiming a right to take as much ore as he wanted for his own furnace, and to pay the lien of Brooke & Coates, forbad the plaintiff’s miners to mine; that the arrangement with Brooke & Coates was for the defendant’s benefit, and should not deprive the plaintiff of the use of the mines or of his equity of paying joint debts from joint property; that the defendant had induced parties who had agreed to take ore from the plaintiff to make contracts with the defendant alone, and would claim as he had done since 1853, that such sales were for his exclusive benefit, and he was not bound to account for the profits; that the non-payment of the firm-debts had injured plaintiff and impaired his credit; that the estate of the firm, although of immense value, is liable to be sold for their debts, all of which could be paid by the profits arising from the property, or a sale of part of it, or by payment of the balance due by defendant; thaffno final settlement has been made, that upon such a settlement a large balance would appear to be due by the defendant, who refused to make a fair account of ore taken by him or settlement of the partnership transactions, and refusing to provide for payment of the debts, continued to use and sell the ore for his own benefit to the loss of the plaintiff and risk of his estate and property.
    The prayers were—
    1. For an account of ore taken from Cornwall and Chestnut Hill, and decree of payment of what might be due plaintiff.
    2. For an account of the partnership transactions and payment to plaintiff.
    3. Fór a receiver.
    4. For partition, and in the mean time an injunction against the defendant from using and selling ore.
    5. General relief.
    By his answer filed April 2d 1860, the defendant averred that the real estate was adjudged to him and the plaintiff as tenants in common, and had so continued; the partnership was carried on at Mount Hope, Mount Vernon, Manada and Codorus furnaces; he denied that it was part of the business of the firm to mine ore for sale, or that the firm was ever engaged in selling ore; the firm continued in active operation till 1841, when they ceased at Manada and Mount Hope ; they leased Manada as tenants in common ; in 1843 they ceased at Mount Vernon, which they leased as tenants in common ; the defendant conducted Mount Hope on his own account from 1841 to 1844, when he sold his interest as tenant in common in it to his brother, A. B. Grubb; in 1847 he sold his interest in Mount Vernon to the same brother, who transferred his interest in the valuation money payable on the death of their mother; the plaintiff since 1841 had resided in New Jersey; in 1849 the firm ceased business at Codorus, and their affairs were entirely closed by R. N. Arms, their agent for that purpose, and the business of the firm ended; with an exception to be mentioned; the payments of the valuation out of firm funds were made for convenience only, not because of any firm interest in the real estate ; this was proposed- and understood by plaintiff; the entries relative to the real estate were made in the firm books for convenience, not to introduce the real estate as part of the assets; all deeds to and from them treated them as tenants in common; the real estate was never treated or regarded nor was it partnership property; since 1848 all payments of valuation money were from their separate funds, resulting from the sale and leases of their common property, and other individual resources; sales of ore were made by each party in his own right as tenant in common and not as partner; no entries of such sales had been made since 1851 (when the business of the firm ended), in the firm books, which since then have been in the plaintiff’s possession; the only operation of the firm since 1849 was an agreement in September 1851 between the defendant and the firm, by its agent R. N. Arms, with the consent of the plaintiff, by which the firm was to raise, sell and deliver to the defendant all the ore he might want at Henry Clay Furnace until April 1st 1853, under a contract with John Haldeman ; the agreement -was verbally extended until October 1853, when the plaintiff having acted i-n a manner hostile to defendant’s interest, he notified plaintiff of his determination to dissolve the partnership, and it was dissolved October 1st 1853; defendant denied indebtedness to the plaintiff on the firm account or any other, but believed plaintiff was indebted to him; since October 1853 each had taken ore from the premises as tenant in common, for which each was liable to the other.
    The defendant alleged that in 1851 the price of iron was depressed, and he, believing it would advance and to make the lands profitable, entered into contracts to continue for some years to avail himself of the anticipated rise in the price of iron, the ore under the contracts to be paid for in pig-iron at specified prices; one of the contracts was in 1851, with John Haldeman, for a supply to the Henry Olay Furnace for five years at $6.50 per ton of the iron made, to be paid for by pig-iron at $16 per ton, Haldeman to make at least 2000 tons per annum. After solicitation to the plaintiff to unite in this contract and he had refused, for the purpose of fixing the price of the ore between the plaintiff and defendant, and as the firm had the necessary apparatus for raising the ore, it was agreed that the firm, through R. N. Arms, agent, should raise and deliver to the defendant, from September 23d 1851 to April 1st 1853, all the ore