text:
    South’s Administrators versus South.
    ft. and A. agreed, “to submit the settlement of our accounts” to three referees, who awarded that they found W. indebted to It. “ $500 including two notes, &c., and W. to deliver up to R. and A. the 18 head of cattle that divided and fell to their share,” &c. R. declared on an award for $500. Held, that the award, as far as sued on, was within the submission. The remainder not being covered by the submission, the award was void only pro tanto.

    November —1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Greene county: No. 126, to October and November Term 1871.
    This was an action of debt on award brought, December 4th 1868, by Charles Mestrezatt and Dissiway South, administrators, &c., of Ruhama South, against William South.
    The declaration averred that on the 11th of April 1860, the defendant, “by the award of Aaron Shelby, L. G. Vanvoorhis and Jonathan Garrard, * * * in pursuánce of a writing sealed by the parties, was found indebted to the said Ruhama in the sum of $500,” &c.
    The pleas were, “No submission and no award;” “the award was not authorized by the submission;” “ payment with leave,” &c.
    The case was tried, May 17th 1871, before Gilmore, P. J.
    C. Mestrezatt testified that the submission (which was shown him) had been signed by both parties in his presence. He further testified, under objection and exception, that all matters in variance were submitted. Ruhama South and William South were present.
    L. G. Vanvoorhis, one of the referees, testified that there was a final settlement between the parties.
    There was evidence that the cattle mentioned in the award were a subject of discussion; that the claim for them was submitted to the referees, and that the notes mentioned in the award also were submitted.
    The plaintiff offered the submission and award in evidence; the offer was objected to by the defendant, admitted and a bill of exceptions sealed.
    The submission was:—
    “We, the undersigned, do agree to submit the settlement of our accounts to Jonathan Garrard, Esq., Elza Vanvoorhis and Aaron Shelby to be examined and tried by them after hearing the evidence, and give their award. We, the undersigned, do agree and bind ourselves to abide by their decision as final, the above-named referees to meet at the house of Ruhama South on Monday, the 9th day of April 1860.
    “ Witness our hands and seals this the 2d day of April 1860.
    “ William South, [l. s.]
    “ Ruhama South, [l. s.]”

      The copy of award was:—
    “ We, the within-named arbitrators, chosen by the within-named parties, to amicably settle the running accounts of Ruhama South and William South, after examining the same, we do find William South indebted to Ruhama South $500 including two notes of hand — note 1, dated January 7th 1856; note 2, dated April 10th 1859, given to Job South, and by him transferred to Ruhama South, and the said William South to deliver up to Ruhama and Ann South the 18 head of cattle that divided and fell to their share, and that each of the parties pay an equal share of the costs.
    “ As witness our hands, April 11th 1860.
    “ Aaron Shelby,
    “ L. G. Vanvoorhis,
    “Jonathan Garrard.”
    The defendant requested the court to charge :—
    1. That the testimony of Alexander Mestrezatt, which is the only evidence in the case on the subject of other matters embraced in the submission than those mentioned in the written submission, is too vague, uncertain and indefinite to enlarge the submission so as to embrace matters and things not mentioned in the written submission.
    2. That the written submission being only for the settlement of the accounts between William South and Ruhama South, an award under such submission, which includes two notes of hand, and declares that the defendant shall deliver to Ruhama South and Ann South 18 head of cattle, which cattle have since been taken from the defendant in pursuance of said award, is not warranted by the submission, is an excess of authority by the referees, and is illegal and void, and no action can be sustained thereon.
    8. That this suit being on a submission and award alleged to be in writing, it is incompetent for the plaintiff to prove that though the cattle were not included in the submission, it was afterwards submitted by parol, .and that the jury should disregard the evidence on the subject.
    The court answered:—
    “1. We answer that if the evidence of Mestrezatt is believed and is sufficiently explicit to satisfy and inform you that it was agreed that the notes should be passed upon by the referees, then the adjudication of the referees is conclusive as to the amount found to plaintiff’s intestate.
    “ 2. The award will be good under the submission, for the notes and the amount found by the referees, if the evidence be believed as to the enlargement of the submission. But we hold that in order to include the delivery of the cattle, you must be satisfied that the parties agreed that the referees should adjudicate upon the matter. But be that as it may, it will not affect the finding for the amount in the award. It will only affect the ownership to the cattle, and whether the defendant can bring in the value of the cattle as payment of the award.
    “ 8. We say that it was competent to submit the decision of the cattle to the referees, but whether it was done or not, would not affect the money finding but only have a bearing upon the case as payment of the award.”
    The court further charged:—
    “We have answered to points submitted to us that the terms of the submission itself were sufficient to allow the referees to adjudicate upon the note, which plaintiff’s intestate held against the defendant. This we wish you to understand, and that [it was not necessary to enlarge the terms of the submission by parol to include the settlement of these notes between the parties.]
    “ As to the cattle it seems to have been altogether another matter, a new item is introduced and was passed upon by the referees, and as it appears, if the evidence is believed, belonged to the defendant. His agent, Squire Maple, argued as he says, the ownership of the cattle, hut made no objection to the jurisdiction of the referees. This is as we gather the substance of his evidence, but this is for you.
    “ [But suppose the referees went beyond their power in passing upon the ownership and division of the cattle. We can’t see what bearing it should have upon the award under the submission. It might have been that it was the partition of the cattle, as counsel argue, which in some measure regulated the award. We have no evidence of this and mere supposition will not answer.”]
    The verdict was for the plaintiff for $832.50.
    The defendant took out a writ of error and assigned for error the admission of the plaintiff’s offers of evidence that were objected to; the answers to the points, and the parts of the charge in brackets.
    R. Downey & Son, for plaintiff in error. —
    The submission and award do not agree as they should, with the allegations in the declaration: Clark v. Partridge, 2 Barr 13; Irwin v. Shoemaker, 8 W. & S. 76; Bank v. Fordyce, 1 Barr 456. The referees having exceeded their authority the award is void; Kyd on Awards 141, 167. Bachman v. Reigart, 3 Penn. R. 270; Scott v. Barnes, 7 Barr 134; Dickerson v. Rorke, 6 Casey 390.

      Black & Phelan, for defendants in error.
    References aré1 favored: Bingham v Guthrie, 7 Harris 418. The submission is to be construed so as to effectuate the intention of the parties; Worrall’s Accounts, 5 W. & S. 111. An award is to be so plainly expressed that by a fair construction of the whole, or by something connected with it, the parties may know what they are to do: Grier v. Grier, 1 Dallas 178; Gonsales v. Deavens, 2 Yeates 539; Kingston v. Kincaid, 1 W. C. C. R. 448. The remedy to each party in an award need not be the same: performance of a specific act may be compelled by attachment: Kunckle v. Kunckle, 1 Dallas 364; Gratz v. Gratz, 4 Rawle 411; Huff v. Parker, cited in 4 Dallas 285; Woglam v. Burnes, 1 Binney 109; Cox v. Jagger, 2 Cowen; Jackson v. Ambler, 14 Johnson R. 96.
    A submission by specialty may be altered by parol: Graham v. Graham, 1 S. & R. 330. It is unnecessary to set out more than the award in the declaration: Rank v. Hill, 2 W. & S. 57. Formal objections to awards are not listened to: McAdams v. Stilwell, 1 Harris 90; Herman v. Freeman, 8 S. & R. 9.
   The opinion of the court was delivered, May 13th 1872, by

Read, J.

This was a suit upon an award made in pursuance of a submission under seal, and dated the 2d April 1860, between William South the son, and his mother Ruhama South, by which they agreed “ to submit the settlement of our accounts to Jonathan Garrard, Esq., L. G. Yanvoorhis and Aaron Shelby, to be examined and tried by them after hearing the evidence, and give their award, we the undersigned, do agree and bind ourselves to abide by their decision as final.”

The award signed by the three arbitrators is dated the 11th April 1860, and appears to have been annexed to the submission, and is in these words: “ We the within-named arbitrators, chosen by the within-named parties to amicably settle the running accounts of Ruhama South and William South, after examining the same, we do find William South indebted to Ruhama South five hundred dollars, including two notes of hand; note 1 dated January 7th 1856, note 2 dated April 10th 1859, to Job South, and by him transferred to Ruhama South, and the said William South to deliver up to Ruhama and Ann South, the eighteen head of cattle that divided and fell to their share, and that each of the parties jay their own costs.” By the terms of the submission, the referees met at the house of the mother, Ruhama, on Monday the 9th April 1860.

After the death of Mrs. South her administrators, Charles A. Mestrezatt and Dissiway South, brought this suit upon the award, a.nd the narr. stated it to be an award for five hundred dollars, and on the 17th May 1871, a verdict was rendered for the plaintiffs for $832.50, being the amount of the award, with upwards of eleven years’ interest, strictly calculated, upon which judgment was entered.

“ A submission by specialty,” says Chief Justice Gibson, “ may be altered by parol; and whether altered or not it is to be construed largely.” The portion of the award sued upon is clearly within the terms of the submission, and the remaining portion not covered by it is simply void, and as an award may be good in part and bad in part, it is void only pro tanto. The award, therefore, is good so far as sued upon, and the verdict and judgment were right.

This view disposes of the whole question.

