text:
    France’s Estate. France’s Appeal. Nesbit’s Appeal.
    1. A will provided : I give and bequeath to my beloved wife, Jane, one-third of all my personal property., and one-third part of all the income, rents, and use of my real estate. I do give and bequeath unto my son William France all the residue and remainder of my estate, real or personal. If the said William should not be living at my death, then in that case his children shall inherit my estate the same as their father would if living. I do nominate, &c., my said son William France executor, &c., and do hereby give my said executor full power to sell and convey any and all my real estate, that I may die seised of, the same as I could do if living. Held, that the wife took only a life estate in one-third of the realty.
    2. A devise of the rents, issues and profits of land is a devise of the land for so long as the rents, &e., are given.
    3. A technical meaning is to be given to a technical word in a will, unless there be clear evidence of a contrary intention.
    4. If the construction of a will be doubtful the construction is to be as conformably as possible to the general rules of inheritance.
    5. If a widow or family of a decedent pay his necessary funeral expenses without objection on the part of an executor his assent is presumed and the estate is liable for the payment.
    February 4th 1874.
    Before Agnew, C. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Appeals from the Orphans’ Court of Philadelphia: No. 50 and 95, to July Term 1873.
    These appeals were from the decree of the Orphans’ Court, distributing the estate of Abraham France, deceased.
    The decedent died in November 1864, having made a will, dated October 27th 1863, and leaving a widow, Jane France, and an only child, William France, who was the child of a former wife.
    The provisions of the will, which gave rise to the questions in these appeals, are as follows:—
    “ Item. I give and bequeath to my beloved wife Jane, one-third of all my personal property, and one-third of all the income, rents and use of my real estate.
    “ Item. I do give and bequeath unto my son William France, all the residue and remainder of my estate, real or personal; if the said William should not be living at my death, then, in that case, his children shall inherit my estate the same as their father would, if living.
    “ Lastly. I do nominate and appoint my said son William France, sole executor of this my last will and testament, and do hereby give my said executor full power to sell and convey any and all real estate that I may die seised, the same as I could do if living; and do hereby revoke and make void all former wills and testaments heretofore by me made, and do declare this only to contain my last will and testament.”
    The executor never filed an inventory of the decedent’s personal estate, nor caused an appraisement of' it to be made. Nor did the widow ever make a claim or ask for an appraisement for the $300 under the Act of Assembly, allowing her to retain that sum. The widow married James Nesbit, and died in February 1871, intestate and without issue, leaving to survive her, her husband, to whom administration of her estate was granted. The executor of Abraham France sold the decedent’s real estate under the power conferred on him by the will.
    He filed an account, which after being corrected by the auditor showed in his hands as follows:—

      Personal estate, after deducting expenses, ■ &c. $235.91
    Interest, ....... 106.72
    - $342.63
    Real Estate, .... $2,232.89
    Interest.....122.71
    - $2,355.60
    Before the auditor, Nesbit as administrator of the widow of deceased claimed to be paid :
    Cash paid by her for medical attendance to the decedent, $12.00
    “ “ “ grave clothes, .... 14.00
    “ “ “ undertaker, ..... 130.18
    “ “ “ for tomb,.....142.00
    $298.18
    In relation to these claims there was evidence that the widow said that she did not intend that any one else should pay them, that she did it voluntarily out of respect for her husband, and she never made any claim upon the executor for repayment.
    He also claimed to be paid $300, the amount which she was authorized to retain out of the decedent’s estate.
    He likewise claimed one-third of the personal estate of the decedent and one-third of the proceeds of the real estate of the decedent, as tenant by the curtesy, on the ground that the devise of Abraham France to his widow was a fee.
    The auditor, J. P. O’Niell, Esq., refused to allow the claims for payments made by the widow, and the interest on one-third the proceeds of the real estate. He'awarded to the administrator $114.21, one-third of the personal estate and interest.
    On exceptions filed by Nesbit to the report of the auditor, the Orphans’ Court, Allison, P. J., decreed:—
    “And now, to wit, June 29th 1872, the court order, direct and decree as follows, to wit: on the exceptions filed by James Nesbit— that the proceeds of the sale of the real estate and interest thereon be distributed as follows, to wit:—
    To William France, two-thirds of $2232.89, . $1488.59
    “ “ “ “ “ $122.71, interest, 81.81
    To James Nesbit, one-third of $122.71, interest, 40.90
    “And the remaining sum of $744.30 is directed to be invested in security to be approved by the court, the interest thereon as it accrues, to be paid to the said James Nesbit, for and during the term of his natural life, and after the decease of the said James Nesbit, the principal thereof to-be paid to the heirs of the said Jane Nesbit, deceased; the exceptions filed by the said James Nesbit, as administrator of the estate of the said Jane Nesbit, deceased, are overruled, and the auditor’s report., except so far as altered and modified by this decree, is confirmed.”

      Both William France, the executor, and James Nesbit appealed to the Supreme Court.
    France assigned for error the awarding of §40.99 to Nesbit, and directing the sum of §744.30 to be invested for his use during his life.
    Nesbit assigned for error that the Orphans’ Court refused to award to him the several sums paid by the widow of the decedent for medical attendance, funeral expenses and tomb, and the §300 which she was authorized to receive from the decedent’s estate under the Act of April 14th 1851, and its supplements.

      E. R. Worrell (with whom was J. Shallcross), for France.
    The devise of the incomemf land is a devise of the land for so long as the income is devised: Butterfield v. Hoskins, 33 Maine 392 ; Miller v. Casselberry, 11 Wright 378 ; Williams on Real Property 205; 2 Bedfield on Wills 344, sect. 49. The devise is not within the Wills Act of April 8th 1833, because it is not a direct devise of land: O’Harra on Wills 89. One who of his own motion buries a deceased person cannot recover from the personal representative : 3 Bedfield on Wills 246, 247, sect. 11, 14; Gregory v. Hooker, 3 Hawk. 394. The husband of a deceased widow is not.entitled to the §300: Scott on Intestate Laws 166; Nevin’s Appeal, 11 Wright 232. The widow waived her right: Davis’s Appeal, 10 Casey 256; Baskin’s Appeal, 2 Wright 65.

      J. W. JETunsielcer, for Nesbit.
    The claims for the payments by the widow were not barred by the Statute of Limitations: McClintock’s Appeal, 5 Casey 360; McCandless’s Estate, 11 P. F. Smith 9. An executor having assets is liable to pay suitable funeral expenses incurred by a third person: Rogers v. Price, 3 You. & Jer. 28; Jenkins v. Tucker, 1 H. Black. 90; Tagwell v. Heyman, 3 Campbell 298. A widow marrying again is entitled to the §300: 1 P. F. Smith 441; Terry’s Appeal, 5 Id. 345. Courts incline to a construction which will pass an estate of inheritance: 2 Bedfield on Wills, sect. 2 (711), 17; Stewart v. Garnett, 3 Sim. 398; 2 Jarman on Wills 534, note/; Andreas v. Boyd, 5 Greenl. 199; Foy v. Foy, 1 Cush. 93; Earl v. Rowe, 35 Maine 414; Carlyle v. Cannon, 3 Rawle 489 ; Wills Act April 8th 1833.
   The opinion of the court was delivered, May 11th 1874, by

Mercur, J.

These two appeals were argued together. They are both from the same decree. The important question is, what interest did Jane France take, under the will of her husband, in his real estate ? Its language is this: “ Item, I give and bequeath to my beloved wife Jane, one-third of all my personal property, and one-third part of all the income, rents, and use of my real estate.”

