author: Green, J.:

text:
    LANCASTER COUNTY.
    July Term, 1882,
    No. 60.
    october 1, 1883.
    Burt v. Kennedy.
    1. If the vendor at a public sale of chattels deliver an article to the purchaser, or suffer the purchaser to take possession of it voluntarily, and without requiring a compliance with the conditions of the sale, such delivery alone would pass a good title to the purchaser, and would necessarily constitute in itself a waiver of the conditions.
    2. Where, therefore, the Court charged the jury that the purchaser, in order to make out a title to the chattel, must prove an agreement between the vendor and himself to waive the giving of a note for the purchase money, in accordance with the conditions of the sale, in addition to the delivery, it was held to be error.
    Before Mercur, C. J. ; Gordon, Paxson, Trtjnkey, Sterrett, and Green, JJ. Clark, J., absent.
    Error to Court of Common Pleas of Lancaster County.

      Replevin by Winfield S. Kennedy against Nathaniel Burt to recover possession of a reaper.
    Upon the trial in the Court below before Patterson, J., the following facts appeared:
    Nathaniel Burt, being the owner of a plantation in Salisbury township, Lancaster county, leased the same to Evan Bustler, who continued to be his tenant from April 1,1877, to April 1, 1880. Evan Bustler, having been notified in January, 1880, to quit the premises, determined to make a sale of the bulk of his personal property. There was an unsettled account between Bustler and Burt.
    On February 20, 1880, Burt, having heard of Bustler’s intention to make sale, visited his tenant to have an interview with reference to their accounts. Burt testified that they made a definite and absolute agreement that he should be present at the sale for the purpose of bidding, and whatever purchases he made were to go into tlie general account, to be settled on or about the 1st of April. Bustler, on the contrary, testified that there was no such understanding or agreement.
    Burt attended tire public sale, which took place on March 11, 1880, and in competition with W. S. Kennedy, the plaintiff, who bid $99 50, bought the said reaper for $100. The conditions of the sale, which were read by the clerk, were, inter alia, that any person buying an article or articles to the amount of $10 and upwards should be entitled to ten months’ credit by giving a note with approved security for the amount before the goods were removed ; and that any person not complying with the con ditions would be held accountable for all loss or losses for a second sale of said goods. Burt testified that after the sale he took possession of the reaper, detached the knives then on the machine, and put them, together with the loose knives, in his own private carriage-house, Bustler standing by, and not only assenting but assisting. The reaper, being heavy and difficult to handle, was left where it had been in the barn. Bustler, on the other hand, denied having given possession to Burt, or having assisted. in any way, stating that he was not present at the time. About a week afterwards, during Burt’s absence in Philadelphia, Bustler removed the reaper to Mr. Oberholtzer’s barn, and told W. S. Kennedy, the plaintiff, that Burt had not complied with the conditions of the sale. Kennedy then offered him $80 for it, which he accepted, taking Kennedy’s note at ten months.
    Before Kennedy had time to remove the reaper, Burt returned from Philadelphia, and upon inquiry was informed that it had been removed to Oberholtzer’s barn. Burt then directed his men to remove the same, against the objection of Oberholtzer, who had been notified that it belonged to Kennedy. Kennedy thereupon sued out a writ of replevin. Burt gave bond, and retained the property.
    The Court charged the jury as follows: “This action is brought in replevin. It is brought by W. S. Kennedy against Nathaniel Burt for a certain reaper. This action is used, and this replevin is issued in Pennsylvania, wherever one claims goods in the possession of another. In this action, therefore, the ownership or title to the property is the question — the title to the property is the issue. Is the title to this reaper in the plaintiff, Mr. Kennedy, or is it in the defendant, Mr. Burt ?
    The defendant in this suit puts in the plea of ‘non cepit’ and ‘property.’ The plea of ‘non cepit’ means that he, the defendant, did not take the property, and the plea of ‘property’ means that the property, or title, is in him — the defendant — that it is his property.
    Those pleas of ‘non cepit’ and ‘property’ impose upon the plaintiff, Mr. Kennedy, the burden of proving that the defendant took the property, and that the reaper in question was his property.

      This action, you will have seen, lies to regain possession of the reaper or property which has been taken.
    As we have stated, the burden lies on the plaintiff, under the pleas of the defendant to prove, to your satisfaction, that the title of this property is in him.’
    There can be no doubt, I presume, in your minds that Mr. Bustler sold this reaper to Mr. Kennedy, and that he was paid for it in accordance with that contract of sale ; but that is for you to determine, for all the testimony is for you.
    Nor is it disputed but that Mr. Burt bid for this reaper at the public sale on the 11th of March, 1880, and that it was knocked off to him at the price bid. The conditions of that sale, as is admitted by both parties, were in part that a note, with security, was to be given by the bidders for the goods purchased if the amount exceeded ten dollars.
    [Now, it is not contended that a note was given by Mr. Burt for this purchase. If that is the fact, if no note was given, then it devolves on the defendant to prove, by evidence to your satisfaction, that the seller, Mr. Bustler, waived that "condition, and that he delivered to Mr. Burt the possession of the reaper without the giving of a note.]
    Now, as regards the delivery of a chattel, it is actual, such as a clear and unequivocal act of giving possession, accompanied by placing the article sold and to be transferred in the hands of the buyer, or his admitted agent, or in their respective houses, barns, or carts, and the like; or delivery is constructive or symbolical, as by delivering of the key to a room containing the article or goods sold ; that is a good delivery. Hence, the rules requiring actual delivery are subject to modification in the case of large or bulky articles. The article in question, this reaper,, being large and bulky, could be delivered by construction, or by a delivery of a part for the whole.
    [If there was no such agreement between Mr. Bustler and Mr. Burt to waive the giving of a note, followed by the delivery of the reaper in one of the modes mentioned, then even if Mr. Burt did get or take possession of the reaper, he obtained no title to the same,] and the seller, Mr. Bustler, could have reclaimed the reaper and taken it wherever he found it; and if the taking was resisted, he could bring an action of replevin for it, and the law would give him the possession of the goods until the buyer had fully complied with the conditions of the public sale.
    But it is clear that the seller may, by his contract, waive or renounce the benefit of the conditions stipulated, and trust to the good faith of the vendee, the buyer, for the future performance on his part, and he may also deliver the reaper to Mr. Burt or his hired man, his agent.
    Now, was there such a renunciation of those conditions as to the giving the note? That is a question of fact which you must determine from all the evidence.
    If you find and determine there was — if you also find that the reaper was delivered to the buyer, Mr. Burt, lay either of the modes mentioned, then the title to the reaper vested in Mr. Burt, and Mr. Bustler could not take it again without becoming a trespasser; could not take it and sell it to Mr. Kennedy and give him a good title for it.
    If you find, from all the evidence, that Mr. Bustler did so waive the note, and gave possession of this reaper to Mr. Burt, then your verdict should be for the defendant, Burt.
    [But if you do not find such a waiver on the part of Mr. Bustler as to the giving of a note, followed by delivery ; if you believe, in other words, the testimony of the plaintiff in this case, then no title to this reaper vested in Mr. Burt, and Mr. Bustler had a right to take it and sell it again to Mr. Kennedy, and your verdict should be for the plaintiff, Mr. Kennedy.]
    In this case, when the plaintiff executed this writ, the defendant, Mr. Burt, did not give up the property, but gave, as the law permits, to the sheriff a bond, to abide the issue of this replevin suit.
    So that if you find for the defendant, you will just say we find for the defendant. If, on the other hand, you find for the plaintiff, your verdict must be in damages— the measure of damages in that case is the value of the property retained — and you should allow damages that will fully compensate the plaintiff for the property taken.”
    February 15, 1882, verdict for plaintiff for $117 40, upon which judgment was afterwards entered.
    Defendant then took out a writ of error, assigning as error, inter alia, those portions of the charge inclosed between brackets.

      S. II. Reynolds and D. McMullen for plaintiff in error.
    Though the terms of a sale be cash, a subsequent delivery without payment passes the property to the vendee, not only as against all the rest of mankind, but against the vendor himself: Bowen v. Burk, 1 Harris, 146; Welsh v. Bell, 8 Casey, 12.

      G. 0. Kennedy for defendant in error.
    The giving of a note was a condition precedent to the vesting of the title in the absence of a waiver on the part of the vendor: Helar «. Brown, 3 Harris, 215; Rose v. Story, 1 Barr, 191; Welsh v. Bell, 8 Casey, 13; Lehigh Co. v. Field, 8 W. & S., 232; Rowe v. Sharp, 1 P. F. Sm., 26; Refining Co. v. Miller, 7 Phila., 97; Creps v. Dun-ham, 19 P. F. Sm., 456 ; Bowen v. Burk, 1 Harris, 146.
   October 1, 1883.