Judgment affirmed.


source: Caselaw Access Project

author: Sharswood, J.

license: Public Domain

text:
    Province versus Crow.
    1. Gallatin, in 1797, laid out a town; made and recorded its plot, and a certificate stating that the courses and distances of lot No. 53 and other lots, and “ the course of Ferry street from the corner of No. 53 to the river, not being ascertained, * * * and the lines of Nos. 158, 159 and 160 are not yet precisely ascertained,” &c. The plot showed Ferry street to be one of the lines of 160, and showed a triangle without a number between the street and No. 53. In 1802, Gallatin conveyed No. 53, as bounded by “ No. 52, Ferry street, No. 160 and the river, as by reference to the plot will appear.” The owners of No. 160 had not taken possession, used, nor claimed the triangle until in 1869 when the owner of that lot brought an ejectment for the triangle. Meld, that he had shown no title to the triangle as part of No. 160.
    2. The recorded plan is the only muniment of title to the owners of 160 and 53.
    3. The conduct of the owners of 160 was a contemporaneous construction of the limit of the lot, adverse to their interests.
    4. “ Contemporánea expositio fortissima in lege” applied.
    5. The mere recital in the conveyance of 53, of its boundaries, is insufficient to prove that Gallatin thereby ascertained the line of 160, and carried it over the street so as to include the triangle.
    6. Such recital could not operate in favor of the owner of 160, he not claiming under that deed, nor was the record notice to him.
    November — 1871.
    Before Thompson, 0. J., Read; Agnew, Sharswood and Williams, JJ.
    Error to tbe Court of Common Pleas of Fayette county: No. 129, to October and November Term 1873.
    This was an action of ejectment brought June 14th 1869, by Alexander Crow against Jesse Province, for a lot of ground in the town of New Geneva, “ being 30 feet of lot No. 160, according to the plot of said town adjoining lot No. 63, and bounded on the west by the Monongahela river.”
    By the paper-book of the plaintiff in error, it appeared that in 1797, the town of New Geneva was laid out by Albert Gallatin, who had a plot of the town duly recorded, with his certificate, giving the boundaries of many of the lots, and the courses of several of the streets. In the certificate he says: “ The lots from No. 48 to No. 53, aré each of them 2J perches in length along Ferry street, and extend back to the Monongahela river, being divided the one from the other by line running 34° W. * * * the course of Ferry street in front of lots No. 50, 51, 52 and 53 is N. 42° E. * * * the course of Ferry street from the corner of lot No. 58, is not precisely ascertained, and also that the lines of lots No. 158, 159 and 160, are not yet precisely ascertained.” In 1850, Province, the defendant, bought lot No. 53, and in 1865, Crow, the plaintiff, bought the adjoining lot No. 160. The premises in dispute are a piece of ground about triangular, on the south-west side of Ferry street, the defendant claiming that his north-east line extended to Ferry street, and the plaintiff claiming that the triangle, the base of which is on the Monongahela river, extending about 30 feet south-west from Ferry street, belonged to him.
    The recorded plan shows that No. 160 was enclosed by five lines, Ferry street being one and the river another, and that the triangle is on the other side of Ferry street, without a number; one of the lines of the triangle being Ferry street.
    The accompanying draft will sufficiently indicate the relative position of the disputed premises.
    The case was tried, February 1st 1871, before Gilmore, P. J.
    The plaintiff gave in evidence a deed dated April 5th 1802, from Albert Gallatin to John Hewitt, for lot No. 53, bounded by lot No. 52, Ferry street, lot No. 160, and Monongahela river — as by reference to plot will more fully appear, &c. Reserving the right of a ferry, through any lot; also deed dated June 10th 1830, from Albert Gallatin to Tazwell P. Martin, conveying amongst other real estate, lots No. 49, 50, 51, 52, 158, 159, 160, by the numbers without the streets or roads, and all the right of the party of the first part to keep a ferry, that he and wife had; also deed dated April 18th 1839, from Martin to Elias Bailey, for lots No. 158, 159 and 160, excepting a part sold to William James, which did not include any part of the land in dispute; also the will of Elias Baily, proved March 29th 1841, devising his lots to his four children, of whom Asher M. Baily was one; also deed dated January 29th 1866, from the other three children to Asher M. Baily; also deed dated February 24th 1870, from A. M. Baily to the plaintiff.
    The plaintiff gave other evidence, for the purpose of showing his title to the triangle.
    The defendant gave evidence showing that No. 53 had on the 22d of October 1832, been conveyed to R. P. Lott, w7ho built on the triangle a shop which “stood out to the road.” The defendant went into possession in February 1850, under articles from Lott, for No. 53 and part of No. 52; the fence then ran along the Ferry road down to the river. Lott conveyed to defendant, by deed dated June 24th 1869
    A. M. Baily, the grantor of No. 160 to the plaintiff, had known the premises forty years, and testified that he and his predecessors had never claimed any land on the triangle side of the Ferry road. Lott had used the triangle, “ had a fence out near the road; it ran with, the road. * * * I told Crow when I sold to .him that I never claimed the triangle.”

      There was other evidence running back for more than forty years, that the owners of No. 160 had not claimed beyond the Ferry road until Crow purchased. There was evidence also, that the defendant and his predecessors had made improvements on the triangle with the knowledge of the owners of No. 160.
    The defence was that the Ferry road was the true line of No. 160, that the Statute of Limitations barred the plaintiff’s recovery, and that he and those under whom he claimed were estopped by having seen improvements made on the premises without making known that they claimed the land.
    The defendant’s points presented the defence as above stated.
    Under the charge of the court, the jury found “for the plaintiff except so much as is covered by defendant’s kitchen, as shown by a draft made by Martin Dickson, dated June 13th 1867, and herewith filed.”
    Judgment was entered on the verdict and the defendant took a writ of error.
    The assignments of error were, the answers of the court below to the defendant’s points, and that the court erred in entering judgment on the verdict as being too vague and uncertain. The opinion of the Supreme Court renders it unnecessary to state the specifications of error in detail.

      W. Parshall and A. P. Willson, for plaintiff in error.

      Collins, Baily and Campbell, for defendant in error.
   The opinion of the court was delivered, November 20th 1871, by

Sharswood, J.

In the view which we take of this case, the only question to be examined is, whether the plaintiff below succeeded in showing a good title to the premises described in the writ of ejectment. As the conclusion at which we have arrived upon this question is adverse to him, it will be altogether unnecessary to consider whether the case of the defendant as presented by the evidence upon the bar of the Statute of Limitations and upon the estoppel, ought to have been submitted to the jury, and whether the verdict was sufficiently certain to authorize the court to enter judgment upon it.

Albert Gallatin laid out the village of New Geneva upon the Monongahela river in the year 1797, and entered of record in the recorder’s office-of the county a plat of his intended town— on which certain lots were laid out and numbered. In a certificate attached to this plat he stated that “ the course of Ferry street from the corner of lot No. 53 to the river not being yet precisely ascertained, and also that the lines of the lots Nos. 158, 159 and 160, are not yet precisely ascertained.” This is just as it is given to us in the paper-book of the plaintiff in error, without any correction or explanation by the defendant. No copy of the certificate in full is found in the record. As the sentence is broken and ungrammatical, it is probable that the words “ and also” should be omitted. The sense would then be that in consequence of the course of Ferry street not having been precisely ascertained, the lines of lots Nos. 158, 159 and 160 were not pre-^ cisely ascertained, because they would depend upon the course of the street. It may be that in the certificate these two sentences are disjoined and others intervene between them. It is not, however, very material, as it does not appear by anything in the evidence that the course of this street or the lines of these lots ever were more precisely ascertained. I will notice presently what is alleged to amount to an ascertainment of one of the lines of lot No. 160. On the 10th of July 1830, Mr. Gallatin conveyed to Tazewell P. Martin inter alia lot No. 160, by no other description, and with no boundaries. There is no other source of information, then, to which to resort than to the recorded plan —upon the face of which lot No. 160 is enclosed within five lines, of which Ferry street is one, and the river another. The triangle upon the other side of Ferry street, the premises in controversy, adjoining lot No. 53, is a distinct and separate lot enclosed by three lines, of which Ferry street is' one, and without any number upon it. There is no mark or line to connect these two lots on the opposite sides of the street, as it seems very clear that there would have been had both been intended to constitute one and the same lot, and Ferry street to pass through it, as now contended. It appears besides, from the uncontradicted evidence in the cause, that Martin and those claiming under him* from whom the plaintiff below derived his title, from 1830 to 1869 — a period of nearly forty years — never took possession or made any use of the triangle, but on the contrary disclaimed all title to the land upon the other side of the street. Their possession and their claim were bounded by the street. This was a contemporaneous construction adverse to the interests of those making it, and contemporánea expositio semper est fortissima in lege. The only thing which is relied on by the defendant in error, and which prevailed with the learned judge below to meet this state of facts, was, that in the deed by Mr. Gallatin to John Hewitt, dated in 1802, for lot No. 53, it is described as bounded by lot No. 52, Ferry street, lot No. 160 and Monongahela river. This mere recital of the boundaries of another lot we consider of itself to be entirely insufficient to prove that Mr. Gallatin thereby ascertained the line of lot No. 160, and carried it over Ferry street, so as to include the triangular lot in question. It is altogether too uncertain to accomplish such a result; for it might with equal force of reasoning be maintained that he meant thereby to change the line of lot No. 53 and remove it across the street so as to make it coincide with the line of lot No. 160, as marked on the recorded plan. Had his intention been to ascertain the line of lot No. 160 to be coincident with the marked line of lot No. 53, he certainly would have stated it more distinctly, and perhaps have made a record of it as he had done of the plan; at all events, he would have so described it in his subsequent deed of lot No. 160, and made his grantee of that lot aware of it. Such a recital might possibly operate as an estoppel in favor of the grantees of lot No. 53, but it cannot avail the grantees of lot No. 160, who do not claim under the deed in which it is contained. Their mouths would not have been closed had it been against their interest, neither therefore shall they take advantage of it as an estoppel in their favor. It could not have effect as a grant nor as an estoppel. It was at most but a declaration by Mr. Gallatin not communicated to his grantees of lot No. 160, the record of which was no notice to them, and therefore no more effectual to invest them with a right than were the declarations of the subsequent grantees that their claim was bounded by the street effectual to bar their title if they had one. Under these circumstances we hold that there was nothing to vary the recorded plan, which is the only muniment of title upon which the claims of the respective lot-holders can be safely rested. In his deed to Martin for lot No. 160, Mr. Gallatin makes no mention of Ferry street as passing through and over the lot granted, which certainly would have been done in the most careless conveyancing, if the entire ground on both sides of the street had been intended to be conveyed with so important a reservation as that of a public street to be laid out over and through it. Judgment reversed.


author: Agnew, J.

text:
    Cleveland & Co. versus Sterrett.
    1. Defendants agreed to “ deliver to plaintiff at their works at Mill Creek or on their platform at the railroad 240 barrels of oil,” of quality named, &c., “ any time between July 1st and December 1st,” on plaintiff “ giving ten days” notice at his option;” the plaintiff to pay 36 cents per gallon, &c., §1000 to be paid July 1st, §1000 on August 1st, and balance on delivery. Held, by the contract the defendants were to be the actors and to be ready to deliver the oil at one of the places named on the 1st of December, unless plaintiff by his option had demanded an earlier delivery.
    2. The last day defendants had for performance was December 1st.
    3. The plaintiff paid $2000 ; defendants not being ready to deliver on December 1st, the plaintiff might rescind and recover back the money he had paid.
    4. The defendants not being ready to comply with their contract could not demand the money from the plaintiff, nor recover damages for his refusal to receive the oil after December 1st.