“ Item. I do give and bequeath unto my son, William France, all the residue and nemainder of my estate, real and personal.”

Nesbit, a second husband of Jane, and who survives her, claims she took an estate in fee, in one-third of the real estate. It is well settled as a general rule of law, that a devise of the rents, issues and profits of land, is equivalent to a devise of the land itself. It cannot, therefore, be denied, even if the actual intent of the testator was otherwise, that in law, she took the land itself, for such a length of time, as he thereby gave her “ the income, rents and use ” of the property.

This brings us to the consideration of another question, to wit: did the whole estate of the testator pass to her, or only a life estate ? The devise contains no words of inheritance. It has, however, often been held substantially, and is expressly declared by the 9th section of the Act of 8th April 1833, Purd. Dig. 1475, pi. 10, that “ all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by a devise over, or by words of limitation, or otherwise, in the will, that the testator intended to devise a less estate.”

Does it then appear in this will “ by a devise over or otherwise,” that the testator intended to devise a less estate to Jane ? The intention is to be gathered from the whole will. If any of the clauses therein are repugnant to each other, effect must be given to the last. Looking first at the particular clause in question, we discover that the language does not in express words give to her one-third of all his real and personal property, but “ one-third of all his personal property, and one-third part of all the income, rents, and use ” of his real estate. While, as we have shown, this language is sufficient in law to pass the land itself for such a length of time as she was given “the income, rents and use ” thereof; yet we are not thereby precluded from considering that language in seeking to ascertain the duration of the estate given.

It cannot be denied that the intent to dispose of land is not usually manifested by disposing of “the income, rents and use” only, thereof. We also see that the devise to her was of an undivided interest in both the real and personal estate. It therefore left to be disposed of the residue of each kind of property, and, if she took a life interest only in the land, a “ remainder ” therein. Passing then to a consideration of the devise to his son William, we discover, to him was given “all the residue and remainder ” of testator’s estate, real and personal. If the estate to his wife had been expressly limited to her life, no more apt or expressive language could have been used by the testator in devising it over to his son. By “residue” he gave to his son all of his property in which he gave his wife no right, and by “ remainder ” he gave him any interest in land which remained after the termination of the estate given to his wife. The word “ remainder ” is the correct legal language to pass the land after the expiration of a life estate therein. If it be urged that this is giving a too technical meaning to the words, I answer, when it is applied to an estate in land, the law has given that technical meaning to it. It is a settled rule of construction that a technical meaning shall be given to a technical word in a will, unless there is clear evidence of a contrary intention. I may add, that it is by construction only of law, that the words used could give the widow the land itself in fee. Giving the construction asked for her, prevents due effect being given to the later clause, devising the land to the son. By holding then that the wife took a life estate only, as we do, it gives effect to the latter clause, and does no violence to any part of the will. It gives effect to every word and harmonizes the whole instrument. Besides, if the construction were doubtful, the la,w leans in favor of a distribution as conformably to the general rules of inheritance as possible: Amelia Smith’s Appeal, 11 Harris 9. The view we have taken effectuates that result. We therefore think the learned judge erred in decreeing that any portion of the proceeds of the real estate, or of the interest therein, should be paid to James Nesbitt, and the several errors assigned by France are sustained.

The first error assigned by Nesbit relates to the disallowance of the claim presented by him as administrator of his wife Jane, formerly Jane France. The claim is for money paid by the widow of Abraham France for four items. The first for medical attendance on her husband, and the last for a tombstone, were properly disallowed. We see no reason why the widow should volunteer to pay those claims, and demand tobe repaid by the executor. With equal propriety she might pay any debt owed by her late husband, or contracted by the executor in the settlement of the estate, and collect the amount from the executor. It would be an interference with the powers and duties of the executor that the law will not tolerate. She, in that respect, would have no more 'right than a stranger to create herself a creditor of the estate.

The second and third items, wre think, rest upon different grounds. They both relate to expenses attending the husband’s funeral. It is true, the executor, by virtue of his trust, was charged with the burial of the testator, yet wills are generally, and I think, very properly, not read, nor the contents communicated to the executor, until the funeral obsequies are ended. The necessary rites of humanity require prompt action. The widow and family of the deceased occupy a position most convenient to discharge those duties. When they do properly discharge them, and incur and pay the necessary expenses, without objection on the part of the executor, his assent must be presumed, and the estate be held liable for the amount paid. Nor does the fact that the widow said to a stranger, she did not intend any one else to pay the expenses, and that she did it voluntarily out of respect to her husband, constitute any bar to her right to recover them. Moreover, the auditor has found that the executor of Abraham France “never filed an inventory of the goods, chattels, and credits of the decedent, nor did he ever cause an appraisement of the personal estate to be made.” Hence, the omission by the executor to discharge his duties, made the action of the widow the more necessary. There is no evidence that the amount paid by the widow was unreasonable or unnecessary. The sum, therefore, paid for grave clothes, and to the undertaker, amounting to $134.18, should have been allowed.

We see no error in disallowing the claim for three hundred dollars. This sum is given to a widow, if she claims it at a proper time. The law does not force it upon her. It is a right that she may waive. In this case she never claimed it. She lived more than six years after the death of her husband. The right then died with her, and her executor cannot now demand it. The second assignment is not sustained.

Decree reversed. And now, May 11th 1874, it is ordered and decreed that the. fund be distributed as follows, to wit: to James Nesbit, administrator of Jane Nesbit, out of the personal estate, $203.66; to William France, the residue of the personal estate, and the whole proceeds of the real estate, $2594.58; and that the costs of each appeal be paid by the appellee therein.


source: Caselaw Access Project

author: Agnew, C. J.

license: Public Domain

text:
    Eagle Beneficial Society’s Appeal.
    p. Land was bought subject to a mortgage, which recited that the mortga£01' by an obligation of even date was bound to the mortgagee “ in the sum °f $3000 lawful money of the United States conditioned for the payment of $1500 of like lawful money, as in and by the said recited obligation, &c., will appear the bond was in “ $3000 lawful silver money of the United States,” conditioned for the payment of “ $1500 of like lawful money.” Held, that the mortgage would be discharged by its payment in lawful money of the United States of any description.
    2. The question was one of lien and to be decided by inspection of the record when third persons are to be affected.
    3. The statement “in lawful money,” in the mortgage, is not helped by the reference to the bond.
    4. The recital in the mortgage is to give notice of the character of the debt to be secured; and subsequent purchasers and mortgagees are not required by the reference to seek the bond unless the recital leads to something wanting in it.
    5. The bond is the principal debt in law and governs the rights of the parties between themselves.
    February 4th 1874.
    Before Agnew, C. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Philadelphia: No. 71, to July Term 1872.
    The proceeding in this case commenced in the Court of Common Pleas, January 3d 1872, by the following petition, &c.:—