— The opinion of the Court was delivered by

Green, J.:

The learned Judge of the Court below charged the jury that the defendant, in order to make out title to the reaper in question, must prove an agreement between Bustler and himself to waive the giving of a note for the purchase money in accordance with the conditions of sale, and also a delivery of the reaper by Bustler to the defendant. He held that there must be both an agreement to waive, and, in addition, a delivery, to make title in the defendant. As we read the charge, it amounts to a direction that an actual or express agreement to waive must be proved in addition to, and in dependent of, a delivery. In this there was error. If the seller of the reaper chose to deliver it to the purchaser, or suffer the purchaser to take possession of it, voluntarily and without requiring a compliance with the conditions of sale, such delivery alone would certainly pass a good title to the reaper. It would necessarily constitute in itself a waiver of the conditions. In Bowan v. Burk, 1 Harr., 146, we held that, though the terms of a sale be cash, a subsequent delivery, without payment, passes the property to the vendee, not only as against all the rest of mankind, but against the vendor himself. In Welsh v. Bell, 8 Cas., on p. 17, Story, J., said: “It is a condition precedent of a sale for cash in order to pass the property to a vendee, that payment should be made; clearly so, unless there has been delivery. Until that is done, the sale is not consummated. The buyer cannot sue for the goods nor the seller for the price. Yet, even if the contract be for a cash sale, if the thing agreed to be sold be delivered without payment, the property passes to the vendee and is liable to levy and sale as his. The right of the vendor is converted into a mere chose in ac • tion.” There was evidence that Burt took possession of the reaper in the presence of Bustler and without any demand for a note being made. If this was believed by the jury, they might have found from it that there was a delivery without requiring a note to be given, and if that were so, the title would pass although there was no actual agreement to waive the giving of a note. Evidence was admitted of a previous conversation between Bustler and Burt, to the effect that Burt might purchase articles at the vendue and settle for the purchase money in the general account between the parties, which was to be adjusted after the sale. It is true this was denied by Bustler, but the defendant lost any possible advantage he might have derived from the testimony on this subject, if believed by the jury, by the positive direction that there must be an agreement in express terms waiving the giving of a note as a condition of the sale. The defendant did not testify to an agreement which in terms waived the giving of a note, but the arrangement to which he did testify was quite as inconsistent with the stipulations for giving a note as an express waiver would have been. Under the charge, however, the jury had no opportunity to consider the case in this aspect. The assignments of error are all sustained.

Judgment reversed and venire de novo awarded.


source: Caselaw Access Project

author: — Pee Curiam :

license: Public Domain

text:
    May Term, 1883. No.
    May 16, 1883.
    Copenheffer’s Appeal.
    Where the guardian mingles the trust moneys with his own and uses them indiscriminately, he may be surcharged with six per cent, interest on them in a review oí his account three years after its final confirmation.
    Before Mercur, C. J., Gordon, Paxson, Trunkey, • Sterrett, Green, JJ. ; Clark, J., absent.
    Appeal of Henry Copenheffer, guardian of Mary Jane McCauley, from a decree of the Orphans’ Court of Lancaster Qounty dismissing exceptions to the report of an auditor.
    Joseph L. Detwiler died intestate in the year 1863, leaving, among other children, a minor daughter, Mary Jane Detwiler, now7 Mary Jane McCauley. On March. 19, 1866, Henry Copenheffer was appointed her guardian. On August 9,1875, he filed a partial account as guardian, which showed a balance in his hands in favor of his ward of $2,751 41. On May 5, 1879, he filed his final account, which showed a balance due his ward of $2,368 76. This account was confirmed absolutely, and the appellant paid the said amount to his ward on November 1, 1879. On March 27, 1882, Mary Jane McCauley presented her petition, setting forth various specifications of error in the account filed, and asked for a review. The Court appointed W. A. Wilson auditor to revise and restate the account. In the third specification it was alleged that the guardian had charged himself with interest on the sum of $1,319 16 for eight months at the rate of five per cent., when he actually received six per cent, for the same. The respondent, in his answer, denied the truth of this allegation. Upon his examination before the auditor, he admitted that the above amount was deposited in bank to his individual credit; that he kept no account as guardian, and that he kept this sum along with his other moneys. In one part of his testimony he said: “When I got money that I had no use for I put it in bank, and used it as I needed it.” In the fourth specification, it was alleged that the guardian charged himself with interest on $2,319 16 for one year at the rate of five per cent, when, in fact, he received six per cent, for the same. The respondent, in his answer, denied the truth of this allegation. In his examination before the auditor, in answer to the question, “How was the $2,319 16 invested from April 1, 1868, to April 1, 1869 ? ” he stated that he used the money to pay for two fields containing about thirty-two acres of land, which he added to his farm. He continued to charge himself with this sum for five years and nine months subsequently at the rate of four and a half per cent, interest. Other specifications charged similar errors in the accounts. The auditor filed a report surcharging the respondent with $813 80, but finding as a fact that no fraud was meditated. To this the-respondent filed, inter alia, the following exceptions:
    2. “The auditor erred in surcharging said guardian with the sum of $813 80.”
    4. “The auditor had no authority or right to inquire into, revise, or restate said accounts after their confirmation absolutely, money paid over, and release given by said ward to her guardian.”

      The Court, Livingston, J., dismissed the exceptions, and confirmed the report absolutely.
    The respondent thereupon took this appeal, assigning for error the action of the Court in dismissing his exceptions to the report of the auditor, and confirming the report absolutely.

      J. B. Amwalce and J. W. JDenlmger for appellant.
    After the ward had slept upon her rights for so long a time, the Court should not have allowed the accounts to be reviewed at all. The auditor found that no fraud was meditated by the guardian when his accounts were filed, and the decree confirming his accounts should not have been disturbed so as to do injustice to him: Kinter’s Appeal, 12 P. F. Smith, 323.

      M. Brosius for appellee.
    October 1, 1883.
   — Pee Curiam :

The fact is unquestioned that the appellant mingled the trust money with his own, and used it indiscriminately for all purposes. He was, therefore, correctly held liable for the legal rate of interest thereon. If he desired to avoid payment of that rate of interest, he should have kept the trust money separate from his own, and proved an honest effort to invest it. As he is not shown to have made such an effort, and he did not ask for an order of Court directing the investment, he is in no position to complain of the decree imposing legal interest upon him.

Decree affirmed, and appeal dismissed at the cost of appellant.


author: Per Curiam :

text:
    January Term, 1883, No.
    May 16, 1883.
    Groff’s Appeal.
    An executor, who is also the vendee of land of his testator, under a deed of general warranty, cannot claim credit in his account as executor for counsel fees paid by him in successfully defending an action of ejectment for the land, brought against him as an individual after the death of the testator, where no breach of warranty is established and no paramount title is shown.
    Before Merour, C. J.; Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. ;• Clark, J., absent.

      Appeal of Solomon C. Groff from a decree of the Orphans’ Court of Lancaster County, sustaining exceptions to the report of an auditor upon the account of said Solomon C. Groff as executor of the last will and testament of George Groff, deceased.
    The facts, as found by the auditor and the Court below, wrere as follows:
    George Groff died on June 8, 1880, having made Solomon C. Groff executor of his will. His son, Wayne Groff, who died in 1857, left a son, Christian O. Groff, surviving him. The testator put Wayne Groff into possession of one hundred and four acres and thirteen perches of land in Lancaster county some four or five years before Wayne’s death, and had intended to convey it to him, but had never delivered to him a deed for it. Wayne occupied it during the four or five years preceding his death, and paid the taxes on it as owner during that time. About a year after Wayne’s death, the testator destroyed the deed intended for Wayne and executed and delivered a deed, containing the usual general warranty, to his son, Solomon C. Groff, for the land in question, for the consideration of $11,926 06J-. After the death of testator, Christian O. Groff brought an action of ejectment against Solomon C. Groff, individually, for the land, which, at the time of the suit, was estimated by the auditor to be worth $20,000. Solomon C. Groff consulted his counsel about the suit, and entered into a written agreement, in his individual capacity, to pay them for their services therein $1,250. The cause was arbitrated and the award was “no cause of action.” From this award the plaintiff appealed, and a judgment of non-suit was subsequently entered in open court. No paramount legal title was shown and there was no eviction. Solomon C. Groff paid his attorneys $1,250, as agreed upon. This amount he claimed credit for on the audit of his accounts as'executor. On this claim the auditor, Daniel G. Baker, found as follows :
    “ The auditor is of opinion that the accountant is entitled to charge against his father’s estate such a proportion of the $1,250 paid for counsel fees as the sum of $11,926 06J, the amount of the consideration money-on Solomon’s deed, bears to the $20,000, the value of the farm at the time the suit was pending, namely, $744, and the balance of $506 must be deducted from the said credit, and that such credit should stand as credit in his account only for $744. For the reasonableness of the said counsel fee, under the contract duly entered into by the parties, Scott’s Estate, 9 W. & S., 98, is an authority.”
    Exceptions were filed, inter alia, to this finding, which the Court below, Livingston, P. J., sustained.
    The accountant thereupon took this writ, assigning for error, inter alia, the action of the Court in overruling the award of the auditor.

