author: Mr. Justice Marcur

text:
    Vankirk versus The Pennsylvania Railroad Co.
    1. In an application for the removal of a case in which a corporation is a party, the affidavit may be made by an agent or employee.
    2. A passenger purchased a railroad ticket from H. to W. and rode on it to M. an. intermediate point; the ticket under the rules of the company was cancelled for the whole route ; he voluntarily left the train at M. Subsequently he offered the ticket for his passage from M. to W.; the conductor took up the ticket, refused to allow him to ride and ordered him to leave the train, which he did. In a suit by the passenger against the railroad company the court rejected evidence by the plaintiff that he offered to pay his fare, if the conductor would return the ticket which was refused, to be followed by evidence that in claiming to ride he had acted in good faith upon information, by a ticket agent from whom he had previously purchased the ticket, that he had a right to ride on it. Held to be error.
    3. By denying plaintiff's right to ride on the ticket the conductor waived all right to retain it; the plaintiff might have retained the ticket.
    4. The declarations of the ticket agent made days after selling the ticket, although not evidence to establish a contract with the plaintiff, were evidence to show that plaintiff in good faith claimed a right to ride on the ticket.
    _ 5. Evidence that the conductor allowed plaintiff to ride past several stations after leaving M., and ejected him at a place remote from shelter, in a storm, &c., was proper for the jury in considering whether the conductor selected such place intentionally.
    March 31st 1874.
    Before Agnew, C. J., Sharswood, Merour and Gordon, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Snyder county: No. 32, to July Term 1873.
    This was an action originally brought in the Court of Common Pleas of Northumberland county, by Joseph Yankirk against the Pennsylvania Railroad Company. The writ was issued October 28th 1869. The defendants issued a praecipe for the removal of the cause to another county, as follows:—
    “And now, March 30th 1872, the above defendant elects and determines to remove the above-stated case and all proceedings relating thereto, from the Court of Common Pleas of Northumberland to the Court of Common Pleas of the adjoining county of Union, through which said county of Union the Philadelphia and Erie Railroad does not pass, in accordance with the provisions of the Aot of Assembly in such case made and provided; and the prothonotary of Northumberland county is hereby directed to certify the record and all proceedings in this case to the Court of Common Pleas of Union county.
    “ Prank Thompson, being- duly sworn according to law, did depose and say that he is the superintendent of the above-named defendants, on the eastern division of the Philadelphia and Erie Railroad, where the alleged act complained of in this case is said to have occurred, and that the removal of the above-stated case to the county of Union is not for the purpose of delay, but because a fair and impartial trial cannot be had in the said county of Northumberland, through which said railroad passes.”
    The plaintiff objected to the removal because—
    1. The affidavit to the praecipe was not' made by the president or any officer of the company.
    2. The praecipe designates the county, which it is^the duty of the president judge to do.
    The court (Rockefeller, P. J.) made the following order:—
    “April 1st 1872. The first objection overruled, and the second objection is sustained, and Snyder county is indicated by the president judge for the trial of this cause, under the provisions of the Act of April 25th 1870” (sect. 2, Pamph. L. 1292, 2 Br. Purd. 1164, pi. 8).
    The plaintiff excepted to this order, and a bill of exceptions was sealed.
    The cause was accordingly certified to the Court of Common Pleas of Snyder county.
    The declaration in the first count was that the defendants were the owners of the Philadelphia and Erie Railroad, and that the plaintiff “became a passenger” in one of their cars, to be carried from Northumberland to Williamsport, and for a “reasonable hire” they undertook to carry him from Northumberland to Williamsport, and carried him part of the distance “ to a certain wild and desolate place between said places, * * * far distant from any shelter, public road or highway,” and refused to carry him any farther, and “ wantonly, in an insulting manner, and without any just or legal cause,” ordered him, “ during a violent storm and rain, * * * to quit and leave the car, * * * threatening him that if he did not at once quit and leave the car, * * * he would be immediately ejected;” and that he, “to avoid being violently thrown and dashed from the said car, * * * * and under the compulsion aforesaid, quit and left the car.” The declaration averred that plaintiff was “ grossly insulted, outraged and injured, and was obliged to travel on foot through mud and mire” seven miles to Williamsport, and for four hours was exposed to the storm, “ and was greatly wearied, fatigued, sore, wet and chilled, and his clothes * * * wet and greatly spoiled, and his health greatly endangered and impaired.”
    The second count was that the defendants undertook to carry plaintiff from Milton to Williamsport; in other respects it was substantially as the first count.
    The case was tried February 26th 1873, in the Common Pleas of Snyder county, before Bucher, P. J., when it was admitted that the defendants were the lessees of the Philadelphia and Erie Railroad.
    For plaintiff, Z. B. Glines, a conductor, testified that plaintiff got on his train with a ticket from Northumberland to Williams-port; lie rode to Milton; he got off the train there and was not on it afterwards; witness took plaintiff’s ticket, cancelled or punched it and handed it hack to him.
    On cross-examination, defendants proposed to ask witness “what was printed on the face and back of the ticket.”
    The plaintiff objected “that no notice had been given to produce the ticket, and no proof that search had been made for it.”
    The court admitted the question, because the plaintiff bad examined tbe witness as to tbe contents of tbe ticket, and defendants, in cross-examination, might ascertain tbe character of tbe ticket. A bill of exceptions was sealed for plaintiff.
    Witness said: Tbe tickets were printed with tbe number of tbe station on tbe back, every station having a number; conductors’ orders were, when a ticket was presented, to punch out tbe numbers of tbe starting-place to tbe place of destination. Northumberland was 89, Williamsport 78; be punched out on plaintiff’s ticket “ 89 ” and “ 78,” when it was given to him, and then returned it to plaintiff. “ When tbe numbers are so punched outtbe ticket is cancelled. This was done between Milton and Northumberland.” Plaintiff did not ask witness to mark tbe ticket, so that he could get off at Milton and ride on it again. A general collection of tickets is made west of Muncy; tbe ticket was handed back to be taken up west of Muncy; tickets east of Muncy were lifted as presented.
    Tbe plaintiffs then offered tbe deposition of Jacob Hine, who in it testified, that in May 1867, be went on tbe train from Northumberland to Williamsport, and that plaintiff was on tbe same train; tbe train suddenly stopped along tbe mountain between Muncy and Williamsport, it was “ storming and raining badly at tbe time; after tbe train started witness saw plaintiff standing on tbe side of the road; there was no station or crossing nor public road near.” Westfall was tbe conductor of this train. When witness was at tbe Northumberland station be saw plaintiff buy a ticket from A. Hawley, agent of defendants, from Northumberland to Milton.
    Plaintiff proposed to ask witness whether be did not hear Hawley tell plaintiff that tbe ticket which be had previously purchased and rode on to Milton was good from Milton to Williamsport, and that be need only purchase a ticket from Northumberland to Milton, and whether he saw plaintiff show tbe ticket be bad previously purchased to Hawley.
    This question was objected to by defendant at tbe taking of tbe deposition.
    Tbe witness answered: “ I beard Mr. Vankirk ask Mr. Hawley bow it was about tbe ticket be bad purchased a few days before to go to Williamsport, and on which be had ridden as far as Milton. Mr. Hawley said be supposed that if be bad ridden no farther than Milton on it, it would be good unless it was cancelled. I saw Mr. Yankirk hand Hawley a ticket; he examined it and said, 1 Milton is only punched off, it is good from Milton up.’ Mr. Hawley told Mr. Yankirk he should buy a ticket to Milton, and the other would be good from Milton up. I was employed by the telegraph company at the time, on the train looking after the wires. I did not see the ticket shown by Yankirk to Hawley so as to see what was on it. Mr. Hawley was in the office and I was sitting by the door. I have stated the conversation as well as I can recollect.”
    On the trial, on objection by the defendants, the court excluded this answer and sealed a bill of exceptions for the plaintiff.
    Plaintiff renewed the offer of the deposition, to be followed with evidence that the defendant carried the plaintiff on the cars past four regular stations beyond Milton towards Williamsport, and compelled him to get out of the cars at a place several miles distant from any public road or . shelter, at a time when it was storming and raining very hard, and that plaintiff at the time was aged sixty-eight years ; and also that the conductor took the punched ticket from Northumberland to Williamsport and refused to give it back to the plaintiff, and that plaintiff before being put out of the cars offered to pay the conductor the fare from Milton to Williamsport if the conductor would return him his ticket, which the conductor refused to do, and insisted ■ upon plaintiff getting out unless he would pay his fare from Milton to Williamsport without giving his ticket back, to be followed with proof that ho was on the cars believing that he had a right to ride on the ticket that he had showed to Hawley, the agent of defendant, at Northumberland, as disclosed in the deposition.
    The court rejected the offer and sealed a bill of exceptions for the plaintiff.
    The plaintiff then gave in evidence the deposition of J. B. Riley. He testified that he was on the train when plaintiff was put off; it was along the mountain between Muncy and Williamsport, there was no station where he was put off; it was a stormy day; the conductor and plaintiff had considerable talk ; the conductor said plaintiff would have to pay his fare or he would put him off the train; plaintiff said he had paid his fare once and that the conductor had his ticket; the conductor said it had been ridden out; plaintiff said it had not. Witness offered to pay plaintiff’s fare; he declined, saying that he had paid his fare once and had the money to pay it, but the fare was paid. Before plaintiff passed down the steps of the car he said to the conductor, “ Give me back my ticket and I will pay my fare.” The conductor said he had had trouble enough about the matter. Witness did not see the conductor touch plaintiff. Plaintiff would not let witness pay nor would he pay himself, but when he was on the platform, he said he would pay if the conductor would give him back his ticket.
    Plaintiff testified that he purchased a ticket from Northumberland to Williamsport from Hawley, the agent, at Northumberland; Re rode to Milton; he got off there on business and returned to Northumberland; Grlines, the conductor, punched his ticket and handed it back to him.
    It was then proposed to ask him whether he knew what punching a ticket meant.
    The defendants objected to the question; the court rejected the offer and sealed a bill of exceptions.
    It was proposed to ask plaintiff, whether he got into a train at a subsequent day to ride from Milton to Williamsport, in good faith believing he had a right to ride on the old ticket for the distance he had not previously ridden upon it: offered for the' purpose of showing that he was honestly on the train and that they had no right to put him off.
    The offer was rejected by the court and a bill of exceptions sealed.
    Plaintiff testified that he bought a ticket from Hawley from Northumberland to Milton. It was then proposed to ask him whether he showed the punched ticket to Hawley when he bought the new one,-and what Hawley said about its being good from Milton to Williamsport.
    The defendants objected to the question; it was rejected by the court, and a bill of exceptions sealed.
    Plaintiff further testified that, after the train left Northumberland, he gave his ticket to Milton to Westfall, the conductor. “ I then showed him the other. He said I could not ride on the old ticket in that train. I told him I would ride on this road, for my ticket was good. I told him Grlines had punched it and I did not know what it meant. I told him I had only ridden to Milton on it. I pulled out my business card and offered it to him; told him 'that Grlines knew me, and if anything was wrong, he would make it right. He paid no attention to it and walked off; he never spoke to me after that until he came round above Muncy for the tickets. He passed me several times, but never spoke to me. He passed me several times after the cars left Milton. Beyond.Muncy he came round and took my ticket; he looked at it and said I must pay of get off. I told him my ticket was good. I would not pay twice. He said if I did not he would put me off. Mr. Riley behind me got up and said, ‘ Don’t put the old man off in the storm; I will pay his fare.’ I thanked Riley, and said ‘ my fare is paid. I have money enough to pay my fare myself, but my fare is paid.’ The conductor rang the bell. He was stopping the train, and I told him if he would give up my ticket I would pay the fare. He refused to do so, and opened the door and ordered me out, and said he would put me out if I did not go.”
    Plaintiff offered to prove that it was storming very hard, he had to walk to Williamsport in the mud.and rain, and was injured in health by the exposure; that he was sixty-eight years old at the time; that there was no road except the railroad anywhere near; no shelter but along the White Deer mountain; that he was exposed to the laughs and jeers of the passengers. This offered to show how badly defendant acted to him, and to prove the damage he sustained.
    Defendants objected to the offer; it was rejected by the court and a bill of exceptions sealed.
    On cross-examination he said:—
    “ The conductor came round and collected the tickets just as the train started to Milton. He then took up the ticket to Milton. Then I showed him the ticket upon which I had previously ridden to Milton and which was punched. He did not. tell me then that I would either have to buy another ticket at Milton, or leave the train.”
    The plaintiff having closed, the defendants examined Westfall the conductor. His testimony as to the occurrences on the train did not differ materially from that of the plaintiff’s witnesses.
    Amongst other things, he said that he kept the ticket because he understood the plaintiff was going to bring suit.
    The court charged:—
    “ The evidence upon which the plaintiff relied to sustain this action, has been excluded by the court, to which action the plaintiff has taken exception. If the court was wrong in their action, our superiors, the Supreme Court, will apply the remedy. There are no disputed facts in the case for you to pass upon as we apprehend, and we therefore instruct you to find for the defendants.”
    The verdict was for the defendants.
    The plaintiff took a writ of error.
    He assigned for error:—
    1. The order of the Court of Common Pleas of Northumberland county removing the case to Snyder county.
    .2. Admitting evidence by dines of what was printed on the face and back of plaintiff’s ticket.
    3. Rejecting evidence that Hawley, the ticket agent, said when plaintiff bought the second ticket that the first ticket was good from Milton to Williamsport.
    4. Rejecting evidence that defendants carried plaintiff past four regular stations beyond Milton, and compelled him to get out of the cars at a desolate place, &e.
    5. Rejecting the question whether plaintiff knew what punching the ticket meant.
    6. Rejecting the question whether. plaintiff, on the second “ride,” entered the car in good faith, believing he could ride on the first ticket for the distance on which he had not already ridden.
    7. Rejecting the question whether plaintiff showed the punched ticket to Hawley, the. agent at Northumberland, when he bought the new one, and what Hawley said about its being good from Northumberland to Williamsport.

