text:
    GREENE COUNTY.
    October and November Term, 1883,
    No. 38.
    October 3, 1883.
    Bane et al. v. Sutton.
    1. Where the grantee in a deed, which had never been recorded, voluntarily and fraudulently destroyed the deed and the notes which he had given to the grantor for the purchase money without the consent of the grantor, but with the express purpose of avoiding payment of the notes, and of giving up to his vendor all interest in the property conveyed, and followed this by delivery of possession to the grantor and her tenants; Held in ejectment by the grantor against the heirs of the grantee who had regained possession that this was not the case of a parol sale from the grantee to the grantor, so as to permit the statute of frauds to defeat the effect of the grantee’s act.
    2. The act of spoliation, followed by the subsequent action of the parties, estopped the grantee and his heirs from invoking, by parol proof, the aid of the deed so destroyed.
    3. The heirs of the grantee are estopped, notwithstanding a part of the purchase money had been paid.
    4. Evidence of declarations made by the grantee after the alleged destruction of the deed, that an instrument in his possession was the deed in question, was properly excluded.
    5. Evidence of the possession by the grantee of money in the year preceding the sale sufficient to cover the consideration is immaterial.
    6. Evidence to contradict a witness upon an immaterial point will not be admitted.
    Before Mercur, C. J.; Gordon, Trunkey, Sterrett, Green, and Clark, JJ. Paxson, J., absent.
    Error to.Court of Common Pleas of Greene County.

    Ejectment by Maria Sutton against Plioebe Bane, Elizabeth Johnson, Richard Johnson, Mary Johnson, William Johnson, and I. N. Johnson for certain rooms, being part of a hotel property situate on the north-west part of lot No. 121, in the borough of Waynesburg, in Greene county.
    On the trial in the Court below before Willson, P. J., the following facts appeared :
    On January 14, 1868, Maria Sutton, the plaintiff, purchased from Dr. D. W. Braden the property in dispute. She made improvements upon the property and used it as a hotel, calling it “The Sutton House.” When the plaintiff commenced the hotel business, she employed Lewis N. Johnson as bar-keeper and general manager, and as such he continued in her employ until May or June, 1871, when she went to the West. She returned in the fall of 1871, and became housekeeper for Johnson.
    The plaintiff showed title from Braden and rested. The defendants then produced evidence to show that immediately before starting for the West, plaintiff executed a deed to Johnson for the hotel property; that Johnson died, and his title vested in defendants; that after search, the deed could not be found ; that the consideration money was $4,000 ; that a large package of money was handed by Johnson to Mrs. Sutton at the time of the delivery of tlie deed, and that this package was said by the parties to be the consideration money.

      Plaintiff, in rebuttal, offered to prove by Jonathan Witlatch and Robert King “ that they heard Maria Sutton several times demand the payment of the purchase money for the property in dispute from Lewis N. Johnson, and Lewis N. Johnson’s admission that he owed it and wasn’t able to pay it, and if she collected it, it would sell him out and break him up ; and her repeated statements to him that if he didn’t pay the money, that she would enter the notes against the property and collect it, and that after they had conversed upon it on several occasions-for two or three weeks in this way, Mrs. Sutton said to Lewis that she would delay the matter no longer —that she would either have the money or enter the notes, and that Lewis got up and says: ‘I’ll soon fix it,’ and went out, and came back in a few moments with the deed and the notes, and put them in the stove and burned them up, and says: ‘There, now, you are paid. You have got your property back just as you had it before.’ This to be followed by evidence that Lewis Johnson then rented the house for the purpose of keeping a hotel, and had it under rent from that time until his death. This for the purpose of showing that Mr. Johnson had surrendered the property to Mrs. Sutton for a valuable consideration, and that he had never paid the purchase money, and for the purpose of estopping the defendants from setting up any title they may have under the alleged deed from Maria Sutton to Johnson.”
    This testimony was admitted under exception.
    (First assignment of error.)
    The plaintiff then gave evidence of the facts set forth in the offer, and fixed the date about February, 1872.