      B. F. FsTüeman and W. M. Franldin for appellant.
    Solomon C. Groff was in the dual position of grantee under the general warranty deed and of executor and personal representative of the warrantor. The suit was defended by him in his capacity as executor. The case is that of the executor of the deceased warrantor representing his estate, receiving simultaneously with the service on the grantee formal notice of suit brought against the title granted by the testator, and in pursuance of such notice, undertaking the defense and asking credit for the expenses incurred. The covenant of warranty of land is a personal obligation, and as such the personal representative of the deceased becomes liable for any breach of the covenant: 3 Williams on Executors, 1721; Rawle on Covenants for Title, 592; Townsend v. Morris, 6 Cow., 123; McClure’s Executors v. Gamble, 3 Casey, 288; Hovey v. Newton, 11 Pick., 421; Harrison v. Sampson, 2 Wash. 155; Lee v. Cooke, 1 Id., 306; Wells v. Fydell, 10 East., 316.
    Our position in this case is not affected by the general rule that a warranty is not available unless there has been an eviction either actual or constructive. Damages for breach of a covenant for quiet enjoyment, accruing both before and after the death of the covenantor, may be recovered in one and the same action against his administrator. The executor, upon receiving notice of the suit against his testator’s covenantee, would not be justified in waiting for an eviction. As the representative of the warrantor, he could not, with any justice or propriety, do so. If he remains passive, he thereby renders the estate of the testator liable for the full amount of the damages recoverable under the covenant of warranty: Fishel v. Fishel, 7 Watts, 44; Scott’s estate, 9 Watts & Serg., 98 ; Anderson’s Admins, v. Washabangh, 7 Wr., 115 ; Cox’s Adm. ». Henry, 8 Cas., 18.
    The account was not liable for the costs of the audit: Yoder’s Appeal, 9 Wr., 394; Graver’s Appeal, 14 Ibid., 189 ; Harding’s Est., 12 Harris, 189.

      N. EllmaJcer and II. M. North for appellees.
    When the executor charged his testator’s estate with the counsel fees in the ejectment suit, he protected his own interest and sacrificed his trust. The record in the ejectment suit showed no employment of counsel, appearance, plea, or defense by the executor, and he was not a party to the suit. Everything was done on behalf of Solomon personally. Therefore, if the plaintiff had recovered, and the warrantee had sued on the warranty, a good title would have been a good defense. How, then, can the estate be put in a worse position as to counsel fees and expenses than if Solomon had lost the land ?
    There was no evidence, and there can be no recovery on the covenant until after eviction or surrender of possession under a paramount title: Clarke v. McAnulty, 3 S. & R., 364; Patton v. McFarlane, 3 P. & W., 419 ; Stewart v. West, 2 Harris, 336 ; Wilson v. Cochran, 10 Wr., 229.
    October 1, 1883. —
   Per Curiam :

We discover no error in this decree. No paramount title was shown'. No breach of warranty was established. If the vendor were living, he would not be liable for the expenses incurred by the vendee in making this successful defense. The facts that the vendor was dead, and the vendee was his executor, do not, we think, make the estate of the vendor liable for any portion of the fee paid counsel in defending the action of ejectment. The appellant, as vendee, could not make, with himself as executor, a binding contract to the prejudice of those interested in the estate.

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


author: — Per Curiám :

text:
    January Term, 1883,
    No. 364.
    May 16, 1883.
    Wagner et al. v. Henderson et ux.

    1. In the absence of any agreement on the part of a married woman to bind herself or her land, the fact that she had knowledge of the use, in the improvement of her separate estate, of building materials which had been contracted for by her husband, will not render her liable in assumpsit on her husband’s contract therefor.
    2. A, the wife of B, was the owner of a certain lot of ground. B contracted with C to furnish the lumber necessary to build a house thereon. Upon a suit brought by C against A and B to recover the value of the goods delivered under the contract, it was shown that a number of trades-people and mechanics employed in the work of erecting the house- had received their instructions and had been paid by A. It was also in evidence that the lumber furnished by C, and used in the building of the house on A’s land, was so furnished and used with A’s knowledge.

      Held, that the evidence was insufficient to submit to a jury, and that a non-suit was properly entered.
    Before Merour, C. J., Gordon, Pans on, Trunkey, Sterrett, and Green, JJ. ; Clark, J., absent.
    Error to tbe Common Pleas of Lancaster County.

      Assumpsit by J. H. Wagner, J. W. Muffley, and D. F. Wagner, doing business as the Watson town Planing-Mill Company, against James B. Henderson and Rebecca Henderson, his wife. Pleas, non-assumpsit, and subsequently, by leave of Court, coverture for Rebecca Henderson.
    On the trial, before Patterson, J., the following facts appeared:
    The plaintiffs below operated a lumber and planing-mill at Watsontown, Northumberland county, and made and furnished boards, scantling, doors, windows, window-frames, sashes, blinds, mouldings, &c., whatever was needed to build or finish houses. The defendants, Henderson and his wife, lived at Maytown, Lancaster county, with their son, J ames D. Henderson, in whose name a general store was carried on there. In April, 1878, Mrs. Henderson became the owner of a lot of ground with an old building thereon, situated opposite the store in Maytown. Soon after, it was resolved by the Hendersons to build a dwelling-house upon this lot, and the necessary orders were given to architect, carpenters, hardware dealers, painters, and other trades-people and workmen, some of whom received instructions and payment from Mrs. Henderson, others from her husband, and some were paid by store orders.
    In the summer of 1878, James B. Henderson ordered lumber for the house from the plaintiffs to the amount of $600. He agreed to give his notes for it at three and six months, and said he would give good indorsers. All the lumber shipped was charged to James B. Henderson.

      J, H. Wagner, one of the plaintiffs,
    testified that the contract was made with J. B. Henderson; that he was the only person he then knew in the transaction ; that he dealt with no one else ; that the credit was given to J. B. Henderson, and not to his wife. He further testified that, about the 1st of September, 1878, having been informed that the house was being built on the wife’s land, he went to Maytown, and remained at Henderson’s over night. He testified that “Mrs. Henderson was very much pleased with the materials furnished. * * She took me out to the house, and showed me the plans, how she wanted the porches built. * * I think she had a flower put in front of the house, and she gave directions in regard to that.” The witness received orders from James B. Henderson at this visit to continue his shipments of lumber,, and, as before, shipped and charged to him only. The total amount of lumber furnished by the plaintiffs was $1,131 64, and the only credits were fora pair of shoes from the Henderson store, $3, and J. B. Henderson’s check of October 18, 1878, for $100.
    Upon the conclusion of plaintiff’s testimony, defendants moved that a non-suit be entered, on the ground that there was not sufficient evidence to warrant a recovery against Mrs. Henderson.
    The motion was granted, a juror was withdrawn, and judgment of non-suit ordered and entered.
    A rule to strike off the non-suit was subsequently discharged, whereupon plaintiffs took this writ, assigning for error the action of the Court in not setting aside the judgment of non-suit.

      J, W. Johnson {H. If. North with him) for. plaintiffs in error.
    The wife is liable in an action of assumpsit on her contracts for the necessary repair of her real estate: Lippincott v. Hopkins, 7 Smith, 328; Lippincott v. Leeds, 27 Smith, 422; Lyon v. Swayne, 7 Phila., 154. Or for building a house: Appeal of the Germania Bank, 14 Norris, 329.
    She may make her contracts by an agent, and the husband may be her agent: Murphy v. Bright, 3 Grant, 296; Stoops v. Blackford, 3 Casey, 213; Buckley v. Wells, 33 N. Y., 518 ; Owen v. Cawley, 36 N. Y., 600 ; McLaren v. Hall, 26 Iowa, 297; Brownell v. Dixon, 37 111., 197.
    She may employ him to have a house built for her: Murphy v. Bright, supra.