      8. Rejecting offer to prove that it was storming when plaintiff was put off, that he had to walk to Williamsport in mud and rain, and that his health was injured thereby, &c.
    9. The charge of the court.

      S. P. Wolverton and J. W. Qomly, for plaintiff in error.
    Cr. P. Miller (with whom was H. T. Beardsley), for defendants in error,
    as to the rulings on the questions of evidence: Deitrich v. Penna. Railroad, 21 P. F. Smith 432; McClure v. Phila., W. & Balt. Railroad, 34 Maryland Rep. 532; State v. Overton, 4 Zabriskie 438; O’Brien v. Boston & Worcester Railway Co., 15 Gray 20; Angell on Carriers, sect. 527.
   Mr. Justice Marcur

delivered the opinion of the court, May 11th 1874.

It is true the Act of Assembly providing for the removal of a cause, in which a corporation is a party, from the county in which it is brought to another, declares the affidavit shall be made by the party. To give this a literal construction would defeat the manifest intent and spirit of the law. A corporation must necessarily act through its officers, agents and attorneys. The force of this fact is felt by the plaintiff. He admits that the affidavit may be made by an officer of the corporation, but denies that it can by an agent or employee. The reason for this distinction is not very clear. It cannot be because the existence of the necessary facts may not be as well known to an agent as to an officer. In fact an employee engaged upon the line of the road may know the sentiment of the people towards it better than an officer, whose time is occupied in the office, or who occasionally passes over the road. This affidavit was made by the superintendent of that division of the road where the controversy arose. It is not alleged that 'he made it without authority from the company, nor that his action therein has ever been repudiated by the defendant. The objection then must rest upon the ground of the legal inability of the defendant to 'authorize an agent or employee to make such an affidavit. In Academy of Eine Arts v. Power, 2 Harris 442, Chief Justice Gibson well asked, “ why should not the affidavit be as well made by a special deputy as by a president, secretary or treasurer ?” In that case the affidavit in behalf of the corporation was made by an agent to purchase a writ of error. It was held that the affidavit was well made by an agent, though he was not expressly deputed for that purpose. We see no error in the-first assignment.

The 3d, 4th, 6th and 7th assignments will be considered together. By the uncontradicted testimony it appears the plaintiff had purchased a ticket from Northumberland to Williamsport. He had ridden upon it as far as Milton, being less than one-third of the distance. Several days thereafter, he endeavored to ride upon it from Milton to Williamsport. The conductor refused to permit him so to ride, took up the ticket against the plaintiff's will, and put him off the train.

The court rejected the evidence offered by the plaintiff to prove that, before he was put out of the cars he offered to pay his fare, if the conductor would return his ticket; that the conductor refused to return it, but insisted upon retaining it and also upon the plaintiff’s paying his fare; to be followed by evidence that, in claiming to ride upon the ticket he was acting in good faith, upon information given to him by the ticket agent of whom he had previously purchased the ticket.