      November — 1871.
    Before Thompson, G. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of JErie county: No. 35, to October and November Term 1871.
    On the 1st of October 1867, James S. Sterrett brought an action of assumpsit against W. L. Cleveland and others, trading as Cleveland & Co. The action was in rescission of the contract hereafter given and to recover back $2000, the money paid by the plaintiff under it, upon the allegation that the defendants had refused to comply with their part of the contract, to wit:
    “ This agreement, made this 26th day of May 1866, between Cleveland & Co., of Erie, of the first part, and James S. Sterrett, of the same place, of the second part, witnesseth: That the party of the first part agrees to make and deliver at their works, or on their platform at the railroad in Mill Creek, 240 barrels oil, standard white, fire test 110° by New York inspection, to be put up in good sound barrels, well glued and painted blue, with yellow heads, said oil to be delivered any time between the first of July and the first day of December, on the party of the second part giving ten days’ notice at his option. In consideration of the above, the party of the second part agrees to pay thirty-six cents per gallon, and furnish certificate of exportation, or pay twenty cents per gallon tax, or make the oil free, let the tax be more or less. The payment to be made as follows: one thousand dollars on the first day of July, and one thousand dollars on the first day of August 1866, the balance on the delivery of the oil.
    Cleveland & Co.
    James S. Sterrett.”
    The case was tried December 9th 1870, before Wetmore, P. J.
    The plaintiff gave the contract in evidence and testified that he had paid $2000 upon it. His evidence was that on December 1st 1866, he went with Vinton M. Thompson and James Kennedy to the defendants’ refinery, when the plaintiff informed Cleveland, that he had sold his contract to Thompson and that Thompson was ready to receive the oil and comply with the contract; Cleveland said, he had no “standard white.” Thompson said he had made his arrangements and wanted the oil on that day: Cleveland said he was entitled to ten days’ notice and then Thompson could have it. In the following week, Cleveland notified plaintiff that the oil was ready. He informed Cleveland that Thompson owned the contract and he would be satisfied with what Thompson should do. On the 10th of December Thompson met Cleveland and told him, he was going to see the oil at the refinery, Cleveland said “You need not go, I have sold .the oil.” Thompson re-assigned the contract to the plaintiff some time after the 7th of December.

      The defendants gave evidence in conflict with the plaintiff’s. They gave evidence also that on the 19th of November, Cleveland had an interview with the plaintiff, in which plaintiff said he would let him know when he should want the oil, and Cleveland said he would not be in haste as to the payment of the remaining purchase-money; together with other facts which would tend to induce the defendants to believe that he would not demand the oil until after ten days’ notice,; that Cleveland told plaintiff and Thompson on December 1st that defendants were entitled to ten days’ notice, and he would deliver the oil in ten days, or as fast as he could get it ready.
    There was evidence that oil had fallen much below the contract price, and that a compliance with the contract would have subjected plaintiff to a much greater loss than the amount of money paid by him.
    The following are points of the plaintiff, all which were affirmed:—
    1. The contract of the 26th of May 1866 required the defendants to deliver the oil at one of the places designated to the plaintiff on the 1st day of December 1866, without qualification. It also bound them to deliver the same at any time after the first day of July 1866, and before the first day of December 1866, upon the plaintiff giving them ten days’ notice to do so.
    2. In a contract for the delivery of specific articles, the vendor must be the actor, and cannot be excused from the performance unless released by the vendee for a valuable consideration.
    8. In order to fill the contract in this case, it was necessary for the defendants to have put up oil of their own manufacture, in good sound barrels, &c., * * * and set apart and designate the same at their -works, or on their railroad platform, by the first day of December 1866, and hold it then for the plaintiff. That by so doing the oil would have been the plaintiff’s, and the defendant’s contract would have been fulfilled.
    4. It appearing that the defendants have received the plaintiff’s money to the amount of two thousand dollars, they must show that they have fulfilled all these stipulations to the letter before they can be permitted to retain any part of the plaintiff’s money, principal or interest, and must prove that the oil was of the exact quality contracted for, that the barrels in which it was put up were in color and quality as specified, and delivered and kept on hand for the plaintiff, as specified in plaintiff’s third point, otherwise the plaintiff is entitled to recover the $2000 with interest from the time it was received by the defendants from him.
    5. The word “ deliver,” in the contract, would not be satisfied by merély having on hand in tank or in defendants’ cellar in barrels, not set apart for the plaintiff, even if the oil were of the exact quality specified in the contract.

      6. If the defendants had got the oil all in readiness for the plaintiff they could call on him for 86 cents per gallon, and to procure a certificate of transportation or to pay the 20 cents per gallon to make the oil free, and not before.
    The following are points of the defendants, with their answers:—
    1. Under all the evidence in this case, the plaintiff cannot rescind the contract and recover back the money paid on it, as the plaintiff received the benefit of the contract by enjoying and holding the option to take the oil at any time until the first of December, on ten days’ notice. The contract being partially executed by both parties, the proper remedy is an action upon the contract, and not in rescinding it or treating it as rescinded by the plaintiff.
    2. Time was not made an ingredient of the essence of the contract, and therefore the plaintiff could not demand the oil the last day, to wit, the first day of December, and on failure to deliver that day treat tbe contract as rescinded, and refuse to receive the oil in a reasonable time thereafter: the contract provides for ten days’ notice.
    Doth were answered in tbe negative.
    6. If tbe jury believe that Sterrett took Kennedy and Tho mp-son to Cleveland’s place of business on tbe first of December, knowing tbe defendant was not ready, from bis, plaintiff’s own management and procurement, and not with tbe intention of taking the oil, took no money to pay for it, or inspector to inspect it, as he was bound by bis contract, and that bis demand was a mere trick and scheme to get rid of an unprofitable contract, then tbe plaintiff cannot recover.
    Answer: “ It was not necessary for tbe plaintiff to take the money with bim at tbe time to pay for it, or inspector to inspect it. With this exception tbe point is affirmed.”
    7. If tbe jury believe tbe evidence of both parties, that tbe oil was demanded on that day by plaintiff, and that defendant was told by plaintiff that be would not receive tbe oil at all thereafter, then the defendant was at liberty to take bim at bis word, and was not bound to tender tbe oil thereafter, but might treat the contract as at an end, and recover tbe damage be sustained by tbe plaintiff’s refusal to comply with bis contract.
    Answer: Affirmed, exc.ept this clause, “Could recover tbe damage be here sustained by tbe plaintiff’s refusal to comply with bis contract.”
    Tbe court charged; * * * [“ If you believe from tbe evidence of plaintiff, and the two witnesses who accompanied bim, that tbe defendant declined for tbe reason then and there given, as to refusal by them to deliver tbe oil, this authorized plaintiff to treat tbe contract a srescinded, and sue for and recover tbe money paid by bim, with interest from tbe time of payment to this date.]
    “ Tbe defendant claims that on the day tbe oil was demanded tbe difference between tbe price of oil named in tbe contract and tbe market value thereof exceeded, by several hundred dollars, the amount of money paid on the contract, and that compliance was a damage to plaintiff. Defendant further claims from the evidence that on the 19th day of November plaintiff talked with him about storing the oil, and at a former time advised as to the best thing to be done with it. If you believe from the evidence plaintiff did, on the 19th day of November, say to defendant he should have all the time that was necessary to get the oil ready, and that he, defendant, need give himself no uneasiness about the matter, defendant at the same time saying to plaintiff he would not require him to pay the money on the contract at the time it was due, and defendant was misled thereby, and did not tender the performance of the contract and deliver the oil as required by the contract, then plaintiff [could not, on the first day of December, demand the oil, and on refusal or inability then and there to comply, claim that the contract was rescinded, and sustain this suit. Defendant cannot, under the pleading and evidence, claim a certified balance.’’
    The verdict was for the plaintiff for $2524.75.
    The defendants removed the record to the Supreme Court, and there assigned for error — ■
    1. The portion of the charge in brackets.
    2, 3. The answers to the defendants’ 1st and 2d points.
    6, 7. The answers to the defendants’ 6th and 7th points.
    10. Affirming the plaintiff’s 1st and 2d points.
    11-14. Affirming the plaintiff’s 3d, 4th, 5th and 6th points.

      G. W. De Camp, for plaintiffs in error,
    cited Forsyth v. North American Oil Co., 3 P. F. Smith 168; Fry on Specific Performance 319, pl. 720.