    Whether the husband has or has not authority to act as agent of the wife is a question of fact to be decided by the evidence. It may be indirectly established, and is for the jury on the facts, circumstances, and relative situation of the parties: 2 Greenleaf on Ev., Sect. 60; Paine ¶. Farr, 118 Mass., 77; Whedon v. Cbamplin, 59 Barb., 65; Valentine v. Packer, 5 Barr, 333; Woodwell v. Brown, 8 Wr., 121; Abbey v. Deyo, 44 N. Y., 344; Knapp v. Smith, 27 N. Y., 280.
    The fact that an agent makes a contract without disclosing the name of his principal is immaterial in this case, and does not affect the rights of the parties if the agency existed, and that was for the jury: 2 Whart. on Ev., sect. 950, and notes.
    The acts and declarations of the wife to the plaintiff, Wagner, on his visit in September, 1878, estop her from denying her husband’s agency: Forrester v. Preston, 2 Pittsb. JR., 298.

      J. Hay Brown (B. H. Reynolds with him) for defendants in error.
    In order that the estate of a married woman may be made to respond to a suit brought against her under the act of 1848, she must have contracted in her own behalf, and the evidence must as clearly prove this, as the pleading must aver it. The very essence of the transaction is that the creditor must have furnished the necessaries on her credit, and if not furnished on her credit, there can be no contract on her part to pay for them: Husbands on Married Women, 49 ; Berger ¶. Clark, 29 Smith, 340.
    The case of Forrester v. Preston, relied on by plaintiffs, was a case of a mechanics’ lien decided by the Court below. The facts in that case were different, and the proceeding was in rem.

    October 1, 1883.
   — Per Curiám :

This was an attempt to recover in an action of assumpsit a judgment against a man and his wife on a contract made with the man alone. It is true the lumber was used in the building of a house on the land of the wife with her knowledge. The evidence, however, does not show that she made any agreement for the purchase of the lumber whereby either she, personally, or her land should be bound. On the contrary, the evidence shows the only contract for the lumber was made with the husband in his own right. She was never asked to assume any liability. The effort now is not to recover on a contract which she did make, but on one which she did not make, and to which she was in no manner a party. The evidence was, therefore, insufficient to submit to the jury.

Judgment affirmed.


author: Sterrett, J.:

text:
    LAWRENCE COUNTY.
    October and November Term, 1883,
    No. 143.
    Oct. 10, 1883.
    Book v. Book.
    1. A father and son executed an instrument of writing under seal, whereby, for the consideration of $5, the father covenanted and agreed to sell and assure to the son, his heirs, and assigns, a certain tract of land, the father to retain possession, use it in such reasonable manner as not to depreciate its value, and pay the taxes during his life, and upon his death, the son to have the full possession and enjoyment thereof; and whereby the son covenanted to build a new dwelling-house on the land or repair the old one, and after the death of the father, to pay a daughter $150 annually for life, and to allow her to occupy a room in said dwelling. Meld : That the instrument created a vested interest in the son to be enjoyed in possession in futuro, and which could not be divested by the subsequent will of the father.
    2. Each party acquired rights and assumed reciprocal obligations, which took effect not upon the death of the father, but immediately upon the execution of the instrument; and upon the breach of the covenants, the parties respectively had a right of action against each other.
    3. The contract in this ease is not revocable at the pleasure of either party without the assent of the other, and is not testamentary in its -character.
    4. Turner v. Scott, 1 P, E. Sm., 126, distinguished.
    Before Cordon, Trtjnkey, Sterrett, GJ-reen, and Clark, JJ. Mergtjr, C. J., and Paxson, J., absent.
    Error to Court of Common Pleas of Lawrence County.

    Ejectment by Nathan Book against Mary Book, Andrew Wells, tenant in fact, Charles Book, John Book, Dellie Book, Essie Book, minors, by John S. Connor, guardian, for a tract of land in Shenango township, Lawrence county, containing fifty acres sixty-two perches.
    Upon the trial in the Court below, the following facts appeared:
    A good title to the land in dispute was admitted in Jacob Book, through -whom both parties claim. Jacob Book lived on the land with his daughter Jemima, and on December 22, 187ñ, he and his son* Michael EL Book, executed the following instrument of writing, setting forth:
    “That the said Jacob Book, for the consideration of five dollars to him in hand paid by said M. EL Book, the receipt whereof is hereby acknowledged, and for the further consideration hereinafter mentioned, for himself, his heirs, executors, and administrators, doth covenant and agree to sell and assure unto said M. H. Book, his heirs, and assigns, all that certain tract or piece of land [describing it] it being the purpose and intent hereby to sell to said M. EL Book the residue of the tract not heretofore bargained to said Aaron Book. The said Jacob Book to retain the possession and enjoyment of said land while he lives; he to use the premises in such reasonable manner so as not to deteriorate or depreciate their value, and he to pay all taxes thereon while he so lives, and upon his death the said M. H. Book to have full and entire possession and enjoyment thereof.
    “ In further consideration whereof, the said M. H. Book hereby covenants and agrees during the next year (1876) to either build upon said land a comfortable farm dwelling-house, or repair the present dwelling-house upon the land so as to make it reasonably comfortable, and from time to time during the lifetime of said Jacob Book to keep the buildings in such repair as to make them reasonably suitable and comfortable for use, and to have the use of such timber or other materials as may be found upon the land for that purpose, and upon or after the-death of the said Jacob Book, he, the said M. H. Book, shall pay to the said Jacob’s daughter, Jemima Book, during her natural life, the sum of one hundred and fifty dollars annually, to be paid in semi-annual instalments of seventy-five dollars each, on the first days of April and October of each year, upon the first instalment to pay the proportion of said sum for the time intervening between Jacob’s death and said payment, and thereafter to pay seventy-five dollars each successive period of six months.
    “ Said EL M. Book further agrees that after the death ' of said Jacob, said Jemima, while she remains unmarried, shall have a room for her use and occupancy (but not to have the power to lease or let the same) in the dwelling upon said farm, or at his option he to provide her a room in another building upon said farm for such use and occupancy. The title to said farm, if not made to said M. EL Book in fee by said Jacob Book in his lifetime, shall be made so to him by said Jacob’s legal representatives, so as to assure to said M. EL Book, his heirs, and assigns the land and premises hereinbefore described.’’
    M. EL Book filed a petition in bankruptcy on February 26, 1877, and was adjudged a bankrupt. Nathan Book, the plaintiff, purchased the land from the assignee in bankruptcy of M. H. Book on September 25, 1877, under which he claims title.
    On 7th February, 1878, Jacob Book made an agreement with his son, Aaron Book, in regard to this land, in pursuance of which Aaron Book moved on it with his family, and lived upon it and cultivated it until his death.
    By this agreement with Aaron Book, Jacob Book made provision for the support of his daughter Jemima, and retained the use and occupancy of a part of the dwelling-house as long as he lived.
    Jacob Book died 10th June, 1881, having, on the 7th February, 1878, executed a last will and testament, by which he revoked all wills previously made, devised the land in dispute in fee simple to his son, Aaron Book.
    Aaron died intestate after the making of this will, and • a short time before the death of his father. The defendants are children and heirs-at-law of Aaron Book, and, as such, claim title to the land in dispute under the last will of Jacob Book. They have been in possession of the land since the death of Aaron and Jacob Book.
    There was evidence on the part of the plaintiff to show that Jacob Book waived the covenant to repair the house.
    The defendants submitted points of charge, which, with the answers thereto, are as follows:

      First. That the paper purporting to be a contract between Jacob Book and M. H. Book, offered in evidence by plaintiff, conveyed or gave to said M. H. Book no present or vested interest or estate in the land described in said contract, and was, therefore, void and ineffectual to give said M. H. Book any estate or interest whatever in said land.

      Second. That said contract or agreement was testamentary in its character so far as Jacob Book was concerned, and was revocable by him.

      Third. That the will of Jacob Book, offered in evidence by defendants, revoked said former will in form of a contract, and gave the land in dispute to his son Aaron Book, and defendants are entitled to hold said lands as heirs of said Aaron Book, and under the last will of Jacob Book.

      The Court in Answer: “The questions of law raised by the first, second, and third points are reserved for future consideration, and the jury instructed pro forma to return a verdict for plaintiff, and right reserved to enter judgment for defendants non obstante veredicto.”