      John B. Parker, for the plaintiff,
    testified that he had a conversation with Johnson after plaintiff returned from the West, about a purchase of the property, that Johnson said “what was yet due from him would have to be advanced,” that he said $3,000, the balance of the purchase money, would have to go Mrs. Sutton, and that in a later conversation he said he had “ burned the article, the deed, and the notes.”
    Numerous other witnesses testified to subsequent declarations and acts of Johnson, going to show that he claimed no ownership in the property, and that he was in possession under a parol lease from the plaintiff, and that she paid for repairs.
    Defendants, in sur-rebuttal, called Samuel H. Montgomery, who testified that after February, 1872, he saw what Johnson represented to be the deed on the day of the sale.
    They then offered to prove by him “that this deed, which he has testified to, was presented to him by Lewis N. Johnson, for the purpose of satisfying him, the witness, who was then acting as counsel for the assignee of Hiram Smith in the sale of some property that Mr. Johnson was talking about buying; that Mr.-Johnson showed to him that deed for the purpose of satisfying him, as the counsel for the assignee, that he was able to buy and pay for the property which was then up for sale, and that he asserted that it was the deed for this corner property to him from Maria Sutton. For the purpose of showing the strong probability that this was the deed that Mr. Montgomery saw executed and delivered in the spring of 1871, there being no evidence that there was any other deed from Mrs. Sutton, to Lewis N. Johnson than the one in question.”
    Objection by plaintiff.
    The Court. “ So far as you confine your offer to Johnson, having shown the deed to the witness, of course it is competent, if he saw it. So far as you offer to prove the identity of the deed with that he saw executed, by the declaration of Johnson, I don’t think it is competent. So far as you offer to show that the deed was exhibited to. Mr. Montgomery, of course your offer is competent, and the purpose for which it was offered to him may be also stated, but Johnson’s declaration at the time as to the paper will not have any weight. Objection sustained and exception sealed.”
    (Second assignment of error.)
    Defendants then offered to prove by Legitt MoredocTc “that he saw Mr. Lewis N. Johnson have in his possession, and as his money, in 1870, a large package of money, to the amount of upwards of $5,000. This, for the purpose of showing the ability of Lewis N. Johnson to purchase and pay for the property in dispute in the spring of 1871, and for the further purpose of repelling the allegation of the plaintiff that notes were given for the balance of the purchase money.”
    Objection by plaintiff sustained and exception sealed.
    (Third assignment of error.)
    Defendants offered in evidence the record of the Court of Quarter Sessions for the year 1871, showing that Lewis Johnson hadn’t a license in February, 1872, for the purpose of contradicting Whitlatch and “Bobby” King, who testified that the bar was open, and that he was selling liquor and had license.
    Objection by plaintiff sustained. Exception.
    (Fourth assignment of error.)
    The defendants gave evidence of declarations of the plaintiff subsequent to February, 1872, admitting ownership in Johnson and payments of the consideration money by him.
    Johnson died in July, 1877, intestate. The defendants, as his heirs, after his funeral, obtained possession of certain rooms in the hotel, for the possession of which this suit was begun, and have continued in possession of them ever since.
    The deed from Mrs. Sutton was never recorded.
    Plaintiff’s counsel requested the Court to charge, inter alia, as follows:
    “ First. If the jury believe from the evidence that the alleged deed from the plaintiff to Lewis Johnson for the property in dispute was not recorded, and that the said Lewis Johnson did not pay the plaintiff all the purchase money for said property, and that the said Lewis Johnson gave, to the plaintiff a note or notes for the whole or a part of said purchase money, and that when the plaintiff demanded the payment of the purchase money, the said Lewis Johnson declared that he was not able to pay the same, and that then the plaintiff then replied to him that she would enter up said note or notes and collect the same, and that the said Lewis Johnson then replied to plaintiff that he could easy fix that, and then and there went and took possession of said note or notes without the consent of the plaintiff, and voluntarily destroyed both the deed and note or notes by throwing them into the stove and burning them, and that the said Lewis Johnson, when in the act of burning the said deed and note or notes, declared to plaintiff that £ now the property is yours, as it was before; you are paid for the property,’ or words of like effect; and that the plaintiff was then in and upon the premises, and from that time onward continued in possession of the whole premises thus given to her by the act of the said Lewis Johnson; and that then, or soon thereafter, she became the landlord of the said Lewis Johnson, and so continued until his death, when the defendants, or some of them, on returning from his funeral, entered into the house and remained there, and in this way got possession of that part of the premises now in dispute; and that after the destruction of the deed and note or notes as aforesaid, the said Lewis Johnson, became the tenant of the plaintiff, and was such at his death ; and if they so find the facts, the said Lewis Johnson and the defendants claiming the property as his heirs are estopped from setting up against the plaintiff the said deed, and from establishing by parol proof that the deed ever existed, and from showing the contents thereof by parol proof, as a lost deed, and the said deed is no bar to the plaintiff’s recovery, and .this is true even if the said Lewis Johnson did not actually burn the said deed, as he declared he did, when he threw the papers into the stove and burned the same, if the jury find the fact that he declared he burned the deed and notes.”

      Answer. Affirmed.
    “ Second. If the jury find the facts as stated in the first point, and should also find the further fact that the said Lewis Johnson, at the delivery of the said deed, paid to plaintiff a part of the purchase money, the said plaintiff is not bound to restore, or to offer to restore, the same to the said Lewis Johnson or to defendants, and the defendants claiming as his heirs are estopped from setting up the same to prevent the plaintiff from recovering, and the plaintiff having shown a good and sufficient title in herself prior to the alleged making and alleged delivery of the said deed to the said Lewis Johnson, she is entitled to recover.”

      Answer. Affirmed.
    Defendant’s counsel requested the Court to charge, inter alia, as follows:
    “ Second. If the deed and notes for purchase money were destroyed by Johnson, and if this was done with the acquiescence of the plaintiff and for the purpose of rescinding the original sale and revesting the title in her, it would amount in substance to a parol sale, and the plaintiff could recover only upon showing such acts of performance as would be necessary to take an ordinary parol sale out of the statute of frauds and perjuries.”

      Answer. Refused.

      “Third. There is no evidence before the jury from which they can properly find such acts of part performance as would be necessary to take a parol sale out of the statute of frauds and perjuries.”

