text:
    DAUPHIN COUNTY.
    May Term, 1884,
    No. 6.
    June 7, 1884.
    The Harrisburg Car Manufacturing Company v. The Lochiel Rolling-Mill Company.
    1. B, a consumer of iron, and A, a manufacturer, were engaged in business in the same city, within a short distance of each other. Much of the stock in each was held by the same parties. B contracted with A for the delivery to it of a large quantity of good quality iron at a certain price. A small portion of tins iron was delivered, and part of it found to be defective. B thereupon cancelled the contract and refused to receive any more iron under it. The market price of iron had fallen at the time of this refusal below the contract price, and A sought by suit to recover from B the difference in price upon the balance of iron undelivered. The referee to whom the cause was submitted, under the act of 14th May, 1S74, found, as a fact, upon sufficient evidence that, throughout this as well as prior similar contracts between the same parties and down to the date of B’s refusal to receive any more iron, although no such remedy was provided in the words of the contract, it was the understanding of the parties and their uniform practice that if the iron proved bad, B should reject the inferior article, and permit A to remove it and replace it with iron of the desired quality; and ho concluded, as matter of law, that the cancellation of the contract was therefore not the remedy contemplated by the parties. Meld, not to be error.
    2. The contract contained the following language in reference to the delivery of the iron: “ To be delivered to us from time to time as we may specify, cut to lengths when ordered, and iron to he delivered during March,' April, and May.” B’s first specification was given on May 13, the last on the 24th of the same month, and on the following 28th of June, when only a small portion of the iron contracted.for had been specified for and delivered, the contract was declared by B to be ended for the reason given above. On the trial B asked the referee to find that, unless the plaintiff by a preponderance of evidence clearly proved that its failure to deliver the iron was entirely due to defendant’s failure to furnish specifications therefor, the plaintiff could not recover.

      Held, that A was not bound to deliver and could not deliver the iron until the quantity, length, and kind were specified, that the delivery of the specifications was a condition precedent, and that the legal inference would be that want of specifications prevented the delivery.
    Before Mercur, C. J.; Gordon, Paxson, Trunkey, Steurett, Green, and Clark, JJ.
    Error to the Court of Common Pleas of Dauphin County.

    Trespass on the case by The Lochiel Rolling-Mill Company against The Harrisburg Car Manufacturing Company to recover the difference between the contract price and the market price of certain bar-iron alleged, by the plaintiff, to have been contracted for by the defendants, and afterwards refused to be received by them. Plea, non-assumpsit, with leave, &c.,
    By agreement filed in accordance with the act of 14th May, 1874, (P. L., p. 166,) the cause was submitted to Hon. John J. Pearson, as referee, by whom the following facts were found: '
    The Harrisburg Car Manufacturing Company, on February 10, 1880, addressed to the plaintiff the following note:

      “Loehiel Rolling-Mill Company:

    Gentlemen : Please enter our order for five hundred tons good quality of iron, to be delivered to us from time to time as we may specify, cut to lengths when ordered, at the price of three and three fourth cents per pound, half inch below; all rounds to bear the usual extras. Terms : Four months flat, from monthly settlements. Iron to be delivered during March, April, and May.
    Respectfully yours,
    (Signed) W. T. Hildrup,

      Superintendent. ’ ’
    This was indorsed : “Accepted. J. H. Landis, Superintendent Loehiel Rolling-Mill Company, February 10, 1880.”
    Specifications under this contract were first given to plaintiff on May 13, 1880, for 560 pounds, and from time to time subsequently until May 24, 1880, when the quantity of iron specified for and delivered had amounted to 34,770 pounds. After this date, no more iron was ever delivered, ordered, or specified for under the above contract ; and on June 28, 1880, the following note was received by plaintiff:
    “Harrisburg Car Manufacturing Company,
    Harrisburg, Pa., June £8, 1880.

    J. H. Landis, Superintendent, present:

    Dear Sir : I have been obliged to discontinue all specifications for iron to you, and must cancel all contracts. I wish you would do me the favor to visit me at our works to see the pile of your iron we have on hand that has broken in our efforts to work it. This I ask that you may have the same knowledge of facts that we have, and this has accumulated from iron sent us after frequent notifications of the bad quality of the iron sent us.
    Respectfully yours,
    W. T. Hildrup,

      Superintendent. ’ ’

      The price of iron at the time this note was written had fallen 2.35 cents per pound, and the plaintiff afterwards, during July and August, 1880, sold it to defendant and others at that price.
    The plaintiff and defendant were each carrying on extensive business in the city of Harrisburg, and about a mile apart. The character of the business done by each was known, generally, to the agents of the other, and a number of persons were holders of the stock of both companies. The defendant was manufacturing railroad cars at the rate of fourteen or fifteen cars per day, requiring about a ton of iron to be used in making each car. The plaintiff was making iron extensively in its furnaces and rolling-mills. During the superintendency of Mr. Landis, Mr. Hildrup had ordered, purchased, and received one hundred and fifty tons of its iron in November, 1879, and five hundred tons on a contract made the 27th of December, 1879. Nearly all of the iron delivered by plaintiff to defendant, under all of these contracts, was used by it in. manufacturing freight cars, and was known by plaintiff’s agents to be intended for that purpose. The referee reported as follows:
    “Under the contract now in suit, we are satisfied from all of the evidence that it was expected that the iron should be not only of good quality, but of the kind suitable for car-building — expected to be used for that purpose, and very many of the orders calling for best refined iron, the kind, of order never objected to. This being a contract between a customer and manufacturer of the article ordered, it is fair to presume that the latter intended to warrant the goods to be of good quality and suitable for the purpose for which ordered, and were for building railroad cars, [such as] may be used with safety to the men conducting the trains, and also to the goods carried. The strength and safety of the cars’ depend greatly on the goodness of the iron used in its construction. Was the iron furnished by the plaintiff of that quality ? It is conceded by plaintiff’s witnesses, that in making the iron, three fourths of cinder was used and but one fourth of iron ore ; but it is contended that good iron may be made of such an admixture, and many respectable and experienced iron-masters testify to that effect, whilst others equally respectable and experienced testify that such iron is not reliable. Nearly all agree that such iron, if-offered in the market as cinder iron, would not sell at the same price with that made of iron ore, and for the purpose of car-building, would not sell at all; yet it is pretty clear that the defendant’s agent well knew that a portion of cinder was used in the manufacturing at plaintiff’s works, but the proportion or quantity was not known or'whether the iron was so far refined as to render its use harmless. It is conceded that the iron delivered to the defendant merely went through the rough, the ordinary process of smelting, puddling, and rolling a single time.
    The practice of using cinder is of late invention or discovery. A few years ago such a process "would not have been thought of, but modern discovery has shown that good iron may be made to advantage by the use of a portion of cinder. It is conceded that it requires much skill and knowledge, with very careful handling, great care in the blast furnace and in fluxing the ore and cinder, and many iron-masters will not pretend to use more than one sixth part cinder to five sixths of ore ; others use one half, and a few, as the present plaintiffs, three fourths. Besides, all agree that there is as great difference in the quality of the cinder as in that of the ore. Whilst we can well understand that the defendant’s superintendent may well be afraid to use iron made of such distrusted materials, yet we must say that he had no right to reject it under the present contract, if it proved good, yet he had full power, and it was his duty, to reject it if it proved bad.
    But -what was the mode of redress provided for under the contract if that was the case ? Not to cancel the contract, but to reject the vicious article and permit the plaintiff to remove it. There is no such remedy provided in words, but we are satisfied that such was the understanding of the parties, and such was their uniform practice down to the 20th of June, when the defendant’s agent resorted to the harsher remedy of declaring the contract at an end, and refusing to receive any more iron under it. * * * We find, in looking over the correspondence of the parties, that Mr. Hildrup was not only urging Mr. Landis frequently to hasten the delivery of liis iron, but to send of better quality — to remove the bad and to furnish good. .The evidence shows that almost every car or wagon load carried back a portion that was rejected. * - * * Under the present contract, but 34,770 pounds were delivered, but the quality was not improved, for out of that iron a considerable quantity was retained by the defendant’s agent as a sample of the kind of iron sent. This was exhibited to Mr. Landis, plaintiff’s agent, who said it was bad iron; but as to some of that he might have been mistaken, as others, on trying it in different ways, thought it reasonably good. * * [The] attempt at cancellation occurred twenty-eight days after the time for delivering the last of the iron had expired by the words of the contract. Yet we are satisfied that no part was expected or intended to be delivered until ordered.
    The plaintiff, on the trial, called witnesses to prove that when this contract was cancelled by the defendant and a refusal to give any more orders, it had on hand, ready for delivery, six or seven hundred tons of iron. * * * On the other hand, the defendant has proved, on full examination, that plaintiff had at that time, suitable for car-building, or of a kind ever ordered by the defendant at any time, but 271 tons, and we are of opinion that none other ought to be considered or allowed for.
    We are also well satisfied that this contract was not cancelled in order to buy iron cheaper,, but because that furnished had proved of bad and not of trustworthy quality ; that there was great want of punctuality in its delivery, and its use attended with much .trouble, vexation, and additional expense, and also that the plaintiff had not, on the 28 th of Juné, prepared for delivery of any more iron than the quantity for which we have allowed.”
    The referee’s award was in favor of the plaintiff for $8,802 08, made up as follows :