he wanted for his furnace — Chestnut Hill ore at $1.50 per ton, and the defendant might take ore from Cornwall at $1 per ton; that defendant so received ore and delivered it to the furnace until October 5th 1853, and Haldeman, till June 1st 1853, delivered manufactured iron to the defendant. In July 1853 the price of iron having advanced, the plaintiff asked to participate in the profits of the contract, and the defendant declining, plaintiff purchased one-half of the Henry Clay Furnace, and entered into partnership with P. Haldeman, he purchasing the other half. The plaintiff after-wards indemnified J. Haldeman against his contract with defendant which he repudiated, and refused to receive any more ore or deliver any more iron, but furnished all the ore from the furnace from their common property. The defendant claims that plaintiff shall account for all the profits which defendant would have made from this contract. In 1854 the defendant having filed a bill against the plaintiff and P. Haldeman for specific performance of J. Haldeman’s contract, the plaintiff in his answer alleging that the partnership with the defendant existed, the defendant in February 1855 gave him notice of dissolution, but the defendant avers that it was dissolved in October 1853; he denied that any debts were unpaid, or that any judgments had been recovered which were unpaid; he denied the right of plaintiff to claim an account for the Cornwall ore pending Coleman’s proceedings; defendant had always furnished to plaintiff, when requested, full and correct statements of ore taken by him, and had endeavored to effect a settlement, and for this purpose referees were mutually chosen, but before they could act the plaintiff revoked the submission. The defendant proposed that each should pay one-half the judgments obtained against them for the valuation money; but the plaintiff refused unless defendant would release damages on the J. Haldeman contract. To prevent a sale by the sheriff, defendant negotiated a transfer of the judgments for the valuation to Brooke & Coates, they paying in cash and acceptances ; the defendant, on behalf of himself, and plaintiff, to pay, besides costs, the expenses amounting to $1200, Brooke & Coates to stay execution until the maturity of the acceptances, defendant to furnish them iron on commission to meet the acceptances; the defendant contracted for the sale of ore payable in iron which he delivered to Brooke & Coates, the net proceeds to be applied to their acceptances; defendant expected in this way to discharge the balance due on the judgments ; he denied that he had interposed any obstacle to the sale of Manada, or forbade any miner of plaintiff’s to mine on the property, or that there was anything done by him to plaintiff; but averred his belief that there was a balance due from plaintiff to him.
    A general replication was filed, and George M. Kline, Esq., was by agreement appointed master with authority of examiner, &c.
    Amongst other things the master charged the Chestnut Hill ore at 85 cents per ton and the Cornwall ore at 75 cents per ton, as being the value of ore-leave at the respective ore-banks. In conclusion he found that the plaintiff was indebted to the firm of E. & C. B. Grubb in the sum of $31,727.09, and the defendant in the sum of $86,928.32, and the defendant was therefore indebted to the plaintiff in the sum of $27,600.61.
    On exceptions the Court of Common Pleas reformed the report by reducing the amount due from the defendant to the plaintiff to $23,014.93.
    Both parties appealed to the Supreme Court.
    When the appeals came up for hearing in the Supreme Court, the whole case was referred to Samuel Eobb, Esq., as master of that court.
    The master reported the title to the real estate and the formation of the partnership, &c., as set out in the pleadings; he further reported: The valuation money of their real estate was to be paid by its use and the ore dug from it, the real estate and ore-rights were not conveyed to the firm, but for convenience and to avoid multiplication of accounts, the property was entered in the firm books, and carried through the firm accounts. The parties having bought the fee of the Chestnut Hill ore-banks, they took the title as tenants in common, and for the same reasons it was carried into the firm accounts; they erected the other furnaces mentioned in the pleadings and paid the expenses out of firm funds. Both attended personally to the business when the plaintiff moved to New Jersey." Several of the furnaces were rented at different periods from 1841 to 1849. Up to 1843 the payment of interest to the widow and coheirs, and on account of their shares of the valuation, was from the money of the firm. The business of the firm ended in 1849, with a single exception in 1851 which continued till in 1853.
    On the 13th of March 1851 the parties referred their matters to three referees who were to fix the amounts due them respectively for services to the firm since June 1836; the referees settled their ore accounts to 1849, their accounts for services till 1851, and reported a balance of $5265.73 due to the defendant, February 7th 1853. After 1853 the plaintiff claimed that the firm was undissolved; the defendant in consequence, on the 6th of February 1855, gave plaintiff a formal notice of dissolution, and gave also public notice by advertisement. The accounts submitted to the master, by agreement, included all items from the beginning of 1849 to December 31st 1861.