      Fourth. If the Court be of opinion that plaintiff is entitled to recover at all, then the verdict must be conditional that the plaintiff perform all the covenants or stipulations contained in the said contract under which he claims.
    Affirmed, and jury so instructed.
    The Court thereupon charged the jury as follows:
    “This is an action of ejectment. The defendant has submitted certain propositions for instruction by the Court to the jury on questions of law that arise in the case. We dispose of the case in this way: The first, second, and third points raised are reserved by the Court for future consideration. For the present, pro forma, we instruct you that the verdict should be for the plaintiffs, reserving the right on these legal propositions so that we may hereafter, on future consideration, enter judgment, notwithstanding your verdict, for the defendants. The fourth point or proposition on part of defendant, we are asked to instruct you that the plaintiff is entitled to a verdict under the instructions of the Court that we have given you, and that verdict should be with certain conditions, and we affirm this, and say to you that there should be a conditional verdict in this case. The counsel for the plaintiffs and defendants have agreed on the conditions that shall be returned as part of your verdict under these instructions.
    “Therefore, we instruct you to return a verdict for the plaintiffs for the land described in the writ of ejectment, conditional that the said plaintiffs pay Jemima A. Book,, within three months after judgment is obtained, if so, in this case, the sum which may then be due her by the terms of the contract between Jacob Book and M. H. Book under which plaintiffs claim, and give mortgage on said premises with the accompanying bond in the penal sum of $2,000, conditioned to pay said sum when due and pay to said Jemima $75 every six months thereafter'during her natural life, said bond to be so limited that payment can be only enforced out of said premises, and to provide that any instalment can be collected if not paid when due.
    This is your verdict, and we so record it.”
    January 12, 1883, verdict for plaintiff, subject to the points reserved, upon which the Court afterwards entered judgment.
    Defendants then took out a writ of error, and assigned. as error the refusal of the Court to affirm the above points, and the entering of judgment for the plaintiff upon the points reserved.

      Oscar L. Jackson and McMichael & McConnell for plaintiffs in error.
    The agreement is testamentary in its character. It vested in M. EL Book no present interest or estate, and is revoked by the subsequent will. It shows an intention to make a disposition of property to take effect after death. This is also shown in the provision for the daughter. By retaining possession, Jacob Book retained the whole property: Silknitter’s Ap., 45 Penna.., 365; Dr usado w v. Wilde, 63 Id., 170; Caldwell ®. Pulton, 7 Casey, 479 ; Schryer’s Est., 2 Brewster, 526 ; 7 Phila., 477; Wusthoff ®. Dracourt, 3 Watts, 240 ; Wilson r>. McKeehan, 53 Penna., 79 ; Rudebaugh ®. Rudebaugh, 72 Id., 271; 3 Washb., sec. 605; 2 Blk. Com., 338, 500; 1 Redfield on Wills, 5, 170 ; Habergham ®. Vincent, 2 Ves. Jr., 204; Green ®. Proude, 1 Mod., 117; Hunt ®. Hunt, 4 N. H., 434 ; Morrell v. Dickey, 1 Johns. Oh., 153 ; Turner ®. Scott., 1 P. P. Sm., 126 ; 2 Blk. Com., 165,167; Rowan’s Ap., 1 Casey, 292 ; Frederick’s Ap., 2 P. P. Sm., 338; Schad’s Ap., 7 Norris, 111; Prew ®. Clark, 30 P. P. Sm., 170; 13 W. N. C., 401.

      I). B. & E. T. Kurtz and R. B. McCorrib for defendant in error.
    The writing is in the form of a contract containing covenants and agreements by both parties, whereby each became bound. These are to take effect not upon the death of Jacob Book, but immediately upon the signature of the writing, and are not revocable at the pleasure of either party. Revocability is the essence of a testament: 1 Jarmen, 11; Mack & Person’s Ap., 18 P. P. Sm., 231. A will is unipartite, but this writing is bipartite, and hence not revocable at the will of one only: Johnson ®. McCue, 10 Casey, 180. The rights under it vested at once, although the full enjoyment of some were postponed. It is not necessary for a deed to convey an immediate interest in possession: Habergham ®. Vincent, 2 Ves. Jr., 230; Meek’s Ap., 1 Out., 313. In Turner®. Scott, 1 P. P. Sm., 126 ; -Perry ». Scott, Id., 119, and Frederick’s Ap., 2 Id., 338, the writing contained no cuvenant to be performed by the grantor, and there was an express condition that the conveyance was not to take effect until after the grantor’s death: Johnson ®. McCue, 10 Casey, 180; Taylor ®. Mitchell, 6 Norris, 518 ; Brinker ®. Brinker, 7 Barr, 55; Bond ®. Bunting, 28 P. P. Sm., 210.

      October 22, 1883.
   — The opinion of the Court was delivered by

Sterrett, J.:

The sole question in this case is whether the sealed instrument, executed December 2, 1875, by Jacob Book and his son Michael, is a testamentary disposition of the land therein described, or a contract for the sale- of the same by the father to his son. If it is a contract, the verdict and judgment are clearly right. On the other hand, if it is a testamentary disposition of the property, it was revoked by the subsequent will of Jacob Book, and the judgment is erroneous.

As was said by Mr. Justice Sharswood, in Bond v. Bunting 28, P. F. Smith, 210: “It is certainly the tendency of all the modern authorities to maintain the general doctrine, which may be stated as a formula, that whenever the party has the power to do a thing (statute provisions being out of the way) and means to do it, the instrument he employs shall be so construed as to give effect to his intention.” Tested by this principle, the question is of easy solution. In form, the instrument upon which the contention hinges has all the features of a contract. It is impossible to read it without coming to the conclusion that both parties regarded it as an agreement for sale of the land on terms therein specified. It contains mutual covenants of the parties, by which they respectively bound themselves to the performance of certain things. They each acquired rights and assumed reciprocal obligations which took effect, not upon the death of Jacob Book, but immediately upon the execution of the instrument. By the terms of the instrument, Jacob Book not only became entitled to the consideration money therein mentioned, but he acquired the right to the erection of a new dwelling-house, or the repair of the old.one, and thereafter, during his life, to have the buildings so kept in repair, at the expense of his son Michael, as to make them reasonably comfortable and suitable for use. He also secured for his daughter Jennie the right to receive $150 annually, during life, and a room in the mansion-house for her own use while she remained single. On the other hand, Michael acquired the right to take timber and other materials from the land for the building and the repairs he agreed to make; also, the right to require his father to pay all taxes and “to use the premises in such reasonable manner as not to deteriorare or depreciate their value,’ ’ and, at his father’s death, if not before, to have the legal title to the land assured to him by an appropriate conveyance. It is very clear that for the breach of some of these covenants, at least, the parties respectively would have had a right of action against each other. If Michael, for example, had refused to build the new house, or make the stipulated repairs, it cannot be doubted his father would have had a right of action against him for damages. These and other characteristics of the instrument clearly distinguish it from a will, which, being intended to take effect upon the death of the testator and not before, is ambulatory and revocable during his life ; while, on the other hand, the paper under consideration is a contract between two parties, securing rights and creating obligations which are enforcible by the parties respectively, and not revocable at the pleasure of either without the assent of the other. It is not necessary that a contract for the sale of real estate should vest in the vendee a right of immediate and exclusive possession. It is enough if it creates, as the contract in this case did, a vested interest to be enjoyed in possession, in futuro. According to the intention of the parties, as expressed upon the face of the instrument under consideration, it can have effect and operation only as an agreement for the sale of the land.

It is claimed by plaintiffs in error that this case is within the principle recognized in Turner v. Scott, 1 P. F. Smith, 126 ; but a cursory examination will show that the cases are widely different. In that case, the instrument was in the form of a deed of conveyance, in which, however, it was expressly provided that the “conveyance is in no way to take effect until after the decease of John Scott, the grantor,” and the habendum was to have and to hold the premises “after the decease of said John Scott.” By the very terms of the instrument, the idea of a presently-vested interest in the grantor was excluded. The words employed are an emphatic declaration that no interest shall be considered as presently conveyed so as to interfere in any way with the life estate ; and the habendum is equally explicit in declaring that the estate intended to be conveyed shall not commence until the death of the grantors. It was manifestly a disposition of the property to take effect after death, and not before, while the instrument under consideration took effect immediately and created' a vested interest which could not be divested by the subsequent will of Jacob Book.