      Answer. Refused.
    April 14, 1882. Yerdict for plaintiff for the premises described in the writ, upon which judgment was after-wards entered.
    Defendants then took out a writ of error, and assigned the four errors as set forth above, the answers to plaintiff’s first and second points, and to the defendants’ second and third points.
    Wyly, Buchanan & Walton, and Garrison & Downey for plaintiffs in error.
    A surrender for a valuable consideration is a re-sale, and is within the statute of frauds. Therefore, it could not be proved by parol. Surrender implies a previous estate in the person to whom the surrender is made ; but no such estate existed in defendant in error. Plaintiffs in error are not estopped from setting up a title in themselves. Wright’s Appeal, 3 Out., 425, Story’s Eq. Juris., s. 1543.
    The declarations of Johnson that his deed was in existence after the time it was alleged to have been destroyed are admissible in evidence. 2 Wharton on Ev., s. 1102; Potts v. Everhart, 2 Casey, 497; Louden ®. Blythe, 4 Harris, 532.
    The fact that Johnson had money is evidence to rebut the insinuation that the money paid belonged to Mrs. Sutton.
    The mere destruction of the deed would not revest the title in the grantor. Sheppard’s Touchstone, 53, (eighth edition;) Hudson’s Case, Prec. in Chancery, 235; 1301-ton v. Carlisle, 2 H. Bl. 259; Gilbért’s Eq. Cas., 235; Bull’s Nisi Prius, 267; Miller ®. Gilleland, 7 Harris, 122 ; Washabaugh ®. Entriken, 12 Casey, 513; Miranville ®. Silverthorn, 12 Wr., 147; Botsford ®. Morehouse, 4 Conn., 550; Raynor ®. Wilson, 6 Hill, 469; Jackson ®. Chass, 2 Johns, 84; Marshall ®. Fisk, 6 Mass., 24.

      A. A. Burman for defendant in error.
    The testimony showed that Johnson had destroyed his evidence of title under such circumstances that he was estopped from impeaching the title of Mrs. Sutton. Com. v. Dudley, 10 Mass., 403; Lawrence ®. Stratton, 6 Cush., 169 ; Thompson®. Thompson, 9 Ind., 328 ; Speer®. Speer, 7 Ind., 178 ; Farrar ®. Farrar, 4 N. H., 191.
    Declarations of deceased persons in their own favor are not admissible. Wharton on Ev., Vol. 2, s. 1168 ; 2 Best on Ev., s. 519; Douglass ®. Mitchell, 11 Casey, 445 ; Allegheny ®. Nelson, 1 Casey, 333; Wharton on Ev., s. 1101, 547, 559 ; Hood ®. Hood, 2 Grant, 233 ; Stevens ®. Beach, 12 Vt., 585; Hildeburn ®. Curran, 15 P. F. Sm., 59; 1 Green on Ev., s. 4481; Griffith ®. Eshelman, 4 Watts, 51; Elliott ®. Boyles, 7 Casey, 65.

      The voluntary destruction of the deed prevents the grantee and his heirs from showing the destruction or loss. Stoddard r. Chambers, 2 How, 284; Tyler on'Ejectment, 73-74. The destruction of the notes was a fraud on defendant in error, and plaintiffs cannot take advantage of the fraud. Lane v. Reynard, 2 S. & R., 66 ; Sims D. Irvine, 3 Dallas, 456 ; Patterson t. Yea ton, 47 Maine, 314; 2 Washb. on Real Prop., 616; Speer v. Speer, 7 Ind., 178 ; Thompson v. Thompson, 9 Ind., 328; 1 Watts, 250; 18 Verm., 466 ; Brown on Statute of Frauds, s. 61; 17 Pick., 215; 4 N. H., 191; 24 Id., 252; 1 Greenleaf on Ev., s. 265 ; 3 Norris, 394 ; 10 Barr, 527 ; 4 Casey, 131; 3 Norris, 394; Addison, 390; Bispham’s Eg., 260; Brown, St. of Fr., s. 438 ; 2 Story’s Eg., s. 700; 14 Norris, 52; 8 Wr., 9; 1 Hilliard’s Am. Law, 244; 3 Head, 562; 8 Skep., 160 ; Fry on Specific Perf., 247, (second Am. Ed. ;) Bigelow on Estoppel, 600-607; Tyler on Ejectment, 165-6 ; 1 Sugden on Vendors, 257; 12 Casey, 513; 12 Wr., 147; 12 Mete., 494 ; 13 Am. L. Reg. N. S., 453 ; 4 Kent’s Com., 269, note a; 2 Sm.' L. C., 536-538 ; 4 Am. L. Reg., N. S.; 5 Id., 509 ; 16 Id., 403, and notes.
    Defendant in error has the legal title, and may rebut any supposed eguity without violating the Statute of Frauds. Myers v. Myers, 1 Casey, 100.
    October 22, 1883.
   — Per Curiam:

It is conceded that at one time the defendant in error was the undoubted owner of the property in guestion, and in the exclusive possession thereof. The plaintiffs in error claim title under her, and sought to prove it by parol evidence. Under the facts found by the jury, and on sufficient evidence, we think they could not defend their possession under the deed which Johnson once held, but which he had voluntarily and fraudulently destroyed. It had never been recorded. He had not paid the purchase money. With the express purpose of avoiding payment of the notes which he had given for the purchase money, and with the avowed purpose of giving up to his vendor all interest in the property, he burned the notes and the deed, declaring to his vendor as he threw them in the stove: “Now the property is yours, as it was before.” She gave no consent to this destruction. She had no previous knowledge of his intention — having destroyed her evidence of his indebtedness. She accepted the situation. He gave possession to her, which she and her tenants retained until after his death. It is not the case of a parol sale from Johnson to Mrs. Sutton, so as to permit the Statute of Frauds to defeat the effect of his act. It is such an act of spoliation, followed by the subsequent action of the parties, as to estop him and his heirs from invoking the aid of that deed. He did not attempt to do it. They cannot defend a possession improperly obtained under it. We discover no error in the record.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam :

license: Public Domain

text:
    October and November Term, 1883,
    No. 106.
    October 3, 1883.
    Hoskinson et al. v. Miller.
    1. The principal debtor and two sureties were makers of a joint and several note under seal, dated September 1, 1876, payable one year after date with interest. The principal debtor paid the interest to September 1, 1877, and on October 4,1877, he paid another year’s interest, the receipt given by the payee specifying that the amount paid was interest from September, 1877, to September, 1878. Suit was brought upon said note in April, 1879, and judgment by default entered against the principal debtor. Held, on the trial of the issue against one of the sureties and the administrator of the other surety, that the liability of the principal debtor was fixed absolutely at the time judgment was entered against him; that he was not interested in the result, and was, the defense being purely personal, a competent witness to rebut the presumption of an extension of time which the sureties sought to raise from the payment of interest by him.
    2. Dubitatur whether the receipt unexplained could have operated to the injury of the sureties.
    Before Mbrcur, C. J., Gordon, Trunkev, Sterrett, Green, and Clark, JJ. Paxson, J., absent.
    Error to the Court of Common Pleas of Greene County.

    Debt by A. B. Miller, treasurer of the trustees of the Pennsylvania Synod, against Nathaniel Clark, Thomas Hoskinson, and Timothy W. Boss, upon a note in the following form:
    “500.00.
    One year after date, we or either of us promise to pay to A. B. Miller, Treasurer of the Trustees of the Pennsylvania Synod, or his successor, the sum of five hundred dollars with interest from date, value received, witness our hands and seals, this first day of September, eighteen hundred and seventy-six (1876.)
    N. C. Clark, [seal]
    Thomas Hoskinson, [seal]
    T. W. Boss, [seal]’

      Indorsed “Interest on the within note paid to September first, 1877.”
    - The death of Timothy W. Ross was suggested of record, and D. Crawford, his administrator was substituted.
    On April 6, 1882, judgment was entered against Nathaniel Clark for want of an appearance.
    Upon the trial, January 9, 1883, the jury were sworn to try the issue between the plaintiff and Thomas Hoskinson, and I). Crawford, administrator of Dr. T. W. Ross, deceased, impleaded with Nathaniel Clark.
    • The plaintiff offered in evidence the above note and rested.
    Defendants proved that N. Clark was the principal debtor on the note, and that Hoskinson and Ross were sureties, and then gave in evidence the following receipt for the purpose of showing that without the knowledge or consent of the sureties, the time of payment of the note was enlarged and extended from September, 1877, to September, 1878.
    . “Received October 5th, 1877, of N. Clark, thirty dollars, interest on a note of five hundred dollars, held by the Trustees of the Pennsylvania Synod, from Sept., 1877, to Sept., 1878.”
    A. B. Miller,
    Treas.’
    Defendants then rested.
    Plaintiff offered to prove by Nathaniel Clark, in rebuttal, ‘ ‘ that the thirty dollars’ interest received by the plaintiff on October 5, 1877, as shown by the receipt given in evidence by the defendants, was paid to the plaintiff by the witness in pursuance of an understanding and agreement between himself and the plaintiff, made and entered into at and before the giving of the note in suit, and that neither at the time said thirty dollars’ interest was paid, nor at any other time after the note in suit was given was anything whatever said or mentioned by plaintiff to the witness, or by the witness to the plaintiff, in regard to the giving of time on the note in suit, and that the witness at all times considered himself bound as principal debtor to pay the note in suit if asked to do so by the plaintiff, at any time after its maturity notwithstanding the payment of interest in advance. This for the purpose of showing that the plaintiff had the right to sue the witness and recover on the note at any time after its maturity, and that therefore the sureties w;ere not discharged.”

      ■ The defendants object to the evidence offered on the ground that the witness is not a defendant in the suit now on trial, judgment having been taken against him, and secondly, that his evidence would create a liability on others and not on himself, and third, by reason of the death of Dr. Boss he is incompetent, and fourth, that his evidence is in contradiction of the written receipt and is incompetent on that ground.
    The plaintiff amends his offer so as to confine it to. the proof of the facts occurring in the lifetime of Dr. Boss.
    The defendants object that the witness is not competent.
    By th:e Court. The objection to the competency of the witness will be overruled.
    The plaintiff proposes to prove by this witness that the thirty dollars’ interest paid on October 5, 1877, was paid in pursuance of a contract and agreement between himself and the plaintiff, made before and at the time the note in suit was given, and that by this contract and agreement, Dr. Miller reserved his right to sue upon the note in suit at any time after its maturity, notwithstanding the payment of interest in advance.
    The defendants object to the evidence offered on the ground that it is inconsistent with the terms of the note, and the terms of the receipt referred to in the offer, and contradicts the same ; that it contradicts the writing between the parties, and tends to create a liability outside of and beyond the papers ; and further, that the evidence offered is incompetent and irrelevant.
    The Court overruled the objection, and admitted the evidence under exception.
    ■ January 10, 1883, verdict for plaintiff for $630 75, upon which judgment was afterwards entered.
    Defendants then took out a writ of error, and assigned as error the action of the Court in overruling the objection to the competency of Nathaniel Clark, and to the evidence offered as set forth above.