      “ Each of the said parties used or sold ores dug or mined from the said property, employing the tools, implements and machinery belonging, so far as it appears, to them jointly, and each of them supplying money from time to time as it was wanted, for their several or joint benefit.
    “ There is no dispute as to the quantities taken by each of the said parties, but it is claimed by the plaintiff that they should account as partners, either at the prices for which the ores were sold, or else for profits actually received, and, on the other hand, by the defendant, that they should account as tenants in common, and for ore-leave simply.”
    In 1857 and 1859 judgments for about $31,500 were recovered against the parties for unpaid balances of the valuation money due two of the sisters, Mrs. Parker and Mrs. Ogilvie; under these judgments the Chestnut Hill ore-bank was levied on and was advertised to be sold on the 13th of August 1859. To prevent sacrifice the defendant proposed to the plaintiff that each should pay one-half of the judgments, this the plaintiff refused, except on terms deemed inadmissible by the defendant. The defendant then, without the knowledge of the plaintiff, effected an arrangement with the judgment-creditors and the firm of Brooke & Coates, by which that firm agreed to assume the payment of the judgments, and accordingly paid $13,000 on the 10th of August Í859, and for the remainder gave acceptances running from six to twelve months. In consideration of this assumption, the defendant agreed to furnish to Brooke & Coates on commission, iron sufficient to meet the acceptances, and to fulfil this agreement he sold iron ore to certain iron masters from whom he received in payment notes which produced $34,638.40, and pig-iron which was sold by Brooke & Coates, and the net proceeds amounting to $24,175.25 more applied to the acceptances. The judgments were marked to the use of Brooke & Coates in 1860 and 1861. A controversy arose in closing the transaction with Brooke & Coates, which was finally settled by a decision of the Supreme Court, reducing the claim made by them by about $3500. This matter was attended to exclusively by the defendant, who paid all costs and counsel fees. He claimed that he should account for the amount realized from 37,337 tons of ore, viz. : $58,813.65; should be credited with cost of raising it at $1.15 per ton $43,019.07, costs and counsel fees $843.94, amount of the judgments including the costs and counsel fees of the judgment-creditors $35,328.66, and commissions for his services 10 cents per ton $3733.66. The plaintiff claimed that as the arrangements had been made without his knowledge, and as to counsel fees to judgment-creditors, against his consent — at a time when defendant owed him almost, if not altogether, the amount of the judgments, the defendant should account for this as for other ore taken by, him, and should not he allowed for costs, counsel fees or commissions.
    The parties were owners, in 1842, of ore-rights, known as the “Bennett’s Rights.” Some dispute having arisen with other parties in regard to them, the legal title was conveyed to the plaintiff, and he removed to New Jersey in 1841, so that he might sue in the United States court. On the 18th of March 1842, the plaintiff executed a declaration of trust, “ that if any net profits, benefits and advantages should be realized therefrom after defraying the charges of litigation and all other expenses'of realizing the same, then the said profits, benefits and advantages shall accrue, to’ the use, and form a part, of the moneys of the said Clement B. Grubb and myself, copartners under the firm of E. & C. B. Grubb.” A suit urns brought in the Circuit Court of the United States, which was compromised in 1854. The plaintiff charged himself with $8000, the proceeds of the compromise, and claimed a credit for $3000, his expenses, “ by becoming a citizen of New Jersey for the purpose of bringing suit in the United States court to try these rights.”
    On the 12th of September 1851, the defendant (the plaintiff declining to join with him) made a contract to supply John Haldeman with all the ore from the Chestnut Hill and Cornwall mines he might need at Henry Clay Furnace, for five years, from December 1st 1851, at the rate of $6.50 for every ton of pig metal made out of the ore, to be paid for in pig metal at $16 per ton at the furnace, or $18 at Philadelphia.
    The defendant, in order to fix the price of the ore as between him and the firm, endeavored to make an arrangement with them for delivering the ore during his contract with J. Haldeman. The firm declined to do this, but, through R. N. Arms, their agent, on the 24th of September 1851, contracted to deliver ore to him until April 1st 1853 from Chestnut Hill at $1.50 per ton, and to sell him ore-leave at Cornwall at $1 per ton, to be paid for at times specified in the contract. On this contract, the defendant advanced $3378.72, from September 30th 1851 to March 23d 1853, to raise ore.
    The defendant continued to take ore to supply J. Haldeman until June 1st 1853. In the mean time, the price of iron had advanced to $35; the plaintiff then asked to share in the Haldeman contract, but the defendant refused. In May 1853, J. Haldeman wishing to sell the Henry Olay Furnace, the plaintiff proposed to the defendant that they should buy it; the defendant declined, and afterwards, on the 7th of June, the plaintiff bought an undivided half of. the furnance; P. Haldeman about the same time bought the other half. The plaintiff and P. Haldeman worked the furnace together, and ore was obtained from the two banks until Oct. 1853. Metal had been delivered to defendant July 1st and August 1st 1853, he supposing that the ore had been obtained and the metal delivered under his contract with J. Haldeman and his arrangement under the Arms contract. Here the parties differed; P. Haldeman was willing, as to his half of the furnace, to proceed as under the J. Haldeman contract, “ but the plaintiff insisted on his equal right to the ore, and refused to pay for his half in metal, and the defendant refused to receive metal for Peter Haldeman for half only, and insisted upon receiving it for all the ore used at the said furnace.”
    The defendant, on the 6th of September 1853, commenced an action of covenant against J. Haldeman on his contract.
    On the 3d of October 1853, an agreement was made between the plaintiff and J. Haldeman, which, after reciting the circumstances relating to the contract between Haldeman and the defendant, the sale of Henry Olay Furnace, &c., proceeded:—
    “ And whereas, notwithstanding the premises, the said Clement B. Grubb has brought suit against the said John Haldeman, on the said agreement made with him; and whereas, it would be unjust that the ore used for said furnace should be twice paid for, or that the said John Haldeman should be made to pay for ore he does not require, when such ore for the said furnace is to be accounted for to the said Clement B. Grubb as aforesaid.