      Thomas M. Montgomery, being duly sworn, deposes and says, that Joseph Perry purchased the premises situate, &c., in the city of Philadelphia, at sheriff’s sale December 16th 1871; subject to a mortgage-debt of fifteen hundred dollars; the said mortgage bearing date April 11th 1831, payable in lawful money of the United States of America; which is now owned by the Eagle Beneficial Society, and is overdue; that the said purchaser being desirous of paying off the said mortgage, tendered to William F. Scheerer, attorney in fact for said society, the principal and interest of said mortgage in full to December 23d 1871, together with the cost of satisfying the same, on that day in legal tender notes of the United States of America. That the said William F. Scheerer refused to receive the said money or to satisfy said mortgage, alleging that the bond required the payment to be made in silver money.
    Deponent petitions the said court to order and decree that the said Eagle Beneficial Society receive the principal and interest of said mortgage up to December 23d 1871 (the day upon which tender was made), in legal tender notes, and to satisfy of record the said mortgage, and he will, &c.
    A rule on the Eagle Beneficial Society was thereupon on the same day granted to show cause why they should not receive the principal and interest on the mortgage, and the cost of entering satisfaction, a,nd enter satisfaction on the record of the mortgage.
    The society answered that they were willing to enter satisfaction, “whenever the said principal sum of one thousand five hundred dollars and the interest thereon, according to, the condition of the bond in the said mortgage recited, shall have been fully paid to them.
    “ That it is true that the principal and interest to December 23d 1871, together with the costs of satisfying said mortgage, were on that day tendered to him in legal tender notes of the United States of America. That the same were refused by him, because according to the condition of the bond or obligation secured by' said mortgage of said premises the said sum of one thousand five hundred dollars with interest is due and payable in lawful silver money of the United States of America, for which the said notes were and are not a legal and sufficient tender as he is advised and believes.”
    “ The society were the assignees of a bond and mortgage dated April 7th 1831. The bond is in ‘the sum of three thousand dollars lawful silver money of the United States of America, conditioned for the payment of the just and full sum of fifteen hundred dollars of like lawful money.’ The mortgage recites as follows: ‘ Whereas the said R. 0. in and by a certain obligation bearing even date herewith standeth bound unto the said I. S. in the sum of three thousand dollars lawful money of the United States conditioned for the payment of fifteen hundred dollars of like lawful money, &c., as in and by the said recited obligation and the - condition thereof, relation being thereunto had, may more fully and at large appear.’ The defeasance clause says, ‘provided, &c., the said R. 0. shall pay or cause to be paid, &c., the aforesaid debt or sum of $1500.’
    The court (Pinletter, J.) in deciding on the rule said:—
    * * * “ It is. further contended that the mortgage reciting a certain bond was notice to every purchaser of the property, of the existence of the bond, and it is his duty if he wanted to know the character of the bond to seek information as to its character, the property being bound as security for the performance of the conditions of the bond. This would be so.if the mortgage stipulated to pay the money mentioned in the bond. But if the mortgage calls for the payment of a specific sum and no more, the purchaser of the land was not bound to look beyond the mortgage. That was the instrument which created the lien upon the land. He was not required to look into a subordinate instrument for any condition which necessarily merged the higher security. Even if he had seen the bond, he would have had the right to suppose that the obligee had waived or cancelled the specific conditions of the bond in consideration of the higher and better security of the mortgage. The mortgagee is bound by the recitals in the mortgage. He undertakes to state the amount and kind of money mentioned in the bond, when he places the mortgage of record and will be held to have stated it truly. If he errs therein he must suffer the consequence, and not the innocent purchaser, who has relied upon the notice which he found upon the record.
    “ The requirements of the mortgage in this case will be satisfied by lawful money of the United States of any description. Rule absolute.”
    The society appealed to the Supreme Court and assigned for error the decree making the rule absolute.

      J. R. Bhoads, for appellants.

      J. J). O’Bryan, for appellees.
   The opinion of the court was delivered, February 9th 1874, by

Agnew, C. J.

No question is made as to the operation of the Legal Tender Acts of Congress; but the controversy here arises upon a variance between the recital in the mortgage, and the terms of the bond to which it refers. No doubt the bond is the principal debt in law, and must govern the right of the parties between themselves. But the question here concerns a bond fide purchaser of the mortgaged premises, •without notice. The bond called for $1500, lawful silver money of the United States of America, while the mortgage recited a bond for $1500, payable in “ lawful money of the United States,” “ as in and by the said recited obligation, and the condition thereof, relation thereunto being had, will more fully and at large appear.” The question is therefore one of lien, and like similar cases must be decided upon the face of the record, when third persons are to be affected by it. Mistakes even of an officer making, up the record will not be permitted to affect third persons buying on the faith of the record, as in the case of judgments erroneously entered in the judgment index. • Here the omission in the mortgage is the error of the party himself who accepted it. The statement in the mortgage, “ in lawful money,” is absolute, and without any apparent omission or qualification, and it is not helped by the subsequent reference to the bond, which is always understood to' be a reference for details and formalities, and not essentials. The purpose of the recital in the mortgage is to give notice of the substantial character of the debt to be secured. It is not to be tolerated that such a reference as this is to send subsequent purchasers and mortgagees to seek the bond, perhaps in remote parts, unless the recital itself leads to something that is wanting in it; as for example, where the mortgage is taken to secure subsequent loans, which must be ascertained upon inquiry. Or the recital possibly may be so vague as to render inquiry necessary. But here is an unqualified statement that the bond is payable in “ lawful money,” merely, and points to no further inquiry to ascertain the true character of the money to be paid. No one would be led to suppose that a part of the description of the money was left out.

Judgment affirmed.


author: Mercur, J.

text:
    Whitaker et al. versus Eastwick et al.

    1. A purchaser takes the risk of the quality of an article sold unless there be fraud or warranty.
    2. In a sale of goods there is an implied warranty of title, and generally of the species, but not of quality.
    3. Mere representation is not warranty.
    4. The relation of seller and buyer is not a confidential one.
    5. The plaintiffs purchased a cargo of coal by the bill of lading and the representation of defendants that it was “ good coal well adapted for generating steam.” In a suit for defect in the coal, Held, that evidence that the coal had much dirt in it and it took an increased quantity to generate steam was inadmissible.
    6. Borrekins v. Bevan, 3 llawle 23 ; Eraley v. Bispham, 10 Barr 320; followed.
    February 4th 1874.
    Before Agnew, C. J., Merour and Gordon, JJ. Sharswood, J., at Nisi Prius.