It appears the plaintiff voluntarily left the train at Milton, without having communicated his intention to the conductor in charge, and without making any arrangement for a subsequent continuation of the trip. It is claimed that this was an abandonment of his right to demand a passage upon that ticket over the untravelled portion of his journey. This view is sustained under the general rules of the company, by the authority of Dietrich v. Pennsylvania It. It. Co., 21P. F. Smith 442, and kindred cases. His legal right had terminated. If he thereafter procured a ride upon it, it would be through favor only of the company. Waiving these, the question is whether the plaintiff, under the general instructions given to the conductor, had a right to ride upon the ticket, it does not follow that the conductor had any right to take it from him. The conductor assumed the ticket to be of no value to the plaintiff, and persisted in retaining it. His determined persistency in retaining it was a most expressive declaration of its value to the defendant. The plaintiff believed it to be of value to him. The ticket agent had informed him that he was entitled to ride upon it. Thus the employees of the company differed. The plaintiff desired to test the question by legal proceedings. This ticket was to him important. It was evidence of value paid.. It was evidence of a claim which he desired to establish by law. By denying the plaintiff’s right to ride upon it, the conductor waived all right to take or retain it. The defendant had no more claim to this ticket than to any one of a half dozen other tickets, either cancelled or uncancelled, which the plaintiff may have had in his pocket.' By leaving the train at Milton the plaintiff lost no other right than of riding upon the ticket thereafter. He did not forfeit the right to retain the ticket, which, according to the rules of the company, had been left in his hands. Many stations intervened between Milton and Williams-port. Before leaving the former place the defendant would not have been justified in taking up the ticket without giving the plaintiff a check or some evidence that he had paid his fare: State v. Thompson, 20 N. H. 250. The right to take up this ticket must not he^ confounded with a case where a person has actually ridden on the ticket the whole distance for which it calls, nor where he has obtained it in fraud of the company. 'In either of these cases it may be taken up. In the former the rules of the company and the implied contract in its purchase require it. In the latter the holder never had any right to its possession. In this case the conductor, under his general orders, may not have been authorized to permit the plaintiff to ride on this ticket. There was, however, nothing in equity or good morals to prevent the defendant from permitting it to be done. There was no impropriety in the plaintiff’s retaining the ticket.

The conductor having ignored the plaintiff’s right to ride upon it, the most he was justified in doing was to require a payment of the fare. This the plaintiff proposed to show he offered to do, but the conductor required more. He required not only payment for the ride the plaintiff was then taking, but also the yielding up of a ticket on which he was not riding. The conductor had no such right. To concede to him the right to demand of a passenger anything additional to the accustomed fare would be fraught with the most mischievous consequences. While a railroad company should be protected in the enforcement of all its reasonable rules, yet fully equal care must be taken to protect the rights of passengers from any encroachment. The plaintiff was entitled to ride upon the payment of his fare only. It was in clear violation of law to require more of him. He was justified in requiring the return of the ticket improperly withheld from him. The defendants being in fault themselves cannot enforce the right against the plaintiff, which they seek to invoke: 1 Redfield on Railways 105, pl. 13; Jennings v. Great Western Railway Co., 12 Jur. N. S. 331.

Waiving the question then whether the declarations of the ticket agent, made several days after his sale of the ticket, were not admissible to establish a contract between the parties; we think they were admissible as evidence of the good faith of the plaintiff in his claim to ride upon it, and of his belief in its uncancelled condition. These facts, together with the additional one that the plaintiff was permitted to ride past several stations, are proper to be considered by the jury in determining whether he had just reason to suppose the conductor would permit him to ride through on the ticket, and was thereby induced to decline paying his fare until a late moment.

The fifth assignment is not very important. Inasmuch, however, as the witness had testified in regard to the ticket being punched, we think it was clearly pertinent to ask him “ whether he knew what punching meant ?” This may have been understood to ask whether he knew what act constituted punching, or what was its purpose.

We think the evidence covered by the eighth assignment bears upon the question of damages. The conductor having suffered the plaintiff to ride past several stations before ejecting him, and then having put him out, remote from any shelter, and in a severe storm, may be considered by the jury in deciding whether the conductor intentionally selected this inhospitable spot, or whether it happened to be the locality of the plaintiff’s persistent refusal to pay. The learned judge therefore erred in taking the case from the jury, and the judgment must be reversed.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Chief Justice Agnew

license: Public Domain

text:
    Mishler versus Reed & Henderson.
    1. On the face of a note on a printed form, made by Erey payable to the order of Mishler at the bank of Reed, “ without defalcation for value received was, “ credit the drawer,” which was not signed by Mishler. The note was endorsed by him, discounted by Reed and the proceeds passed to the credit of Erey. In an action by Reed against Mishler, evidence by him that it was an accommodation note, that he declined to endorse unless the proceeds went to his credit, and declined to sign under “ credit the drawer,” and endorsed with the understanding that the proceeds were to go to his credit, was inadmissible without notice to Reed of these facts when he discounted the note.
    2. Reed discounting the note without knowledge that Mishler was to control the proceeds, was a bonfi, fide purchaser for value and could not be affected by an understanding between Mishler and Erey.
    3. Not subscribing “credit the drawer,” was not notice to Reed, but in connection with the endorsement was evidence that the parties did not intend to use it according to the printed form.
    4. That the note was in the possession of the maker before due, was not evidence that he had paid it.
    5. Eckert v. Cameron, 7 Wright 120, recognised.
    May 5th 1874.
    Before Agnew, C. J., Sharswood, Williams, Merour and Gordon, JJ.
    Error to the Court of Common Pleas of Lancaster county: No. 33, to May Term 1874.
    This was an action brought May 4th 1872, by John K. Reed and Amos S. Henderson, trading, &c., as Reed & Henderson, against Benjamin Mishler, as endorser of the following note i—

      “ $200. • Lancaster, Pa., Feb. 24th 1872.
    “ Sixty days after date I promise- to pay to the order of B. Mishler, at the banking-house of Reed & Henderson, two hundred dollars, without defalcation, for value received.
    ‘‘ Credit the drawer. Jacob F. Feet.
    “ Endorsed, B. Mishber.”
    The case was tried October 29th 1873, before Livingston, P. J.
    The plaintiff gave the note in evidence, and that it had been discounted by them. It was admitted that the proceeds went to the credit of Jacob F. Frey in plaintiff’s bank, on his check; that it was a business note, and would not require defendant’s check to draw the money. The clerk of the bank, who was examined as a witness, could not state who procured the discount.
    The defendant offered to prove “ that the note in suit is an accommodation note; that Benjamin Mishler, payee and endorser, declined to endorse said note unless the proceeds, upon its being discounted, went to his own credit, and to effect that, declined to sign his name under the words ‘ Credit the drawer,’ on the face of the note; that he endorsed the note with the understanding that the proceeds were to go to his credit, to keep alive the insurance on the life of J. F. Frey, the premium being then due, and that the last day for the payment of the same. Nevertheless, the plaintiffs discounted the note and placed the proceeds to the credit of J. F. Frey, on his own check.”
    This was objected to by plaintiffs.
    By the court: “ There being no offer to prove that the plaintiffs had' knowledge of the facts stated in the offer, it is disallowed and a bill of exceptions sealed for defendant.”
    The court charged the jury to find a verdict for the plaintiffs for the amount due on the note.
    The verdict was for the plaintiffs for $220.62.
    The defendant took a writ of error. He assigned for error the rejection of his offer of evidence.

      W. JR- Wilson and O. J. DicJcey, for plaintiff in error.

      Gr. Nauman, for defendants in error, was stopped.
   Chief Justice Agnew

delivered the opinion of the court, May 18th 1874.

The offer, the rejection of which is assigned for error, lacks an essential element, viz., notice to the plaintiffs of the fact that Frey had no right to control the proceeds of the note. Admitting all the facts offered to be proved, if Reed & Henderson, when they discounted the note, had no knowledge that Mishler was to control the proceeds, they were bonfi fide purchasers of the paper for value, and cannot be affected by the private understanding.between Frey and Mishler. The printed form of the note kept for general use was no notice to the plaintiffs, because the words “ Credit the drawer,” constituting a part of the printed form, were not subscribed by the payee. On the contrary, the fact that they were not subscribed, and that the note was turned over and endorsed by Mishler in blank, was evidence that the parties did not intend to use the note according to the form. If Mishler intended to control the proceeds, he ought to have endorsed the note specially to his own order or to the credit of his own account. But by his endorsement in blank he sent the note out into the channels of business, to be used by the bearer. The fact that the note is found afterwards in the possession of the maker before it has fallen due, affords no legal presumption that it has been paid and taken up. It is not presumed that the drawer paid it before maturity. This point was decided in Eckert v. Cameron, 7 Wright 120.