      “ Therefore, in consideration of the premises, and of one dollar in hand paid by the said John Haldeman, I, Edward B. Grubb, do hereby covenant and agree to and with the said John Haldeman, his heirs, executors and administrators, that in case in the said suit brought by the said Clement B. Grubb against the said John Haldeman, or in any other suit to be brought by the said Clement B. Grubb against the said John Haldeman, on the said article of agreement, the said Clement B. Grubb shall recover any sum or sums of money that I will pay the same to the said John Haldeman.”
    On the same day, plaintiff agreed with P. Haldeman to supply his half of the furnace with ore from June 1st 1853 to December 1st 1856, on precisely the same terms as those between the defendant and J. Haldeman. At the foot of this contract was the following memorandum : “ I acknowledge that Mr. Peter Haldeman has delivered to Clement B. Grubb on or about the 1st of July 1853, 47 tons of iron, and about the 1st of August 1853, 12 tons of iron on account of ore of E. & C. B. Grubb; and I do agree that the same is on account of this agreement.”
    In the suit of defendant against J. Haldeman, a non pros, was entered November 28th 1860.
    On the 29th of May 1854, the defendant filed a bill in the Supreme Court against the plaintiff and P. Haldeman, praying that it might be declared that the J. Haldeman contract was binding on the plaintiff and P. Haldeman; that E. B. Grubb was not entitled to supply the furnace with ore; that the parties be compelled to perform the J. Haldeman contract, and be enjoined from using the ore, &c. Answers were filed, but nothing further was done in the case.
    J. Haldeman was insolvent when the present proceedings were commenced. The defendant claimed that the plaintiff took the place and responsibilities of J. Haldeman in his contract.
    The master stated the points of controversy to be:—
    1. As to the character in which the said parties should account, whether as partners or tenants in common.
    2. As to the prices with which they should be charged for the ore taken or used by them respectively, whether on the basis of the value of ore-leave, or of the price at which sold.
    3. As to whether or not interest should be charged, and, if so, from what time.
    4. As to the liquidation of the Parker-and Ogilvie judgments.
    5. As to the plaintiff’s claim for credit under deed of trust, March 18th 1842, for expenses of removal to New Jersey.
    6. As to defendant’s claim for credit under the Henry Clay contract.
    7. As to debits and credits for raising Chestnut Hill ore.
    As to the 1st point the master found :—
    “ That this real estate was not brought into the partnership, but was owned and held by the parties as tenants in common, and that therefore they must account as tenants in common.”
    On the 2d point the master found:—
    “ As to the Cornwall ore, that the parties should account at the rate of 75 cents per ton, and as to the Chestnut Hill ore at 85 cents per ton, for all the ore taken by them respectively, excepting the ore taken by the defendant under the Arms contract, for which he should account at the price therein stipulated.”
    On the 3d point the master found that interest should be charged against the plaintiff on the balance struck by referees, February 17th 1853, from that date, and on ore furnished under the Arms contract from the times of payment specified in it; as to the remainder, from the time of closing the account.
    On the 4th point:—
    “ Considering that the arrangement made by the defendant was not made for his individual benefit, but to save the common property from sacrifice, the master is of opinion that it would be inequitable to charge him for the ore as for other ore taken by him, or to refuse him credit for the money paid or disbursed by him. This will exclude the defendant’s claim for commission of 10 cents a ton, or $3733.70, for the sale of this ore. This claim cannot be allowed. It is too well settled to be now disputed that partners, tenants in common, or parties jointly interested in an enterprise, are not entitled to compensation for services rendered in the common business, in the absence of an agreement to allow it, and no such agreement has been shown.”
    On the 5th point he found that the plaintiff’s expenses for his removal to New Jersey should not be allowed.
    On the 6th point he found:—
    “ That whatever claim the defendant may have, it cannot he admitted as an item of account in the present proceedings, because (1) it is not within the scope of the account prayed by the bill; (2) it is a claim exclusively for unliquidated damages ; and (3) the proper parties are not in court.”
    On the 7th point he reported: — •
    “ The evidence does not show that either of the parties paid the expenses of raising ores used by the other; on the contrary, it appears by the testimony of John McClure, who was in the employ of E. & C. B. Grubb and did the mining, that money was sent to him by both of them, and as they are charged for the ores taken and used by them respectively on the basis of ore-leave only, it is evident they are not to be debited with or credited for money paid for raising. The only exception to this is the Chestnut Hill ore taken by the defendant under the Arms contract, for which he is charged at the pit’s mouth, and he is therefore entitled and is allowed credit for money advanced for raising the same.
    “ It is admitted that the defendant paid the expenses of hauling the ore used at Henry Clay Furnace by the plaintiff between June 1st and October 1st 1853, and the latter therefore is charged and the former is credited with the costs of hauling the same.” * *
    The master attached to his report statements of accounts between the parties respectively and the firm of E. & C. B. Grubb.
    In the account of E. B. Grubb he is charged from the cashbook of the firm with a balance of $1707.83. In making up that balance it appeared from the book that $2500 had been credited to him for that amount paid by him to John McClure for raising ore.
    The final statement of the accounts between C. B. Grubb and E. B, Grubb, as of April 11th 1870, as reported by the master, is as follows:—
    “ 1861. December 31st.
    “ C. B. Grubb’s indebtedness to E. & C. B.
    Grubb.......$64,755.72
    “ Deduct E. B. Grubb’s do. do. do. 14,045.82
    “ C. B. Grubb’s excess of indebtedness $50,709.90
    “ Deduct his one-half . . . • 25,354.95
    “ Balance due E. B. Grubb . . . 25,354.95
    “ To interest from Dec. 31st 1861 to April 11th 1870,
    8 years, 3 months and 11 days . . 12,597.18
    “Balance due E. B. Grubb April 11th 1870 $37,952.13”