      Ptirman & Buchanan for plaintiffs in error.
    The payment of interest in advance without the knowledge or consent of the sureties raised a presumption that there was an agreement to extend the time of payment.
    Clark would have been incompetent as a witness prior to the legislation removing the disabilities of parties as witnesses : Wolf ®. Fink, 1 Barr, 435 ; Swanzey «. Parker, 14 Wr„ 454; Branthoover v. Cook, 13 Pitts. L. J., N. S., 230. He is incompetent as a witness on behalf of the plaintiff without the consent of his co-defendants. . He is incompetent to testify to matters occurring in the lifetime of Dr. Ross: Branthoover ®. Cook, 13 Pitts, L. J., 230; Dean®. Warnoclf, 2 Out., 565. He is incompetent because he comes within the proviso of the act of 1869 : Karns ®. Tanner, 16 P. F. Sm., 297; Hanna®. Wray, 27 Id., 27; Branthoover ®. Cook, supra.

    This case does not come within the act of 25th May, 1878, permitting surviving partners to testify.
    The evidence as to the parol agreement made with Clark at the time of the payment of the interest is inadmissible. It was made without the knowledge of the sureties, and contradicts the written contract between the parties. It was not made at the execution of the note: 17 P. P. Sm., 459 ; Hurst ®. Kirkbridge, I Binney, 616; Greenawalt ®. Kohne, 4 Norris, 375.

      J. P. Teagarden and J. M. Garrison for defendant in error.
    The acts of 15th April, 1869, and 27th March, 1865, have no application. They do not disqualify any person who was competent before. Clark would have been a competent witness before these acts. His liability was fixed and determined by the judgment previously entered against him, and the case was tried solely as between plaintiff and sureties upon a defense personal to themselves, in -which Clark had no interest: Good ®. Calvert, 1 Penny-packer, 140 ; Miller ®. Stem, 2 Barr, 286 ; Talmage ®. Burlingame, 9 Id., 21; Simpson ®. Bovard, 24 P. P. Sm., 351.
    In all the cases cited by plaintiffs in error, the liability was joint. In this case the liability is several as well as joint.
    The evidence of Clark does not contradict the note, but merely explains the receipt, and rebuts any presumption that might arise as to an extension of time.
    October 1, 1883. —
   Per Curiam :

Clark was not a party in the issue being tried. He was not interested in the result. As to him, the judgment had become final nine months before he was offered as a witness. His liability was fixed absolutely. The defense set up by the plaintiffs in error was personal as to the sureties. It did not raise the question of consideration or original disability on the note. The makers of the note were jointly and severally bound. The witness testified voluntarily to rebut a presumption which the sureties sought to raise from the payment of interest by the witness. The defense of the sureties being purely personal, the witness was competent for the plaintiffs below: Talmage v. Burlingame, 9 Barr, 21; Simpson’s Executor v. Bovard, 24 P. F. Smith, 351; Good v. Calvert, 1 Pennypacker, 140. It is very doubtful whether the receipt unexplained could have operated to the injury of the sureties.

Judgment affirmed.


author: — Per Curiam :

text:
    HUNTINGDON COUNTY.
    July Term, 1883,
    No. 84.
    May 23, 1883.
    Myton’s Appeal.
    An administrator sold the real estate of the decedent for the payment of debts under an order of court the terms of which were “ one half of the purchase money to be paid on confirmation of the sale, and the balance in one year, with interest.” The purchaser gave a bond and mortgage to the administrator for the half remaining unpaid. The.administrator filed a final account, charging himself with the cash received, and also with the amount secured, and his account was confirmed. Five years thereafter the administrator satisfied of record the mortgage by an entry which acknowledged payment and referred to an agreement of the same date between the widow of the decedent and the purchaser. This agreement provided that the share of the widow should remain in the hands of the purchaser, and that he should pay her the interest on it during her life, and at her death pay the principal to those entitled, and she released the administrator from all further liability. Nineteen years afterward the purchaser made an assignment for the benefit of creditors and the assignee sold the real estate. At the sale the widow gave notice that the land would be sold subject to the lien., She and the administrator both testified that they had no intention to release the land. The court below made absolute a rule taken by her upon the administrator, the purchaser from him, and the purchaser from the assignee to show cause why the entry of satisfaction upon the mortgage should not be taken off as to her share and an assignment of it made to her and her children. Held by a divided court that the decree should be affirmed.
    Before Merour, C. J., Gordon, Teunkey, Steerett, Green, and Clark, JJ. ; Paxson, J., absent.
    Appeal of Albert Myton from a decree of the Court of Common Pleas of Huntingdon County, making absolute a rule to show cause wby tlie satisfaction of a certain mortgage made by A. M. Oaks to itobert Johnson should not be stricken off.