We discover no error in the rejection of the defendants’ offer, and the judgment is affirmed..


author: Mr. Justice Gordon

text:
    Miller & Reist versus Kreiter to the use of Bomberger.
    1. Reist gave a non-negotiable note to Kreiter dated. January 9th 1871, payable in a year. He afterwards endorsed for Kreiter’s accommodation a note which became due and was protested June 10th 1871. Kreiter assigned the first note.to Bomberger, who brought suit on it January 25th 1872; judgment was recovered April 6th 1872 against Reist as endorser on the second note ; he paid the judgment May 20th 1873. On the trial August 30th 1873 of the suit on the first note, Reist could set off the amount of the judgment recovered against him on the second.
    2. When Kreiter’s note was protested, Keist’s liability was fixed and his right to set-off against any claim Kréiter had against him then originated ; when he paid the note, he was in the same position as if he had paid it when protested.
    3. Between an assignee of a chose in action and the debtor the rights of the parties are determined by the time the debtor had notice, not the time of the assignment.
    4. One of two or more defendants may set off his individual claim against the plaintiff’s joint claim.
    5. Archer v. Dunn, 2 W. & S. 361; Beaver v. Beaver, 11 Harris 167; Childerston v. Hammon, 9 S. & R. 67, followed.
    May 5th 1874.
    Before Asnew, C. J., Sharswood, Williams, M@rour and Gordon, JJ.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1874, No. 19.
    This was an action of assumpsit, brought January 25th 1872, by C. W. Kreiter to the use of Isaac F. Bomberger, against S. C. Miller and A. H. Reist, on a joint and several non-negotiable note, dated January 9th 1871, payable to Kreiter in one year for $2000. The defendants pleaded payment with leave, &c., and set-off.
    The defendants and Kreiter had been in business together as partners, and, on arranging their business, this note was given by the defendants to Kreiter for his interest in the firm. It was agreed at the same time that notes in the Inland Insurance Company or any other institution which Kreiter had drawn in the name, of the firm and used the money himself, should be set off against this note which was drawn non-negotiable to enable the set-off to be made. Kreiter assigned this note to Bomberger, the use-plaintiff, by the following endorsement on it:—
    “ I hereby transfer my right, title and claim to the within note to I. F. Bomberger, for the consideration as collateral security, for endorsing me on a note discounted in the Litiz Deposit Bank.
    “ C. W.. Kreiter.”
    The set-off above mentioned was conceded'on the trial, and there then remained $675.34 due on the $2000 note.
    To this balance the defendants claimed to make a further set-off arising from the following note:—
    “ Lancaster, April 8th 1871.
    “ Sixty days after date, I promise to pay to the order of John S. Hostetter, thirteen hundred dollars, at the First National Bank of Lancaster, without defalcation, for value received.
    “ C. W. Kreiter.
    “ Credit the drawer, 1 “ John S. Hostetter. j
    “ Endorsed — John S. Hostetter, A. H. Heist.”
    Protested for non-payment, June 10th 1871.
    This note passed into the hands of A. S. Bard, who brought suits on it against Kreiter, Hostetter and Reist; and on the 6th of April 1872, recovered judgment in each suit for $1366.46. Reist paid the amount of this judgment. The judgments against Kreiter and Hostetter were assigned to him May 20th 1873, and that against himself marked satisfied.
    On the trial, August 30th 1873, before Hayes, J., the foregoing facts appeared in evidence. Isaac F. Bomberger testified also: “I had been endorser for C. W. Kreiter on two notes — one for $1500, and one for $2000, and also guarantied a check for $850. I refused to endorse any longer unless he would give me some collateral security; he was then solvent; had real and personal property ; he may have been insolvent, but he owned a good deal of property; he was not sold out; he came to me with this note signed by A. H. Heist and S. C. Miller; represented, or said this note represented, his interest in a liquor store in Lancaster, of which he was a partner with Miller & Reist; said he -was still a partner, and the word order was left out because he was a silent partner. I paid nothing additional, hut I guarantied a check at the time this note of Miller & Reist was transferred to me. This transfer was written at the time the note was given to me.”
    The court, after stating the facts, charged:— * * *
    “ The difficulty depends upon the claim of set off in relation to the debt due from C. W. Kreiter to A. H. Reist, which the defendants claim to set off in this action, together with the notes paid to the Inland Insurance and Deposit Company. With respect to the latter there is no longer any dispute, it being conceded that the defendants are entitled to set off them; but it is objected to the note left for collection with the First National Bank, and which A. H. Reist, being an endorser, has paid for C. W. Kreiter, that it cannot be a proper subject of set-off in this case, which is a suit against two defendants, and the other was in no way responsible for this note, and the debt due from the plaintiff on that account is to the other defendant. [A set-off in general cannot be claimed by one of two or more defendants in the same suit for a debt due to one only, which, being this case, defeats the claim as to this note, if there be nothing to make it an exception to the rule— some superior equity in A. H. Reist’s claim over and above that of Isaac F. Bomberger.] [Again, the set-off must depend upon the condition of the claim at the time of the suit brought; it must have existed at that time. In this case A. H. Reist had not paid this note when the present suit was brought, but paid it more than a year afterwards.]

      “ I am, therefore, of opinion, that [unless the jury believe, on a review of the transactions of these parties, that the defendant, A. II. Reist, has some equity superior to that of Isaac F. Bomberger, the real plaintiff, his claim to set off the note left with the First National Bank cannot be maintained, more especially as he acquired the claim long after this suit was brought.”]
    The verdict was for the plaintiff for $675.34.
    .The defendants took a writ of error, and assigned for error the parts of the charge in brackets.

      T. F. Franklin (with whom was N. Fllbnaker), for plaintiffs in error.
    The note not being negotiable, was a chose in action, subject to be defeated by any defence which might have been made against it in the hands of the original holder, especially where, as here, it was held as an indemnity for obligations assumed before the transfer was made. It was not shown that any injury had resulted to the equitable holder from the endorsements, to protect him against which the transfer purports to have been made: Act of Defalcation of 1705, sect. 1, 1 Br. Purd. 487, pl. 1. Under it the right to set off one demand against another is one of which the defendant cannot be deprived by the election of the plaintiff to bring a joint suit on a joint and several instrument: Stewart v.
      Coulter, 12 S. & R. 252; Krause v. Beitel, 3 Rawle 199. Reist’s liability on the note which he claims to set off had already accrued at the time the note in suit was given, and it became due before suit brought, and indeed before the maturity of the note in suit. His liability on it was fixed by its protest for non-payment: Frantz v. Brown, 1. Penna. R. 261; Krause v. Beitel, 3 Rawle 199; Smith v. Myler, 10 Harris 36 ; Beaver v. Beaver, 11 Id. 167.

      D. McMullen, for defendant in error.
    A joint claim cannot be set off against a separate debt, nor a separate claim against a joint-debt: 2 Parsons on Contracts 738; Waterman on Set-off 282; 2 Story’s Eq. J., sect. 1437; Henderson v. Lewis, 9 S. & R. 379. Reist not having paid the note when suit was brought, cannot set it off to the injury of Bomberger: Morrison v. Moreland, 15 S. & R. 63; Huling v. Hugg, 1 W. & S. 418; Pennell v. Grubb, 1 Harris 554.
   Mr. Justice Gordon

delivered the opinion of the court, May 25th 1874.

Reist, the defendant, by his endorsement of the note drawn by Kreiter to Hostetter, became surety for Kreiter. Hence, as soon as the note was protested, June 10th 1871, and Reist’s liability as endorser became fixed and absolute, he was entitled to call upon the maker to exonerate him from such liability, and that even before demand was made upon him for payment: Beaver v. Beaver, 11 Harris 167. His right of set-off, as against any claim Kreiter had against him, may be said to have originated from this period. When, therefore, he paid the note on which he was endorser, May 20th 1873, he was, by force of his equitable status, put in the same position as if he had paid it at the time of protest. Again, as there is no evidence of the date of the assignment to Bomberger of the non-negotiable note drawn by Miller & Reist, on which this suit is founded, and as Reist had no notice thereof previously to the service of the summons, January 25th 1872, as against him, it could be effective only from that date; for the rule is, that the period from which to determine the rights of the assignee and defendant is not the date of the assignment, but the time when the latter had notice: Northampton v. Balliet, 8 W. & S. 311. It follows, therefore, that Reist’s equitable set-off having arisen before the assignment to Bomberger, he had the right to defalk his claim against the note in suit, and the court should so have ruled.

The counsel for the defendant in error is mistaken in the supposition that one of two or more defendants may not set off his individual claim against the joint claim of the plaintiff. The converse of this is held in Childerston v. Hammon, 9 S. & R. 67, and Archer v. Dunn, 2 W. & S. 361.