      Both parties filed exceptions to the master’s report.
    The exceptions were argued in the Supreme Court by

      I. E. Hiester and T. E. Franklin, for C. B. Grubb, and by

      E. S. Miller (with whom were C. B. Penrose, J. L. Reynolds and F. Watts), for E. B. Grubb’s administrator.
   The opinion of the court was delivered, July 7th 1870, by

Agnew, J.

— This case has been so fully and ably examined and reported upon by Mr. Robb, the master appointed by this court, and his positions so well stated, a few comments only will be necessary in noticing the points of controversy, rather than the exceptions in detail.

His conclusion that the real estate was held in common by Edward B. Grubb and Clement B. Grubb, and not in partnership, is correct. This is not inconsistent with its use for partnership purposes, and its appearance in the partnership books to the extent made necessary for the use of the partnership in the iron business. The partnership was related to it very much as in a case w'here partners lease land to carry on their business. The pai’ties being equal as tenants in common as well as equal partners, the use of the land would, in the settlement of their partnership account, be the same in its results to them, as if as partners, they had leased the land of themselves as tenants in common. Hence the payments by the partnership for the owelty in the partition has no weight in the argument, for the result would be the same as if each partner had drawn from the firm an equal sum and applied it to his share of the owelty as a tenant in common. It is evident the payments in owelty did not change the character of the title vesting in them as tenants in common, and especially the title of so much as each held primarily as an heir, for which no owelty was paid. For the same reasons the Arms contract has no particular bearing on the question. The partnership had been operating in mining ore, and was still in debt, — as the agreement shows, to Parker, who was to receive the proceeds of the contract, — and was in possession of the tools and other facilities for mining, so that the Arms contract was really nothing more than a prolongation of the partnership for the mere purpose of mining as a means of paying the firm-debt. As to the price of ore-leave, a majority of the court think that both masters having fixed upon the same prices for Chestnut Hill and Cornwall ore, it is not sufficiently evident they have made a plain mistake, and therefore, according to our rule, the report must be confirmed. To myself it has appeared differently. I cannot see the weight of evidence which led Mr. Kline to fix the prices so far below those the parties were actually selling at; and it seems to me Mr. Robb followed Mr. Kline for the reason, that in differing from him he foresaw much perplexity in settling upon a satisfactory price. But the price of ore-leave, as shown by the Arms contract, and the defendant’s own account as rendered in 1859, by his admissions to witnesses, his contracts with third parties, and prices at neighboring mines, are not satisfactorily reasoned away by the master. Nor can I see how the contracts for ore-leave in iron can be rejected as corroborative evidence, especially in view of the rise of prices from $16 or $18 per ton for iron up to $34 and $35.

We concur with the master as to the interest with a single exception to be noticed. It is argued that this being a case of tenancy in common and not of partnership, the rule for interest should be as between tenants in common. But in a court of equity each case rests on its own circumstances, and cannot be made to fit a single unbending rule. Both parties were using the ore at pleasure, and without requiring each other to account. Annual balances were therefore uncertain. There was no known, excess to be paid for as the business progressed. It was not a case of a wilful detention of the profits of the land, but a mutual and voluntary delay in settlement. We must look at their mutual course of dealing. Until called upon to account neither could complain of the'other, and neither could claim a balance till the accounts of both were settled. There were strong reasons for this mutual indulgence. Much of the ore was taken to pay partnership-debts while the partnership was also taking its means to pay off encumbrances on their common estate. The whole case is therefore to be likened in its results to the settlement of a partnership account, in which interest has no place until a balance is struck. But there is an error in the interest charged on the Arms contract. In that contract Clement B. Grubb became a debtor to the firm, and was to pay the prices fixed in the contract at stipulated times. The master settled this account as for an individual debt, and therefore charges interest on the ore from the time it should have been paid for. But the account also shows that Clement B. Grubb advanced on the Arms contract, cash $3378.72, to mine ore under it. This sum should be credited in the calculation, as there is no principle which can make Clement B. Grubb liable for interest on the money advanced to carry out the contract. We see nothing to correct in regard to the liquidation of the Parker and Ogilvie judgments. The master has taken an equitable view of the matter. We apply the same remarks to the claim of the plaintiff for the expenses of his removal to New Jersey.

In the debits and credits for working Chestnut Hill ore there is one matter to be corrected.