      The facts, as they appeared from the petition for the rule, the depositions taken to support it, and the records of the Court, were as follows : William Johnston died in 1854 intestate, leaving a widow, Elizabeth Johnston, and four children, and seized of a farm in Huntingdon county. On March 14, 1855, letters of administration on his estate were granted to Robert Johnston, a brother of the decedent. On November 20,1855, the administrator presented his petition to the Orphan’s Court, praying for an order to sell the real estate for the payment of debts. The Court ordered that the sale should be made “one half of the purchase money to be paid on confirmation of the sale, and the balance in one year, with interest.” On the same day the administrator’s bond was approved, and on January 17,1856, he made return that he had sold the said real estate at public sale, after due notice, to Alexander M. Oaks for $6,101 03. No exceptions were filed to this return, and the sale was confirmed. The administrator executed and delivered to A. M. Oaks a deed for the premises sold, and the purchaser paid one half the purchase money in cash, and gave a mortgage on the farm' bought by him for the other half. This mortgage was dated January 31, 1856, and was recorded on February 1, 1856. It recites the obligation of Oaks in the sum of $6,101 03, conditioned for the payment of $3,050 50&, “with interest thereon from the 17th day of January, A. D. 1856,” upon the 17th day of January, A. D. 1857. On October 7, 1857, Robert Johnston filed his final account as administrator of William Johnston, deceased. He charged himself, infer alia, with the. following items: 1856, January 17, To first payment on real estate sold to A. M. Oaks for payment of
    debts,................’ . . $3,[ XXX XX XXXX ], January 17, To second payment on same, 3,[ XXX XX XXXX ], January 17, To interest on second payment for one year,............ 183 03
    The balance against the administrator was found -to be $1,725 61. The account was confirmed absolutely January 13, 1858. On June 19, 1862, Robert Johnston entered of record satisfaction of the mortgage in these words:
    “ I acknowledge satisfaction and payment of the bonds secured by this mortgage, and the lands therein described are discharged from the lien thereof, and the widow’s share of surplus, after payment of debts, secured to her by the agreement and obligation of A. M. Oaks, recorded in Record Book (miscellaneous) No. 1, page . Witness my hand and seal this 19th day of June, A. D. 1862.
    Robebt Johnston, [l. s.]”
    On the same day, the following agreement in writing, referred to in the above entry of satisfaction, was made between A. M. Oaks and Elizabeth Johnston:

      “ Whereas, by the administration account of Robert Johnston, administrator of William Johnston, deceased, filed October 7, 1857, there appears to be a balance of $1,766 99 due to the widow and heirs of said deceased, which was represented by the purchase money due from A. M. Oaks, charged on the account, but which had not been collected, and the said Oaks being guardian of two of the four children of said deceased, and having paid one of the others who is of full age his full share of the estate, and it being agreed that the share of the widow, or one third of said balance, shall also remain in the hands of the said Oaks, and he to pay her the interest thereof, the said Oaks has been credited.on his bonds for purchase money with the whole amount of said balance on said account as of the date the same was filed, except the share of Jane 0. Port, who is of age, and has received her share the administrator.
    Thus, balance on account,.........$1,766 99
    Share of Jane 0. Port, ...... 294 50
    Credited on bond as of October 7, 1857, . $1,472 49
    Share of widow,..........$588 99
    Share of three children,...... 883 50
    ----- 1,472 49
    Now, it is agreed that the said Alexander M. Oaks shall pay the interest on above sum of $588 99 to the widow during her life, and at her death, the principal to those entitled to receive it, and will also indemnify the said administrator against any claims on the part of Andrew J. Johnston, who received his share through said Oaks, and the widow hereby releases the said administrator from all further liability to account further with her or pay said sum, or interest thereon, to her.”
    On June 19, 1881, A. M. Oaks made an assignment for the benefit of his creditors. In December, 1881, the assignee, by order of the Court, sold his real estate, including the farm embraced in the Johnston mortgage. At the sale, public notice was given by Elizabeth Johnston that $588 99, with interest, remained unpaid, and was claimed to be a lien, and that the purchaser would buy “subject to the lien of said purchase money and mortgage.” The farm was purchased by Albert Myton for $1,085, a judgment creditor, and the sale to him was confirmed absolutely on January 16, 1882, and the assignee was authorized to receive the whole purchase money in cash. This was paid and a deed delivered to Mr. Myton.
    On October 25, 1881, Elizabeth Johnston presented her petition to the Court, praying that the satisfaction of the mortgage by Robert Johnston on June 19, 1862, be taken off as of the date of its entry to the extent of $588 99, with interest from January 17, 1881, and a proper assignment of the same be decreed to her and her children.
    A rule upon Johnston and A. M. Oaks, with notice to the assignee, was granted.
    February 24, 1882, a rule upon Myton to show cause was also granted.
    In support of these rules, Elizabeth Johnston testified, •inter alia:

    “Mr. Oaks paid me the interest. He paid me the interest from the time the farm was sold up to within a year or two ago. I thought the money was safe where it was. I thought it was secured in the land, and I could get the interest all the time. Robert Johnston told me the money was safe in the land ... I thought it was secured in that way, and never troubled myself about it, and I thought, whoever would own the land, the money would still be safe in it . . .1 could not have understood that the money was to be taken out of the land and placed in Mr. Oaks’ hands, for I did not want it done.”
    Robert Johnston testified, inter alia, that he “never knowingly satisfied the mortgage for the purpose of taking away her security against the land ... I always understood that the widow’s interest was secured in the land.”
    December 18, 1882, the Court made the rule absolute.
    Myton then took out a writ of error and this appeal, assigning that the Court erred in making the rule absolute, and not discharging it.