Judgment reversed, and a venire facias d& novo awarded.


author: Mr. Justice Mercur

text:
    Fry’s Appeal.
    1. In distribution of the proceeds of a sheriff’s sale of real estate, the costa of the sale should be first paid and then the liens divested by the sale paid according to their priority.
    2. The costs thus preferred do not include those made in obtaining the judgment, but commence with the issuing the execution to effect the sale.
    3. Land was sold on executions but the proceeds were insufficient to pay prior liens. Held, that officers’ fees for services prior to issuing the executions could not be paid out of the proceeds. They stood on no higher ground than the judgment to which they were attached.
    May 5th 1874.
    Before A&new, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Appeal from the Court of Common Pleas of Lancaster county: Of May Term 1874, No. 39. In the distribution of the proceeds of the sheriff’s sale of the real estate of Daniel Breitigam.
    On the 19th of November 1872, Levi W. Groff issued a fi. fa. on a judgment in his favor against Daniel Breitigam. Fi. fas. were issued also on judgments in favor of Martin H. Fry and George Shreiner respectively against Breitigam. The defendant having waived an inquisition, the land was sold under, the fi. fas., and the net proceeds of sale, $1680.32, were paid into court. Of this sum, $1361.20 were paid to the first and second liens against ¡the defendant. The third lien was that of Fry ; the fourth, Groff’s judgment; and the fifth, Schreiner’s judgment. The balance of the fund, after deducting the expenses of the audit, was $266.12, and was insufficient to pay Fry’s judgment in full.
    The costs accrued before issuing the fi. fas. were, on Groff’s judgment $14.25, and on Shreiner’s judgment $14.07.
    A rule was awarded to show cause why these sums which had been retained by the sheriff, and, under a rule on him paid into court, should not be paid to Fry, and also a rule to show cause why they should not be paid to the officers to whom the costs were due.
    After argument, the court (Hayes, J.) discharged the first rule, and made the second absolute. It was decreed that the money be paid by the prothonotary to these officers.
    Fry appealed to the Supreme Court, and assigned this decree for error.

      A. J. Eberly and J. B. Amwahe, for appellant.

      8. B. Eby, for appellee.
   Mr. Justice Mercur

delivered the opinion of the court, May 25th 1874.

..In-the distribution of money raised by the sheriff’s sale of real estate, the costs of sale should first be paid, and the residue of the fund be applied on the liens divested by the sale, according to their priority. The costs thus preferred do not include those made in obtaining the judgment, hut commence with the issuing of the execution necessary to effect the sale. In this case the fund was insufiicient to pay the liens which were prior to the judgment in favor of Groff, on which the sale was made. It was therefore error to apply any of the fund in payment of the costs of his judgment made prior to the issuing of the fi. fa. In decreeing the costs of subsequent judgments to be paid the error is equally manifest. The learned judge appears to have thought, inasmuch as those costs were officers’ fees, and the sheriff had collected a fund by a sale of the property of the defendant in the judgments, therefore those fees were collected, and the money was held in trust for the officers entitled to receive it. The fallacy of this reasoning is in assuming that those fees were collected. They were not collected. As the fund was insufficient to reach the judgments of which those fees form a part, and the sale was not made on process issued on either of them, no part of those judgments was collected. Hence the money could not be held in trust for the officers who were entitled to those fees. The fees for all purposes of the distribution of this fund stood upon no higher ground than other parts of the judgments to which they were attached.

Decree reversed, and now it is ordered that the record he remitted, with instructions to decree a distribution conformably to this opinion, and that the costs of this appeal be paid by the appellees.


author: Mr. Justice Sharswood

text:
    Brubaker’s Administrator versus Taylor.
    1. When a party is called as a witness by his adversary as on cross-examination under Act of April 15th 1869, sect. 2, leading questions may be put to him and there may be drawn from him any facts or admissions which weaken his case or strengthen his adversary’s.
    2. The party so called is to be considered, as if originally offered and examined on his own behalf.
    3. The testimony of a party so called may be contradicted by proof of inconsistent declarations made out of court, without giving him an opportunity of explaining; his declarations, he being a party, are evidence in themselves.
    4. The plea of “ nil debet,” to a sealed instrument is bad on general demurrer; but if the party goes to trial without objection, it is not to be treated as a nullity ; its effect is the same as upon simple contract.
    5. A long time, but less than twenty years, having elapsed from the maturity of a sealed note and bringing suit although not long enough to raise the presumption of payment in law ; would with corroborative circumstances justify submitting to the jury to presume payment. Such circumstances in this case.
    May 6th 1874.
    Before Agnew, O. J., Sharswoob, Williams, Mercur and Gordon, JJ.

      Error to the Court of Common Pleas of Lancaster county: Of May Term 1874, No. 55.
    This was an action of debt brought February 21st 1871, by Mary Taylor against Simon Brubaker, administrator, &c., of Francis Brubaker, deceased.
    The cause of action was the following note:—
    “ Three months after date, I promise to pay to Mary Taylor the sum of thirteen hundred dollars, lawful money of Pennsylvania currency, without interest, for value received. My hand and seal this 1st day of January 1852.
    Francis Brubaker, [seal.]” .
    The pleas were “nil debet and payment.”
    The case was tried October 27th 1873, before Livingston, P. J. The plaintiff gave the note in evidence and admitted a set-off of $900. She then rested.
    The defendant called the plaintiff as on cross-examination under the 2d section of the Act of April 15th 1869 (Pamph. L. 30, 1 Br. Purd. 624, pi. 17), which is as follows—
    ■ “ A party to the record of any civil proceeding in law or equity, or for whose immediate benefit such proceeding is prosecuted or defended, may be examined as if under cross-examination, at the instance of the adverse party, or any of them, and for that purpose, maybe compelled in the same manner, and subject to the same rules for examination as any other witness to testify; but the party calling for such examination, shall not be concluded thereby, but may rebut it by counter testimony.”
    The defendant, who was a daughter of the decedent, testified that her father died in 1868, he gave her the note on the day of its date “ to show that he had given me $1300, when he is no more: $1000 he had given to my husband and the interest he said he wrould bestow on me, that made the $1300her father bought real estate for her from Abraham Kendig for $1300, he sold it again and got the money, it was sold for her. “ My father after he sold the property never asked me for the note, and I never told him that I had destroyed it; he asked me about the note, and said it was all right, I know nothing particular that occurred in my father’s room a night or two before he died; there was nothing said about it; I was present with father during his last illness; Lydia Hauck, my sister, and Spiehlmans were there, also during his last illness; a night or two before father’s death I did not go to him and ask him what was troubling him; he • did not say it was this note; I did not tell him I had burned it; I did not say so in presence of my sister, Lydia Hauck; the last conversation I had with him about this note was about a couple of years before his death at my daughter’s, Mary Hastings; he asked to see it; it was shown to him, and he said it was all right; I had no conversation with him on his death-bed, or a few days before his death, about this n'ote, or any note, in presence of Lydia Hauck and Greorge Spiehlman and Mrs. Spiehlman. * * * Father gave
    husband $1000 to make us all equal; in 1852 father recovered from my husband John Taylor’s estate $1300 and gave me this note ; on this note I received $900, and that is all.”
    Lydia Hauck testified: “I am sister of Mrs. Taylor, the plaintiff; I was present during the last illness of my father; my father asked Mrs. Taylor about this note in my presence; she says, ‘ don’t trouble yourselves about it, it will never trouble you ;’ he says, ‘it should never trouble me or anybody else;’ she says, ‘it won’t — didn’t I tell you long ago it was destroyed;’ he says, ‘so it ought! so it ought!’ This was a day or so before he died; that was all I heard then; she was sitting beside his bed; I was there also; we had given him up then ; I was present when she got the note; I know what it was given for; father told her she shall hold this note till he pays this property he bought of Kendig, and when he does that she shall destroy it or give it to him, she can’t keep it any longer.”
    The defendant then recalled the plaintiff and proposed to ask her the following questions:—
    “ Did you not tell Spiehlman, your brother-in-law, some time before the death of your father, at Spiehlman’s house, in a conversation with him, about this note, that you had told your father what became of the note, that he should not trouble himself about it, that you had destroyed it, or burned it; but told Spiehlman you still had the note in your possession ?
    “ What conversation had you with your sister Spiehlman, the day of your father’s funeral, with reference to this note ?
    “ Did you not say to Mr. Spiehlman on the day of your father’s funeral, that you were dissatisfied on account of Simon Brubaker, your brother, being the administrator of your father’s estate, or becoming the administrator of the estate; that if the estate was not properly settled up by him, and you did not' get your rights, you would bring in this $1300, and eat up the whole estate?”
    These questions were severally objected to by the plaintiff rejected by the court and bills of exceptions sealed.
    There was other evidence on both sides; the questions decided by the Supreme Court are sufficiently presented by that given.
    The court, after referring to the facts, charged: * * *
    “ This case, so far as dates are concerned, is left in obscurity. There are no dates given of the purchase or sale of the Kendig property; or the purchase of the Strasburg house. We take the latter to have been purchased in 1867. It does not appear in the evidence, whether the title of the Kendig property was made. to Mrs. Taylor or to Mr. Brubaker; the testimony rather induces the belief that it was made to him, for it is said he bought it, and he sold it again and received the purchase-money.
    [“ You will remember, that there is no evidence of any payment made in this case, except that which is admitted by the plaintiff and proved by her own testimony, and that of her son, J. Z. Taylor ;] nor is it proved or even alleged that in any conversation between her and Francis Brubaker, he stated or alleged that the note, or any greater amount than she admits to have been paid, was paid.
    “ In an action upon a bond, or a note under seal, such as forms the basis of this action, even if want of consideration were alleged, it would not avail; for want of consideration would be no defence. If Francis Brubaker, being in the exercise of a capable will, freely, and without fraud, or duress (and in this case, there is neither fraud or duress alleged, nor proved), made, sealed and delivered to Mary Taylor, his daughter, the note or instrument in writing sued upon, it was a valid obligation, and might have been enforced against him in his lifetime, after maturity, and may be enforced against his estate, and so much as remains unpaid recovered against his estate-in this action.” * * *
    The verdict was for the plaintiff for $1596.
    The plaintiff took out a writ of error and assigned for error the rejection of his offers of evidence and the part of the charge in brackets.