      Error to the District Court of Philadelphia: Of July Term 1872, No. 2.
    This was an action of assumpsit, brought November 5th 1870, by Charles J. Eastwick and Philip S. Eastwick, trading as East-wick & Brother, against William IT. Whitaker, Daniel Eocht and John Wadlinger, trading as W. H. Whitaker & Co., to recover back part of the price paid by the plaintiffs to the defendants for a cargo of coal, which the plaintiffs alleged was inferior in quality to the representations of the sellers.
    C. J. Eastwick, one of the plaintiffs, testified:—
    “ This coal when purchased was represented as a cargo of good coal and particularly well adapted for generating steam. We did not see the coal when we purchased it. The defendants were miners and shippers of coal. We bought the coal of them in Philadelphia, on the bill of lading. When we bought it, it was on board a canal-boat. We bought it deliverable at Schuylkill Haven. It had just been shipped when we bought it. The boat had just started on its way down. We bought the coal here on the bill of lading.”
    The plaintiffs’ counsel then offered to prove that the coal furnished had at least twenty per cent, of slate and dirt in it, and that it was unmerchantable and unmarketable.
    The defendants’ counsel objected to the offer because it was not accompanied by any offer to show fraud or warranty.
    The court (Thayer, J.) admitted the offer and sealed a bill of exceptions.
    The witness continued: “ I sold the coal with the same representations to Messrs. Crozer & Sons, of Chester. The coal was then lying in the canal of the Schuylkill Navigation Company. After it had reached the Crozers, I received a letter from them claiming a deduction. I had not seen the coal when they purchased. I saw it afterward, and it was full of dirt and slate. Chestnut coal is about the size of a horse chestnut. Crozer claimed a deduction of twenty per cent. It was not merchantable coal. I allowed it and notified the defendants, but they declined to make the allowance. I had paid the defendants before I discovered the defect. John Wadlinger is the miner, and he is one of the partners of defendants. It was mined and shipped by him, and sold to me by defendants. Mr. Whitaker admitted to me that there was other coal besides Wadlinger’s put in the cargo. I asked Whitaker if he had a good chestnut coal to sell. He said he had. He would sell me a cargo of Wadlinger’s coal. He gave me a price, which I think was $2.75 a ton at Schuylkill Haven. I then found a purchaser, and closed with Whitaker at $2.60 a ton. I asked him if it was good for steam purposes. He said he had sold a good deal of it for that purpose, and it was well adapted for it. What he said was that this kind of coal — John Wadlinger’s coal — was good for that purpose. I had bought Wadlinger’s coal before frequently and in large quantities, but never the chestnut size. I was acquainted with its quality. It was on account of my knowledge of the larger sizes that I placed confidence in his representations. The cargo was bought deliverable at Schuylkill Haven. I bought partially on my knowledge of the coal. He did not warrant the coal. He acknowledged that he knew other coal — a number of cars — were put into it. He and I ascertained that it was the screening out of dirt-banks. Good coal was then selling at $2.75 a ton. I bought at 15 cents less than a first-class price. I sold Crozer at $4.87 a ton delivered, equivalent to $2.75 a ton at Schuylkill Haven. I allowed Crozer twenty per cent, on $900.75, the amount of our bill.” * * *
    There was other evidence of the same character admitted under objection and exception.
    The verdict was for the plaintiffs for $112.01.
    The defendants took a writ of error, and assigned for error the admission of the evidence objected to.

      3. W. Pennypacker, for plaintiffs in error.
    There being no fraud or warranty, the evidence was not admissible: Borrekins v. Bevan, 3 Rawle 23; Wetherill v. Neilson; 8 Harris 448; Fraley v. Bispham, 10 Barr 320; Jennings v. Gratz, 3 Rawle 168.

      J. Carty, for defendants in error.
    The bill of lading with the representation of the sellers was an implied warranty that the coal was merchantable: Hanks v. McKee, 2 Litt. 227; Gardiner v. Gray, 4 Camp. 144; Miller v. Schilizzi, 17 C. B. 649; Hyatt v. Boyle, 5 G. & J. 110; Edwards v. Hathaway, 1 Phila. R. 547.
   The opinion of the court was delivered, May 11th 1874, by

Mercur, J.

It is well settled as a general rule that the purchaser takes the risk of the quality of an article purchased unless there be fraud or warranty. In this case no fraud is alleged, and there was no express warranty. The action is assumpsit on an implied warranty of quality. There is an implied warranty of title and generally of the species in a sale, but not of quality. Hence, where the vendor in the bill of parcels described the article as blue paint, it was held' to be an implied warranty that it should be blue paint: Borrekins v. Bevan et al., 3 Rawle 23. Fraley v. Bispham, 10 Barr 320, was a case of the sale of tobacco by sample. In the bill of parcels it was stated to be “ superior sweet-scented Kentucky leaf tobacco,” yet the statement was held: First, to be no evidence from which a jury might infer a warranty that it was either superior or sweet-scented. Secondly, that the vendor was not liable in an action ex contractu, if it was Kentucky leaf tobacco, although of a very low quality, ill flavored, unfit for the market and not sweet-scented. It was there said all gradations in quality are at the hazard of the buyer.

The opinions of persons differ greatly as to the quality of goods sold. Purchasers do not generally rely solely upon the mere opinion of the vendor. They either act upon their own judgments, or exact something more than the mere opinion of the person from whom they are buying. The law gives a remedy for breach of contract, but cannot undertake to give damages for mere expectations disappointed. Mere representation, does not constitute a warranty. The relation between buyer and seller is not a confidential one. If the buyer, instead of exacting an explicit warranty, chooses to rely upon the bare opinion of one who knows no more about the matter than he does himself, he has himself only to blame for any loss he may thereby sustain: McFarland v. Newman, 9 Watts 55 ; Wetherill v. Neilson, 8 Harris 448. In the absence of an agreement by the vendor the purchaser takes at his own risk as to the quality: Eagan v. Carr, 10 Casey 236.

The facts in this case show the defendants in error had previously frequently purchased in large quantities this kind of coal, but never of the chestnut size. They were, therefore, acquainted with its general character. They purchased this coal in question at fifteen cents less per ton than first-class coal was then selling. They now complain that it contained an unusually large percentage of slate and dirt. They got substantially the kind of coal for which they bargained. The evidence offered and received under objection was to its quality. It was error to admit it. The fact that it was represented as being well adapted to generating steam, and that by reason of its impure quality a larger quantity is required to generate a given amount of steam, are all insufficient to raise an implied assumpsit. The learned judge, therefore, erred in admitting the evidence.

Judgment reversed, and a venire facias de novo awarded.


author: Per Curiam.

text:
    Rodman et al. versus Thalheimer.
    1. Insolvency of a vendee of goods and his knowledge of it are not alone such, fraud as will set aside a sale and enable the vendor to rescind and replevy the goods after they have come fairly and fully into the possession of the vendee.
    2. To avoid the sale there must be artifice, trick or false pretence as a means of obtaining possession, bad faith and intent at the time to defraud the vendor.
    ' 3. Insolvency and a knowledge of it at the time of the sale are evidence for the jury with other facts of intended fraud.
    4. The doctrine in New York on the question of rescission oh the ground of insolvency does not obtain in Pennsylvania.
    5. Evidence in this case not sufficient to go to the jury on the ground of fraud in the vendee.