      “271 tons of iron, computed as lost on the price, at 1.40 per cent., ........$7,588 00
    Interest, by way of damages, from July 1, 1880, to March 1, 1883, ........ 1,214 08
    $8,802 08”
    The following exception (inter alia) was filed by the defendant to the award of the referee:

      First. The referee having found that, under the contract, plaintiff was bound to furnish a warranted quality of bar iron, suitable for car-building purposes, (which was understood, as shown by orders accepted without objection, to be “best refined iron,”) and having found also that the iron manufactured and delivered was made from a mixture of three fourths cinder and one fourth ore, (an unusual and distrusted mixture,) that said iron was made through “the ordinary process of smelting, puddling, and rolling a single time,” should have concluded and found, as matter of fact, that the iron delivered to defendant, and remaining on hand at plaintiffs’ works, was not of the contract quality and standard, and erred in concluding, as matter of law, that defendant had not the right to cancel the contract, and the only ‘ ‘ remedy was to reject the vicious article and permit the plaintiff to remove it.”
    Overruled.
    The following points, inter alia, were submitted by the defendant:

      “Second. The quality of the iron to be delivered by the plaintiff, in pursuance of the aforesaid contract, (as appears from the'orders of December 27, 1879, and February 10, 1880, as also from the several specifications furnished by the defendant and accepted by the plaintiff without objection,) was ‘bestrefined iron,’ of ‘warranted quality for car-building purposes.’ The defendant was not bound to accept iron of any inferior grade; would have been criminally negligent had it accepted and used iron unfit for car purposes; and if, from the evidence, it satisfactorily appears that the plaintiff, after February 10, 1880, habitually and frequently delivered, under said contract, iron, much of which was found to be unfit for the purposes aforesaid, then the defendant had the right to refuse to accept further deliveries, and to rescind the contract; and such refusal and rescission create no cause of action against the defendant. .

      Answer. There was great want of skill and care manifested in the manufacture of much of this iron,'and the same was properly rejected and returned to the plaintiff. Yet we are of opinion that such act alone is no ground to rescind the contract, without notice that such course would be adopted if persisted in. Had such notice been given, the plaintiff might have pursued the course after-wards adopted — used less cinder or of better quality.

      Sixth. There is no evidence, or pretense even, that defendant rescinded, or attempted to rescind, the contract until nearly one month had elapsed after the time within wdiich plaintiff had agreed to deliver the iron; and unless plaintiff, by a preponderance of evidence, clearly proves that its failure to deliver the iron was entirely due to defendant’s failure to furnish specifications therefor, the plaintiff cannot recover.

      Answer. The evidence clearly shows that defendant did not rescind, or attempt to rescind, the contract until nearly a month after the time fixed for its completion. But it is equally clear that the plaintiff was not bound to deliver, and could not deliver, the iron until the quantity, length, and kind were specified. The delivery of specifications was a condition precedent, and we nre bound to infer that want of specifications prevented the delivery.”

      Judgment was entered for the plaintiff upon the original finding of the referee, whereupon defendant took the above writ, assigning for error, inter alia, the overruling of its exception, and the answers to its points as above.

      Fleming & McGarrell and Louis W. Hall for plaintiff in error.
    It is well settled that a vendee has a right to rescind, and may refuse to accept an article not of the quality designated by the contract: Hoare «. Rennie, 5 II. & N., (exclu.,) 19 ; Honck®. Muller, L. R., 7, Queen, B. Div., 92 ; Withers ®. Reynolds, 2 B. & Ad., 882 ; Scott ®. Coal Co., 8 Norris, 231, (S: C. 7, W. N. C., 289 ; Norrington ®. Wright, 9 W. N. Q, 422, (S. C. A. L. R., 395.)
    It clearly appears that the plaintiff below either could not or would nor deliver the iron within the specified time. The defendant was required by its contract to deliver the cars on a certain day, and the iron contract was made to enable the defendant to finish the cars in the required time. Hence time was clearly of the essence of the contract: Shaw ®. The Turnpike Company, 2 P. & W., 458; Lester®. McDowell, 6 Harris, 91; Parshall’s App., 15 P. P. S., 234; Kitchen ®. Stokes, 9 W. N. C., 48.
    We contend that the learned referee erred in concluding that there was an understanding, agreement, or course of dealing between the parties below, which required the car company to return all defective bars to the iron company, and j>ermit the latter to replace them with others. It certainly was no part of the express agreement between the parties. Even if an agreement to that effect had been made, the courts would construe it to meet the reasonable understanding of the parties. The persistent and repeated delivery of a defective and inferior article cannot be protected indefinitely by any custom or agreement that it shall be returned so as to give opportunity to improve its quality.
    There must be a limit, and even beyond any reasonable limit the defendant went in this case in returning defective iron to be replaced. That acts of indulgence do not make a binding usage is clearly decided: Lord ®. Burbank, 18 Maine, 178; Bank ®. Grafflin, 31 Maryl., 511; Whitmore ®. Iron Co., 2 Allen, 52.

      H, M. North and Weiss & Gilbert for defendants in error.
    The contract of February 10, 1880, Was severable in its nature, and the plaintiff in error was required by law to take the balance of iron for which it had contracted, even if the first' delivery had been of faulty or imperfect iron: Cutter v. Powell. 2 Sm. Leading Cases, 7 and N.; Oil Co. v. Brewer, 16 P. F. S., 351; Morgan v. McKee, 27 P. F. S., 228; Scott v. Coal Co., 8 Norris, 231; Jonassohn v. Young, 4 Best & Smith, 296.
    October 6, 1884,
   the opinion of the court was delivered by

Paxson, J.:

We have examined this voluminous record with some care, and have been unable to find any serious errors in the learned referee’s findings of fact or conclusions of law. Whatever might- have been the right of the plaintiffs in error to rescind the contract by reason of the defective quality of the iron furnished by the rolling mill company, had there been no understanding between the parties in reference thereto, yet the learned referee has found upon sufficient- evidence that a cancellation of the contract was not the remedy contemplated by the parties. This he has found in part from their previous dealings, not a custom in its legal sense, but a previous course of dealing- in regard to the very point in controversy. There had been prior contracts between these parties for the sale and delivery of iron, and the mode of redress for the delivery of iron of an inferior quality was, as found by the referee, to remove the same, and substitute other iron of the desired quality. • It does not matter that no such arrangement appears upon the face of the contract. If the parties acted upon it, we cannot say, in view of the situation of these companies, and the intimate connection between- them, the result of much of the stock in each being held by the same parties, that it was error in the learned referee to hold that the cancellation of the contract was not the remedy contemplated'by the parties.

It would serve no good purpose to enter upon a discussion of the details of the case. It is admittedly close, but we think the learned x-eferee has sufficiently vindicated his conclusions in his opinion upon the law and the facts.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam :

license: Public Domain

text:
    May Term, 1884,
    Nos. 23 and 51.
    June 3, 1884.
    Pottsville National Saving Fund v. Commonwealth of Pennsylvania. Pottsville Union Saving Fund Association v. Same.
    Corporations of tlie class known as building associations which bad, prior to June 7,1879, ceased to collect monthly dues from members who had not borrowed money, and which liad ceased to make loans from that date, still, however, retaining their corporate existence, collecting debts due them, and discharging existing obligations, must he considered to have been .doing business to such an extent as to subject them to the payment of 'a tax upon their capital stock under tbe provisions of the act of 7th June, 1879.
    Before Mercur, C. J.; Gordon,! Paxson, Trunkey, Sterrett, Green, and Clark, J. J.
    Error to the Common Pleas of Dauphin County.

    Appeals by the Pottsville National Saving Fund and the Pottsville Union Saving Fund Association from a settlement of an account against these corporations for a tax upon their capital stock, made by the Auditor General and State Treasurer, under the act of June 7, 1879. (P. L., p. 114.)
    These cases were tried by the court, Simonton, P. J., without a jury, by agreement of the parties, under the act of April 22, 1874.
    Appellants were incorporated by decrees of the common pleas, one in 1867, the other in 1868. They contended that they had ceased to do business prior to 1879, and that, therefore, they were not liable for the tax settled against them as above. They collected outstanding mortgages and securities for loans and discharged existing liabilities. The Court found that, although they had ceased to collect monthly dues from members who had not borrowed out money and had not made any loans from that date, in other respects they were in full life, and were certainly doing business within the meaning of the act of June 7, 1879.
    Exceptions were filed by the appellants to the findings of the Court, which were overruled and judgment entered in favor of the Commonwealth, in each case, for the amount of the account with interest, Attorney General’s commissions, and costs ; whereupon, the appellants took this writ, assigning for error, inter alia, the overruling of their exceptions to the above finding of the Court, and the action of the Court in entering judgment for the Commonwealth.