      H. 0. Brubalcer, for plaintiff in error,
    referred to the Act of April 15th 1869, sect 2. A party examined under this act is subject to the same kind of examination as an adversary witness on cross-examination would be. In this case the defendant should have been allowed to examine Mrs. Taylor upon everything concerning the note in question. Mrs. Hauck’s testimony was some evidence on the question, and there was error in saying that there was no evidence of payment except from plaintiff and her son; this irrespective of the plea of “nil debet,” for that might have been amended and in the Supreme Court will be treated as if it had been : Kelsey v. National Bank of Crawford, 19 P. F. Smith 431.

      S. H. Reynolds, for defendant in error.
    The plea being payment, answers to the questions proposed would not tend to show that the note had been paid : 2 Grreenleaf Ev. 516.
   Mr. Justice Sharswood

delivered the opinion of the court, May 25th 1874.

Under the second section of the Act of Assembly of April 15th 1869, Pamph. L. 30, when the plaintiff below was called to the stand as a witness by the defendants they had a right to examine her as if under cross-examination — put to her leading questions— and draw from her any facts or admissions which would corroborate their own case or weaken hers. The act provides that “ the party calling for such examination shall not be concluded thereby but may rebut it by counter testimony.” It is evident that she was to be considered in all respects as if originally offered and examined as a witness in her own behalf. We think it clear then that the questions overruled by the learned court and which form the subject of the first three assignments of error were entirely proper. The answers would either have corroborated the testimony of Mrs. Hauek, the witness examined by the defendants, or if desired, Mr. and Mrs. Spiehlman could have been called to contradict her. If she had really made such admissions, Mrs. Taylor would have had the opportunity of explaining how she came to make them. To this she surely had no right to object. It was not the case of contradicting and discrediting an ordinary witness in a material point by showing inconsistent declarations out of court, when according to the well settled rule, such questions are in general necessary in order to give the witness an opportunity of explaining; but as Mrs. Taylor was the party, these declarations were evidence in themselves and could be proved without giving such opportunity. It is supposed, however, that they were not relevant to the issues. The pleas were nil debet and payment. It is true that nil debet to a declaration on a sealed instrument is bad on general demurrer. But if the party chooses to go to trial upon it without objection, it is not to be treated as a nullity: Ziegler v. Sprenkle, 7 W. & S. 179. It is in effect not indebted, the same as in debt on simple contract. Surely then if she declared at any time that the note had been destroyed, and that it would not be brought forward unless the estate was not properly settled, and she did not get her rights, it tended to show that there was no existing debt, whether it had been discharged by payment, release or in any other way. But even under the plea of payment strictly construed the evidence was admissible. Nineteen years had elapsed between the maturity of the note and the institution of this suit, and although not long enough to raise the presumption of payment in law, yet quite enough to justify leaving the question to the jury with other circumstances. Now these declarations, if made by Mrs. Taylor, would amply justify the court in submitting to the jury as a question of fact, to presume that the debt had been paid or discharged.

As to the part of the charge complained of in the fourth assignment, as the learned judge evidently referred to payment in money or its equivalent, we cannot say that it was an error.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Williams

text:
    Warfel versus Frantz et ux.

    1. A bond for money borrowed by S. stated that S., H. and W. were bound to M. the lender and wife of F. After it was prepared by F. it was signed by S. and then by IV. as surety; it was afterwards signed by 0. but not by Ii. In a suit against IV. he gave evidence that he signed it without reading, with the understanding that II. and G. were to be co-sureties, and that when IV. handed it to F. he directed him to get the names of 0. and H. to it. The court charged that in absence of an express stipulation by IV., assented to by F., that it should not be delivered to M. until the names of O. and II. were signed, the contract was perfect as to W. Held, to be error; the bond was not binding on W. if he stipulated that it should not be delivered without the names of 0. and II., although F. did not assent to the stipulation.
    2. The assent of «F. to the stipulation was not necessary to make the delivery conditional, or if it was, his assent was to be implied from the acceptance of the bond.
    3. If IV. handed the bond to F., with the understanding that it was to be signed by II. and C., it was a conditional delivery, and unless they signed the bond there could be no recovery against IV.
    May 5th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1874, No. 43.
    On the 14th of June 1870, Abraham M. Frantz and Mary Ann his wife to her use brought an action of debt against Abraham Scheetz and Jacob F. Warfel.
    The cause of action was a bond, to wit:—
    “ Know all men by these presents, that I, Abraham Scheetz, of, &c., and Plenry Scheetz and Jacob F. Warfel, of, &c., are held and firmly bound unto Mary Ann Frantz, of, &e., in the sum of eight hundred dollars, lawful money of Pennsylvania, to be paid to the said Mary Ann Frantz, or to her certain attorney, &e., to which payment well and truly to be made we bind ourselves, our heirs, executors and administrators. Sealed with my seal, dated the 1st day of April, one thousand eight hundred and sixty-seven.
    “The condition of this obligation is such, that if the -above bounden, Abraham Scheetz and Henry Scheetz, and Jacob F. Warfel, their heirs, &c., shall and do well and truly pay, &e., unto the above-named Mary Ann Frantz, or to her certain attorney, &c., the sum of four hundred dollars, on or before the 1st day of April next, ensuing the date hereof, with lawful interest, without fraud, &c.
    Sealed and delivered in presence of A. M. Frantz, Abram Scheetz, [seal' Christian Scheetz, “seal] Jacob F. Warfel, [seal] her
    David E. Campbell. Catharine M Scheetz.” mark.

      On this bond were endorsed receipts from Abram Frantz of interest for 1867 and 1868.
    The case was tried September 2d 1878, before Livingston, P. J.
    For plaintiff Abraham M. Frantz, one of the witnesses to the bond, testified that he was present when Jacob F. Warfel defendant signed the bond. Abraham Scheetz got the money; Christian Scheetz was his father. Witness prepared the bond ; when Abraham Scheetz signed, the name of Warfel was not in the body of the bond, because it was not known whether he would be bail; the bond was explained to Warfel by Scheetz; when Warfel signed there was no name to the bond but Abraham Scheetz; Christian Scheetz asked Warfel if he would go with him on the bond ; Warfel then signed; Henry’s name was in it when explained ; Henry’s name was not read to Warfel; witness got Henry’s name in by mistake in place of Christian’s ; they were brothers; it was not intended to put Henry’s name in the bond. Warfel when he signed the bond did not give it to witness to get the names of Christian and Henry Scheetz to it; when asked to go on the bond, Warfel did not say that he would if Abraham, Christian and Henry Scheetz would go on it.
    The defendant Warfel testified, that Abraham Frantz asked him if he would go on a bond for $400 providing Christian, Henry and Abraham Scheetz would go on; “I told him I would providing they, the three Scheetz, would go on with me. * * * Frantz read the bond to me as if Christian, Henry and Abraham Scheetz and I were bound in the bond for $400defendant then signed the bond and handed it to Frantz and told him to get the names of Henry and Christian on ; defendant did not read the bond or look over it; the agreement when he signed was that Christian and Henry would sign; all three were to be on.
    The defendant’s sixth point and the answer were:—
    Point: “ If Warfel handed the bond over to Abraham M. Frantz with the understanding that he should procure to it the names of Christian and Henry Scheetz, it was only a conditional delivery, and unless such condition was complied with cannot be enforced.”
    Answer: “ The handing of the bond, after signing it, by Warfel to Frantz, completed its delivery, and in the absence of fraud on the part of Frantz in obtaining it, or an express stipulation on the part of Warfel, assented to by Frantz, that it should not be given to Mary Ann Frantz, to whom it is made payable, until the names of Christian and Henry-Scheetz were signed to it, made the contract expressed in the bond perfect in reference to Warfel, the defendant, and it may be enforced against him.”
    The court amongst other things charged': * * *
    “We say to you, therefore, that the plaintiff is entitled to .recover the amount due on this obligation from Warfel, the defendant in this action, unless you find, from all the evidence in the cause, that Jacob F. Warfel, the defendant, from whom a recovery is now sought, was deceived, and induced by fraudulent and false representations and misstatements of fact, made by Abraham M. Frantz, to sign the bond in question, and become a responsible party to it; or, unless Warfel, when he executed the bond and handed it to Frantz, expressly stipulated that Frantz should not deliver the bond to Mrs. Frantz, to whom it is made payable, until the names of Christian Scheetz and Henry Scheetz were obtained to it, and Mr. Frantz so promised; in such case, until the condition was performed, there could be no legal delivery, and it wbuld not be the bond of Warfel. * * *
    “ The mere fact that all the parties whose names are inserted in a joint and several bond have not signed it, is, after delivery, no defence, and does not prevent a recovery against one of a number who have signed it. In such case there is no implied condition that all named as obligors should sign it to make it binding on any ; if either party signing wished to protect himself, he should, when he signs, deliver the bond as an escrow, that is, when he executes the bond, he should expressly stipulate that it shall not be delivered, or effectual, until all the names mentioned in it are signed to it, and the agent of the party so receiving it, should so promise; the bond is, then, in the hands of the agent, in the nature of an escrow, and until the condition imposed be performed, it cannot be legally delivered, and therefore is not, and cannot be in law, the deed or bond of the party signing it and making such express stipulations. This does not appear to us to have been done in the present case, but it is a question of fact for your decision.” * * *
    The verdict was for the plaintiffs for $510.66.
    The defendant removed the record by writ of error to the Supreme Court.
    He assigned a number of errors; the fourth was the answer of the court to his sixth point.