Judgment affirmed.


author: — Per Curiam :

text:
    October Term, 1883,
    No. 119.
    October 8, 1883.
    Overseers of the Poor of Scott Township v. County of Lawrence.
    1. Where notice has been served upon a poor district from the Quarter Sessions to appear and show cause why it should not be certified as the place of settlement of an insane pauper committed to the Western Pennsylvania Hospital, and upon the hearing, the Court has certified the poor district to be the pauper’s last place of settlement; sucli order, unappealed from, is final and conclusive of the place of settlement.
    2. The question of settlement cannot be retried in an action under act of 22d April, 1863, s. 12, by the county against the poor district for the amount paid to the asylum for maintenánce.
    Before Gordon, Trunkey, Steerett, Green, and Clark, JJ. Mercue, C. J., and Paxson, J., absent.
    Error to the Court of Common Pleas of Lawrence County.

      Assumpsit by Lawrence county against the overseers of the poor of Scott township.
    On the trial in the Court below before Bredin, J., the jury, September 29, 1882, found a special verdict as follows :
    The jury empaneled in above case do find that one Alexander Ewing was charged at May sessions, A. D. 1873, Lawrence county, with an offense punishable by imprisonment, and was acquitted by the jury on the ground of insanity at the time the said offense was committed, and thereupon was committed by the said Court to the Western Pennsylvania Hospital as an insane person, residence and settlement certified as in Scott township, without notice ; and rule to show cause why Scott township should not be certified as the last legal settlement of said Ewing was granted February 20th, A. D. 1879. Service thereof was made on the overseers of the poor in Scott township having charge of the poor in said district February 26, 1879, and, after due notice and hearing, the said Court certified to the managers of the said hospital that the legal settlement of Alexander Ewing was in said township of Scott, Lawrence county aforesaid, at the time the offense was committed; that since the commitment to the said hospital, the county of Lawrence has paid to the said hospital the sum of $1,407, or at the rate of $3 per week, for the maintenance and support of said Alexander Ewing in said hospital, and has received from the committee of said Ewing the sum of $270, the proceeds of all property belonging to said Ewing, who was thenceforth in indigent circumstances. The jury do find that the legal settlement of Alexander Ewing at the time of the commission of said offense was in Scott township, Lawrence county, Pennsylvania, wherefore they pray the judgment of the Court, if the plaintiff can recover from the defendant, and if recovery can be had, whether recovery can be had for the sum of of $1,306, paid by said county, before the service of the rule in 1879.
    The Court subsequently entered judgment on the verdict for the plaintiff.
    The defendant then took out a writ of error, assigning numerous errors, which, under the view which the Court took of the case, are not. material to be set forth.

      J. B. & E. T. Kurtz and Marlin & Gardner for plaintiff in error.

      Oscar L. Jackson for defendant in error.
    October 22, 1883.
   — Per Curiam :

In the case of the overseers of the poor of Harmony township v. the county of Forest, it was held that, under the act of the 22d of April, 1863, a county could recover from a township poor district the amount paid for the maintenance of an insane pauper without having his settlement first certified by the Quarter Sessions. In such case, however, it was held that the township was at liberty to contest the pauper’s settlement. But, regularly, notice should be served upon the poor district, from the Quarter Sessions, to appear and show cause why it should not be certified as the place of settlement, and thereupon, upon hearing, the Court may make such order in the premises as to it seems just and right. This order, unappealed from, is final and conclusive of the place of settlement, and this question cannot be retried in an action by the county against the poor district for the amount paid to the asylum for mainteance. Previously to the bringing of the suit now in hand, the Quarter Sessions, after notice to the overseers of Scott township, certified that district to be the last place of the pauper’s settlement. This was a definite determination of that question, and the Court below would have been justified in so charging the jury. AVhen, therefore, that question was submitted for the consideration of the jury, the defendant was treated more favorably than it had a right to demand; hence the complaint now before us is utterly without foundation or merit.

Judgment affirmed.


author: Mr. Justice G-okdoíi :

text:
    McKEAN COUNTY.
    July Term, 1882,
    No. 213.
    May 8, 1883.
    Chamberlain v. The Summit Gas Company.
    Where the defendant, who was drilling an oil well for a third party, used, as fuel, gas in a pipe at the boiler,, which he knew was supplied from the works of the plaintiff, and was there for sale, he is liable uj)on an implied contract for the price of the gas, though his contract with the owner of the well, of which the plaintiff had not notice, was that the owner should supply the fuel for the drilling.
    Before Mercur, C. J., Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of McKean County.

      Assumpsit by John Cochran, William Cochran, Allen Cochranj and D. R. Knight, trading as the Summit Gas Company, against C. C. Chamberlain, to recover the value of gas used by the defendant, in drilling an oil well.
    On the trial, before Wilson, J., the plaintiff gave evidence substantially as follows: The business of the plaintiff company was that of furnishing gas for drilling wells. The defendant was indebted for gas for drilling wells $125. They had never seen him or known him. He had never ordered any gas himself. The gas was used on the Yerden farm in February and March, 1880. The defendant was doing business there. Mr. Risher was superintendent of the Empire Oil Company. The defendant used the gas. He was working for the Empire Oil Company. The connections were made before the defendant came there to drill, through the plaintiff’s gas-pipe. He simply went on to the property and used the gas he found there.
    “Mr. D. Cameron placed the boiler between the two wells, and when Mr. Chamberlain made the contract to drill this other well, the boiler was not moved. All he done was simply to change the connection of steam-pipes. * * * Mr. Risher spoke to me lor the gas, as I didn.’ t know Mr. Chamberlain. He said Mr. Chamberlain wanted him to speak to me for the gas. * * * I only took his word for Chamberlain.”
    The defendant testified in substance:
    I had a contract for drilling well No. B on the Yerden farm. I did not know the plaintiffs before the time of that drilling. I did not make any contract with them for furnishing gas on my credit. I did not authorize any person to furnish gas on my credit. I found the connection made and the gas running in when I began there.

      Q. “State whether Mr. Risher said there was gas enough to furnish this contract, or that he said he would furnish it.

      A. He did; yes, sir. They had already two wells on the lease, and he said there was gas enough from No. 1 and 2 wells to drill it, and if there was not, he could get gas enough from the Empire Gas Company to drill it.” He had no authority at all from me to make the contract. The connections were made by the Summit Gas Company on that engine before I went on the lease. ‘ ‘ He said that the connections were already made, and that the gas was to be furnished, and all I had to do was to go ahead and drill the well. I took the well for less money than I ever drilled a well. * * * I done that on account of their furnishing the fuel.” “He said that he was satisfied that there was gas enough from this No. 1 and No. 2 well to furnish all I wanted ; but, if there was not, he could get it from the gas company.” I did not receive any gas from wells No. 1 and No. 2. ' There was no connections made with these wells. I understood that the Summit Gas Company had a line over the hill. I didn’t know where the fuel was coming from. I supposed it wras coming from the Summit Gas Company.
    The Court charged the jury, inter alia, as follows :
    “Here is the important question raised. AVhat kind of a contract does the law imply in such a case ? And I confess it is not altogether a clear case to me as to what the law does imply, [but we will instruct the jury, and say that it is exactly in this case as if Risher had been stricken out, and no evidence given in regard to him as to this gas.] He had no authority to make this contract. Then it stands that Mr. Chamberlain had used $115 worth of the plaintiff’s gas for the purpose of drilling that -well. The reason I say that is just the amount is that there is evidence on the part of the plaintiff and the defendant such as would constitute that as a fair price, and then there is the evidence of the fifteen dollars for the nse of the water. Mr. Chamberlain found it convenient to use the gas of the plaintiff, and he did use it, and we say that the law implies that he should pay the plaintiff what is reasonable, and we say that under all this evidence the plaintiff is entitled to recover $125, because there is no evidence to show that Risher had any right to make any such arrangement at all. There is no dispute but what this gas was worth $125. As an illustration, suppose these plaintiffs had had one hundred cords of wood piled up where it was convenient to burn for fuel. As I have already said, a man not authorized to make a contract could not bind a third party. If Mr. Cochran had had one hundred cords of wood burned up, and Mr. Chamberlain, without any contract at all, had been and burned it up, wouldn’t he have been liable for that wood ? He had unquestionably burned the wood, and this was the other man’s property, and his saying that he didn’t authorize the other man to make the contract didn’t vitiate the liability of him to pay for the property he took. The law implies that he should pay for just what he does take. As another instance, if I should go into the store of a merchant of this town, and take up a pair of boots, and not say a word, and carry them away, if I did not come back and pay for them, the merchant could sue me for damages for what he charged other persons for the same kind of boots. The law implies that the property that is taken in that way, the man who takes it should pay for it just what it is worth, and not any more.
    “As to this man Risher, he had no authority to make this contract. He is an interloper. He has no business there any way, and nobody had any business to make a contract in any way for Mr. Chamberlain without his authority.
    “Counsel for the defendant have asked to charge the jury: ‘ That if the jury believe from the evidence that the gas was ordered by Risher in Chamberlain’s name, without the authority, permission, or knowledge of Chamberlain, the plaintiff cannot recover, and the verdict must be for the defendant.’
    “We affirm this so far as to say there cannot be any recovery on any contract made by Risher, because he had no authority to bind the defendant. This we affirm so far as that there cannot be a recovery on the principle of a contract, because Risher had no right to make such a contract.
    “‘Second. If the jury believe from the evidence that the gas was ordered by Risher in Chamberlain’s name, without the authority, permission, or knowledge of Chamberlain, and Chamberlain was under no contract to furnish fuel, the plaintiff cannot recover, and the verdict must be for the defendant.’
    “There could be no recovery on any contract made by Risher in Chamberlain’s name, so far as a contract is concerned. We affirm this because Risher had no authority to bind Chamberlain, but we do say that under all the evidence in this case that is undisputed by the defendant, that the implied law is that he should pay what it is worth, and, therefore, we direct in this case a verdict to be entered in favor of the plaintiff for the sum of $139 06.”
    February 15,1882. Yerdict for the plaintiff for $139 06, upon which judgment was afterwards entered.
    The defendant then took out a writ of error, assigning that the Court erred in its answers to the points, in that part of the charge within brackets, and in not directing a verdict for the defendant.