The master settled the account of each party,for ore on the basis of ore-leave, by deducting from the market value of the ore at the pit’s moutb the cost of working it, &c., and for this reason he rejects both debits and credits, R being found that neither party had paid the expenses of working ores used by the other. To this there is no objection, the price of ore-leave being an equi table mode of accounting to each other. But by inadvertence, no doubt, he in effect credits E. B. Grubb with $2500, paid to John McClure for raising ore. This happened by charging E. B. Grubb with the balance due on cash book to the firm. But in that cash account E. B. Grubb has been credited with $2500, paid J. McClure for raising ore, reducing the balance from him to $1707.83, the sum debited by the master to E. B. Grubb in settling the account. Having rejected all debits and credits for raising ore by taking ore-leave as the basis of the charges, it is evident the balance of the cash book should be increased by adding to it the $2500 credited in it for raising ore.

The last matter which needs a special notice is the Henry Clay Furnace contract with John Haldeman. We shall add nothing to what the master has said as to the difficulty of administering the equity, if the defendant be supposed to have any, against the plaintiff, as representing John Haldeman. It seems to us, however, that there is quite as much difficulty in sustaining the alleged equity. The defendant, in order to fulfil his contract with John Haldeman, endeavored to. effect an arrangement with the plaintiff for so doing, but failed to obtain from him a contract to furnish the ore to the Henry Clay Furnace beyond the 1st of April 1863, the period when the Arms contract was to end. This was notice, therefore, to the defendant, that the plaintiff would not furnish ore from their common property beyond that date. The plaintiff permitted the Arms contract to be carried out to the 1st of April 1853, and beyond until about the 1st of June. He then bought one-half of the Henry Clay Furnace from John Haldeman, in May 1853, and received the deed for it on the 7th of June 1853. This he had a right to do. The contract between the defendant and Haldeman was wholly personal and did not run with the land. The plaintiff’s purchase, therefore, after the expiration of the Arms contract, cast no liability on him; and his share of the ore-land was not bound for the performance of the Haldeman contract.

Peter Haldeman, who was the purchaser of the other half of the Henry Clay Furnace, recognised the contract of the defendant with John Haldeman, and offered to accept the ore on the terms of that contract for his half of the furnace, but the defendant refused to accept his offer, and insisted on its entire performance, the effect of which would be to- compel the plaintiff to extend the Arms contract beyond the period fixed by both for its determination. Down to this point there could be no claim against the plaintiff, in law or equity, to fulfil the Haldeman contract. How did the indemnity change the state of the case ? It was not given until the 3d of October 1853, and so far as the time or anything found as a fact, it constituted no part of the terms of the plaintiff’s purchase of the one-half of the Henry Clay Furnace. It has no connection, therefore, with the tenancy in common or the partnership transactions. John Haldeman had then no connection with the furnace. His liability to the defendant was purely personal. By the indemnity the plaintiff created no privity between himself and the defendant; he did not undertake to fulfil, but rather to defend against a contract already broken, and the consideration of his undertaking does not appear to be connected with the joint property of the parties. The defendant could have no right of action on the indemnity, and there would appear to be no ground on which it could be brought within the sphere of the settlement of the partnership accounts or their tenancy in common. We perceive no ground for correcting the report on this head, and on the whole case we leave the report of the master to answer any other matter not touched upon in this opinion.

The result of the corrections above mentioned will stand thus:—

G. B. Grubb Dr. to B. B. G. B. Grubb.

For balance per Master’s Report .... $64,755.72

Credit by interest on $3378.72, paid on Arms contract, say eight years ...... 1,621.78

$63,133.94

B. B. Grubb Dr. to B. B. $ G. B. Grubb.

For balance per Master’s Report $14,045.82

Add error in balance of cash book 2,500.00

Balance . $16,545.82

C. B. Grubb’s balance $63,133.96

E. B. Grubb’s balance 16,545.82

C. B. Grubb’s excess 46,588.12

Deduct his half 23,294.06

Balance due E. B. Grubb’s Administrator . . 23,294.06

Interest from Dec. 31st 1861, to July 6th 1870, eight years, six months and six days . 11,903.26

Balance due to E. B. Grubb’s Administrator, July

6th 1870 ........$35,197.32

And now, July 6th 1870, the court confirm the report of the master with the above modifications, and decree that C. B. Grubb do pay to the administrator of Edward B. Grubb the sum of $35,197.32, with interest from the 6th day of July 1870, and the costs of the suit.


author: Sharswood, J.