      February 5th 1874.
    Before Agnew, C. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Error to the District Court of Philadelphia : No. 370, to January Term 1872.
    This was an action of replevin in which the writ was issued February 10th 1870 by Charles W. Rodman and Leonard F. Hepburn, trading as Rodman & Hepburn, against Max Thalheimer, for 50,000 feet of cedar boards. On the execution of the writ the defendant gave a claim property bond and the goods were delivered to him; he pleaded “ property.”
    The plaintiffs had sold and delivered to the defendant a large quantity of boards; the plaintiffs alleging that the defendant bought them fraudulently, knowing that he was insolvent, issued this replevin for them.
    The case was tried, January 30th 1872, before Lynd, J.
    J. J. Daly testified that he was a salesman for the plaintiffs, who resided in New York; about the 18th of January he was in Philadelphia soliciting orders for the plaintiffs for the sale of Spanish cedar to make cigar-boxes. He visited defendant. “ I asked him how trade was ; he replied that trade was good; he was making a good many boxes and selling a good deal of cedar; that he was making money, and that he was making cigar-boxes and cedar chests. I told him what cedar I had for sale, and offered it to him at a certain price; he offered me two prices for the two different kinds of wood I had, which prices I was not at liberty to accept, because they were less than the price I was directed by my employers to ask, and less than the price I was directed to accept without communicating with them. I did communicate the defendant’s offer to my employers, by telegraph, that day, asking if they would sell cedar at five and a half cents; they answered ‘ Yes.’ I waited on the defendant again and told him he might have the cedar at his price. After failing in my efforts to get a better price from him, I accepted his offer on behalf of my employers on the day following his offer; Thalheimer gave me instructions to have the goods forwarded by the Camden & Amboy Railroad Co., or cheaper route, if possible; the terms of payment were to be the defendant’s notes at sixty and ninety days; I reported by letter the terms of the sale to New York and the manner of sending the goods here as directed.
    “ I left Philadelphia and was absent four or five days; on my return to Philadelphia on my way to New York, I again waited on Mr. Thalheimer, and he complained to me of the quality of the wood sent to him, which was then in his hands; I agreed to allow him forty-five dollars for any defects in the wood, and took his notes and gave him a receipt for them; the receipt was:
    “ 1 Received from M. Thalheimer, one note at sixty days for $1236.03, due 25th. March, and one note for $1235, due 24th April, on account bill 24th January 1870.
    ‘ Rodman & Hepburn.
    ‘Philadelphia, Eeb. 1st 1870.’
    “ I came on to Philadelphia again, on the night of the 5th of February, and I went to Thalheimer’s store the next day; I asked him then, if he had a note due this month to PeterM. Dingee; he said he had; I asked him ‘ was it paid ? ’ he replied, ‘ who told you that ? ’ and seemed astonished that I should have heard it; I asked him, had Dingee other notes of his; he said he had ; I asked him then how much did he owe Dingee altogether; and he replied, about as much as he owed us; he said in answer to my question, that he owed about $5000 in the aggregate; I asked him what were his assets, and he replied ‘ about $1500,’ of which $300 or $400 were bad, however; I asked him now long he had been in business; he said thirteen years; 1 told him it was a poor exhibit for a man in business so long ; he then said he had pulled through before and he hoped to pull through again; I asked him if he had any property, and he said he had a house, but it was mortgaged for all it was worth ; he said he could not get any money in, and had hardly enough to pay his hands on Saturday night. I then telegraphed the result of my interview to my employers. While at the defendant’s store, I went up stairs to see what stock he had; I saw two or three (not more than three) cedar chests, and some cedar which he was working; I don’t think he had more than $400 or $500 of property in the place; I saw our cedar in a cellar opposite his store; as I said, I telegraphed ‘situation doubtful, come and see;’ Mr. Rodman came on and saw Mr. Thalheimer the following morning; in my presence, he told Mr. Rodman that he had not a dollar Tn the world and that his house was mortgaged for all it was worth; he said he had ten children, each worth $10,000; Mr. Rodman then asked him to secure him in some way or another ; Thalheimer said ‘No;’ Rodman then offered to give Thalheimer the cedar in such quantities as he might need, the whole to remain on storage —'all to remain where it was till all was consumed; Thalheimer refused the offer; Rodman then offered Thalheimer $200 to let up the contract; Thalheimer refused and then said, ‘ I won’t do anything without consulting P. M. Dingee, of New York;’ Rodman then said, ‘ I understand you won’t do anything ?’ Thalheimer answered, ‘No — I won’t do anything.’ We then left. We issued a writ of replevin and seized the goods on same day.”
    On cross-examination witness said: “ I offered this Wood to the defendant in Callowhill street, in this city. He did not buy them the first time I saw him. I invited him to come to my hotel (the Girard House), and showed him some samples of the wood there. I pressed him to buy, as I usually do. I saw the defendant at the Grirard House on the same day. I said that if he was unable to pay on time, his notes falling due, we might accommodate him then. I saw the wood here. It was to have been delivered here. Rodman asked Thalheimer security on his property for his debt. I had told Rodman my conversation with Thalheimer the day before. In answer to Rodman’s request that Thalheimer should give him back the goods, he said that it would break his credit to do so. His store is in Oallowhill Street. The lumber in dispute was stored under a produce store, opposite to his store. He had all we had sold him except 2000 feet, which he had resold.”
    Plaintiffs gave in evidence the following letter of Daly, written in pursuance of their answer to the telegram :

      “ Grirard House, Philadelphia 19, 1, 1870.
    Messrs. Rodman & Hepburn:
    ‘ Dear Sirs: — I had this pleasure yesterday to which I particularly refer. Have now the felicity to advise the following sale, and though it is below my ideas, could not do better, as trade is very dull. After writing you last post, I had Thalheimer at my hotel, and he offered me 5Jci for the ‘ Murchie’ cedar, and hence my telegram to your Mr. O. W. R. Would you sell cedar ex. ‘ Murchie’ at 5|c. ‘Answer.’ To which, I got the reply ‘Yes.’ Brecht bought from P. M. D. lots 21, 27, 49 logs ex. N. Mitchell at 16c. Maulé Bros., also bid for the same cargo. Brecht offered me 5c. for Cuba wood, which I respectfully declined. Address me here, and remain,” &c.
    “ Sold M. Thalheimer, 207 Oallowhill Street, Philadelphia, 30 M. ft. sawed cedar ‘ Ex. Murchie’ at 5Jc., and 20 M. ft. sawed cedar Ex. ‘ Murchie,’ or sur’m cedar at 4Jc. Terms, notes at sixty and ninety days. Ship per O. and A. R. R., or cheaper route, if possible. J. J. D.”
    Rodman, one of the plaintiffs, testified:—
    “After receiving that order I commenced to get the cedar ready. We had to get it out of our storehouse, and I ordered it to be prepared for shipment. I knew at that time that this wood was in my storehouse, and that it had to come out of my storehouse to fill that order. I had at that time about 250,000 feet in our storehouse. I only know that the wood there came out of the ‘ Murchie,’ and that the cargo was in that storehouse, and I remember that it was a large cargo of wood. The 50,000 feet were taken out, and were delivered to the Camden & Amboy Railroad for shipment, consigned to Thalheimer. We got a bill of lading, and it was sent to the defendant.”
    They gave in evidence this letter from defendant:—

      “Philadelphia, January 28th 1870.
    “.Messrs. Rodman & Hepburn:
    “ Gents: — Having receipted that cedar yesterday, but find that I was greatly disappointed; the Spanish cedar Mr. Daly sold to me as first class and selected, when I find it not anything like represented. I had a box-maker at the freight depot to see it. He wanted to buy 20,000 feet. I had it offered to him for 5f cents, but he would not have it at no such price. The other stuff is so bad that I really don’t know what to do with it; it is worse than poplar, and there is many a bundle in it which I could not offer to any one at no price. Mr. Brecht said if you had sent such wood to him he would have left it at the depot, and would not received it all. Now, if you wish to make a deduction of at least 4000 feet ofi the 4J cents wood, I will send you your notes with that deducted amount; if not, I cannot accept it, as I would lose too much on it. I cannot sell unless to make allowances on that wood; and there is also a great deal of rotten and faulty wood among the Spanish cedar, which I have to make allowances, which Mr. Daly sold to me as sound.
    “ Please inform me as soon as possible what you intend to do, and oblige Yours, M. Thalheimer.”
    Plaintiffs gave in evidence their check for $45, the amount allowed for the defect in the boards -sent to defendant by letter February 4th 1870, and the defendant’s letter of the 5th returning the check, and directing plaintiffs to deduct the amount from the notes when they fell due.
    Rodman testified that he did not get the defendant’s notes discounted ; plaintiffs endorsed them, and passed them in settlement of an account for wood they had bought. On learning that a note of defendant had gone to protest, he went to the persons to whom they had endorsed the notes and stopped them in their hands, and agreed to give them other notes in their place. He further testified substantially as Daly, as to their interview with defendants.
    Plaintiffs gave other evidence tending to show defendant’s insolvency, the delivery of the goods, &c.
    The plaintiffs, assuming that the contract was made in New York, offered evidence of the laws of that state, for the purpose of showing that under the evidence in this case the title to the property had not passed from them.
    The court refused the offer, on the ground that the evidence showed that the contract was made in Pennsylvania; and sealed a bill of exceptions.
    The plaintiffs having closed, the court on motion of the defendant directed a nonsuit.
    The plaintiffs took aAmt of error; they assigned for error the rejection of their evidence, and directing a nonsuit.