      S. JE. Woodruff, for defendant in error,
    cited Fleming v. Potter, 7 Watts 380; Townsend v. Wells, 3 Day’s R. 327; Musselman v. Stoner, 7 Casey 265; Rowland v. Lehigh C. and N. Co., 4 Id. 215; Story on Sales, §§ 296, 389, 391, 412; Hutchinson v. Hunter, 7 Barr 140; Roberts v. Beatty, 2 Penna. R. 67; Bush v. Canfield, 2 Conn. R. 485; Long on Sales 241; Giles v. Edwards, 7 Tenn. R. 181.
   The opinion of the court was delivered, January 9th 1872, by

Agnew, J.

A careful examination of this case leads us to the conclusion, notwithstanding the numerous assignments of error, that the court below committed no substantial error. Seven of the assignments depend on the proper interpretation to be given to the contract of May 26th 1866, and this therefore is the first matter to be noticed.

Cleveland & Co. agreed to make and deliver at their works, or on their platform at the railroad in Mill Creek, 240 barrels of oil, standard white, fire test 110 degrees by New York inspection, in good sound barrels, well glued and painted blue with yellow heads, at any time between the 1st of July and the 1st of December, on Sterrett giving ten days’ notice at his option. In consideration of this agreement Sterrett agreed to pay at the rate of thirty-six cents a gallon in two specified instalments and th.e balance on delivery, and to adjust the government tax in order to allow exportation. It is evident that in this contract Cleveland & Co. were the actors, and were to make and be ready at their works or on their platform to deliver the oil in the quantity according to the quality, and in the barrels required. The substantial part of their agreement was to make and deliver to Sterrett 240 barrels of oil, and the last day they had for performance was the 1st day of December. Clearly they were bound therefore to be ready, and to have the oil in barrels at their works or on their platform on the 1st day of December unless, by the exercise of his option, Sterrett had demanded delivery at an earlier date. This by the contract he could do, on giving the required ten days’ notice, to enable the defendants to be ready, at the time specified in the notice, to deliver at the works or on the platform. But failing to exercise his option and give the notice, it is plain the contract fixed the time of delivery as the 1st day of December, for beyond this date Cleveland & Co. had reserved no day of grace. It is very clear on all the evidence Cleveland & Co. were not ready then to deliver, and their failure gave Sterrett the right to rescind and recover back the money paid on the contract, unless Sterrett had waived performance at the day, and this question was fairly submitted to the jury, and found by them against the defendants. This interpretation of the contract disposes of the 1st, 2d, 8d, 10th, 11th, 12th, 13th and 14th assignments of error; and the finding of the fact by the jury that the defendants failed to make and to be ready to deliver the oil on the 1st day of December, according to the contract; disposes of the qualification of the answers to the defendant’s 6th and 7th points. The defendants, not being ready to deliver the oil and comply with their contract, could not demand the money of the plaintiffs, nor recover damage from the plaintiff for his refusal to receive the oil after the 1st of December. These are the only assignments of error which need to be noticed, and finding no substantial error in the record,

The judgment is affirmed.


author: Read, J.

text:
    McCandless’s Appeal.
    1. Rhodes constructed a private railroad to his own mines through an alley on the line of an incorporated railroad company with their consent; he was enjoined from using it and ordered to remove the rails, &c. He procured the incorporation of himself and six others as a railroad, coal and oil company with a capital of $100,000; they were authorized to buy any railroad partly or wholly completed, and damages were to be ascertained, &c., according to the General Railroad Law. 'The company was organized before any stock was 'taken, and Rhodes sold to them his railroad, mines, &c., for $100,000, payable in the stock of the company, which had no other assets than the property sold by Rhodes. The company relaid the road and operated it with locomotives, &c. Held, that Rhodes was the owner after the organization and his sale to them, as he had been before.
    2. The road sold by Rhodes having been built without authority of law, and being a nuisance, the act of incorporation did not authorize the company to purchase such road.
    3. The railroad after the purchase was still a private road, and not covered by the act of incorporation.
    4. The railroad was built from Rhodes’s mines to private ironworks. Held, that it did not come within the description of a partly built road.
    5. The provisions of the General Railroad Law as to damages did not apply to such road, and there was therefore no provision for ascertaining damages.
    November — 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from tbe decree of the Court of Common Pleas of Lawrence county: In Equity: No. 155, to ’ October and November Term 1871
    To May Term 1868, of the Court of Common Pleas of Lawrence county, George S. McOandless filed a bill against James Rhodes and The Neshannock Railroad, Coal and Ore Company.
    By an Act of Assembly passed January 81st 1868, it was enacted:—
    Sect. 1. That David Craig, R. H. Peebles, Joshua Rhodes, A. B. Berger, T. E. Stryker, George Pearson and James Rhodes, their successors and associates, be a corporation by the name of “ The Neshannock Railroad, Coal and Ore Company,” with power to “ purchase, lease, hold and sell or mortgage coal or other mineral lands,” on or near their road.
    Sect. 2. Gave them power “ to build and operate, for the purpose of carrying coal and other minerals and merchandise, a railroad in the county of Lawrence, from the north line to any point on the Erie and Pittsburg, or the New Castle and Beaver Valley Roadto purchase “ any railroad or part of a railroad and right to use the same within the said county, whether wholly or partly constructed as if originally constructed by virtue of the act,” with authority “ to sell and convey such road or any part thereof with rights of way, &c.”
    Sect. 3. Gave the right to contract with the New Castle and Franklin Railroad Company for the use of their route or any part of it, until the completion of their road, and for the subsequent joint use of it with that company.
    Sect. 4. The damages to owners of property by the construction of the road, or a road partly constructed, which might be purchased by the company, to be ascertained under the General Railroad Law of February 19th 1849, and its supplements, and if proceedings he pending for such damages, they shall not abate, but may be pursued to completion and this company be liable for the amount ascertained.
    Sect. 5. The capital to be $100,000, in shares of $50 each, with power to borrow money and secure the same by mortgage on the road and franchises.
    Sect. 6. The directors to be five, one of whom shall be president, and to be chosen annually by the stockholders.
    Sect. 7. The company to be under the laws relating to lateral railroads.
    The bill set out:—
    1. The plaintiff was owner in fee of a lot 120 feet long, in New Castle, bounded on the south-east by a 20 feet wide alley, and seised in fee to the middle of the alley, which had been dedicated for public use by Peebles and others, former owners of the land, in laying out town-lots, that owned by the plaintiff being one; he had store-rooms on the lot abutting on the alley, in which he carried on the business of a grocer, &c.; the free and unobstructed use of the alley was necessary for his business, and the alley was a private alley.
    2. The incorporation of the Neshannock company.
    3. On the — day of February 1868, Rhodes and the company, against the will of the plaintiff, entered the alley, with cross-ties, rails, &c., and constructed a railroad of 3|- feet gauge, and threatened to maintain it, and since its construction the defendants had continuously operated the road with a locomotive engine and coal-cars, by which his rightful use of the alley had been and would be obstructed, his store-house exposed to destruction, his business impaired, and the lives of himself, his customers and servants continuously endangered. These proceedings were without authority of law, and would work irreparable injury to him.
    The prayers were:—
    1. That the defendants might he restrained from operating any locomotive engine or car on their railroad in the alley.
    2. That the defendants might be ordered to abate and remove the ties, rails, &c., from the alley.
    3. For general relief.
    The defendants answered, admitting the incorporation of the Neshannock Company; that the company organized by electing a board of directors, a president, secretary and treasurer, and proceeded to complete the railroad from the coal-mines leased by them in the northern portion of said county to the city of New Castle. By their officers they had endeavored to agree with the plaintiff for the damages to him by the construction, &c., of the railroad, but not being able to agree, they tendered him a bond with sureties, to secure the payment of the damages; the plaintiff, after receiving the bond, returned it and declined to make any arrangement in the premises; and after notice to him, the bond and sureties were approved by the Court of Common Pleas.
    After the approval of the bond, the company completed their railroad, and had continued to use it in transporting coal from their mines to New Castle. By means of 180 rods of railroad, in progress of construction, they proposed to connect with the Erie and Pittsburg Railroad, and the New Castle and Beaver Valley Railroad, and carry coals from their mines to those roads.
    They denied the allegations of the plaintiff as to the injury of himself or his property, or as to the obstruction of the alley; they averred that the public and th'e plaintiff used the alley daily with their horses, wagons, &c. They also’averred that the real party in interest was not McCandless, but Samuel Foltz, who acted in the name of McCandless, because by agreement he was bound to make no opposition to the building and using the railroad.
    Rhodes denied that any of the matters charged had been done by him for himself, but what he had.done was by direction of the company and in their behalf.
    S. W. Dana, the master, reported that the alley had been laid out and dedicated by Peebles and others as stated in the bill, and was used by the public, but the public authorities had never taken charge of it; that in 1866, Rhodes the defendant had constructed a railroad from his coal-bank, four miles from New Castle, which passed through the middle of the alley; he operated the road with a locomotive engine and coal-cars until January 24th 1868, when he was restrained from using it by decree from the Court of Common Pleas of Lawrence county, under proceedings .at the suit of Stewart and Foltz, owners of lots on the opposite side of the alley from the plaintiff, and ordered to remove the rails and put the alley in the condition in which it had been previously to the construction of his railroad.
    Before the injunction, Rhodes had used the road to transport coal from his mines, some to canal-boats and some to supply the rolling-mill and ironworks of Reis, Brown & Berger, with whom he had a contract to supply coal for five years. After this injunction he procured the act of incorporation above given. The company was organized on the 3d of February 1868; and on the 9th of March, Rhodes sold to the company “ his railroad from the coalmines to the ’ rolling-mill of Reis, Brown .& Berger, about 4J miles long, together with the switches, side-tracks, locomotives, cars, shutes, ties, timbers, rails, &c., including all the property, rights and privileges, and lands, and his coal-lease, and everything belonging to him connected with the railroad, and also made over the contract with Reis, Brown & Berger, for supplying their mill with coal; and assumed the payment of damages which might become payable to George S. McCandless and others, for rights of way for which the company paid him $100,000 in its stock at its par value, to be issued to Rhodes or to such persons as he should direct.
    The road through the alley, which had been partly taken up under the decree, was immediately put into order, and had been operated thereafter as it had been previously by Rhodes. The company had no assets other than those derived under the sale by Rhodes; — $50,000 of the stock had been at once issued to Rhodes, and from $15,000 to $20,000 issued to other persons at his request. The road by its rails and ties occupied eight feet of the alley, the gauge of the road was 3-| feet; trains passed several times each day; approach was signalled by a whistle; from 125 to 150 tons of coal were transported daily. Since filing the bill, a branch railroad had been made from the Erie and Pittsburg Railroad, to the works of Reis, Brown & Berger, which connects with the defendants’ road. The defendants filed a bond for damages to the plaintiff, which was approved by the court as stated in their answer.
    After exceptions to his report the master further found: That a free and unobstructed use of the alley was of great value to the plaintiff in his business and that there were daily and great obstruction and danger, by the use of the railroad. The railroad was in fact built by Rhodes, and maintained by him originally for his private interest; since the organization of the corporation it had been maintained solely in the interest of the corporation, which was organized before any stock was subscribed.
    On the day of its organization the defendant corporation adopted a resolution, that “ the route of the New Castle and Franklin Railroad Company * * * be adopted as part of the route of this railroad.” The route of the road as built by Rhodes, had been located and the whole alley appropriated by the New 'Castle and Franklin Railroad Company; the defendants after the purchase from Rhodes made no resurvey of the route, but accepted and adopted the route as laid by him. Rhodes proceeded in good faith to execute the decree obtained by Stewart and Foltz until the organization of the company, when they endeavored to agree with McCandless as to damages, and afterwards filed their bond as stated in their answer.
    On the 11th of August 1871, the court (McGuffin, P. J.) made a decree refusing the injunction and dismissing the bill.
    The plaintiff appealed to the Supreme Court and assigned the decree for error.