      N. Reblieh and John II. Weiss for plaintiffs in error.
    If these associations had been actually dissolved by a decree of the Court before the passage of the act of June 7, 1879, they would have been authorized to do the very thing which the facts in the case show they did do, viz: collect outstanding claims and discharge liabilities with the proceeds. This is not doing the business which these associations were by law authorized and empowered to do. These associations could cease doing business without being dissolved, and it is only the companies doing business on the 7th day of June, 1879, which are by that act subject to the payment of a tax on capital stock. The question, therefore, is, not whether the companies designated in said act were actually dissolved and ceased doing business in consequence of a decree of dissolution, but whether they were actually doing business at the time mentioned in the act, and it is contended that the winding and settling-up the affairs of a company is not doing business within the meaning of the act of Assembly or according to the construction of language.

      Robert Snodgrass, Deputy Attorney General, and Lewis Q. Cassidy, Attorney General, for defendant in error.
    The plaintiffs in error claim that they are not taxable because they had ceased to do business prior to the passage of the act of 1879. The business which the Court found to have been conducted by them since June 7,1879, was not that ordinarily incident to the winding-up and settling the affairs of a mercantile or manufacturing company, but that which constituted a necessary part of the usual business of this peculiar class of corporations.
    October 6th, 1884.
   Per Curiam :

These cases were argued together. They present the same question. These associations were incorporated by decrees of the common jileas in 1867 and 1869, respectively. They had, unquestionably, been engaged in the transaction of business for many years. They now attemjit to avoid taxation under the act of 7th June, 1879, alleging they had ceased to do business prior to the passage of that act. By agreement of parties the Court was substituted for a jury. The same effect is, therefore, to be given to its finding of facts as if found by a jury.

The Court 'found. that although the associations had ceased to collect monthly dues from members who had not borrowed money and had ceased to make loans, yet in ^other respects they .were in full life and were clearly doing business within the meaning of the act under which the tax was levied.

' These corporations are of the class known as building associations. They were still collecting the debts due them, and discharging existing obligations. They were generally transacting all business necessary to a final termination of the association. They, however, still retained-their corporate existence, and we think were doing business to such an extent as to subject them to the provisions of the statutes imposing the taxes.

Judgment in each case aflirmed.


author: Green, J.

text:
    DELAWARE COUNTY.
    January Term, 1884,
    No. 252.
    February 13, 1884.
    Woodrow v. Blythe.
    1. In an action brought in the name of the assignee of a mortgage by his administrator, described as the assignee of the mortgagee, against a terre tenant whose title came through a sheriff’s sale upon another mortgage of the same date and recorded at the same time the mortgagee was called by the plaintiff to prove that it was a purchase-money mortgage. Held, that he was a competent witness.
    2. The fact that the administrator in bringing his action styled himself as assignee of the mortgagee does not make the latter a party to the record.
    3. It was error to reject the evidence offered as immaterial.
    4. The only question necessary to be considered was whether the fact proposed to be proved was, in any aspect .of the case, a competent fact, and it was quite useless to discuss the question whether that one fact alone would be sufficient to charge the terre tenant with notice that the mortgage was a purchase-money mortgage.
    Before Merctir, C. J.; Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Clark, J., absent.
    Error to the Court of Common Pleas of Delaware County.

      Scire facias sur mortgage by Isaac Woodrow, administrator of Joseph. J. Taggart, assignee of Dillwyn P. Paiste and of Harrison Fairlamb, against Thomas Blythe, mortgagor, and John Spencer, terre tenant.

    Plea, “no lien.”

      At the trial on October 8, 1883, before Clayton, P. J., the following facts appeared :
    By deed dated December 28, 1874, and recorded March 10, 1875, Harrison Fairlamb and wife conveyed a house and lot, situate in Chester, to Thomas Blythe for the consideration of $1,600. A receipt for this amount was annexed to the deed in the usual form. On February 26,' 1875, Thomas Blythe, the grantee, executed two mortgages on the premises, one to the Mechanics’ Building Association for $1,400, and one to Harrison Fairlamb for $500. Both of these mortgages were recorded on March 10, 1875, at 10, A. m.
    On May 4, 1876, Harrison Fairlamb executed and delivered to Dillwyn P. Paiste an assignment of the mortgage of $500 as collateral security for a loan. On October 12j 1876, Harrison Fairlamb and Dillwyn P. Paiste executed and delivered an absolute assignment of the $500 mortgage to Joseph J. Taggart. On November 3, 1879, the Mechanics’ Building Association recovered a judgment against Thomas Blythe for $1,720 in a suit upon its riiortgage. On November 29, 1879, on a writ of levari facias issued upon this judgment, the'sheriff sold the property for $50 to the building association, and subsequently executed a deed for the premises to the association. On October 20, 1882, the building association conveyed the premises to John Spencer.
    On April 20, 1883, a writ of scire facias was issued on the $500 mortgage, wherein “Joseph J. Taggart, assignee of Dillwyn P. Paiste and Harrison Fairlamb” was plaintiff, and Thomas Blythe was defendant. To this writ the sheriff made return of nihil habet. On May 15, 1883, the present suit ivas commenced, and the sheriff again returned nihil habet. On June 11, 1883, judgment was entered in favor of plaintiff and against the defendant after two nihils. On July 2, 1883, the judgment was opened and John Spencer was permitted to come in and defend as Ierre tenant. On July 30, 1883, the death of the plaintiff was suggested, and Isaac Woodrow, administrator, was substituted as plaintiff.
    Harrison Fairlamb was sworn, (mortgage in suit handed witness.)
    Question by counsel for plaintiff: Will you please state how you came by that mortgage, and what it is for?
    The defendant’s counsel objected to the competency of the witness. The objection was sustained by the Court on the ground that he could not,testify at common law. Exception. (First assignment of error.)

      The plaintiff offered to prove by Harrison Fairlamb that the mortgage in suit is ior part of the purchase money or consideration named in the deed from Harrison Fair-lamb and wife to Thomas Blythe. The Court rejected the offer, saying £ £ no actual notice and not enough to make the record notice to the terre tenant, he being a purchaser for a valuable consideration without notice.” (Second assignment of error.)
    The Court charged the jury as follows :
    “ The question here is one of law. I hold the terre tenant, the present owner of the lands, being an innocent purchaser for a valuable consideration without notice, as this mortgage now sued upon was given for part purchase money, is protected by the sheriffs sale. And as there is no evidence that there was notice at the sheriff s sale, and the record is not enough, I direct you, on the issue of £ no lien,’ to find your verdict for the terre tenant, John Spencer.”
    (Third assignment of error.)
    October 3, 1883. Verdict for the terre tenant, John Spencer, on which judgment was subsequently entered.
    The plaintiff, thereupon, took this writ, assigning for error'the matters above stated.

      J2. II. Hall for plaintiff in error.
    Fairlamb is not a party to the suit. The words “assignee of Harrison Fairlamb and Dillwyn P. Paiste” are merely descriptive. Fairlamb parted with all his interest in the mortgage by his assignment to Taggart: Steele v. Ins. Co., 3 Binney, 311; Roshing v. Chandler, 3 Barr, 375; McMurray’s Appeal, 41 Leg. Intel., 35.
    Parties to the record, whether the suit is within the act of 1869 or not, are not to be excluded : McClelland’s Ex’s v. West’s Ex’s, 20 Smith, 187; Evans v. Jenks Ex’s, 9 W. N. C., 139; Simpson’s Ex’s v. Bovard, 24 Smith, 360.
    The offer of Fairlamb’s testimony was to prove that the mortgage in suit involved the further proof that the deed was not delivered until the day the mortgage was executed, which was rendered necessary to overcome the presumption of the delivery on the day of the date of the deed: Cake’s Appeal, 11 Harris, 186;,Parke v. Neely, 9 W. N. C., 193 ; Magaw v. Garrett, Í Casey, 322 ; Appeal of Williamsport National Bank, 10 Norris, 167.

      J. B. Hannurn for defendant in error.
    Fairlamb’s testimony was properly excluded. He is without the act of 1869 : Post v. Avery, 5 W. and S., 509 ; Cambria Iron. Co. v. Tomb, 12 Wr., 394 ; Karns t>. Tanner, 16 Smith, 297; Graves ». Griffin, 7 Harris, 176.
    Fairlamb’s testimony would have been irrelevant, and if it had been admitted, would not have affected the title of the terre tenant who had purchased the property for a valuable consideration and without notice: Hall v. Benner, 1 P. & W., 407 ; Cake’s Appeal, 11 Harris, 186 ; Price on Liens, 240.
    March 31, 1884,
   the opinion of the court was delivered by

Green, J.