      S. D. Page and S. S. Hollingsworth, for plaintiffs in error.
    False representations by vendee to vendor by which he is induced to sell goods is a fraud, and gives the vendor the right to rescind : Harner v. Fisher, 8 P. F. Smith 453. The evidence here should have gone to the jury : Weeks v. Burton, 7 Vermont 67 ; Tryon v. Whitemarsh, 1 Metcalf 1; Upton v. Vail, 6 Johns. R. 181; Boyd v. Browne, 6 Barr 310; Bokee v. Walker, 2 Harris 140; Huber v. Wilson, 11 Id. 178; Graham v. Hollinger, 10 Wright 55; Heastings v. McGee, 16 P. F. Smith 386.

      W. L. Hirst, for defendant in error.
    To rescind the sale there must be artifice) intended and fitted to deceive: Smith v. Murphy, 9 Harris 367; Backenstoss v. Speicher, 7 Casey 324.
   Judgment was entered in the Supreme Court, February 16th 1874.

Per Curiam.

This was a sale by a “ drummer ” for a New York house. His whole testimony, including his letter to his employers of the 19th of February 1870, in which he expresses his felicity,” as well as his note of the sale to the defendant, shows that he, as the agent of the plaintiffs, made the sale of the cedar at Philadelphia, and that the defendant was induced to buy at his urgent request. It is true, he asked the defendant about trade, and the latter said it was good ; and asked him/about his business, and the latter said it was good; he was making money — making cigar-boxes and chests. But this was not said as an inducement to obtain credit, nor is there the slightest evidence of artifice or trick on part of the defendant to obtain the cedar. If the plaintiffs have suffered a loss from the credit given and the insolvency of the defendant, it can mainly be attributed to their mode of business in sending out an anxious agent to “ drum up” customers in the expressive terms of trade. It is very evident Daly, the “ drummer,” followed up his vocation with assiduity, and without very great concern for the ability of his customer. In his own language the defendant did not buy the first time he saw him; was invited to the Girard Hotel to see the samples, and he “pressed the defendant to buy,” as (he said) “ I usually do,” and told him if he was unable to pay on time his notes falling due we might accommodate him then. We see in all these circumstances not the slightest intent on part of the defendant to obtain the goods by a fraudulent concealment of his insolvency. The law in this state is not that insolvency and the mere knowledge of it are such a fraud as to set aside the sale and enable the seller to rescind, and to replevy the goods after they have come fully and fairly into the possession of the purchaser. It requires artifice, trick or false pretence, as a means of obtaining possession, to avoid the purchase. There must be bad faith, — an intent at the time to defraud the seller. Insolvency and a knowledge of it at the time of the sale are evidence to go to the jury with other facts to show the intended fraud, but standing alone will not operate to rescind after a possession fully and fairly acquired. The New York doctrine does not hold in this state. See Smith v. Smith, Murphy & Co., 9 Harris 367; Bunn, Raiguel & Co. v. Ahl, 5 Casey 387; Backenstoss v. Speicher, 7 Casey 325 ; Harner v. Fisher, 8 P. F. Smith 453; Williams v. Davis, 19 Id. 21. These considerations dispose of the exceptions to the evidence. The place of the contract was Philadelphia, as we have already stated. Daly says he accepted defendant’s offer— he made the sale — he reported it and congratulated the plaintiffs upon it. The contract was not to be executed in New York. Of course the cedar came from New York by the designated route, but the delivery was not there by contract.

Judgment affirmed.


author: Gordon, J.

text:
    Powelton Coal Company versus McShain.
    1. A verbal promise by one o£ the parties at the making of a written contract, if it was used to obtain the execution of the writing, may be given in evidence.
    2. A written agreement was “ to transport at such times as you may desire 10,000 tons of coal,” &c., evidence was admissible that plaintiff refused to sign unless it was inserted that the coal should be furnished before October 1st, that defendant said “ that is understood,” and plaintiff then signed.
    3. Indebitatus assumpsit will not lie on a special contract unless it has been fully performed by plaintiff; — but plaintiff could maintain an action on the common counts, where a special contract, given in evidence in defence, was found inoperative by reason of fraud.
    4. Plaintiff contracted to carry coal; it was carried in a barge in which another was joint owner with plaintiff. Held, that the suit for the freight was properly brought in the name of the plaintiff alone.
    February 6th 1874.
    Before Agnew, C. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 12, to January Term 1874.
    This was an action of assumpsit commenced February 27th 1869, by Manuel McShain for the use of Patrick Mulhorn, against the Powelton Coal and Iron Cmpany. The declaration was in the common counts, for carrying goods : — The pleas were non assumpsit and payment with leave, &c., and set-off, under which notice of the special matter offered in evidence was given.
    The claim of plaintiff was freight on a cargo of coal carried for defendants from Philadelphia to Brooklyn, on the barge “ Mary T. Connolly. ”
    The plaintiff gave evidence by Patrick Mulhorn, captain of the barge, that tbe coal had been carried as claimed by plaintiff, that witness had demanded payment of the freight from the defendant as by order on the bill of lading and that they refused without giving any reason and also that half the barge belonged to the plaintiff and half to the witness.
    The plaintiff testified:—
    “ I signed a piece of paper, written out by Mr. Berwind (Vice-president of plaintiff) after I had entered upon the work. This is my signature tp the contract. This is not the contract under which I carried this coal. ”
    The plaintiff then made the following offer, to wit: — “ To prove that about the middle of July 1868, Mr. McShain and Mr. Berwind, acting for defendants, entered into a verbal contract for the transportation of coal from Philadelphia to New York; that it was agreed that ten thousand tons of coal should be shipped and furnished to Mr. McShain before October 1st 1868, and that the rate of freight '“should be $1.30 a ton; that McShain entered upon performance of this agreement and carried several hundred tons; that several weeks afterward Mr. Berwind wrote this paper of July 28th 1868, and presented it to Mr. McShain for his signature. Before signing, McShain called his attention to the fact that he had omitted to insert in the agreement the time within which the coal was to be furnished ; that Mr. Berwind said, ‘ Of course thatis understood, — I will furnish the ten thousand tons before the 1st of October, and could furnish five thousand more if it were necessary; ’ and thereupon Mr. McShain, with that understanding and upon that assurance, signed this paper. ”
    The defendants objected to the offer, it was admitted by the court and a bill of exceptions was sealed.
    The plaintiff said: “ On or about the 15th day of July 1868, Mr. Berwind called on me to ascertain at what rate I would transport ten thousand tons to New York. I inquired at what time he would want it transported. If it were summer I would take it lorver. If before 1st of October, $1.30 per ton. He agreed to give $1.30 a ton and to furnish the coal by that time. I sent boats as required till sometime in August, perhaps the 8th or 10th. In coming up the street there was a tap on the window of the Powelton Company’s office. I went in. Mr. Berwind showed me the paper. I was in a great hurry. I picked it up. I glanced over it and said, ‘ Mr. Berwind, this is all one-sided; it don’t mention that you will furnish the coal by the 1st of October. ’ He said, ‘ That is understood. We will not only furnish that, but we expect to furnish five or ten thousand m'ore by that time and ship it.’ I made answer that ‘If that is understood, I will sign it.’ At the time the paper was signed it had not the words at the bottom ‘ we accept, &c.’ After the 1st of October, freights kept advancing until the end of the season. In some cases as high as $2 were paid. Ten thousand tons were not furnished before October 1st. I called on them from time to time, urging them to give me coal. I sent my captains and vessels there demanding coal. I kept my vessels waiting for coal as long as eight or ten days at a time. Then I had to send my vessels away for other freight, charging them no demurrage. ”
    The plaintiff gave other evidence in corroboration of his own statements.
    The defendants gave in evidence this paper:—
    “ Philadelphia, July 28th 1868.
    To the Powelton Coal and Iron Co.,
    Gentlemen.: — I hereby agree to transport from Greenwich to New York, at such times as you may desire, ten thousand tons of coal for the sum of one hundred and thirty cents per two thousand two hundred and forty pounds.
    Very respectfully,
    Manuel McShain. ”
    “ Manuel McShain, Esq.,
    Dear Sir : — We hereby accept the above proposition.
    Powelton Coal and Iron Co.,
    Charles F. Berwind, Vice-President. ”
    Berwind testified: “In June 1868, our company desired to make arrangements to sell coal in New York. I consulted Mr. McShain regarding it, telling him that I wished to sell ten thousand tons in New York. I wanted to be secure, as we had to sell at a fixed rate. He telegraphed me that he would carry at $1.30, and he wrote to the same effect. Nothing was said about time. I agreed to sell to the Brooklyn Gaslight Company ten thousand tons of coal. It was not in writing. I then mentioned this to Mr. McShain, and he verbally agreed to carry it at $1.30 during the season. I subsequently put it in writing. The whole was written awaiting signatures.’ There was no verbal agreement at the time it was signed that it was to he carried before October 1st. The first I heard of any allegation in respect to time was some two or three months after. He sometimes complained about coal not coming fast enough, but the first specific allegation respecting the agreement was some time in November, and I think he then fixed the time as the 1st November.” He testified further in contradiction of McShain’s testimony.
    The defendants gave other evidence in contradiction of plaintiff’s evidence.
    They gave evidence also that the plaintiff had carried but 6468 tons of coal under his contract, and that the defendants had to charter other boats to carry the remainder at increased rates, from 25 to 40 cents per ton beyond the price agreed on with plaintiff.