      W. B. Smiley and George J. Wolf for plaintiff in error.
    The doctrine advanced on the other side is alarming, and if approved by this Court, establishes a precedent under which every contractor or even ordinary employó of another would be personally liable for all materials used by him in doing the work of his employer, provided the employer refused or neglected to pay for them. If the defendant is liable, then a man who should rent a suite of rooms in a hotel at a certain fixed price, gas and heat to be furnished by the landlord, would be liable to the gas company for gas used by him, by simply turning it on and lighting it, although the gas company put in the pipes and left the gas turned on ready for use at the request of the landlord, provided the landlord had told them that the guest would pay for the gas used by him. If the Court below was right, every contractor is personally liable to pay for all materials used by him, even though ordered by his employer, if the employe!-, without authority, orders them in the name of the contractor and has them delivered on his own premises before the contractor begins work. The statement of such a proposition is sufficient argument against it: Deysher v. Triebel, 64 Penna. State, 383.

      Ii. J. Muse and T. A. Morrison for defendant in error.
    'The defendant below took and converted to his own use the plaintiffs’ gas, without authority, and when sued for the value of it, sought to defend on the ground that he did not know the plaintiffs and did not buy the gas, but admitted the taking and using to the full amount of their claim.
    The plaintiffs below provided the facilities for delivering it, but retained possession of it until Chamberlain turned the faucet and took the gas from their possession as much as if it had been wood piled upon their own land and he had sent his teams and taken it. Having taken and used it, does not the law raise an implied contract that he shall pay for it, as stated by the learned Court below? We think it does, and that the charge and rulings of the Court are correct: Deysher t>. Triebel, 14 Smith, 383.
    May 25, 1883.
   The opinion of the Court was delivered by

Mr. Justice G-okdoíi :

If the testimony of Chamberlain is to be taken as true, and there is no reason why it should not be so taken, his contract with Risher, as agent of the Empire Oil Company, was that, if Chamberlain could not get gas enough from wells Nos. 1 and 2 to furnish fuel for drilling the well which he had undertaken to put down, he, Risher, would get it from the gas company ; but he does not undertake to say that to this arrangement the gas company assented, or that it even had knowledge of it. On the other hand, the uncontradicted proof is that Risher, instead of ordering this fuel on account of the Empire Oil Company, ordered it for and on account of Chamberlain, saying, at the same time, that Chamberlain had directed him so to do. Now, whilst this order did not bind Chamberlain for want of power in Risher to make it, it certainly did not bind the Empire Company, and it cannot be pretended that the plaintiffs could have recovered against it for the gas used by Chamberlain. In the absence, then, of a special contract, they could only recover the value of the gas from the person who had taken and used it. Moreover, Chamberlain very well knew that the gas he was using was not that of his employer, from wells Nos. 1 and 2, for there seems to have been no attempt to get it from that source ; on the other hand, he knew that it was being supplied from the plaintiffs’ works. We cannot, therefore, perceive wherein the Court below erred in saying to the jury that there was a legal implication of a contract on part of the defendant to pay for that which he got and used. How else shall we designate this transaction if it be not an implied contract? The gas was there ready in a pipe at the boiler; it was put there by the plaintiff company, and was designed to be nsed as fuel for that boiler. The implication thus necessarily arose, that whoever used the boiler might use the gas for raising steam. On the other hand, Chamberlain knew that this gas was an article of commerce, that it was there for sale, and that, whilst he had the implied assent of the company to use it, if he did so use it, it must be paid for. When, therefore, he appropriated this article to his own purposes, he, to all legal intents, became a party to an implied contract, which could be inforced only by an action of assumpsit. But what had the plaintiff to do with the contract between him and the Empire Company ? As Ave have before said, it does not appear that they even knew of such a contract, and if they had known of it, they could not have inforced it. It was Chamberlain’s business to see to the execution of his own contract, and if he had to pay for what the Empire Company ought to have paid, he has his remedy against that company ; but it wmuld be rather a left-handed kind of justice that would alloAv him to impose the damages resulting from the breach of that contract upon those who had nothing whateA-er to do with it. This case is very much as if a city landlord should agree with his tenant to pay for the gas used in lighting the leased premises, and the tenant should endeavor to set up this contract in a suit against him by the gas company. Admitted that the company was no party to-the contract; admitted that the tenant used the gas ; but then the pipes and gas fixtures were already in the premises, and he had but to turn a cock and apply a match. Such a defense Avould certainly not go very far in a court of justice, and yet it is very much the defense set up here. The Empire Oil Company had agreed Avith the defendant to pay for the gas which the Summit Company might furnish; the latter company, however, wrns no party to this agreement. Chamberlain, without taking the trouble to inquire Avhether or not his principal had provided for the payment of the gas, took and used it, and now, on the sole plea of its convenience in that he had but to turn a cock and apply a match, he sets up his contract Avith the oil company to defeat the plaintiffs’ claim. Such a defense is simply good for nothing, and the Court below did right in so telling the jury.

The judgment is affirmed.

Trtjnkey, J., files dissenting opinion, in which Sterrett, J., concurs.


author: — Per Curiam:

text:
    MERCER COUNTY.
    January Term, 1882.
    No. 366.
    November 27, 1882.
    Buhl et al. v. Thompson.
    1. A coal lease provided that the lessee should enter and search for coal, and should pay to the lessor, inter alia, ‘‘ $2,000 each year after the expiration of the said eighteen months during the continuance of this indenture,” and the lessee or “ his assigns shall have the right to abandon said lands andmining and remove all buildings and fixtures.” It further provided that the lessee should “ pay the first party, her legal representatives or assigns, the sum of thirty cents for each ton (2,240 pounds) of merchantable coal mined and removed,” and that the payments, “ $2,000 as aforesaid, when made, are to apply to the rent of coal first mined thereafter, and such yearly payments cease whenever the second party or his assigns abandons this agreement.” Held that the lessees must pay the annual payments up to the time of abandonment, and that the fact that they had made payments exceeding the amount of royalty to which the lessor would be entitled if all the coal in the land had been actually mined, was no defense..
    2. The assignees of the lessee are bound by the covenant to mate the annual payments.
    Before Si-iarswood, C. J., Merour, Gordon, Paxson, Trunket, Sterrett, and Green.
    Error to the Court of Common Pleas of Mercer County.