We think the rejection of Fairlamb as a witness cannot be sustained. He was not, nor was the plaintiff, the successor in the title of a dead assignor of a thing in action, but a living person who had made an absolute assignment of the mortgage in question several years before suit brought. There was no deceased assignor of this mortgage in the case, and hence the proviso of the act of 1869, which excludes its application where the assignor of the thing or contract in action is dead, is inoperative. As Fairlamb is not a party to the record, and has no interest in the result, and as the policy of law, which would otherwise render him incompetent, has been removed by the act, he is a competent witness. The circumstance that Taggert’s administrator, in bringing his action, styles himself as assignee of Paiste and Fairlamb, does not make either of those persons parties to the record. There is no question as to the validity of the assignment from them to Taggert. The action is brought in the name of Taggert by his administrator, and this is authorized by the act of April 22, 1863: Purdon’s Digest, 485 pl., 130. The reference to Paiste and Fairlamb is mere matter of description. On the question of the piroof offered and rejected, it is only necessary to consider whether the fact propiosed to be piroved was, in any aspiect of the case, a competent fact. It is quite useless to discuss the question whether that one fact alone would be sufficient to charge the purchaser at the sale under the mortgage of the Mechanics’ Building Association, with notice that the Fairlamb mortgage was a piurchase-money mortgage. It may well be that the bare fact of its being a pDurchase-money mortgage would not of itself alone prove notice to anybody. But that is no reason why the fact, when offered in proof, should be excluded. It is certainly essential to the plaintiff’s case. It may be that when his testimony is all‘in it may not make out his case, but the Court cannot pre-determine that matter on this one offer. Whether there is other evidence tobe given we do not know, bnt, oí course, if this fact is excluded, other evidence would be of no avail. W 3 decide nothing more than that the offered proof was competent testimony. The final effect of the whole testimony is not before us, and cannot be now decided. The j udgment is reversed on these first and second assignments.

J udgment reversed and venire de novo awarded.


author: Green, J.:

text:
    ERIE COUNTY.
    July Term, 1883,
    No. 126.
    February 6, 1884.
    New York, Chicago & St. Louis Railway Co. v. Price.
    1. Upon an appeal from the award of viewers, appointed under the act of 19 February, 1849, sec. 11, P. L.,'79, supplemented by the act of 9 April, 1856, P. L., 2S8, to assess damages for land taken or occupied by a railroad company, it is error to refuse an offer on the part of the railroad company to prove that the owner of the land removed and appropriated to Ills own use the barns, sheds, and materials, which .were upon the right of way, as an element in the consideration of damages by the jury.
    2. There is no legal obligation on the part of the court to make an order directing the jury to go upon the premises and view the same, upon the mere application of one party and against the objection of the other.
    3. If a view is desirable, it can generally be had by means of a struck jury, under the rules of practice which relate to that subject.
    4. In these cases, it is more conformable to correct practice to have an issue regularly made up between the parties, and there is no objection to making the land-owner plaintiff.
    5. The Court having ordered the railroad company defendant to plead without a narr being filed, held, that the court of eommón pieas has entire control over the pleadings and mode of trial in such cases arising within its jurisdiction.
    Before Merotjr, C. J.; Gordon, Paxson, Trtjnkey, Steerett, Green, and Clark, JJ.
    Error to the Court of Common Pleas of Erie County.

    Appeal of G. T. Elliott from the award of viewers assessing damages in his favor and against the New York, Chicago and St. Louis Railway Company for $7,000. The'Court ordered that an issue be formed making G. T. Elliott plaintiff and the New York, Chicago and St. Louis Railway Company defendant, and that defendant be required to plead as if a narr had been filed. (Eighth assignment of error.)
    Defendant pleaded, under protest, “not guilty.”
    Gr. T. Price, administrator of Gr. T. Elliott, deceased, was afterwards substituted as plaintiff:.
    On the trial in the court below, before Brown, J., the following facts appeared :
    Gr. T. Elliott owned a farm of, about 101 acres.of land in Harbor Creek township, Erie county, located about eight miles east of Erie city. Upon this farm there were two sets of buildings, consisting of thirteen barns, sheds, and out-buildings, and two dwelling-houses, all of which were in good condition for farming purposes. The northern part of the farm fronts on a public road called the Buffalo road, and extends along it for a distance of 2,000 feet. Parallel with this road, and about 200 feet south of it, the Lake Shore and Michigan Southern railroad is located through, the said farm and occupies 2 acres 119 perches of land. On the south of this railroad, and within 15 feet of its right of way, stands the dwelling of ■Gr. T. Elliott, and to the eastward, another dwelling-house 78 feet from said railroad. Between the Buffalo road and the said railroad, there are 4-j- acres.
    The defendant, the New York, Chicago and St. Louis Railway Company, xvas incorporated under the general railroad law of Pennsylvania., In May, 1881, the defendant company surveyed and located the right of way for its road through and over plaintiff’s farm, and on October 12, 1881, filed its bond for $12,000 to secure plaintiff for the damage done by reason of the location of the road. The defendant company then took possession of the right of way, constructed its railroad thereon, and shortly thereafter began to operate it. The right of way of this railroad is located 93 feet south of Elliott’s dwelling, and extends through the entire farm, east and west, occupying 2 acres 123 perches. Between the rights of Avay of the txvo railroads are the two houses and 6 acres 118 perches of land, leaving about 86 acres south of the road of defendant company.
    A number of witnesses testified as to the character of the injury done to the land and the buildings, and the amount of the damages.
    Defendant’s counsel asked witness, John Love, the following question: “By whom were the barns and the sheds upon the right of way taken off the right of Avay V’ Objected to.
    The Court. “There being no evidence upon this question on tlie part of the plaintiff, the objection is sustained and the testimony rejected.” Exception. (First, second, and third assignments of error.)
    Defendant’s counsel then asked the further question: ‘£ What, if any, of the buildings or material on the right of way. did Gr. T. Elliott, or his employes, remove from the right of way of said railroad through his farm?” Objection by qclaintiif’s counsel sustained. Exception. (Ifourth and fifth assignments of error.)
    Defendant’s counsel then asked the further question: “Did the New York, Chicago and St. Louis Railway Company, to your knowledge, remove, or cause to be removed, from the right of way, any of the barns on the same, and appropriate to its use the material in the same ?’? Objection by plaintiff’s counsel sustained. Exception. (Sixth assignment of error.)
    Before the trial began, the defendant’s counsel asked the Court to direct the jury to go upon the premises and view the same, and the 'Court refused to so order. (Seventh assignment of error.)
    May 5, 1883, verdict for plaintiff for $10,386 66, upon ivhich judgment was afterwards entered.
    Defendant then took out a writ of error, assigning the eight errors as above.

      Davenport <& Griffith for plaintiff in error.
    The act of 9 April, 1856, P. L., 288, does not, in words, expressly provide that the plaintiff shall declare in all cases, but in the present case there should be something to inform the defendant as to the claim, so as to enable the defendant to plead. Here the defendant filed the petition and was required to plead to it, thus making the pleading one-sided. In R. R. Co. v. Lazarus, 4 Casey, 203, the land-owner filed the petition, which was treated as a narr.
    The act of 1849 required the viewers to view the premises, &c. An appeal being allowed by the act of 1856, the same necessity exists for the jury to view the premises, the court being given the power to make “all such orders connected with the same as may be deemed requisite. ’ ’
    The offer to pi;ove that the land-owner appropriated the barns, sheds, &c., upon the right of way was admissible, because the damages were thereby materially lessened.

      Benson & Brainerd for defendant in error.

      The court has express authority, under the act of Assembly, to direct- the form of the issue. No declaration is necessary: R. R. Co. v. Lazarus, 4 Casey, 203.
    The change effected by reason of the location and construction of the road was such that the jury could form no estimate of the damage from a view. It would only have tended to mislead and confuse the jury. The application was too late, having been made when tbe case was called for trial: 79 Penna., 71. The court should not order a view in such case, except by consent or agreement of the parties.
    When a railroad company takes private property for railroad purposes, the title to that property passes to the railroad company upon the filing and approval of the bond for the payment of damages to the land-owner. It follows, therefore, that the title to all the buildings, &c., upon the land passes with it and belongs to the company. The land-owner has no right or power to interfere. If he did remove any of the materials from the right of way, he committed a trespass, and damages for such tresspass cannot be tried in an action of this kind, neither in* the way of set-off nor as a defense.
    February 18, 1884,
   the opinion of the Court was delivered by

Green, J.:

We are clearly of opinion that the defendants’ offers of testimony in relation to the removal of the buildings on the plaintiff’s land should have been received. The removal of the buildings was certainly an element of damage to be considered by the jury.__ If they were taken by the company, the land would bedvorth less than if they were left upon the premises. If the plaintiff took them, his damage would not be so great as if the company took them. It would be for the jury to consider all the circumstances in this connection, in order to determine intelligently what amount of injury was sustained by the plaintiff in consequence of what was done with the buildings, whether by the plaintiff or the defendant. They should know all the facts relating to the subject. The first six assignments, all of which relate to this matter, are sustained. The seventh is not sustained. The Court was not bound to direct the jury to go upon the premises. Such an order is often made, and, as a general rule, it is desirable that the jury should visit the premises, but there is no legal obligation on the part of the Court to make the order upon the mere application of one party and against the objection of the other. If a view is desired, it can generally be bad by means of a struck jury, under the rules of practice which relate to that subject.