text:
    Second Street, Harrisburg.
    1. Generally interest is to be calculated only from the time the demand is payable.
    2. An act directed damages for opening streets to be paid in six months after the assessment should be approved by the court. _ Reid, that the owner was not entitled to damages so long as he continued in receipt of the rents and profits of the land.
    3. Pennsylvania Railroad v. Cooper, 8 P. P. Smith 408, distinguished.
    May 27th 1870.
    Before Thompson, C.- J., Agnew and Sharswood, JJ.
    Certiorari to the Court of Quarter Sessions of Dauphin county: No. 100, to May Term 1870.
    The 35th section of the Act of March 19th 1860, Pamph. L. 194, incorporating the city of Harrisburg, provides for enacting an ordinance by councils for opening streets, for appointing viewers to assess damages, and also provides that the streets shall not be opened till the damages are paid or secured. The 36th section enacts that upon the return and approval by the Court of Quarter Sessions of the assessment of damages, they shall be paid within six months, and if not paid in one yéar they may be collected as other judgments by execution against the county.
    On the 8th of December 1866, the councils of the city directed Second street to be' opened from North street to Briggs street. Viewers were appointed to assess damages for the property-holders. On the 22d of April 1867, they assessed to John Orth $3267, and to Jehu Dehaven $1975. The report of the viewers was confirmed nisi May 8th 1867, and absolutely December 6th 1867, exceptions having been filed, it did not appear by whom. In the property returned as John Orth’s he had but a life estate, the remainder being in his children. On these properties were erected frame dwelling-houses, through which the line of the street ran, the buildings therefore would have to be removed. Orth and Dehaven continued in the possession of the houses, and had received the rents and profits since the assessment of damages. By an Act of March 12th 1867 the city of Harrisburg was directed to pay the damages for opening streets. On the 15th of November 1869 Christian Haehnlen, trustee for Orth and his children, with the consent of Orth, received the principal of the damages assessed to him, and Dehaven received the principal of the damages assessed to him, with interest from November 1st. On the 30th of November 1869, Haehnlen and Dehaven obtained a rule to show cause why the city of Harrisburg should be ordered to pay interest from April 22d 1867, when the damages were assessed till November 1st 1869.
    A case stated was filed embodying these facts. On the 3d of May 1870 the court (Pearson, P. J.) discharged the rule. Haehnlen and Dehaven removed the proceedings to the Supreme Court by certiorari.

      W. De Witt, for certiorari,
    cited Philadelphia v. Dyer, 5 Wright 463; Penna. Railroad v. Cooper, 8 P. F. Smith 408. The parties were not estopped from claiming interest by receiving the amount of the damages: Bank of Penna.’s Estate, 10 P. F. Smith 477.

      H. Shellenberger, contra.
   The opinion of the court was delivered, July 7th 1870, by

Sharswood, J.

— No point has been made as to the jurisdiction of this court to review the opinion of the court below upon the question submitted to them by the case stated; nor is it necessary that we should pass upon it, because we consider the order discharging the rule taken for the payment of interest entirely correct.

The 36th section of the Act of Assembly, March 19th 1860, Pamph. L. 195, entitled “An Act to incorporate the city of Harrisburg in the county of Dauphin,” provides that the damages awarded to landholders for the opening of streets shall be paid within six months from and after the same shall have been approved by the Court of Quarter Sessions. According to general principles interest is to be calculated only from the time a demand is payable, unless there are special circumstances. It is to be presumed that the viewers took this delay into consideration. If the owner continued undisturbed in the full receipt of the rents and profits, it would not be right 4hat he should in addition receive full interest on the value of the land. The case of Philadelphia v. Dyer, 5 Wright 463, was under a statute which merely declared that if the damages were not paid within one year from the assessment the claimant could sue the city therefor. In The Pennsylvania Railroad Co. v. Cooper, 8 P. F. Smith 408, the owner had been delayed by exceptions filed by the company, and all that was decided was, that in such a case the confirmation ought to have been entered nunc fro tuna, and that the party was entitled to interest during the pendency of the exceptions. Had that been the case here, there would be great reason for the same order, and that the six months should be computed accordingly. But it does not appear by which party the exceptions were filed. The paper is said to be lost, and no record was made except of the date of it.

Order affirmed.


text:
    Commonwealth ex rel. Swartz versus Wickersham.
    1. The officers of a county convention of school directors certified, that “ Swartz was declared elected vivd voce by a majority of the members voting, as county superintendent * * * and that the whole number of directors was 112, of whom 56 voted for Swartz and that Hast received 55 votes, one member refusing to vote at all on the last ballot.” Held, that a commission could not issue to Swartz on such certificate.
    2. A director who was present and refused to vote at all was entitled to be counted.
    3. The legal intendment was that he voted for neither or for the minority candidate.
    4. The maxims, Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verbafienda est; and, A verbis legis non est recedendum, applied.
    May 28th 1870.
    Before Thompson, O. J., ÁGNEWand Sharswood, JJ.
    Mandamus at the relation of George Swartz against J. P. Wickersham, State Superintendent of Common Schools.
    On the Bd of May 1870 George Swartz presented a petition to the Supreme Court, setting forth the meeting of the school directors of Cumberland county in convention, on the 4th of May 1869 ; that he was elected county superintendent as set forth in his petition, and that it was so certified by the officers of the convention to tbe respondent; — the certificate was appended to the petition; —and that the respondent refused to commission him as county superintendent. He prayed for a mandamus commanding the respondent to issue a commission to him.
    The certificate of election was as follows:—
    “ To the Hon. J. P. Wickersham,
    Superintendent of Common Schools:
    Sir: — The undersigned, president and secretaries of the convention of school directors of Cumberland county, convened according to law on Tuesday the 4th day of May 1869, do hereby certify that George Swartz, whose address is Boiling Springs, was declared elected vivd voce by a majority of the members voting as county superintendent until the first Tuesday in May one thousand eight hundred and seventy-two. They further certify that the amount of compensation for said superintendent was fixed by said convention at one thousand dollars ($1000) per annum, and that the whole number of directors was 112, of whom 56 voted for said Swartz, and that D. E. Kast, whose address is Mechaniesburg, received 55 votes, one member refusing to vote at all on the last ballot. Dated at Carlisle this fourth day of May, a. d. 1869.
    John C. Kirk, Pres.
    J. A. MoCune,
    Geo. W. Haldemast,
    Secretaries.”
    The respondent answered amongst other things that after several ballotings all the candidates but the relator and Kast withdrew their names; that the vote “ stood 56 for George W. Swartz, 55 for D. E. Kast, and one director, although known to be present, refused to vote, not desiring the election of either of these gentlemen. The president of the convention then declared Mr. Swartz elected, but when objections to his decision were made and the law relating to the election of county superintendents was read, he refused to decide the question, stating that the matter would be left in the hands of the state superintendent, and the convention adjourned.” After setting out other matters the respondent averred that the certificate was not such as the law requires, and therefore he had declined to issue a commission to him. He further set out that after declining to issue a commission to Swartz, he appointed William A. Lindsay county superintendent of Cumberland county, which position he had continued to occupy. He also suggested that inasmuch as Lindsay was occupying the office, the proceeding should be quo warranto against him instead of mandamus against the respondent.
    The relator demurred to the answer.