    Debt by Mary J. Thompson, guardian of John and William Semple, minors, against C. EL Buhl, James Westerman, C. H. Andrews, and W. J. Hitchcock, doing business as Buhl, Westerman & Co., assignees of It. M. Ulp, to recover upon a lease.
    At the trial before McDermitt, P. J., the following facts appeared: On January 27, 1869, the plaintiff sold and conveyed to It. M. Ulp, his heirs and assigns, all the coal under a certain tract of land containing about a hundred acres in Hickory township, Mercer county, Pennsylvania, “granting to the party of the second part, (Ulp,) his heirs and assigns, as well'as their laborers and workmen, the right to enter upon said land at any time hereafter and search for coal, together with all rights and privileges incident to the mining, securing, and removing said coal, including the right of ingress and egress, and to dig, mine, explore, and occupy (with such constructions and buildings as may be necessary and useful for the full enjoyment of said coal) not more"than three acres of land. ****** The party of the second part, by himself, his assigns, and workmen at such time as he may choose, within six months, agree to make search for said coal; and if he find coal of sufficient thickness, quantity, and quality to justify opening and working, then lift or his representatives or assigns shall pay unto the said first party, her representatives, or assigns the sum of five hundred dollars, ($500,) one thousand dollars ($1,000) at the expiration of eighteen months from the above date, being the 27th day of January, 1869, and two thousand dollars ($2,000) each year after the expiration of said eighteen months during the continuance of this indenture ; and the failure to make search within the said time, and the failure to make such yearly payments within ten days made upon the second party or his assigns, shall be an- abandonment of this grant, and the second party or his assigns shall have a right to abandon said lands and mining and remove all buildings and fixtures. The mining of coal by the said party or his assigns shall be a sufficient compliance by him with his covenants. The second party, by himself or his assigns, agrees to pay the first party, her legal representatives, or assigns, the sum of thirty cents for each ton (2,240 pounds) of merchantable coal mined and removed from said land herein described. The payment of rent per ton, as aforesaid, shall be made half yearly, and all payments in this indenture shall- be made and accepted in bankable funds of the State of Pennsylvania. It is understood and agreed that the payments of $500, $1,000, and $2,000, as aforesaid, when made, are to apply on the rent of coal first mined thereafter, and such yearly payments cease whenever the second party or his assigns abandons this agreement.” The party of the second part was to mine seven thousand tons each year.
    On August 2, 1869, Ulp assigned all his interest in the above lease to the defendants. Six months after the execution of the lease, the company defendant paid to the plaintiff $500, eighteen months after the execution of the lease they paid $1,000, and thereafter $2,000 each year until 1878. No coal was mined until July, 1878. November 13, 1879, this suit was brought to recover the balance of the annual payments then due.
    The defendants gave evidence to the following effect:
    They abandoned the mine about October 28, 1881. Up to this time, the amount of coal taken out was forty-six thousand tons forty pounds. The royalty upon this, at thirty cents a ton, was $13,802 72. They had advanced to plaintiff $17,000. All the coal was taken out that was minable. It was bad and thin.

      The Court charged the jury, inter alia, as follows :
    “Although, perhaps, not at all material to this case, we are of the opinion that the half-yearly payments referred to only apply to the coal mined, the royalty upon which would exceed the above sums mentioned as payable at such stated periods. Thus, for instance, if in the first six months of any given year the royalty on the coal mined exceeded $1,000, such excess was payable at the end of said six months.
    Their contract also provided that said yearly payments should cease whenever the second party abandons this agreement.
    On the 2d day of August, 1869, the said Ulp assigned all his interest in the above indenture to James Westerman and others, and the plaintiff has brought this suit against the defendants in this case, as the assignees of said Ulp. That the defendants are the assignees of said Ulp is admitted by them.
    [Whatever liabilities were imposed upon Ulp by the agreement between him and the plaintiff in this case are now devolved upon the defendants as his assignees, and they are personally liable to this suit.]
    Ulp, under whom the defendants claim, was the sole judge of whether he found coal in sufficient thickness, quality, and quantity to justify mining it, and whether he did" or not, he could have abandoned the agreement at any time, and thus absolved himself from any liability upon such subsequent stated payments. So his assignees, the defendants, could at any time, even without, the consent of the plaintiff, have absolved themselves from all future liability on such future payments by abandoning the agreement. If, however, they saw fit no't to abandon the agreement, but remained in possession of the premises down to the bringing of this suit, they are liable to the payment of all such stated payments, with interest thereon from the time they severally fell due, after deducting therefrom the amount which has been shown to have been paid by them to apply thereon.
    We have been requested to answer some poiüts. The plaintiff requests us to charge you :
    “That under the law and the evidence in this case the plaintiff is entitled to recover the balance due on the $500 due six months from the date of the article, $1,000 due eighteen months from the date of the article, and $2,000 annually thereafter, up until the date of bringing this suit, after deducting the payments made by the defendant to the plaintiff.”

      We answer that point in the affirmative, as explained in the general charge.
    The defendants request us to instruct you :

      “First. That if the jury find from the evidence that the defendants have mined all the coal which was in the land described in the article of agreement upon which this suit was brought, at the time of its execution, and which in quality and quantity would justify opening and mining, and that they have made payments to the plaintiff in the aggregate equal to the royalty on such coal, then their verdict must be for the defendants.”
    Refused, as explained in the general charge.

      “Second. That if the jury find from the evidence that the defendants have made payments to the plaintiff in all equal to or exceeding the amount of royalty to which the plaintiff would be entitled under the article sued on, and if all the coal in the land, which in quantity and quality would justify opening and mining, had been actually mined, then their verdict must be for the defendants.”
    Refused, as explained in the general charge.

      “Third. That if the jury find from the evidence that the defendants found a body of coal in the land described in the article of agreement, such a one which in quantity and quality would justify opening and mining, and that they opened it and mined out and paid to tire plaintiff the royalty on all of such coal which could, in due and proper course of mining, be reached from openings so made, then, in order to recover in this action, the plaintiff must show by the weight of the evidence that there is other coal in said land which in quantity and quality would justify opening and mining.”
    That point is answered also in the negative, as explained in the general charge.

      “Fourth. If the jury are satisfied from the weight of the evidence that there was not coal of sufficient quantity, quality, and thickness to justify opening and mining, the plaintiff cannot recover.”
    We answer that point also in the negative.
    Then, gentlemen of the jury, [if you find that these defendants entered into the possession of these premises as the assignees of Ulp, and were in possession of the premises at the time this suit was brought, your verdict will be in favor of the plaintiff for all of those stated payments of royalty which you find due after allowing the defendants a credit for all they have shown themselves to have paid on the article.”]

      February 15,1882, verdict for the plaintiff for $3,088 18, and judgment thereon.
    The defendants thereupon took this writ, assigning for error the affirmance of the plaintiff’s point, the answers to defendants’ points, and the portions of the charge bracketed.

      J. G. EUiott and Thomas Tanner for plaintiffs in error.
    By the agreement, the defendant in error sold and conveyed to Ulp the fee simple in all the merchantable coal on its lands described: Funk v. Haldeman, 3 Smith, 244; Q-rove ¶. Hodges, 5 Smith, 504; Stoughton’s appeal, 7 Nor., 198. The several sums provided for in the agreement are not rents but “purchase sums.” Bainbridge, 247.
    Having paid for all the coal in the land, the defendants had complied with all their covenants.
    The covenant to pay $2,000 annually was personal to Ulp, and did not bind the assignees : Beach v. Morris, 12 S. & B., 16.

      J. G. White and Q. A. Gordon for defendant in error,
    cited Tod v. Stambaugh, 37 O., 469 ; Kemble Coal and Iron Company v. Scott, 9 Nor., 343; Bute •». Thompson, Jacob’s Fisher’s Digest, 9063; Johnston v. Cowan, 9 Smith, 275.
    The yearly payments are the rent reserved in the lease: Herbaugh v. Zentmyer, 2 Bawle, 159; Borland’s Appeal, 16 P. F. Smith, 473.
    The agreement is similar to a ground-rent deed, reserving yearly sums to be paid to the grantor. In such a case, the covenant to pay these yearly sums runs with the land, and is binding upon the alienee of the grantee: Boyer v. Ake, 3 Penna., 461; Streaper v. Fisher, 1 Bawle, 161; Springer «. Phillips, 21 P. F. Smith, 60.
    December 11, 1882.
   — Per Curiam:

The terms of the agreement of January 27, 1869, were clear, and the construction put upon it by the learned judge was perfectly right. The annual payments of $2,000 each year ^after the expiration of the first eighteen months were to be “during the continuance of this indenture,” and “such yearly payments cease whenever the second party or his assigns abandons this agreement.” “The second party or his assigns shall have a right to abandon said lands and mining, and remove all buildings and fixtures.” The payments, when made, are to apply on the rent of coal first mined thereafter. It is no answer to say that the defendants had made payments equal to or exceeding the amount of royalty to which the plaintiff would be entitled if all the coal in the land had been actually mined. The defendants had the remedy in their own hands by abandoning the mine and removing their fixtures and buildings.

Judgment affirmed.