In regard to the pleadings in such cases us this, the practice in some counties is to regulate them by rules of court. It is certainly more conformable to correct practice to have an issue regularly made up between the parties, and we see no objection to making the land-owner plaintiff. It does not seem that there is any rule of court in Erie county on the subject, at least none is referred to by counsel on either side. The act leaves the whole matter to the court, and we can hardly say there was error because the Court ordered the company to plead without a declaration. Such may be the practice in Erie county, and as the court of common pleas of that county has entire control over the mode of trial in such cases arising within its jurisdiction, the subject must be left to their direction.

Judgment reversed and new venire awarded.


author: Per Curiam :'

text:
    FRANKLIN COUNTY.
    May Term, 1884,
    No. 33.
    June 6, 1884.
    Skinner v. Kroh.
    1. E. K.,a married woman, fromher separate estate,loaned to her husband, O. K., certain moneys, taking his judgment note for the amount. Some time afterwards C. K., who was a farmer, and in debt to several persons, transferred to E. K., by bill of sale duly executed, and in the presence of two witnesses, at full valuations, certain horses, cows, farming implements, growing grain, and other goods, and had the sum credited by E. K., upon the note held by her. It had become generally known in the community in which the two had resided that they were about to remove to another State, the former home of E. K.; and four days after the sale to her, and before the time fixed upon for the removal, while husband and wife were still living together on the farm, no change having been made in the situation of the property transferred, and C. K. continuing his care and charge of it, it was attached under the act of 17 March, 1869, at the suit of the several creditors of C. K. Notice was given the sheriff of E. K.’s claim of ownership, bonds were taken by that officer from the attaching creditors, the suits prosecuted to judgment, executions issued, and the goods attached sold. Trespass being brought by E. K. against the sheriff, and the above facts appearing undisputed, held, that the sale to the wife by the husband was complete, and the' delivery such as to enable her to maintain trespass against any one who should take away the goods so sold to her.

      2, There being no dispute as to the bona fides of the debt or of the sale, it was for the Court, and not for the jury, to determine the sufficiency of the evidence of possession between the husband and the wife.
    S. Sembla, that in order to protect the ownership of a wife in goods purchased in good faith from her husband as against creditors of the husband, it is not essentially necessary that the actual possession of the wife be to the entire exclusion of the husband; and, although she must have a right to the possession, she is not required to live separately from him.
    Before Merctjr, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Error to tbe Court of Common Pleas of Franltlin County.

    Trespass, de bonis asportatis, by C. IT. Kroh and Emma C. Kroh, his wife, in right of said Emma C. Kroh, against William C. Skinner, to recover damages for an alleged seizure and sale by the defendant of certain goods claimed by the plaintiff, Emma C. Kroh, to be her property. Pleas, not guilty, and two special pleas, £1,) that the goods and chattels seized and sold were not the goods and chattels of the plaintiff, Emma C. Kroh; and (2,) that at the time the defendant was the high sheriff of Franklin county, that he seized and carried away the goods and chattels in the declaration alleged as the property of C. H. Kroh, under and by virtue of certain writs of fl.fa., issued out of the court of common pleas of Franklin county to him directed, at the suits of W. A. Smith, E. H. Hagerman, and Jeremiah Lesher; and that the defendant, in obedience to said writ, and by virtue thereof, seized and took the goods and chattels in the declaration mentioned as the goods and chattels of C. H. Kroh, whose property they were.
    The following facts appeared at the trial:
    The plaintiff, Emma C. Kroh, was a daughter of John Schnebly, deceased, and received from his estate a legacy of $3,500, $700 of which in stock and household goods was advanced her on her marriage and before her father’s death, and the remainder, $2,800, paid her by his execu. tors, in two installments, the last one of $1,200 on December 1, 1380. All of this property, both goods and money, were loaned by her to her husband, who, on December 1, 1880, gave her his judgment note for $3,500.
    C. H. Kroh was engaged in farming, and possessed a large stock of horses, cattle, farming implements, &c. On February 15, 1882, he held, on the farm where he lived, a public sale of this stock. The sale was advertised in six counties, and it was also made known that Kroh was to give up farming and remove to Maryland on the following first of April. About $2,000 worth of goods were disposed of at this sale, and with the proceeds Kroh paid some of his debts. He retained, however, a consid-1 erable proportion of his farm stock and goods, and for these, on March 20, 1882, he executed and delivered to his wife, in the presence of two witnesses, his bill of sale, with a schedule of the goods sold and the prices, the sum being $2,227. This amount was credited at the same time by Mrs. Kroh, on her husband’s note to her for $3,500. The witnesses to the sale were neighbors, and the fact of the sale was communicated by C. H. Kroh to W. A. Smith, one of his creditors, two days afterwards. March 22d. On March 23, 1882, C. H. Hagerman issued an attachment for $187 47, On March 30, Jeremiah Lesher issued one for $187 80, and on March 31, W. A. Smith issued another for $107 78, all against C. H. Kroh, under the act of March 17, ■ 1869. On these writs the sheriff seized„a part of the goods described in the bill of sale to Mrs. Kroh, the first levy being made March 24th. The sheriff was notified by Mrs. Kroh that the property levied on was hers, and not the property of C. H. Kroh, the defendant in the writs; bonds of indemnity were given to the sheriff by the plaintiffs in the writs, the suits prosecuted to judgment, ji. fas. issued, and the property claimed by Mrs. Kroh was sold. The property described in the bill of sale to Mrs. Kroh consisted of horses, cattle, farming implements, grain in ground, and household goods; the portion seized under the attachments comprised the grain in ground, some horses, and one cow. It was in evidence that, from the date of the delivery to Mrs. Kroh of the bill of. sale, although she regarded the property described in it as her own, and Mr. Kroh so regarded it, and they both testified that she took charge of it from the time of purchase, yet there was no change in the treatment, the handling, or the situation of it.
    The Court charged the jury as follows:
    After reciting the facts: [“All these things being so, and they are not disputed, you have a complete sale of the property to the wife at that time by the husband, and such a delivery as would pass the property at the time so as to enable her to maintain trespass against any one who would take away her goods.] The counsel for the defendant has said in your hearing that they placed themselves upon the ground of legal fraud, and that they do not make any contest over those other matters — -the bona fides of the debt and the bona fides of the sale. The real question, therefore, is simply that of legal fraud * * * whether or not there could be any change of possession or the apparent control as between husband and wife in a case of this kind. * * * With respect to articles of household and kitchen furniture, it has been already decided by the Supreme Court that the rule in Twyne’s case is not apjjlicable — ■ that concurrent possession by husband and wife in cases of that kind is not a badge of fraud, because the husband and wife must live together — he must sit at her table, and sleep in her bed. and ride in her carriage. * * * But now in a case situated precisely as this, the rule is not applicable for this reason : the husband has not only the right to eat at his wife’s table and stay in her house using her goods, but such is the relation between husband and wife that the wife has the right to have the services, and care, and management, and supervision of her husband with respect to her personal property. She has the right upon the sale to her of farm stock and implements, to have her husband care for them, manage them, and supervise them fof her. Now, his care, and supervision, and management for her involves his continuing in -the apparent possession of them — in immediate connection with them. * * * I am of opinion, therefore, after the most mature consideration, that under the circumstances, the admitted circumstances of this case, (because there is no dispute about the facts,) there was no change of possession at all, and it is upon that basis I proceed. I assume, taking this view of it, that between the husband and wife there was a delivery of the property, that is to say, there was a transfer of the title or right in the property, and that is not a disputed fact, and that follows from the mere fact of the sale, it was not disputed. Now, then, that being the case, I must lay it down as the law that there was no necessity that there should be a withdrawal by the husband from the apparent ownership of the property to show that his ownership apparently ceases. I do not think that it is a case in which the' question must be left to the jury to say whether or not there was all the change of possession which, under the circumstances, could.be reasonably required. I think it is a case in which the Court is bound to say, as matter of law, that the rule in Twyne’s case is not applicable. Jnst as we would be required to say that it is not applicable if it would be a case of household goods, and I do instruct yon, therefore, that it is not necessary that there should be any change of possession in this case, such as is required by the rule in Twyne’s case. * * * [If, therefore, you find that the wife had this separate estate, that she had owing to her by her husband $3,500, and if the husband made a sale toiler on the 20th of March, 1882, of this property, which the sheriff afterwards sold, then you ought to find for the plaintiff.]
    The defendants submitted, inter alia, the following points :

      First. To make the sale of the articles claimed by Mrs. 'Kroh valid as against the creditors of her husband, there must have been a delivery of the articles pursuant to the contract of sale, either actual or constructive, before the date of the attachment, and unless the jury shall find from the evidence that there was such a delivery, their verdict must be for the defendant. Refused.

      Second. That to make the sale of the articles claimed by Mrs. Kroh valid against her husband’s creditors, she must have assumed such control of them after the sale and before the attachment as would reasonably indicate to all concerned the fact of the change of ownership. And the question for the jury to decide is, did the plaintiff do all that she might reasonably be expected to do in this particular, having regard to the subject-matter of the sale and the situation or relation of the parties to it. Refused.

      Third. Under the facts of this case as shown by the plaintiff’s testimony, the sale of 20th March, 1882, by C. II. Kroh to his wife was incomplete and invalid as against the creditors of O. H. Kroh, and the verdict must be for defendant. Refused.