      JR. M. Agnew and H. Fllmaker, for plaintiffs in error.
    The party to whom a surety is bound must put the surety in possession of all the facts that may affect the extent of his liability: Chittv on Contracts 527, 528. Misrepresentation of the contents of the bond avoids it: Schuylkill Co. v. Copley, 17 P. F. Smith 886 ; Green v. N. Buffalo, 6 Id. 114.

      Andrew M. Frantz and W. JR. Wilson, for defendants in error.
   Mr. Justice Williams

delivered the opinion of the court. July 2d 1874.

The verdict of the jury establishes the fact that the defendant was not induced to sign the bond by false representations or misstatements of the plaintiff’s husband and agent. He was, therefore, liable as surety for the amount of the bond, though it was not signed by one of the co-sureties named therein, unless its delivery was conditional, and only to become absolute upon obtaining his signature. Its possession by the plaintiff was primfi facie evidence of its actual delivery, and the burden of showing that it was delivered as an escrow was on the defendant. Whether its delivery was absolute, or conditional, was a question of fact for the determination of the jury, and if it was submitted to them with proper instructions the judgment must be affirmed; otherwise it must be reversed. The court charged the jury “ that the plaintiff is entitled to recover the amount due on this obligation from Warfel, the defendant in this action, unless you find from all the evidence in the cause, that * * * Warfel, when he executed the bond and handed it to Frantz, expressly stipulated that Frantz should not deliver the bond to Mrs. Frantz, to whom it is made payable, until the names of Christian Scheetz and Henry Scheetz were obtained to it, and Mr. Frantz so promised; in such ease, until the condition was performed, there could be no legal delivery, and it would not be the bond of Warfel.” And in answer to the defendant’s sixth point the court said: “ The handing of the bond, after signing it, by Warfel to Frantz, completed its delivery, and in the absence of fraud on the part of Frantz in obtaining it, or an express stipulation on the part of Warfel assented to by Frantz, that it should not be given to Mary Ann Frantz, to whom it is made payable, until the names of Christian and Henry Scheetz were signed to it, made the contract expressed in the bond perfect in reference to Warfel, the defendant, and it may be enforced against him.”

Undoubtedly it was not an absolute but a conditional delivery of the bond, if Warfel, when he handed it to Frantz, expressly stipulated, and Frantz promised, that it should not be delivered to his wife until the names of Christian and Henry Scheetz were obtained to it. But what if Frantz made no such promise ? Was there then a good and valid delivery of the bond ? If the defendant signed and handed it to Frantz upon the express condition that it was not to be delivered to his wife until the names of Christian and Henry Scheetz were obtained to it as co-sureties, then Frantz had no right to treat it as an absolute delivery, whether he expressly assented to the condition or not. It did not require his assent in order to make such a delivery conditional; and if it did, his assent would be implied from his acceptance of the bond. The defendant was under no obligation to sign it as surety. It was a voluntary act on his part, and he had the undoubted right to insist, as a condition precedent to its actual delivery, that it should be signed by Christian and Henry Scheetz as co-sureties: and if he did, no liability would arise until the condition was complied with. But the jury may have inferred from the instructions of the court that such a condition would not have been binding unless it was expressly assented to by Frantz, and in this aspect of the case both the charge and the answer to the defendant’s sixth point had a direct tendency to mislead them. The court should have affirmed the point without qualification and instructed the jury in accordance therewith that if the defendant handed the bond to the plaintiff’s husband with the understanding that he should procure to it the names of Christian and Henry Scheetz, it was only a conditional delivery, and unless such condition was complied with, its payment cannot be enforced.

The other assignments are not sustained, and there is nothing in them that calls for discussion.

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


author: Pee Curiam.

text:
    Mohn’s Appeal.
    A testator made bequests to his widow, his second wife; he gave an equal share of the residue of his estate to a grandson the child of his only son by her and a share to each of his children of a former marriage. He directed in case his wife “ takes property as by law entitled to take not exceeding 35300 in addition to what I have in this my will given her, such sum of 35300 shall be deducted from the share given to my grandson and my other children shall not be affected thereby.” The widow refused to take under the will, took her thirds and also the 35300. Held, that the 8300 was to be deducted from the grandson’s share.
    May 6th 1874.
    Before Ag-new, C. J., Siiarswood, Williams, Mercur and Gordon, JJ.
    Appeal from the Orphans’ Court of Lancaster county: Of May Term 1874, No. 102. In the distribution of the estate of Elias Redcay, deceased.
    Emlen Franklin, Esq., was appointed auditor to report distribution of the balance in the hands of Isaac Fichthorn, executor, &c., of the decedent; he found as follows:—
    The decedent by his will dated March 2d 1865 and, proved February 20th 1867, gave to his wife, .certain personal property, an annuity and the use, occupation and income of part of his real estate during widowhood; these bequests he declared to be “in lieu of her dower or one-third to which she as my widow by law would be entitled to out of my whole estate.”
    He directed all his real estate, and his personal estate not specifically bequeathed, to be sold as, set out in his will. He then gave a number of pecuniary legacies, and directed the remainder of his estate to be divided into seven shares ; he gave one of these shares to each of his children and the remaining share for the use — as directed in the will — of his grandson, Elias, the only child of his son Elias, deceased. He then provided “ that if in case my wife claims and takes property, as by law entitled to take, not exceeding three hundred dollars in addition to what I have in this my will given to her, then in such event such sum of three hundred dollars shall be deducted from the share as herein given to my grandson, and my other children shall not be affected thereby.”
    His widow was his second wife, and his deceased son Elias was her only child.
    The widow refused to take under the will, and the real estate was sold by the executor subject to a charge of one-third of the purchase-money for her during her life. She also claimed and received $300 of personal property under the Act of Assembly.
    The only disputed question was whether the $300 should be taken from the share of Elias the grandson.
    ' The auditor reported that the share of the grandson should be charged with that amount.
    Henry Gr. Mohn, guardian of the grandson, excepted to the report: that auditor erred in deducting the $300 from the share of 'the grandson.
    The Orphans’ Court overruled the exception and confirmed the report. The guardian appealed to the Supreme Court and assigned the decree of confirmation for error.

      J. B. Amwahe, for appellant.

      P. I). Baleer, for appellee.
   Judgment was entered in the Supreme Court, May 18th 1874.

Pee Curiam.

There cannot be any doubt that the testator intended that if his widow, who was a second wife, should claim the $300 exemption, the loss to his estate should be thrown upon the share of her own child, and not upon the shares of the children by his former wife. It was the testator’s mode of equalizing his estate among his children, having provided as he thought fairly for his wife. If, therefore, she chose to reject that provision, and claim according to law and in addition to take the $300, the presumption is that she believed that the portion thus taken would be better than the provisions of the will. Consequently the shares of the children would suffer diminution by her claim at law, and the reason is stronger therefore that the $300 should come out of her own son’s share.