      George B. Orlady and R. M. Speer for plaintiff in error.
    A sale made by order of the Orphans’ Court is a judicial sale, and passes the entire estate of the decedent, and nothing remains to be claimed by any one out of it through or by virtue of his former ownership. The proceeds of the sale after payment of the debts shall be distributed as real estate, but for them the administrator and his sureties are liable to the widow and heirs. The latter have no lien or charge upon the land for their protection, and there is no privity between them and the purchaser which enables them to call him to account. He owes them no legal duty, and they can assert none against him: Bowers v. Oyster, 3 P. & W., 240; Moore v. Shultz, 1 Harris, 98; McLanahan «. Wyant, 1 P. & W., 96.
    The administrator had no power to change the terms of sale, and he did not attempt to do so. There could be no change in the terms of the mortgage without consent of the mortgagor. It was his right to have the mortgage satisfied at maturity on payment to the administrator. The widow and heirs were strangers to the instrument, and the mortgagor owed them nothing. Their rights, whatever they were, were not the measure of his duty. What the widow’s share would be could not be legally known until the mortgage was paid to the administrator, and the latter had paid the debts. The administrator acknowledged payment in full of the debt and interest secured by the mortgage by charging himself with the amount thereof in his account. In this case, it can make no difference whether the whole amount secured by the mortgage was actually paid to Robert Johnston, for that was done which he treated and accepted as payment, and in consideration of which he satisfied and surrendered the mortgage and bond. He has not moved, and he seeks no relief from his act. A stranger to the contract and the record cannot be heard now after the lapse of twenty years.
    When the widow signed the agreement of June 19, 1862, she relinquished no right against A. M. Oaks which she then held or was entitled to. She could not then have proceeded on the mortgage, nor could she have called him to account in any form. Her remedy was against the administrator and his sureties, and if she released him, it was not in consideration of any promise by him to assign her the mortgage, for the administrator made no promise whatever, but. on the same day satisfied the mortgage.
    The striking off of the satisfaction of a mortgage is the exercise of a high power. It may be done, but only for fraud or .plain mistake. The evidence in this case shows neither fraud nor mistake, and no ground for relief: Sims Lyle, 4 W. C. C. R., 320 ; Clow a The Derby Coal Company, 2 Out., 432.
    The Court cannot for any cause order the satisfaction of a mortgage to be stricken off to the prejudice of an innocent purchaser or lien creditor.

      Brown, Bailey <& Brown, and Myton & Bchoclc for defendant in error.
    The judgment of the Court below in this case was not a final judgment. It does not order or adjudge the payment of money by any one. Myton is not hurt by this decree. He cannot be called on for a dollar nor budged from his possession without either a scire facias or an ejectment on the mortgage, in both of which he has his clay in court, and may make every available defense: Straub a Smith, 2 S. & R., 382. Erie Bank a Brawley, 8 W., 530. Kendrick a Overstreet, 3 S. & R., 357. Gardner a Lefevre, 1 P. & W., 73. Bossier v. Johns, 2 P. & W., 331. Chadwick v. Ober, 20 Smith, 264. Roberts v. Halstead, 9 Bari’, 32. Lancaster a Smith, 17 Smith, 427. Jones Appeal, 11 W. N. C., 554. Keemer a Herr, 12 Id., 90.
    The assignor of a judgment or mortgage cannot satisfy it or release any obligation held for its security. If he attempts to do so such satisfaction or release is void: Fleming a Parry, 12 Harris, 47. De Witt’s Appeal, 26 Smith, 283.
    October 1, 1883.
   — Per Curiam :

On an equal division of the judges who heard the argument in this case, the decree is affirmed.


text:
    January Term, 1883,
    No. 410.
    May 22, 1883.
    Petrikin v. Myton, Treasurer of Huntingdon Co., to the use of Wharton’s Assignees.
    1. Where land, owned by two persons as tenants in common, is sold by a county treasurer for arrears of taxes, and a surplus bond given by the purchaser to the treasurer for the use of the owners, one tenant in common of the land has no power to release the half of the bond given and held for the benefit of his co-tenant.
    2. The tenants in common were not joint creditors of the purchaser in such a sense as to give to either entire control of the whole debt.

      Before Mercur, C. J. ; Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. Clark, J., absent.
    Error to the Court of Common Pleas of Huntingdon County.