      S. J. M. McCarrell and D. Fleming, for relator,
    referred to Act of May 8th 1854, §§ 39, 40, Pamph. L. 625, Purd. 173, pl. 62, 64. A director present and refusing to vote is to be considered absent. The respondent’s duty is ministerial only, and a mandamus will lie to compela performance: Comm’th v. Cochran, 1 S. & R. 473; Same v. Same, 2 Binney 270; Thomas v. Commissioners, 8 Casey 224; Comm’th v. A. & G. W. R. R. Co., 3 P. F. Smith 9; Comm’th v. Slifer, Id. 71. The remedy is by mandamus and not by quo warranto: Comm’th v. Primrose, 2 W. & S. 407; People v. Rives, 27 Ills. 242; State v. Common Council, 9 Wis. 254; Rex v. Bedford L. Co., 6 East 356; Field v. Comm’th, 8 Casey 478.

      J. M. McClure and F. Carroll Brewster, Attorney-General, for respondent,
    referred to the Act of 1854, supra. The duty of state superintendent is judicial: Comm’th v. Judges of Cumberland, 1 S. & R. 187; Comm’th v. Judges of Philada., 5 W. & S. 272. Quo warranto is the proper remedy: Comm’th v. Colley Township, 5 Casey 121; Comm’th v. Perkins, 7 Barr 42; Comm’th v. Commissioners, 5 Rawle 75.
   The opinion of the court was delivered, July 7th 1870, by

Sharswood, J.

— It is not necessary to consider and determine whether the only proper remedy of the relator is not by a writ of quo warranto against the actual incumbent of the office which he claims. Conceding that a mandamus lies, we think that upon the facts admitted by the demurrer he has no title to a commission as county superintendent of Cumberland county.

It is undoubtedly necessary before the state superintendent can be required to issue a commission to any person as a county superintendent, that the president and secretary of the triennial convention of directors of the county should certify to him the name and post-office address of the person elected: Act of May 8th 1864, § 40, Pamph L. 626. Was there such a certificate in this case ? The document which was transmitted as such certifies that “ George Swartz, whose address is Boiling Springs, was declared elected vivd voce by a majority of the members voting.” —and it then proceeds to declare “ that the whole number of directors was 112, of whom 56 voted for said Swartz, and that I). E. Kast, whose address is Mechanicsburg, received 55 votes, one member refusing to vote at all on the last ballot.” In other words it certifies that 112 directors were present, of whom the relator received 56 votes and was thereupon declared elected. Such were the facts as set forth in the answer of the defendant and admitted by the demurrer, except that although the president of the convention at first declared that the relator was elected, yet upon objection being made he withdrew that decision, and the convention adjourned without any declaration.

The thirty-ninth section of the act expressly provides that the selection shall be uvivd voce by a majority of the whole number of directors present.” It is urged that the director refusing to vote was virtually absent. He might perhaps have withdrawn, but he did not do so. He remained, and being present, was entitled to be counted. It matters not what he supposed to be the effect of his action. The legal intendment was that he voted for neither or for the minority candidate. It would be dangerous to fritter away the express provision of the statute by construing an actual presence into a virtual absence. It is a sound canon of interpretation quoties in verbis nulla est ambiguitas, ibi nulla ex-positio contra verba fienda est: and hence the general rule a verbis legis non est recedendum. “Nothing,” said Lord Denman, “is more unfortunate than a disturbance of the plain language of the legislature by the attempt to use equivalent terms:” Everard v. Poppleton, 5 Q. B. 184. The certificate then was a nullity: it was sbfelo de se. Suppose it had set forth on its face that A. had a majority of the votes of the directors present, but that 33. was elected: would the state superintendent be bound to receive such a certificate and issue a commission to 33. ? Certainly not. But this is a case within the same reason, where the paper shows upon its face that there was no election at all, and does not assume to certify that the relator was elected, but merely that he was declared elected.

Judgment for the defendant.