      L. Taylor, for the appellant,
    cited Stewart and Foltz’s Appeal, 6 P. F. Smith 413; Bonaparte v. Camden & A. Railr., Baldwin 222; Jessup v. Louck, 5 P. F. Smith 361; Commonwealth v. Erie & N. E. Railr., 3 Casey 351; 3 Kent’s Com. 433; Lewis v. Jones, 1 Barr 336.

      D. Craig and D. B. & E. T. Kurtz, for appellees.
    The reporter received no paper-hook of appellees.
   The opinion of the court was delivered, May 13th 1872, by

Read, J.

The road which is the subject of the present controversy was before this court, upwards of four years ago, in Stewart and Foltz’s Appeal, 6 P. F. Smith 413, and the court then held it was built without authority of law, and enjoined “ the defendant (James Rhodes) his servants and agents from running cars on the railroad of the defendant, and along the alley in the bill mentioned, or by and along the premises of the plaintiff, and to remove the rails, cross-ties and embankments in said alley therefrom, leaving the same in as good repair as an ordinary passage-way as it was in, when and immediately before the said road of the defendant was constructed, and that the respondents pay all costs of suit and of this appeal.”

The opinion of the court was delivered by the present Chief Justice, and it treated the road as a private road of James Rhodes, invested with no right of eminent domain, and entirely unauthorized to take private property for private use, as it was clearly intended solely for the use of his mills and machinery, and in which the public could have no advantage whatever. It was simply a private railway, constructed under no law of the Commonwealth, and of course a nuisance. This opinion was delivered on the 7th January 1868, and on the 24th January, when the court below made the decree for an injunction agreeably to the order of this court, and before it could be fully enforced, the legislature passed an Act on the 31st January, seven days after-wards, to incorporate the “ Neshannock Railroad, Coal and Ore Company.”

The corporation was organized on the 3d Eebruary, three days afterwards, and on the 25th Eebruary filed a bond to secure the plaintiff his damages in the Court of Common Pleas of Lawrence county, which was on the same day approved by the court. The corporation was organized before any stock was subscribed. Under the decree of the 24th January, a small portion of the road ■in the alley was taken up, but was relaid immediately after the filing of the bond.

The seven corporators named in the bill, including Joshua Rhodes and James Rhodes the defendant, were created a body politic in law, with power to hold coal or other mineral lands not exceeding one thousand acres. By the second section “ said company shall have power and is hereby authorized to locate, build and operate for the purpose of carrying coal and other minerals, and articles of merchandise, a railroad within the county of Lawrence, from a point on the north line of said county to any point on or intersecting with the Erie and Pittsburg, or the New Castle and Beaver Valley Railroad, or both, at or near New Castle, or to intermediate points; and said company shall have power to purchase any railroad or part of a railroad, and the right to use the same, within the said county, whether built and constructed, or partly built and constructed, and shall have the right to use the same for the purposes aforesaid, as if originally built or constructed by virtue hereof, and the owner or owners of any such railroad, built or partly built, are hereby authorized to sell and convey such road, or any part thereof, with rights of way, &c.”

The 8d section authorizes a contract with The New Castle and Franklin Railroad Company, “ a corporation which had not yet built any road, and having no immediate prospect of building any.”

By the 4th section the damages áre to be ascertained and paid in the manner provided in the General Railroad Law of February 19th 1849, and the several supplements thereto, “and in case legal proceedings shall be pending for damages, occasioned by any railroad which shall be purchased as aforesaid by such company, such proceedings shall not abate, but may be pursued to completion, and the said company shall be liable to pay the amount of damages so determined.”

By the 5th section the capital stock is to be $100,000, divided into 2000 shares of $50 each, with power to increase said stock to $250,000, with power to borrow money for the purposes of the company, and to secure the payment of the same by bond and mortgage upon the property and franchises of the company. The amount of money so borrowed shall not exceed, at any one time, the amount of $12,000 per mile, and the rate of interest not to exceed 7 per centum per annum.

The directors shall be five in number, of whom one shall be president, to be elected annually, each share to be entitled to one vote, and in all other respects, except as herein otherwise provided, said company shall be subject to the provisions of the several laws of this Commonwealth relating to lateral railroads.

It will be observed that this was a close corporation of seven individuals and three associates, and that' it would be controlled and managed by whoever held the whole or a majority of the stock, and it is in evidence that no part of the capital was ever subscribed or paid for in money. The capital did not consist of money. The master reports that on the 9th March 1860 articles of agreement in writing were entered into between James Rhodes and the defendant corporation, by which Rhodes, in consideration that the company would pay to him $100,000 in the stock of the company, at its par value, and deliver the same to him on demand, granted and sold to the company his railroad from the Peebles coal-mines to the rolling-mill of Reis, Brown & Berger, about four and one quarter miles in length, together with the switches, sidetracks, locomotives (2), cars (50), shutes, ties, timbers, rails, &c., including all the property, rights and privileges, and lands and his coal-lease, and everything belonging to him connected with the railroad ; and also made over the contract with Reis, Brown & Berger for supplying their mill with coal, and assumed the payment of damages which might become payable to George S. McOandless and others for rights of way.

It appears, therefore, that the capital stock consisted of this private railroad of James Rhodes, and as the whole of the capital belonged to him, he was as much the sole owner of it after the agreement as he was before it was entered into. The company therefore did not locate and operate a railroad, but under another provision of the 2d section purchased this private road, built, as this court has decided, without authority of law, and which it declared to be a nuisance which never could have been intended by the legislature. •

On the 3d February 1868 the company adopted a resolution that “ the route of the New Castle and Franklin Railroad Company, from the extreme south end thereof to the mouth of Pyle’s run (said company consenting thereto), was adopted as a part of this railroad, the connection with the Beaver Yalley Railroad and the Erie and Pittsburg Railroad, and the more northerly portions to be determined hereafter.” The company, after their purchase from Rhodes, made no resurvey of route, but they did accept and adopt the route as then had and laid by him.

The company “ did no act resurveying the road or locating the same, or relating to the appropriation of private property,” says the master.

It is clear, therefore, that this is still a private road, terminating really at the rolling-mill of Reis, Brown & Berger, and is not covered by the alleged Neshannoclc charter, which if examined into by the Commonwealth in a quo warranto, might end in a judgment of ouster. This power of inquiry by the first section of the Act of 19th June 1871 (Pamph. L. 1360), may be exercised by this court, where, as in this case, the private right of an individual is injured and invaded by this corporation, claiming to have a right or franchise to do the act from which such injury results.

The private road thus purchased was wholly built and constructed from the mines to the rolling-mill, and does not come within the description of a partly built road. The fourth section says: “The damages occasioned by the building and construction of said railroad,’.’ which means a railroad built and constructed by the company created by the act, “ or of any partly built road which may be purchased by said company to the owners of private property on which the same may be located, and which shall not have been settled with or secured to said owners by agreement, shall be ascertained and paid in the manner provided in the General Railroad Law of February 19th 1849, and the several supplements thereto,” which clause does not apply to a built and constructed railroad like the present road purchased by the company, and there is therefore no provision for the ascertainment of damages in the case before us.

The court therefore erred in denying the injunction and dismissing the bill.

The decree of the court below dismissing the plaintiff’s bill is reversed and the bill is ordered to be reinstated, and the court below is directed to enter a decree in favor of the plaintiff, enjoining the defendants, their servants, agents and workmen from operating and running any locomotive or coal or other car laden or unladen to and fro upon said railroad, built as aforesaid, in and upon said alley, or by and along the premises of the plaintiff, and to remove the cross-ties, iron rails, fastenings and embankments in said alley therefrom, and leaving the same in as good repair as an ordinary passage-way as it was in when and immediately before the said road of defendants was constructed, and that the respondents pay all costs of suit and of this appeal.