    Verdict for the plaintiff for $802 77, and judgment thereon; whereupon the defendant took this writ, assigning for error, inter alia, the refusal of defendant’s points, and the portions of the charge of the Court inclosed in brackets above.

      Orr & Gillan, Stenger & McKnight, and John Stewart for the plaintiff in error.
    To the general rules requiring actual delivery when the subject of the sale is capable of it, and constructive delivery where it is not, and exclusive possession in the vendee, it is contended that there is one exception clearly established by judicial decision, viz: where the transaction is between husband and wife. And this is, in brief, the question raised by this record. For if this sale can be sustained, then in no transaction between husband and wife is delivery of possession, whether actual, symbolical, constructive, or otherwise, essential, but as to them, tlie rule is wholly and entirely inoperative, and the very relation in life in which the fraud the rules were intended to prevent is most frequently and easily practiced, is made secure, and open retreat for rascality and dishonesty. What is the wife’s one day may be the husband’s the next, the wife’s again the next clay following, and then again the husband’s, and so on from day to day, changing ownership without the least notice or notoriety, to the distraction or confusion of the honest creditor in liis vain attempt to realize his debt from the property which was the basis of the credit he gave.
    In this case the property was, in itself, susceptible of actual delivery, and as between man and man nothing but an actual delivery would have met the requirements of the law. Again, there was no delivery of any kind whatever. The indicia of ownership remained just as before. Nothing was done to advertise the public of the sale. Something could have been done in this direction, and that something should have been done: McKibbin v. Martin, 14 P. F. Smith, 357. Delivery of possession is as necessary to'support a sale between husband and wife as between strangers, and the sufficiency of the delivery is for the jury to determine.

      O. C. Bowers and W. U. Brewer for the defendants in error.
    The defendant, in the trial below, having voluntarily eliminated from the case all questions of actual fraud, and having rested on the ground of legal fraud, the Court was bound to decide the question and give a binding instruction to the jury, and it would have been clear error to have done otherwise: Dornick v. Reichenback, 10 S. & R., 90; Young v. McClure, 2 W. & S., 147; Cadbury v. Nolen, 5 Barr, 326; Milne v. Henry, 4 Wright, 358.
    The wife of a debtor may be preferred in the same way as any other creditor if her claim be tona fide: Rose *. Latshaw, 9 Norris, 240.
    The rule in Twyne’s case is not applicable at all in the case of a sale by a husband to his wife. “ Of such property possession is no test of title Gamber n. Gamber, 6 Harris, 363 ; Keeney v. Good, 9 Harris, 349; Larkin ?. McMullin, 13 Wr., 29.
    October 6th, 1884.
   Per Curiam :'

This contention arises between a married woman and the creditors of her husband. It relates to personal property which she purchased from him. There is no allegation of any fraud in the sale to her. She purchased in good faith, and paid a full value for the property. There was an undoubted transfer of the title or right in the property to her. The sole question is whether the transfer gave to her suc'h a possession in law as to give her title against the creditors of her husband.

She and her husband were living together on a farm. The sale was made on the 20th of March. They had arranged to relinquish farming and move to Maryland, her former home, and presumptively to take this property with her, oh the 1st of April. After this purchase, and prior to the 1st of April, the several creditors of her husband proceeded, by attachment and by executions, to seize the property.

There were no disputed facts. The plaintiff in error rested his case on the ground of legal fraud. It was, therefore, for the Court to determine. The Court held the evidence of [Possession sufficient between husband and wife.

It is not essentially necessary that the actual possession of the wife be to the entire exclusion of the husband. She must have a right to the possession, but is not required to live separately from liim in order to have such a possession as the law will protect: Keney v. Good, 9 Harris, 349; Gamber v. Gamber, 6 Id., 363.

Regard must be had to the position of the parties, and no such change of possession is required as will defeat the fair and honest object of .the parties: Crawford v. Davis, 3 Out., 578.

This sale was open and notorious. It was in writing, and in the presence of two witnesses. We discover no act'thereafter indicating any denial of the wife’s right of dominion or of possession.

Judgment affirmed.


text:
    GREENE COUNTY.
    October and November Term, 1884,
    No. 21.
    October 6, 1884.
    Hughes v. Smith et al.

    1. In an action of ejectment, plaintiff showed title by patent and successive conveyances to a tract of land containing 400 acres, called “Wolf Den,” and claimed that the 25 acres of land in dispute were covered by said patent and conveyances. The “ironwood” at the north-west corner, and the “white oak” at the south-west corner, called for in said patent, had disappeared; and plaintiff claimed that the “ white oak ” had been replaced by a “ haw bush ” then standing 36 rods west of the point where defendants claim that the white oak ” formerly stood. Defendants offered to prove that the father of the plaintiff was the real purchaser of Wolf Den, although plaintiff’s name was used in the articles of agreement as the purchaser, and that the father treated and regarded the corner claimed by defendants as the true south-west corner of the Wolf Den tract.

      Reid, that this was not an offer to alter or contradict the written articles, nor to set up a parol title to land against the owner of the paper title; and that the father being the real owner,his declarations and acts against his interest during the continuance of his title were competent evidence.
    2. Evidence that tended, of itself or in connection with other evidence, to illustrate the true location of the disputed line in any degree was admissible, and its efficacy for that purpose was a question solely for the jury.
    3. In the absence of a bill of exceptions showing that objection was made to the competency of a witness, such objection cannot be assumed.
    4. Plaintiff offered to prove that his father, being the owner of the land adjoining Wolf Den on the south, and the owner of the land immediately south of defendants’ land agreed, by way of compromise, to the white oak corner claimed by defendants as the corner of their respective lands, for the purpose of showing that it was not the patent corner, but only a corner agreed upon, and that plaintiff’s father at all times claimed the “ haw bush ” as the patent corner. Reid, that as the evidence could not disprove or tend to disprove the fact that the white oak was the patent corner, it was irrelevant, and that declarations by the owner in favor of his own title were inadmissible.
    5. When a person is alive, present in court, and examined as a witness at the trial, it is not competent to give his declarations in evidence.
    6. If there is evidence of living witnesses who saw the marks of boundaries before their destruction, or if there are other conditions on the ground which are entirely inconsistent with the correctness of the courses and distances mentioned in a patent, such evidence is of superior weight, and will prevail over the patent courses and distances.
    7. Where plaintiff’s point for charge stated that if “ James Staggers, under whom the defendants claim, pointed out the eastern boundary of his land at or west of the line claimed by plaintiff to be the western line of Wolf Den,” his possession was not adverse under the statute of limitations, but did not state that the act occurred while the statute of limitations was running, it lacks a vital element of abstract truth as a legal proposition, whifch would make its naked affirmance improper.
    8. Where' plaintiff’s point for charge stated that the entry of a stranger upon the land before the expiration of twenty-one years, declaring that he was authorized by plaintiff to seed the land in dispute, and who challenged the right of defendants to seed the land, was such an entry as would toll the running of the statute of limitations, but did not aver the truth of the declaration that he was so authorized, Reid, that plaintiff was not entitled to an affirmance of the point.
    Before Mercub, C. J.; Gordon, Paxson, Trunkey, Stebrett, Green, and Clark, JJ.
    Error to the Court of Common Pleas of Greene County.

    Ejectment by Thomas Hughes against Robert Smith, guardian of James Staggers and Sarah. Anne Staggers, now intermarried with Leroy Johnson, and Leroy Johnson, her husband, and Melvin C. Hull, tenant in possession, for a lot or piece of ground in Jackson township, containing 25 acres, more or less.
    Upon the trial in the court below, before Willson, J., the following facts appeared:
    On the 6th day of January, 1787, a patent was issued-by the Commonwealth of Pennsylvania to Robert Morris for a tract of land called “ Wolf Den,” in the county of Washington, containing four hundred acres and allowance. And on the 30th day of March, 1795, Robert Morris conveyed, inter alia, “Wolf Den,” to Edward Tilghman. The title to “Wolf Den,” inter alia, by regular and' successive conveyances, commencing with the said Edward Tilghman, became vested in Ellen A. Cook.
    On the 3d October, 1851, Thomas Hughes, the plaintiff, purchased from Ellen A. Cook “Wolf Den” and “ Wolf Path,” an adjoining tract on the east, for which a deed was duly executed and delivered on the 1st December, 1876, the contract having been proven in the orphans’ court after the death of Ellen A. Cook. The- plaintiff gave evidence to show that the land in dispute was covered by said patent and conveyances.
    The defendants gave evidence to show that one Henry F. Moore, in or about the year 1840, made a settlement and improvement on a tract of land including the land in dispute, and that on the 28th of December, 1850, the said Henry P. Moore obtained a patent from- the Commonwealth for the same ; that the said Henry P. Moore conveyed the land to Abraham Staggers, who conveyed the same to James Staggers ; that James Staggers died intestate, leaving two children, the said Sarah Ann and James, the present claimants of the land. The defendants claimed title to the land in dispute in two ways: First, under the patent of Henry P. Moore, and second, by adverse possession for more than twenty-one years.
    The “Cooke lands,” in Greene county, of which Wolf Den is a part, which were patented in 1787, contain over forty-nine thousand acres. Wolf Den is one of a tier of nine tracts, and the fourth in the tier, numbering from the north, and the fifth, numbering from the south. Sugar Loaf adjoins Wolf Den on the north, and Johns’ Bottom adjoins it on the south, Wolf Path adjoins Wolf Den on the east, and lands owned by the defendant adjoin Wolf Den on the west, as shown by the following plan:

      The “ironwood” corner called for in the patent for Wolf Den at the north-west corner is gone, and the “ white oak” corner called for in said patent at the southwest corner is gone. The land in dispute begins at the white oak corner of Wolf Den, and includes a strip running north one hundred and thirty-one perches, and thirty-six perches wide, and contains twenty-five acres.
    Defendants’ witnesses testified that the location of the ironwood and white oak corners was at the points indicated in the above plan. Plaintiff ’ s witnesses testified that the true line of Wolf Den was thirty-six rods west of the line running from the ironwood corner to the white oak corner, as shown on the plan.
    Defendants offered to prove that James Hughes, the father of the present plaintiff, was the real purchaser from Mrs. Cooke of the Wolf Den and Wolf Path tracts, although the plaintiff’s name was used in the article of agreement as the purchaser; that the said James Hughes sold the Wolf Den tract to parties who afterwards sold and conveyed for a full consideration to the plaintiff, through whom he now holds the land, and that the said James Hughes, while owner of the said tract of land, treáted and regarded the corner to which the defendant now claims as the real sou th-west corner of said Wolf Den tract.
    Plaintiff objected to the evidence offered as incompetent and irrelevant, and further, that it is in contradiction of the article of agreement in writing between Alfred Howell, attorney in fact for Elenor A. Cooke, and Thomas Hughes, the plaintiff ; and further, because the defendants aré defending upon a title not derived from Elenor A. Cooke.
    Objection overruled and exception sealed.
    (First assignment of error.)
    Defendants offered in evidence an article of agreement between James Hughes, the father of the plaintiff, and John Morris, dated April 1, 1856, for the sale by the former to the latter for a portion of land containing about two hundred acres; being the south part of “Wolf’s Den.” This to be followed by a deed from the executors of James Hughes to John Morris, executed in pursuance of a power contained in the will of the said James Hughes, authorizing his executors to carry into execution all his contracts, in which deed the property is described as bounded on the west by lands of the heirs of James Staggers. deceased, and in which deed the line to which the defendant now claims is treated as the western boundary of the land conveyed; and to be further followed by evidence showing title at the present time in Thomas Hughes, the plaintiff. This for the purpose of showing that the plaintiff has recognized the boundary to which the defendants now claim as the boundary of the Staggers land.
    Plaintiff objects that the evidence offered is incompetent and irrelevant.
    Objection overruled and exception sealed.
    (Second assignment of error.)
    Abraham Staggers, the grantor of the land in dispute, was called by defendants and was permitted to testify:
    (Third assignment of error.)
    Plaintiff offered to prove by John C. Flennecker, who was a joint owner with others of “White Thorn,” that the witness and James Hughes, Sr., who was the owner of “John’s Bottom,” agreed, in order to settle a contest between themselves, that the north-east corner, or “White Thorn,” and the north-west corner of “John’s Bottom” should be fixed at the white oak, as claimed by the defendants. This for the purpose of showing that the corner is not an original patent corner, but is one agreed on between James Hughes, Sr., and the witness.
    Defendants objected to the evidence offered, for the reason that any compromise between the witness and James Hughes, fixing the corner of “White Thorn” and “John’s Bottom” can, in no'way, effect the ascertaining of the corner now in dispute; and for the further reason that the offer, so far as it is intended to locate the corner in dispute, would be merely evidence of acts or declarations done by James Hughes in furtherance of his own interests, and, therefore, incompetent, said James Hughes being the owner of the “Wolf Den” tract.
    Objection sustained and exception sealed.
    (Fourth assignment of error.)
    Plaintiff offered to prove, in connection with the former offer, and in reply to the evidence of defendants, that James Hughes controlled “Wolf Den,” and sold it to parties recognizing the lines as claimed to by the defendants as the western boundary of “Wolf Den;” and that James Hughes, in the contest with the witness, and at all times, claimed the white oak, at the thorn bush, as the south-west corner of “Wolf Den,” which gives the land in dispute to the plaintiff.
    Defendants objected to the introduction of the evidence offered, for the reason that James Hughes being the owner of the “Wolf Den” tract, any declarations made by him to the effect that the western line of the said tract was where it is now located by the plaintiff, would be made in furtherance of his interest, and, therefore, incompetent.
    Objection sustained and exception sealed.
    (Fifth assignment of errop.)
    Plaintiff offered to prove that, in making the survey, Mr. Bayard, who was the owner of “Wolf F'ath,” pointed out where the north-eastern corner of the tract was, and that he claimed that to be the eastern boundary of “Wolf Path.”, To be followed by evidence of the tracing of the line from there to the western boundary of “ Wolf Path,” and thence by the western boundary of “Wolf Den,” and thence south to the poplar. This to be followed by the evidence of the surveyor that he found that to correspond with the marks on the ground, and the poplar to be the true corner.
    Defendants objected to the evidence offered, for the reason that there is no evidence that Samuel P. Bayard, the person named in the offer, was the owner of “Wolf Path ’ ’ tract, the evidence introduced showing that he was the owner merely of a part of it. And second, that there is no offer to prove that the statement alleged to have been made by the said Bayard was made in the presence of the defendant, or the persons through whom they claim, or that it was communicated to them. That the declaration of Samuel P. Bayard, not being a surveyor, and being still living and here in court, would not be competent against the defendants to fix the boundary.
    Objection sustained and exception sealed.
    ‘(Sixth assignment of error.)
    Plaintiff offered to show how far the Philip Friend land extended on the northern line of “John’s Bottom,” for the purpose of showing the bearing of “John’s Bottom” from the poplar — the course from which it was run.
    Defendants objected that the evidence offered is irrelevant for the purpose for which it was offered.
    Objections sustained and exception sealed.
    (Seventh assignment of error.)
    Plaintiff submitted points for charge which, with the answers thereto, are as follows :

      First. That if the jury believe, from the evidence, that the poplar is the original patent corner of “ John’s Bot-ton” and “White Thorn” and that the white oak corner called for in the patent for “Wolf Den,” at the southwest corner of said “Wolf Den,” and the north-west corner of “John’s Bottom,” and the south-east corner of “White Thorn,” is now gone, and there are now no original marks on the ground to show where said white oak corner stood, that the said white oak corner of “Wolf Den” must be located where the patent courses and distances call for and run out, and if the corner, as claimed by the plaintiff near the haw bush, as the said white oak corner, best- satisfies the courses and distances called for in the patents for “John’s Bottom,” “White Thorn,” and “Wolf Den,” the said corner, as claimed by the plaintiff, must be deemed and taken to be the place of the original patent corner, and the western boundary of said “Wolf Den” tract must be located from said corner by running the courses and distances called for in said patent for “Wolf Den.”
    Answer — refused.
    (Eighth assignment of error.)

      Second. If the jury believe, from the evidence, that the “ironwood,” called for in the patent for “Wolf Den,” as the north-west corner of said “Wolf Den,” is now gone, and that there are no marks now on the ground to show where the said “ironwood” stood, the said ironwood corner must be located where the patent courses and distances called for and run out, and if, in running from said “white oak” corner, as claimed by plaintiff, the courses and distances called for in. the patent for “Wolf Den,” to the call for the “ironwood,” locates the western line of “Wolf Den,” as claimed by the plaintiff, the land in dispute is covered by the patent for said “Wolf Den” tract.
    Answer — refused.
    (Ninth assignment of error.)

      Third. As the defendants claim title under the warrant and survey to Henry P. Moore, dated the 6th of December, 1850, if the jury believe, from the evidence, that James Staggers, under whom the defendants claim, pointed out the eastern boundary of his laird at or west of the line claimed by the plaintiff t,o be the western line of “Wolf Den,” any possession he may then have had was not such actual, continued, hostile, and distinct possession of the land in dispute as would constitute an adverse possession under the Statute of Limitations.
    Answer — refused.
    (Tenth assignment of error.)

      Fourth. If the jury believe, from the evidence, that Ryly Morris entered upon the land before the expiration of twenty-one years, declaring that he ivas authorized by Thomas Hughes, the plaintiff, to seed the land in dispute, and challenged the right of defendants to seed said lands, then it was such an entry by the plaintiff as would toll the running of the Statute of Limitations..
    Answer — refused.
    (Eleventh assignment of error.)
    January 17, 1883, verdict for defendants, upon which judgment was afterwards entered. Plaintiff then took but a writ of error, and assigned the eleven errors set out above.