Decree affirmed, appeal dismissed and the costs ordered to be paid by the appellants.


text:
    Steffy and Skimp’s Appeal.
    1. Executors petitioned the Orphans’ Court for authority to mortgage for the payment of debts; legatees without filing an answer, appeared by attorney and objected ore terms to granting authority, the court awarded a rule to show cause why the authority should not be given, which was made absolute. Held not to be proper practice.
    2. The Orphans’ Court is a court of equity within its limits ; its proceedings should have the substance of equitable form; by petition, answer and replication in which the requisites making the case should appear.
    3. A testator devised all his real estate and gave a number of legacies; the inventory showed fifteen bonds payable to him at distant periods without interest; the amount of his debts exceeded his personal estate exclusive of the bonds; with the bonds it would pay the debts. Held, that under the cir cumstances a mortgage might be authorized, but the order should providt for everything essential to do equity among all the parties.
    May 6th 1874.
    Before Agnew, C. J., Sharswood, Williams, Merour and Gordon, JJ.
    Appeal from the Orphans’ Court of Lancaster county : Of May Term 1874, No. 88.
    The proceeding in this case was upon the application of Samuel B. Sheaffer and others, executors, &c., of Levi Sheaffer, deceased, for authority to mortgage the real estate of the decedent for the payment of his debts.
    Levi Sheaffer made his will dated October 15th 1872, and by it, after having made provision for his wife, amongst other things, devised to his son Solomon a tract of 83 acres of land, charging it to him at $160 per acre, of which he gave to Solomon $4000 as his share of the estate, and directed Solomon to pay his executors $3000, in one year after his death, and to pay them the balance in yearly payments of $450 each, the first payment to be made in one year after his death.
    He gave to his son John a tract of 81 acres of land at $150 per acre, $4000 of which was to be John’s share of his estate ; $5000 to remain a charge on the land and the interest to be paid to his widow for life ; $1000 to be paid to the executors in one year after his death and the balance to be paid to the executors in yearly payments of $300 each, the first to be made in one year after his death. He gave also a number of pecuniary legacies.
    The residue of his^,estate, including the instalments payable by his son Solomon, and those payable by his son John, he directed should be distributed in equal shares amongst his five daughters, of whom Margaret Steffy and Lousanna Sharp were two.
    By a concluding clause of his will he declared that the reason he had given his son Samuel nothing by the will, was that Samuel had been allowed a share of his estate in a farm conveyed to Samuel October 28th 1871.
    The will was proved December 16th 1872, and letters testamentary granted to Samuel B. Sheaffer, John J. Sheaffer and Solomon A. Sheaffer, sons of the testator.
    They filed an inventory of the personal estate amounting in the whole to $11,636.09; included in the inventory were sixteen notes for $500 each, dated October 28th 1871, the first payable April 1st 1873, and one on each consecutive 1st day of April, the last being payable April 1st 1888, all without interest.
    The executors filed their account which was confirmed nisi, December 15th 1873; in it they took credit for the fifteen notes of Samuel not then due, amounting to $7500. The account showed a balance of $176.49 in favor of the executors.
    On the 23d of December exceptions were filed to the account; an auditor was appointed to report upon the exceptions and also to report distribution.
    On the 20th of March 1874, the executors presented a petition, setting forth the will, inventory and account, and that “ exceptions being filed thereto the confirmation thereof is suspended;” also that there were to be added to the account in favor of the estate, $277.61 money since collected; also payments due December 1873 by devisees of the land amounting to $4300, a bond for $500 due by Samuel B. Sheaffer April 1st 1874, leaving, after deducting the expenses of audit, &e., a balance estimated at about $4650; that the debts due from the estate of the decedent amounted to $10,064.50.
    The petition set out that, the testator died seised of five tracts of land (describing them), which had been devised by the will, and concluded:—
    “ There being no provision made by said will for the payment of these debts, your petitioners for0 the purpose of paying such debts, ask for an order to mortgage the real estate aforesaid of Levi Sheaffer, deceased, for an amount not exceeding $7000.”
    On the presentation of the petition, H. C. Brubaker, Esq., attorney for Margaret Steffy, and A. J. Eberly, Esq., attorney for Lousanna Shimp, objected in open court, and the court thereupon granted a rule to show cause why the executors should not be allowed to mortgage the real estate as prayed for.
    On the 25th of March 1874, the court made the rule absolute and authorized the executors so to mortgage the estate.
    Margaret Steffy and Lousanna Shimp appealed to the Supreme Court and assigned the decree of the court for error.

      H. 0. Brubaker and A. J. JEberly, for appellants.
    The Act of March 29th 1832, sect. 31, Pamph L. 198,1 Br. Purd. 428, pi. Ill, authorizes such mortgage where the personal estate is insufficient for payment of the debts, &c., and where on the final settlement of the administration account it appears that there are not sufficient assets to pay the balance due by the decedent. “ Final settlement,” means where the account has been confirmed absolutely: Hood on Executors 25.
    There is sufficient personal estate of the decedent to pay all the debts ; saving the interest on a mortgage of $7000 would compensate the reduction by sale of Samuel’s notes. The power conferred on the Orphans’ Court by Act of 1832 is not discretionary : Pry’s Appeal, 8 Watts 253.

      N. Ullmaher, for appellee.
    An administration account need not be settled before granting an order to mortgage or sell: Weaver’s Appeal, 7 Harris 416.
   Chief Justice Agnew

delivered the opinion of the court, May 18th 1874.

We cannot commend the manner in which this proceeding was conducted in the court below. These appellants appeared in court by attorney and objected to the granting of the order of mortgage, but filed no answer to the petition to bring the grounds of their objection upon the record. The petition sets forth a primé facie ground for the order. Hence Ave ought not to reverse the order. The Orphans’ Court is a court of equity, within the limited sphere of its operations, and the proceedings should have the substance of equitable form, though not its technical nicety. The proper mode of proceeding in that court is by petition, answer, replication, &c., in which the substantial requisites making the case should appear. But Ave have enough before us, to convince us that the case is peculiar and requires such an order as will protect the said parties in interest. The petition sets forth the filing of the account of the executors, and jts suspension upon exceptions. It also sets forth the fact that the lands prayed to be sold Avere devised by the will. The paper-book of the appellants sets out the account and the will, and they are not denied in the counter statement. Under rule 13, adopted at Pittsburg, September 6th 1852, we can take the undenied history of the case to be true.'

From the facts thus shown it appears that there is not a total deficiency of personal property to pay the debts, but one that is temporary only, owing to the fifteen notes of Samuel B. Sheaffer, of $500 each, being payable in a series of yeárs, terminating in the year 1888. We are not disposed to say this is not a deficiency within the true intent of the Act of March 29th 1832, authorizing a sale or mortgage of the real estate for the payment of debts. It is a temporary insufficiency of the personal estate, which may well bring into existence the power to mortgage for the reason that the creditors are not bound to wait upon the credit given by the testator to his'debtors. But it is a fact which must enter into the discretion of the court, in determining the terms and time of mortgaging the real estate. Here the lands have been devised to sons at a valuation, about two-thirds of which they are required to pay to the executors, and w'hich with the residue of the porsonalty is bequeathed to the daughters. The sons therefore are quasi purchasers, as to the sum paid, and in effect pay the daughters a large sum. Now as the personal estate is the primary fund to pay the debts, while the power to mortgage for the temporary insufficiency must be conceded as a right of the creditors, it should be so exercised as to do no injustice to the devisees. If the money cannot be obtained on a long loan, and in this ease the loan would have to be very long to cover the period the notes of Samuel have to run, the devisees would be compelled to pay the money borrowed, or suffer the mortgage to be foreclosed. So far as we can discover from the paper-book, the order to mortgage prescribed no terms, and made no provision as to the confirmation of the report on terms to be adjudged equitable by the court. In a case so special as this, the order of the court should fully provide for everything essential to do equity among all the parties. Without meaning to prescribe the terms, as all the parties are not before us, it will be seen that it may be important to provide expressly for the application to the mortgage of the whole or a part of the sums charged on the land, or of the application of the proceeds of the notes of Samuel as they come into the possession of the administrator. It may be necessary to provide for the effect óf a short term, if the money cannot be obtained on a long loan, and thereupon to reserve expressly a power to re-mortgage for the benefit of the devisees, until the money can be realized from the personalty to pay off the mortgage. It is the more important to make special provisions, as the long time to elapse before final settlement may find great changes in the administration and the parties.

With this view, we affirm the decree of the Orphans’ Court, ordering a mortgage of the real estate set forth in the petition, and do order that, before the mortgage shall go into effect, a report of the same shall be made by the executors or administrators, as the case may be, and shall be subject to such order as the Orphans’ Court shall lawfully make before final confirmation thereof, and the appeals are dismissed and the costs ordered to be paid out of the estate.