Agnew, J., dissented.


author: Per Curiam.

text:
    Sedgwick versus Lewis.
    1. Pollock, a partner in a grocery, forwarding and commission firm, bougnt lumber on his own account, and gave a note signed in the firm name; the payees endorsed to Lewis, who received it without notice that it was not given in the business of the firm. Held, that Lewis could recover against the firm.
    2. Signing the note by Pollock in the firm name was a fraud on the firm ; had Lewis taken it with knowledge, it would have been a good defence for the firm.
    3. Ihmsen v. Negley, 1 Casey 297, recognised.
    November —- 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Gcreene county. No. 158, to October and November Term 1871.
    This suit was brought to April Term 1869, of the Common Pleas of Greene county, by Samuel Lewis against Joseph Sedgwick and Thomas P. Pollock, Jr.

      It was an action of assumpsit on the following promissory note, the plaintiff being the endorsee and holder:—
    “ $2170. “Eice’s Landing, May 19th 1868.
    “ Eight months after date we promise to pay to the order of Gillespie & Newcomb, Two Thousand One Hundred and Seventy Dollars, value received, payable at German National Dank of Pittsburg, Penna.
    “ Signed, Sedgwick & Pollock.
    Braden, Walton & Co.
    “Endorsed, Gillespie & Newcomb.
    Samuel Lewis.”
    At the date of the note, before and for some time afterwards, Sedgwick & Pollock were engaged in the grocery and forwarding and commission business, at Eiee’s Landing, in Greene county. Braden, Walton & Co., the other drawers of the note, were partners in a planing-mill, buying and selling lumber, building, &c. Gillespie and Newcomb, the payees and endorsers, were lumbermen.
    The defendant Sedgwick had given notice to the plaintiff that the firm had received no consideration for the note, and that he would be required to show the consideration he gave for it.
    The foregoing facts were admitted on the trial, May 18th 1871, before Gilmore, P. J.; the plaintiff then gave the note in evidence and rested.
    The defendants gave evidence of the purchase of several rafts of lumber by Braden, Walton & Co., and Pollock, from Gillespie & Newcomb, for which they gave three notes, that in suit being one, all signed alike and for similar amounts, the other two being payable in thirty days and four months respectively.
    The signature “Sedgwick & Pollock” was written by Pollock; and when he signed the note he told the payees that he did not know whether Sedgwick would go into the note; Sedgwick afterwards declined to take an interest in the lumber.
    Sedgwick testified that he never gave authority to any one to use his name; that Pollock bought stock, and sometimes he, Sedg-. wick, would take an interest and sometimes would not; he never gave Pollock authority to buy lumber for him ; Sedgwick declined to take an interest in this lumber; the firm-business was confined to buying grain and the commission and forwarding business; Pollock had never signed the firm-name to any note but that in suit.
    The defendant gave evidence also to show that the payees of the note had misrepresented the quality of the lumber, and had defrauded the purchasers in the sale.
    The plaintiff in rebuttal showed that in the settlement of Gillespie and Newcomb between themselves, the note in suit became Newcomb’s individual property; Newcomb was indebted to Lewis, the plaintiff, and transferred the note to him; he received it in absolute payment of the debt. Lewis had no knowledge of what was the consideration of the note when he received it.
    Sedgwick, who defended in this suit, submitted these points— both were refused
    1. The endorsee of negotiable paper signed with the name of £. a firm, is bound to know that it was given for a partnership transaction, and within the scope of the partnership business, or that the member who signed it had authority from his copartner to do so.
    2. If the jury believe that the purchase of this lumber by Pollock was not within the scope'of the partnership business of Sedgwick k Pollock, as forwarding and commission merchants, and that he had no authority from Mr. Sedgwick to make the purchase or sign the name of the firm therefor, then the plaintiff cannot recover as to Joseph Sedgwick, one of the defendants, and the verdict must be for him.
    Judge Gilmore, after recapitulating the evidence, charged:—
    * * *. “If you believe the evidence, then the note in suit was negotiated to Lewis for a valuable consideration, and as far as we are informed from the evidence, without any notice of fraud, want of consideration or any complaint whatever. What is the effect of all this ? We say to you, and so charge you, that if you find this note was endorsed before maturity to Lewis, the plaintiff, and that he upon receiving the endorsement paid valuable consideration for it, by taking it as an absolute payment pro tanto upon his mortgage, and had no notice previously to the endorsement of any want or failure of consideration in the note, he will be entitled to your verdict.
    “Sedgwick, one of the defendants, says: Supposing all this to be true, the plaintiff is not entitled to recover against him.
    “ There is some contradictory evidence as to what was said when Pollock signed the firm name to the note as one of the drawers. We do not view this as material under what we hold to be the law governing the case. Sedgwick and Pollock were partners as retail grocers, or generally as grocers. With this they connected the buying of grain, and a general forwarding and commission business ; from this it will be seen that their partnership business was somewhat miscellaneous. In addition to this, Mr. Pollock informs us that he sometimes bought stock, cattle and hogs, but always on his own individual account, and after the purchase would allow his partner to take an interest or not, as he was inclined to.
    “ In this lumber venture it appears he declined, first in a hesitating way, and a very short time after peremptorily. When the lumber was bought by Pollock, Sedgwick was not at home, and when Pollock was about to sign the note with the firm, he says (and in this he is corroborated by others), that he expressed himself doubtful as to his right to sign the firm name. I understood Gillespie to say that he understood his doubt to be as to the contract and not as to the power to sign; and that he said he must have Sedgwick, as he understood him to be quite responsible. But there is no pretence that anything that was said there was communicated to Lewis before he took the note. Nor is there any evidence that Sedgwick took any occasion to warn the public against the negotiation of the note. But for the matter of that, we have no evidence that Sedgwick knew that his partner had made use of the firm-name, nothing except what might be inferred from the relations between him and Pollock, that the latter might or ought to have communicated the fact. We, however, charge you that what was said by Pollock at the signing of the note might have affected Gillespie and Newcomb; still, as we have no evidence that Lewis had any notice of the nature and limited character of the partnership between Sedgwick and Pollock, he will not be affected by it, and that as to him the signature of Sedgwick and Pollock made by Pollock, although the purchase of lumber was beyond the scope of the partnership, will be binding on Sedgwick. Such we understand as the settled law. If no partnership whatever had existed, the signature would have been simply forgery; but Pollock had authority to sign the name of the firm to various transactions, and if in this instance he transcended the power, the one who trusted him must bear the loss. It cannot be expected in every transaction and signature of firm names, every one who deals with them must go around and interrogate the several partners to ascertain whether their several assents have been given, or whether the transaction is strictly within the scope of the business of the organization.” * * *
    The verdict was for the plaintiff for $2478.50.
    Sedgwick took out a writ of error, and assigned the refusal of his points for error.

      Blade, Phelan and Crawford, for plaintiff in error.
    All dealing with a partnership are bound to know the nature of its business, and therefore the extent of the authority of its members: Tanner v. Hall, 1 Barr 419. A partner cannot bind the firm for his private debts without the assent of his partner; this is a question for the jury: Noble v. McClintock, 2 W. & S. 152; Baird v. Cochran, 4 S. & R. 397; assent is not to be presumed: McKinney v. Brights, 4 Harris 399. A contract with one partner for matter unconnected with the partnership business will not bind the firm: Collyer on Partnership 270; Story on Partnership, sects. 126, 127, 3 Kent’s Com. 46; Livingston v. Roosevelt, 4 Johns. R. 251.

      Wyly and Buchanan.

    Partnership securities, although negotiated by the fraud of one partner, are binding in the hands of an innocent endorsee: Byles on Bills 127, 128; Austin v. Vandemark, 4 Hill 259. Note signed in the name of the firm is primá, facie for a partnership debt: Foster v. Andrews, 2 Penna. R. 160.
   Judgment was entered in the Supreme Court November 23d 1871.

Per Curiam.

The opinion of the learned judge below, given in his charge to the jury, is sustained by Ihmsen v. Negley, Mohan & Co., 1 Casey 297. Certainly if it had appeared that Lewis had notice in the case in hand, that the note signed in the name of the firm of “ Sedgwick & Pollock” by Pollock was not in the business of the firm, it would have been a good defence against it in his hands; it would have been a fraud on the firm, but there was no such notice or knowledge shown.

Judgment affirmed.


author: Williams, J.

text:
    Stewart versus Maple.
    1. The assessors returned a valuation of property of defendant, who was notified of the day of appeal. He did not attend nor appeal; the county commissioners, under sect. 9 of Act May 15th 1841, raised the valuation. The supervisor of his township rated him on the basis of the county valuation.