      A. A. Furman for plaintiff in error.
    Parol evidence is never received to contradict the writing or deed unless when fraud, accident, or mistake is alleged and proved: Gump’s Appeal, 15 P. F. Sm., 478; Lodge •». Barnett, 10 Wr., 4S3. The parol evidence admitted by the court- was for the purpose of creating an estate in the land in dispute in James Hughes: Morris ■». Stephens, 10 Wr., 200 ; Earnest’s Appeal, 15 W. N. C., 19.
    The evidence admitted under the second assignment does not even tend to show where the line in dispute was actually located: Dawson «. Mills, 8 Casey, 302 ; 1 Green-leaf on Ev., sec. 2, 52.
    The witness, Abraham Staggers, being the grantor, and James Hughes, the alleged real purchaser, being dead, he is incompetent to prove any matter occurring in the lifetime of James Hughes.
    It was competent for the plaintiff to show where the owners of adjoining tracts declared their lines and corners were; when that proved or tended to prove the location of the corner or line in dispute : 1 Greenleaf on Ev., sec., 145, notes: Nieman v. Ward, 1 W. & S'., 68; McCausland v. Fleming, 13 P. F. Sm., 36 ; Kennedy v. Lubold, 7 Norris, 246; Potts v.' Everhart, 2 Casey, 496. The lines marked on the land are to govern: Blasdell r. Bissell, 6 Barr, 259 ; Lodge v. Barnett, 10 Wr., 477, and it is for the jury to determine, under the evidence, which of the alleged lines is the true boundary line: Oil Co. v. Lewis, 12 P. F. Sm., 390; Nourse v. Lloyd, 1 Barr, 233; Brown *. Willey, 6 Wr., 208; Hawk «. Senseman, 6 S. & B., 21; Tyler on Ejectment, 860,' 870, 833; Calhoun v. Cook, 9 Barr; 226; Breidegam v. Hoffmaster, 11 P. F. Sm., 223.
    The entry upon the land in dispute as set out in the point is sufficient to avoid the operation of the Statute of Limitations: Hood Hood, 1 Casey, 417; Ingersoll v. Lewis, 1 Jones, 219 ; Alternas v. Campbell, 9 Watts, 28; Hinman v. Cranmer, 9 Barr, 40 ; Hole ». Bittenhouse, 7 Harris, 309 ; act 13th April, .1859, P. L., 603, sec. 1; Mc-Giuniss v. Sawyer, 13 P. F. Sm., 267.

      Wyly, Buchanan & Walton for defendants in error.
    The offer did not propose to contradict the written agreement. It was not to prove that Thomas Hughes was not a party to it, and not bound by its covenants, but merely to show something outside and beyond the written agreement: Hubbert v. Borden, 6 Wh., 92. Nor is this an attempt to enforce a parol contract in relation to lands against an unwilling party. It was surely competent to show an admission by a former owner that the line which defendants claimed was the true line. Exception was not taken to the evidence of Abraham Staggers at the trial.
    The evidence offered under the fourth and fifth assignments of error was irrelevant, and it was also inadmissible, because of the interest of the party making the declarations : Kennedy v. Lubold, 7 Norris, 246 ; 1 Wharton on Evidence, sec. 191. The declarations of a witness living and present at the trial are not admissible : Buchanan v. Moore, 10 S. & R., 275 ; Gfreenleaf on Ev., sec. 145.
    If the marks on the ground have disappeared, the next best evidence of their location is the evidence of living witnesses who have seen them and can testify to their location : Hall v. Tanner, 4 Barr, 247 ; Mageehan v. Adams, 2 Binney, 109; 2 Barr, 44, 4 S. & R.“, 464; Lodge v. Barnett, 10 Wr., 484. The point for charge does not limit the declaration to a period before the Statute of Limitations had completed the title. The fourth point is too broad and does not assert the truth of Morris’ declaration.
    October 27, 1884,
   the opinion of the Court was delivered by

Green, J.:

First assignment. — The defendants’ offer to prove that James Hughes was the real owner of the lands articled to be sold by Mrs. Cooke to Thomas Hughes was not an offer to alter or contradict the written articles. Nor was it an offer to set up a parol, title to land against the owner of the paper title resisted by the latter. On the contrary, the proposition was to prove that, notwithstanding the written agreement was made with Thomas Hughes as the grantee nominally, by an outside and independent agreement between Thomas Hughes and his father, James Hughes, the former was named as purchaser, for a certain special purpose which James Hughes desired to sub-serve. This did not alter the relation existing under the articles between Mrs. Cooke and Thomas Hughes. And as the evidence was followed by proof that Thomas Hughes subsequently recognized the title of James Hughes by allowing him to take possession of the land and treat it as his own, and by purchasing it himself from parties to whom James Hughes sold it, it cannot be said that the evidence offered and admitted was in antagonism with the title of Thomas under the articles with Mrs. Cooke. Of course, if James Hughes was the real owner, his declarations and acts against his interest during the continuance of his title were competent evidence in this suit, and there was no error in admitting them.

Second assignment.- — Undoubtedly the offer of evidence covered by this assignment was competent and was properly allowed. Whether the testimony given in under the offer accomplished its purpose was matter for the jury. If it absolutely threw no light whatever upon the controversy, it shouid have been stricken out on motion, but if it tended, of itself or in connection with other evidence, to illustrate the true location of the disputed line in any degree, its efficacy for that purpose was a question solely for the jury. We can only deal with the offer, and we cannot say either that the offer was incompetent or that the testimony given did not tend in some degree to sustain the offer. Smith, the surveyor, having seen the deed from the administrators of Morris to Rinehart, and having been on the ground and run some of the lines, expressly testified that the deed did not embrace the land in dispute, and gave his reasons for his opinion. The sufficiency of those reasons was for the jury and not for the Court.

Third assignment. — The printed appendix does not show that any objection was made to the competency of Abraham Staggers, or any exception taken, when he was sworn. The counsel for the defendants says that the objection was not made at the trial that the witness was incompetent on account of the death of James Hughes, and in the absence of a bill of exceptions showing it, we cannot assume it.

Fourth and, fifth assignments. — We do not see how the fact that James Hughes, as owner of “John’s Bottom,” and Flenniken, as part owner of “White Thorn,” agreed, by way of compromise of a dispute between them-, that the White Oak should be regarded as the north-east corner of “White Thom” and the north-west corner of “John’s Bottom,” could disprove or tend to disprove the fact that the White Oak was the patent corner of “Wolf Den,’’and therefore think it was an irrelevant fact. In so far as the declarations of James Hughes, offered by the plaintiff, were merely declarations in favor of his own title, they were certainly incompetent. Had he been entirely disinterested and enjoyed special means of knowing the location of the lines and corners of the tracts in question, his declaration^, made long ago, might have been admissible as reputation, but not otherwise: 1 Green Ev., § 145; 1 Whart. on the Law of Evidence, § 191.

Sixth assignment. — As the witness- Bayard, whose declarations were offered and rejected under this assignment, was alive and present in court, and examined ás a witness at the trial, it certainly was not competent to give his declarations in evidence. They would be secondary evidence in any point of view, when the primary was immediately available.

Seventh assignment. It is not explained how the extent of the Philip Friend land on the north line of John’s Bottom would show the bearing of John’s Bottom from the poplar, or in what manner it could assist in locating the White Oak corner of Wolf Den, and hence we cannot see the error of the exclusion of the testimony offered.

Eighth and ninth assignments. — The plaintiff’s points covered by these assignments, as we understand them, substitute the patent courses and distances as the next best evidence of location after the original marks on the ground are gone. They ignore all other proof of the original marks than the marks themselves, but it is at once apparent that if there is evidence of living witnesses who saw the marks before their destruction, or if there are other conditions on the ground which are entirely inconsistent with the correctness of the courses and distances mentioned in the patent, such evidence is of superior weight, and will prevail over the patent courses and distances. Thus, in Lodge v. Barnett, 10 Wr., 484, Mr. Justice Agnew said: “The courses and distances in a deed always give way to the boundaries found upon the ground or supplied by proof of their former existence, when the marks or monuments are gone. So the return of a survey, even though official, must give way to the location on the ground, while the patent, the final grant of the State, may be connected by the return of same, and if it also differs, both may be rectified by the work on the ground.” Of course, the best proof of the work on the ground is found in the original marks and monuments if still existing, but if not, proof of their former existence must be next best in order. There was much testimony of this character given by the defendants, and we do not think it would be proper to cast it all out by the application of a rule which, is quite secondary and inferior in its character.

Tenth assignment. — The plaintiff’s third point does not propound the act of James Staggers in pointing out the eastern boundary of his land as having occurred while the Statute of Limitations was running, and it therefore lacks a vital element of abstract truth as a legal proposition, which would make its naked affirmance improper. The only evidence we can find in the case to which this point could apply is that of Aaron Morris and John Morris, and that testimony falls far short of proving disclaimer of any land in dispute as outside of James Staggers’ boundaries.

Eleventh assignment. — The plaintiff’s fourth point re-', quired the Court to say''that the entry of Ryly Morris, a stranger, upon his mere declaration that he was authorized by Thomas Hughes, without averring the truth of the declaration, would toll the statute. Certainly this cannot be, as it would follow that the statute might be tolled in this mode without any entry by Thomas Hughes or by one who was really his authorized agent.

Judgment affirmed.