      They also gave in evidence the bill of lading of the “ Mary T. Connelly,” by which the freight was made payable to the order of the plaintiff, and which by order endorsed was made payable to Mulhorn.
    The following points of the.defendants were denied:—
    1: The plaintiff cannot recover in this case, because he does not pretend that he complied with his entire agreement, and there .is no evidence of any employment of these boats by defendants except by and under the contract.
    2. The uncontradicted evidence in the cause being, and the plaintiff having testified and admitted, that the boats were loaded under the contract of July 28th 1868, the plaintiff cannot recover under the pleadings in this case.
    8. The freight claimed in this case having been made by the bills of lading payable to the order of Manuel McShain, and he having specially ordered the payment of said freight to other persons, and there being no other or further order by him, he cannot recover in this case.
    4. The evidence being that the “ Mary T. Connelly ” was jointly owned by Captain Mulhorn and Manuel McShain, the latter cannot, under the evidence, recover in this suit.
    The court charged: * * * “ The defence seems to rest upon two grounds. First, that the plaintiff is not entitled to recover upon the present pleadings; that it was his duty, in making his claim, to have declared upon the special contract which was made in July 1868 ; and that, having' neglected to do that, he cannot, in the present state of the pleadings, recover against the defendants.
    “ That is a good and valid objection to his recovery in this case, if you find that the coal was carried under the special contract of July 1868. [If you find that the plaintiff Mr. McShain carried these cargoes of coal under and in pursuance of the special contract of July 1868, whether under the verbal contract which has been referred to, and which preceded the written contract, or under that which was in writing, or the contract in writing as sought to be reformed by the plaintiff, then that is a fatal objection to the plaintiff’s recovery in this case, and your verdict ought to be for the defendants. If it was not carried under the special contract, then the objection is not well taken. I leave it to you to determine, as a question of fact, whether or not these cargoes were carried under the special contract made in July 1868.]
    “ The second point of defence is one which goes to the merits of the plaintiff’s claim, and it is that the plaintiff entered into a contract in July 1868, with the defendants, by which he hound himself to carry ten thousand tons of coal for the defendants when they might desire, at the price of $1.30 a ton freight; that he carried a part of the quantity which he stipulated in his contract to carry, but that he refused to carry the balance of the ten thousand tons; that the defendants were compelled to employ other boats at higher rates of freight than that which the plaintiff agreed to carry for, and were obliged to pay differences in freight, exceeding the freights which the plaintiff had agreed to carry them, by a sum which exceeds the amount of the plaintiff’s claim. Of course, I need not say to you that that is a perfectly good defence, if it is made out. * * *
    “Now, that is the most important point in the case, whether the plaintiff was bound to carry it or not. The contract in writing has been produced, signed by the plaintiff on the 28th of July 1868, by which it appears the plaintiff agreed to carry ten thousand tons of coal for the defendants, at such times as they, the ■defendants, might desire, at the price named, $1.30 a ton. If that contract is to be interpreted by its written terms, without any extraneous additions to it, it is perfectly plain that he was bound to carry this coal, as well as the rest which he had carried, at the same rate, viz.: $1.30.
    “ The plaintiff, however, alleges that the written agreement does not contain the whole contract. He says that the contract was at first a verbal contract — a contract not put in writing, and that by the terms of that contract he agreed to carry ten thousand tons, at the rate per ton mentioned, if the defendants would furnish it by the 1st of October, and that he did not agree to carry it at any time that they might ask him to carry it. That subsequently, when he was asked to sign the written paper drawn up by tlie vice-president of the company (that is, the written contract of the 28th of July), upon reading it over he remarked that it was all on one side, and that it did not mention that the defendants would furnish the coal by the 1st of October; that Mr. Berwind, the vice-president, then replied, ‘ That is understood, we will furnish that and ten thousand tons more besides, by that time;’ that the plaintiff then replied, ‘ W.ell, if that is understood, I will sign it,’ whereupon he signed it. [Now, if this limitation as to time was a part of the contract, and a material part of the contract as originally made, and if the plaintiff was, when his attention was called to the fact that this had been omitted from the written contract, induced to sign the written contract upon the faith of and trusting to the representations of Mr. Berwind, that it should be regarded as a part of the contract as much as if it were written in it, then it is to be so regarded.] * * * I instruct you that mere representations or remarks which did not enter into the contract are of course no part of the contract; but if by the terms of the original verbal contract it was agreed that all the ten thousand tons should be delivered to the plaintiff by the 1st of October, and if the plaintiff, when the verbal contract was put in writing on the 28th of July 1868, objected to sign it because it had not that stipulation in it, and was induced to sign it by the promise that it should be understood and considered as part of the contract, although not in the writing, then the stipulation referred to is to be considered as part of the contract, although it is not in the writing.
    “ Was this a condition of the original contract ?
    “ In determining this, the jury should be careful to discriminate between mere conversations and inducements held out while the parties were bargaining and the essential terms of the contract finally agreed upon between them. All the conversation is regarded as merged in the final agreement. That is to govern, and it is not to be controlled by prior conversations or remarks, or the expression of an expectation that the coal would be shipped before a certain time, would not qualify the contract or add that as a condition to it; but if that was agreed to, or as one of the terms or conditions of the contract, and was so understood by the parties, then and then only it was a part of the contract. * * *
    “Primfi facie the written agreement contains the whole contract. There must be very clear and satisfactory evidence to justify you in adding anything to it. But if you are perfectly satisfied by the evidence that it was a part of the original agreement that the plaintiff should furnish this coal to be carried (the whole of the ten thousand tons) by the 1st of October; and if you are clearly of opinion that the plaintiff was induced to sign the written paper which has been given in evidence by the representation of Mr. Berwind, that it should be understood to be a part of the contract; if, in a word, both of the parties understood the delivery of the coal by the 1st of October to be an essential part of the contract, and that it should be regarded as in the writing, although omitted, then it is a part of the contract, and the defendants were as much bound by that as the plaintiff was bound to carry the coal. If it was the contract that the defendants should furnish the coal by the 1st of October, of course the plaintiff was not bound to carry at the same rates after the 1st of October. Whether time is an essential part of the contract depends very much upon the agreement and the understanding of the parties, and is to be found by the jury like other facts. Ordinarily, time is not considered an essential part of a contract; but when the parties make it a part of the contract, and where its influence upon the contract is apparent, and the parties would be in a worse condition if it were not considered part of the contract, then it is proper to regard it as an essential part of the contract.
    “ [It appears to me if there was in the contract a condition that it should be delivered by the 1st of October — if the weight of the evidence is that that was an essential part of the contract — if that was the agreement (and I leave that as a question of fact for you, with the other facts in the case), then the defendants ought to have complied with the agreement.] Mr. MeShain, in contracting with the company, might, it seems to me, very well restrict his allegation to a certain time, taking into consideration the fact that after that time, as the fall and winter were approaching, freights would in all probability rise. If, therefore, you think it was a part of the original contract that the coal should he furnished by the 1st of October, and if you think that that was a material part of the contract, and that the- plaintiff was induced to sign the paper by a representation that it should be considered a part of the written contract, although it had been omitted from the paper, then he was not bound to carry the coal after the 1st of October at the same rates; and, in that view of it, the defendants would have no set-off at all, because their loss is not attributable to any fault of the plaintiff.' If, on the other hand, you shall find that the contract was not a contract with this condition as to time in it, or that what was said about the time of delivery -was a mere representation while the negotiation was proceeding, simply part of the conversation when the parties were bargaining about it, a mere expectation or inducement held out, and did not enter into the contract at the time it was agreed upon, then, of course, it would not form a part of the contract, and the plaintiff would be bound to carry at the same rates, and the defendants would be entitled to their set-off. The case, in its results, depends almost entirely upon the view which you shall take of this matter with regard to the time at which the coal should be furnished, and I think, according as you shall find that fact, your verdict in the case will probably 1)0.'fc H4
    The verdict was for the plaintiff for §269.75.
    The defendants took a writ of error.
    They assigned for error the admission of the evidence objected to; the denial of their points, and the parts of the charge in brackets.