      Held, in a suit for road tax he could not defend on the ground that the valuation had been improperly raised; his remedy was by appeal.
    2. Until altered by the commissioners, the increased rate was the proper basis for township rates.
    3. If aggrieved by the township rating, his remedy was by appeal to the Quarter Sessions, under the 30th section of Act of April 15th 1834.
    4. The remedy for illegal taxation under a general power to tax, is by appeal to the proper appellate tribunal; when no appeal is given, the courts cannot reverse the judgment of the tax oflicers.
    5. Clinton District’s Appeal, 6 P. F. Smith 315, recognised.
    November — 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Greene county: No. 159, to October and November Term 1871.
    This case was commenced before a justice of the peace on the 20th of February 1869, by Charles Stewart against Robert Maple to recover the amount which the plaintiff, who was supervisor of Dunkard. township, claimed to be due by the defendant for road taxes.. The justice rendered judgment against the defendant for $66.75:' he appealed to the Court of Common Pleas, where the case was tried May 16th 1871, before Gilmore, P. J.
    The circumstances as they appeared at the trial were these:—
    At the triennial assessment in 1865, the defendant's property was adjusted at $2510. of which defendant had notice; he had notice of the day and place of appeal for Dunkard township; he did not attend nor did he appeal; at their meeting to hear appeals, the commissioners raised the valuation to $8875. The plaintiff as supervisor made out the duplicate for road tax, adopting $8875 as the correct assessment of the defendant’s property, and the rate was fixed at one per cent., making the amount of defendant’s road tax $88.75. He was notified to work out his tax on the roads he; did so work to the amount of $22, and declined to work any more. On the 13th of July 1866, a warrant was put into the plaintiff’s hands for the collection of road tax, including the balance assessed on the defendant. The collector suffered the warrant to expire in his hands, and the township auditors charged him with the unpaid tax of defendant. The defendant refused to pay, principally on the ground that the raising of the valuation of his property from $2510 to $8875, was unauthorized by law.
    The Act of May 15th 1841, section 4, Pamph. L. 394, 2 Br. Purd. 1359, pi.-9, provides that it shall be the duty of the assessors “ to assess, rate and value all objects of taxation” for county, township, &c., .purposes according to the “ actual value,” and upon return to the commissioners they may, if they believe the assessment of any property “ below its actual value, raise the same to its actual value.”
    The Act of April 15th 1834, sect. 27, provides that the township rates shall be laid “ upon the basis of the last adjusted valuation regulating county rates and levies.” The same act, sects. 36 and 37, provides that any person aggrieved by such rate, may apply to the Court of Quarter Sessions, who shall take such action as they may deem expedient, which shall be conclusive on all parties; and the court or a judge thereof, upon the party giving bond with surety, &e., shall stay proceedings for collecting the tax till the appeal be determined: Pamph. L. 515; 2 Br. Purd. 555, pp. 1366, 1367, pi. 59, 68, 69.
    The plaintiff's 3d and 4th points, which were refused, were:
    3. If Maple had not a hearing before the commissioners on or before the regular day appointed for holding the appeals, he might afterwards appeal to them in session at any time before his taxes were paid. If he did so appeal and was unsuccessful he is concluded ; and if he was informed of the raising of his valuation and did not appeal, he is equally concluded.
    • 4. After the assessment of the tax in question against Maple, he had the right to apply by petition to the next Court of Quarter Sessions of the county, or to a judge in vacation, for relief, and having failed to do so, he is concluded.
    The court further charged:—
    “ The assessment or increased valuation made on the day of appeal and after the valuation had already been adjusted, was illegal and irregular but not void, and the supervisors had the right to demand and receive from the defendant one per cent, on $2510 and no more. * * * We say further that it is competent for defendant to make this defence here. Whatever is found in any of the points contrary to this may he considered refused.”
    The verdict was for the plaintiff for $4.18. He took a writ of error, and assigned for error the refusal of his points, and the portion of the charge given above.

      Black and Phelan, for plaintiff in error,
    referred to Acts of 1834 and 1841, supra. The Aet of 1841 being merely directory, time is not material: Gearhart v. Dixon, 1 Barr 224; Ins. Co. v. Yard, 5 Harris 331; Hughes v. Kline, 6 Casey 227. Having neglected to appeal to the Quarter Sessions, the defendant was concluded by the action of the commissioners: Wharton v. Birmingham, 1 Wright 371; Hughes v. Kline, 6 Casey 227; Clinton School District’s Appeal, 6 P. F. Smith 315; Forward Sch. Dist. Appeal, Id. 318.

      Sayers & Downey, for defendant in error.
   The opinion of the court was delivered, January 9th 1872, by

Williams, J.

If the commissioners improperly raised the valuation of the defendant’s property above the amount at which it had been adjusted at the triennial assessment, his remedy was by an appeal to the commissioners under the provisions of the act authorizing the assessment. Until altered, or changed by the commissioners, the increased valuation was properly taken as the basis for the assessment of township-rates and levies for road and other purposes. If the defendant was aggrieved by the assessment, his remedy was by petition to the next Court of Quarter Sessions, as provided by the act. Having neglected to avail himself of the remedy furnished by the law for his redress, he cannot set up the illegality of the tax as a defence to this action. The objection comes too late. As was said in Clinton School District’s Appeal, 6 P. F. Smith 315, the remedy for illegal taxation, when the general power to assess exists, is by appeal to those to whom the appeal is required to be taken; and if none be given, neither the Common Pleas nor this court can revise the judgment of the tax-officers. The court below should, therefore, have affirmed the plaintiff’s third and fourth points, and for the refusal to instruct the jury as therein requested the judgmént must be reversed.

Judgment reversed, and venire facias de novo awarded.


author: Asnew, J.

text:
    Rogers versus Johnson and Wife.
    1. Johnson, residing in Maryland, owned lands in Pennsylvania; they were sold to Rogers in 1834 for taxes; in 1836 before the time for redemption had expired, Johnson called on Rogers to inquire about the land, when Rogers told Johnson, he had bought them to save them for the family, and signed a paper agreeing to reconvey on being paid the costs with 25 per cent., &e., at any time when Johnson should require. This was evidence of a redemption outside of the treasurer.
    2. It was a redemption with condition of repayment which was necessary to give it effect.
    3. The taxes, costs, and 25 per cent, did not represent the price of the land, but only Rogers’s inchoate title; and Johnson, the owner of the land, having been prevented from redeeming by Rogers’s voluntary agreement, was not bound to pay for his own title.
    4. Rogers was estopped from claiming the land after the time for redemption had passed.
    5. Rogers having occupied and used the land and received profits from it more than the amount due him for taxes, &c., no payment of them to him was necessary to enable him to recover.
    November — 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Q-reene county: Of October and November Term 1871, No. 185.
    This was an action of ejectment, brought April 14th 1866, by Worthington R. Johnson and Anna his wife, against Daniel Rogers, for an undivided half of two tracts of land, stated in the writ to contain respectively 400 and 428J acres.
    The case had been tried December 1868, a verdict rendered for the plaintiff and the judgment thereon reversed by the Supreme Court (17 P. E. Smith 43).
    These tracts belonged originally to Governor Thomas Johnson of Maryland, who died in 1819, having devised them to his son Joshua Johnson and his grandson Thomas J. Graham; Mrs. Anna Johnson, plaintiff, is a daughter of Graham, and owns his title.
    The lands were sold in June 1834 for taxes of 1881 and 1832, and a deed for them from the treasurer to Daniel Rogers, the defendant, was made June 10th 1834, and acknowledged September 12th. 1834.
    On the trial, September 12th 1871, before Gilmore, P. J., the parties respectively gave in evidence the foregoing facts.
    In rebuttal the plaintiff called Thomas Hammond, who testified :
    “ I came to this county in 1817 or 1818, to attend to these lands of Governor Johnson, to pay taxes; we settled at that time all the taxes; had letters of introduction to Isaac Meason; I met Daniel Rogers; went with- Mr. Rogers to examine the lands, and when I came back I gave a description of the lands. I visited this county in 1836, in company with Joshua Johnson ; we came to the county to settle the taxes; we called on Rogers; he said to Joshua Johnson, I bought a couple of your tracts to save them for the family; his reason for buying them, he said, was to save them for the family ; he was willing at any time, he sajd, to re-convey, on being refunded what he had paid; that was the substance of what he said; that agreement was reduced to writing— saying if there had been a magistrate there he would have conveyed at once; Joshua Johnson said to me, ‘We will be out again, and it will answer just as well then;’ we were all together when this was said; Rogers was willing to convey if there had been a magistrate; I suggested that there should be a writing; Mr. Rogers then took up his pen and wrote as you. see, and I added a little to it before it was signed (paper shown). This is the writing, signed by Mr. Rogers; I witnessed it; our business' was to pay the taxes, and if sold, to redeem ; we told Mr. Rogers that we had come to pay the taxes and redeem any land sold; Mr. Rogers said he had bought two tracts in for the family, and was willing to give them up, on paying taxes, &c. We would have redeemed if Mr. Rogers had not agreed to let us have the land. I was in this county again in 1865 ; I went up to Bannings’ where Mr. Rogers lived; I left the two ladies, Mrs. Graham and Mrs. Johnson, at Connellsville; I went to Bannings’ to see Mr. Rogers; this was done at their request; I found Mr. Rogers at Bannings’; he did not recognise me at first; told him I had come to settle for the two tracts of land he had bought, which belonged to the John-sons, — I came to pay whatever was against them ; I then said I had a written statement from him about it; he said he didn’t remember it; I then took the paper out of my pocket and handed it to him, and as I handed it to him, he opened it; he said he remembered it; said he knew all about it; then he went on and spoke of all the different agents Governor Johnson had sent out there to look after his business; said Davis was a more efficient agent in selling land, and he had assisted him to sell; I told him I had come out to pay the whole; says he, I have exercised ownership over them; he said he had sold $1900 of bark off one of the tracts; I said that was all right, and if it was not emough I came prepared to pay any balance; he said he would write in a few weeks and send on a statement; it would take some time to make out the statement; never got a letter from him, although I wrote two or three times ; the last conversation was when we were going down by ourselves to the ears; I had money with me to pay.”
    The writing spoken of by witness was as follows: — “ This is to certify that I will reconvey to Mr. Joshua Johnson, the title for two tracts of land which I purchased at commissioners’ sale on the 10th of June 1884 — one of 428 acres and 406 — on his repaying the money and commission which I had paid, at any time he may require me so to do. Witness my hand and seal the 17th day of April 1836.
    Witness: Thos. Hammond. Daniel Rogers, [seal.]”

      Worthington R. Johnson, plaintiff, testified: “I called to see Mr. Rogers in October 1865 about these lands; I found him some 20 miles below Connellsville, at Bannings’; I offered to pay $100; Banning told his father-in-law not to accept; he shook his hand after them, and did not take the money; did not know of our title to the land till 1854.”
    David Mahaney testified: “ I superintended a saw-mill for Torrence & North. What I sawed would be equal to $1000; that is'the timber on the ground.”
    Jacob May testified: “ I have cut a good deal of timber off these lands. I peeled bark on it. I peeled not less than 500 cords.
    The vital question in the case is contained in the plaintiff's sixth point, which with its answer is as follows:—
    Point: That if the jury believe from the evidence that the defendant admitted in 1886, when called on in reference to these lands, that he had bought them in to save them for the owners ; that all he wanted was the money he had laid out in the purchase; that he then agreed to accept said money, and surrender the land to the owners; that this was while the plaintiffs had the right to redeem from the treasurer, and that they failed to do so on the faith of the plaintiffs’ assurances and agreement; that the arrangement made with the defendant, was in fact a redemption so far as concerned the defendant, and all that the defendant was entitled to demand thereafter, was the money he had agreed to take, and if the money has been received by the defendant, the plaintiffs are entitled to recover.
    Answer: “ We answer this in the affirmative. The agreement of Rogers in writing of the 17th of April 1836, and the acceptance of the same by Joshua Johnson, was virtually the same as if Johnson had given his obligation for the taxes paid and commission, which would amount to a virtual redemption, so that the title never did become complete in Rogers, and if' he has received from the land his taxes, interest and commission in full, plaintiffs will be entitled to recover.”
    The verdict was for the plaintiffs. The defendant removed the case to the Supreme Court, and, besides numerous other assignments of errors, specified the answer to the 6th point.

      D. Kaine, for plaintiff in error.
    The tender of taxes and 25 per cent, to Rogers would not have been a redemption, although it would if made to the treasurer; if accepted by Rogers it would have been a redemption: Dubois v. Hepburn, 10 Pet. (U. S. R.) 1; Coxe v. Sartwell, 9 Harris 480. If Rogers had been bound to convey, Johnson should have complied in a reasonable time; Pitts, and C. Railroad v. Byers, 8 Casey 22. There being no mutuality, the agreement was not binding: Wilson v. Clarke, 1 W. & S. 554; Parrish v. Koons, 1 Pars. R. 79.

      C. E. Boyle, for defendants in error.
    An owner may redeem from purchaser at tax sale directly: Coxe v. Wolcott, 3 Casey 154; Steiner v. Coxe, 4 Barr 13; Lloyd v. Lynch, 4 Casey 419. The law in relation to redemption should be construed liberally towards the owner: Gault’s Appeal, 9 Casey 94. If the paper was construed a sale, it would be sufficient under the Statute of Frauds, although signed only by the vendor: Lowry v. Mehaffy, 10 Watts 387; McFarson’s Appeal, 1 Jones 508. Rogers had no vested title at the execution of the paper: Shalemiller v. McCarty, 5 P. F. Smith 188. Rogers by his agreement having prevented Johnson from redeeming, is a trustee: Sheriff v. Neal, 6 Watts 534; Kerr v. Gilmore, Id. 407; Hiester v. Madeira, 3 W. & S. 384; Houser v. Lamont, 5 P. F. Smith 311; Horn v. Pattison, 1 Grant 304.
   The opinion of the court was delivered, June 9th 1872, by

Asnew, J.

Could we regard the sealed writing executed by Daniel Rogers, of the 17th of April 1836, as a mere agreement for the sale and conveyance of the land referred to in it to Joshua Johnson, it might be subject to the objection made to its present execution by the plaintiff in error. But this is not its true character. It is to be interpreted and enforced according to the circumstances attending its execution. Rogers had purchased Johnson’s land at treasurer’s sale on the 10th of June 1834, and was himself the first to inform Johnson of the fact in 1836, when on a visit to Rogers, saying to him, I have bought a couple of your tracts of land to save them for the family.” He expressed his willingness to reconvey them at any time on being refunded what he had paid. In consequence of this the writing in question was executed,'Rogers saying if there were a magistrate there to take the acknowledgment he would have conveyed at once. Johnson was a resident of Maryland, and told Rogers his business out there was to pay taxes and redeem any land that might he sold; and but for this agreement of Rogers, would have redeemed the land. By the terms of the writing Rogers was to convey at any time Johnson might require him to do so. The governing fact in the case is, that the time of redemption had not passed, and Rogers had no absolute title to the land. His act therefore was not an agreement for the transmission of an estate, the sale of which depended on his own will alone, for he could not prevent his title, such as it was, from being destroyed by the redemption of Johnson. The agreement, therefore, was nothing more than the evidence of a redemption outside of the treasurer’s office, where at law it would have been made. Still by its own terms it was a redemption coupled with a condition which must he performed to make it effective; and this it is which resembles it to a bargain and sale in some aspects, and leads to the controversy about its character. The payment of the money and commission was essential to the final effect of the instrument. But it must be remembered that the taxes and costs and twenty-five per cent., which are evidently the money and commission meant by the writing, do not represent the price of the land, but only that of Rogers’s inchoate title.

The land really belonged to Johnson, who being prevented from redeeming it by the voluntary act and agreement of Rogers, was under no obligation to pay for his own title. Rogers is estopped from claiming as a vendor of the land itself after the time of redemption had passed. If, after the lapse of the term for redemption, he' could claim to hold an absolute title by his treasurer’s deeds, the agreement would be nugatory, and he would take a title by his own prevention, which the law would not tolerate. Hence, the principles which the plaintiff in error would apply to the case as one of ordinary bargain and sale, to be affected by delay in equity, or one wanting in mutuality, because the paper was not executed by Johnson, do not govern the case. The fact is, if Rogers can hold the land by his deeds, he has Johnson’s land without paying for it, and by his own prevention of a redemption, which would have been made in due season, and would have avoided his title. The only question, therefore, which can arise on this agreement is that of non-payment of the taxes and percentage. Fortunately for this case that question does not embarrass it, for when Mr. Hammond, the agent of the Johnsons, came to see Rogers about the land in 1865, the latter recognised his agreement, said he had sold $1900 worth of bark from the land, and on being told by the agent that that was all right, and if it was not enough he came prepared to pay any balance, he said he would write in a few weeks and send on a statement. Besides this, there was evidence that he had used the land from an early day before 1840 for pasture, and had in addition gotten from it about $1000 worth of sawed timber. In the mean time he had never denied his liability, or called on Johnson to make payment of the taxes and percentage. Under these circumstances it would be a long stretch of authority to treat the writing as obsolete, and the title as fully vested in Rogers. What has been said covers all the errors assigned, and without discussing them in detail, we may say we discover no error, and the

Judgment is affirmed.


text:
    Tobin versus Morgan.
    1. In voting a tax it was stated in the minutes that all the school directors1 were present; and that the vote was unanimous, but the names of the members voting in “ the affirmative and negative,” were not entered on the minutes. Held to be a substantial compliance with the 4th section of Act of April 11th 1862.
    2. The section contemplates recording the ayes and nays, only when there are votes on both sides.
    3. A bounty tax was assessed on Tobin, warrant issued and demand made ; afterwards he entered into the military service of the United States. Held, that he was not exempt under the 4th section of Bounty Act of March 25th 1864, exempting property of soldiers.
    4. He was liable to the tax when it was levied; his subsequent enlistment did not release him.
    November — 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Fayette county: No. 186, to October and November Term 1871.
    This was an action of assumpsit commenced, May 21st 1868, by Maria Tobin against David Morgan.
    On the 22d of June 1864, the school board of Spring Hill township met; the minutes show that all the directors were present. At that meeting they resolved to levy a tax of $9500 to pay bounty to fill the quota of the township under the late calls of the President of the United States for volunteers. It was stated on the minutes that the resolution “passed unanimously,” but the names of the members voting were not entered on the minutes. Martin H. Tobin was assessed with tax amounting to $138.75. Lee Tate, Jr., was appointed collector of this bounty tax, and the warrant of collection was placed in his hands; he afterwards appointed David Morgan, the defendant, his deputy.
    On the trial before Gilmore, P. J., the plaintiff, who was the widow of Martin H. Tobin, proved that her husband had been mustered into the United States service for three years on the 13th of October 1864, and died after August 20th 1865; that in January or February 1865, she paid to Morgan $138.75, the tax assessed against her husband. She testified that when she paid the tax, she protested against the right to demand tax, on the ground that her husband was in the military service of the country ; that she paid it under a threat by the collector, that he would levy on her property if the tax was not paid; that the property he was about levying on was her own.
    The defendant gave evidence that he had demanded the tax from Tobin several times before he went away; he had retained enough from the taxes collected by him to meet this claim.
    The Bounty Act of March 25th 1864, Pamph. L. 85, provides that the property of non-commissioned officers or privates in the actual service of the United States, or such as have died in the service, and the property of widows, &c., of such soldiers who died in the service, shall be exempted from taxation under that act. '
    The court charged the jury that plaintiff was not entitled to recover. That even supposing the Act of Assembly exempting persons in service would reach this case, the application for exemption should have been made to the school board. Nothing of this kind was done, and the defendant having received the money (even under protest) cannot be made to repay the same in this action.
    The verdict was for the defendant, who took out a writ of error and assigned the charge of the court for error.

      W. 3. Playford and P. Kaine, for plaintiff in error.

      O. P. Boyle, for defendant in error.
   The opinion of the court was delivered, May 13th 1872, by

Sharswood, J.

The objection to the legality of the tax levied by the school directors of Spring Hill township, because in voting the tax, the names of the members voting both in the affirmative and negative were not entered on the minutes of the board by the secretary, in accordance with the fourth section of April 11th 1862, Pamph. L. 472, does not appear to have been made below, and being purely technical, is entitled to no favor here. Hourever, it is clear that the law was substantially, if not literally complied with. The minutes state that all .the members were present, and the resolution imposing the tax was passed unanimously. The act evidently contemplated that the ayes and nays should be recorded only when there were members voting both in the affirmative and negative.

We think that Martin N. Tobin was not entitled to exemption under the fourth section of the Act of March 25th 1864, Pamph. L. 86. The tax was levied on the 22d of June 1864. Tobin was not mustered into the service until October 13th 1864. Before ;hat his liability for the tax was complete, and it had been demanded of him several times by the collector. When he was taxed he was subject to the tax, and his subsequent enlistmen’t did not release him from the responsibility.

Judgment affirmed.