      J. H. Gcendell and E. S. Miller, for plaintiff in error.
    The parol evidence was inconsistent with the writing; it was to alter a •written instrument, and therefore inadmissible: Cummings v. Antes, 7 Harris 287; Miller v. Eichthorn, 7 Casey 252; Heebner v. Worrall, 2 Wright 376; Harbold v. Kuster, 8 Id. 392; Fisher v. Deibert, 4 P. F. Smith 460. The weight of evidence w7as so preponderating against the plaintiff that the court should have instructed the jury that it was insufficient: Todd v. Campbell, 8 Casey 250; McGinity v. McGinity, 13 P. F. Smith 38; Moore v. Small, 7 Harris 461; Poorman v. Kilgore, 2 Casey 371; Rankin v. Simpson, 7 Harris 471; Brawdy v. Brawdy, 7 Barr 157; Huss v. Morris, 13 P. F. Smith 367. Indebitatus assumpsit will not lie on a contract'unless there has been entire performance: 1 Chitty’s Pl. 340, 349; Algeo v. Algeo, 10 S. & R. 235; Harris v. Liggett, 1 W. & S. 301.

      H. Hanson (with whom was D. Dougherty), for defendant in error.
    The parol evidence was offered to reform the contract to prevent a fraud. Had the writing been a formal contract inter •partes, such parol evidence would have been in accordance with the law in Pennsylvania: Chalfant v. Williams, 11 Casey 212; Harbold v. Kuster, 8 Wright 392; Fisher v. Deiberts’ Adm., 4 P. F. Smith 460; Balt, and Phila. St. Co. v. Brown, Id. 77; Batdorf v. Albert, 9 Id. 59.
   The opinion of the court was delivered, May 18th 1874, by

Gordon, J.

It is certainly permissible to give evidence of a verbal promise made by one of the parties, at the time of the making of a written contract, where such promise was used as an inducement to obtain the execution thereof: Campbell v. McClenachen, 7 S. & R. 171. This rule is put upon the ground that the attempt afterwards to take advantage of the omission from the contract, of such promise, is a fraud upon the party who was induced to execute it upon such promise, and hence he will be permitted to show the truth of the matter: Clark v. Partridge, 2 Barr 13; Renshaw v. Gans, 7 Barr 117; Dutton v. Tilden, 1 Harris 49.

Now, in the case in hand, McShain testified that the absolute condition upon which he signed the agreement was, that the company should furnish the coal by the 1st of October. He says, after speaking of their previous parol arrangement, “ Mr. Berwind showed me the paper. I was in a great hurry. I picked it up. I glanced over it and said, ‘ Mr. Berwind, this is one-sided; it don’t mention that you will furnish the coal by the 1st of October.’ ■ He' said, ‘ That is understood; we will not only furnish that, but expect to furnish five or ten thousand more by that time.’ I made answer, ‘If that is understood, I will sign it.’” This piece of evidence showed a distinct and material condition by which McShain was induced to sign the contract. To say then, that this contract might be enforced without regard to the express parol stipulation, under which it was signed, would be to disregard long and well-established legal principles, as well as the plainest demands of common honesty. The exceptions, therefore, to the charge and admission of evidence are not sustained. The case was properly submitted, and though in fact, the weight of the evidence may have been with the defendant, the resulting error lay with the jury, not with the court, and hence, comes not within our power of correction.

These observations dispose of the main points in controversy. We may observe, however, with reference to the point made, that indebitatus assumpsit will not lie upon a special contract, except where there has been a full performance on the part of the plaintiff, it is conceded that this proposition is correct. But the plaintiff did not rely upon the special contract; that was set up by the defendant for the purpose of defeating the plaintiff’s claim, and as the jury found that it was not operative by reason of the defendant’s fraud, we cannot see why the plaintiff’s recovery under the indebitatus counts may not be sustained. So we cannot see that there was anything in the question raised by the defendant, as to the relation McShain’s employees sustained to him. It was not alleged that the company had contracted with any one but the plaintiff', or that there had been a joint undertaking by him and some one else to transport the merchandise in question. That he had employed his own firm to assist him in the performance of his undertaking,could, therefore, by no possibility, affect his right to recover.

Judgment affirmed.