    Issue directed by the Court between T. W. Myton, treasurer of Huntingdon county, for the use of H. S. Wharton’s assignees, plaintiff, and R. Bruce Petrikin, defendant, to determine how much, if anything, be due on a certain judgment of November term, 1876; issue framed as if plaintiff had declared in debt and defendant had pleaded payment with leave, &c.
    On the trial of the issue before Dean, P. J., the following facts appeared: In 1866, H. S. Wharton and Frank Hefright were owners in equal undivided interests of a tract of land in Oneida township, Huntingdon county, Pa., containing about two hundred and eighty-three acres. On June 11, 1866, the county treasurer sold this land for taxes as unseated, and it was purchased by R. Bruce Petrikin for $700. Petrikin received the deed from the treasurer, and gave his judgment bond for $686 08, being the surplus of his bid after deducting the arrearages of taxes, fees, and costs, amounting to $13 92. There was no redemption of the land within two years, and on October 20,1870, Petrikin reconveyed an undivided half part of the tract to Hefright. At the same time Hefright executed and delivered the following release to Petrikin:
    “ Whereas, R. Bruce Petrikin, on the — day of June, 1866, purchased at treasurer’s sale a certain tract of land situate in Oneida township, Huntingdon county, Pa., warranted in the name of John Light, containing two hundred and eighty-three acres, for which a deed poll, dated and acknowledged the 18th of August, 1866, was delivered by Thomas W. Myton, treasurer of Huntingdon county, to the said R. Bruce Petrikin; and whereas, the said R. Bruce Petrikin executed and delivered to the said treasurer a surplus bond for the sum of $700, after costs, &c. ; and whereas, R. Bruce Petrikin has this day conveyed to me the undivided half part of the said tract of land. Now, in consideration thereof, I, Frank Hefright, one of the owners of said tract of land at the time of the said treasurer’s sale, do hereby release the said R. Bruce Petrikin, his heirs, executors, administrators, and assigns of and from all and any liability on said bond, and do hereby indemnify and save him harmless of and from all claims, suits, and actions by reason thereof, or that maybe made or brought upon said bond, and of and from all damages, costs, or expenses by reason whereof. Witness my hand and seal, this 20th day of October 1870.”
    Wharton subsequently made an assignment of all his property for the benefit of his creditors, and his assignees caused judgment to be entered on the surplus bond. Petriken then presented his petition to the Court for a rule to show cause why the judgment should not be opened and he be let into a defense. This rule the Court made absolute on March 2, 1877.
    The defendant submitted the following points.
    1. That Henry S. Wharton and Prank Hefright being the owners of the land at the time of the Treasurer’s sale, the bond given by R. B. Petrikin, the defendant, was, by the act of Assembly, for the joint use of both of said owners, and the release of Frank Hefright, one of said owners, to R. B. Petrikin, the obligor in said bond, dated 20th day of October, A. D., 1870, is a release by both of said obligees and owners, and the plaintiff cannot recover.
    The Court. This point is reserved. Exception.
    (First assignment of error.)
    2. That whenever a right is given to two or more, it is a joint right, and a release by one of the parties to whom the right or cause of action is given, is a release to all.
    Reserved. Exception.
    (Second assignment of error.)
    3. That by the act of Assembly, under which the bond in suit was given, the action on said bond must be in the name of the Treasurer for the use of the owners, and as there are two owners, an action will not lie in the name of the Treasurer for use of Wharton or his assignees, one of the owners, and the plaintiff cannot recover.
    Reserved. Exception.
    (Third assignment of error.)
    4. That the release of 20th October, A. I). 1870, by Frank Hefright to R. B. Petrikin is a bar to the plaintiff’s right to recover, and the verdict must be for the defendant.
    Reserved. Exception.
    (Fourth assignment of error.)
    The Court directed the jury to find a verdict for the plaintiffs for the sum of $362 25, subject to the opinion of the Court on defendant’s points reserved.
    November 16, 1877, verdict for the plaintiff in the above sum accordingly.

      On. March 12, 1883, the Court filed an opinion on the points reserved, and directed judgment to be entered for the plaintiffs on the verdict. In this opinion, the Court, after stating the facts ut supra, said:
    “The surplus bond given by Petrikin is in pursuance of the statute; it follows the statute substantially, but even if it did not, the liability would be strictly statutory. The bond is to the treasurer for the owners or their legal representatives. Further, and the owners of said lands at the time of the sale, or their heirs, &c., may at any time, within five years after such sales, cause action to be entered on the docket of said prothonotary in the name of’ thetreasurerfortheuseof said owners, their heirs, assigns, or legal representatives. Purdon’s Digest, 1446, sec. 21. Who were the owners ? It is not questioned that the executors of John McCahan, by deed of July 5, 1864, conveyed the land sold by the treasurer to Frank Hefright and H. S. Wharton, and that at the time of the treasurer’s sale they were the owners of it as tenants in common. The land, then, was for their use as owners, and they had the right to cause actions to be brought for their use. Hefright makes no claim on the bond, and has brought no action. Wharton, through his assignee, does claim one half the sum named in the bond, and to obtain it, entered this judgment. To this claim of the assignee, is set up this release by the defendant. (Pelease read by the Court.)
    Hefright and Wharton were tenants in common of the land for which the bond was substituted ; by the terms of the bond and of the act of Assembly which directed the purchaser of the land to execute and deliver to the treasurer a bond for the surplus, they were the owners of the fund represented by the bond. The paper executed by Hefright, in the most- explicit and comprehensive terms, in consideration of a reconveyance of one-half the land to him, releases Petrikin from all liability on the bond. The defendant, assuming that Hefright and Wharton were joint creditors of Petrikin, having a common interest in the fund, alleges that each had control over the whole debt, and each had power to release the debtor from his entire obligation.
    The plaintiff denies any authority in Hefright to receive more than one half the money, or to execute a release which would in any way relieve the defendant from his obligation to pay Wharton the other half.
    Many authorities have been cited by defendant’s counsel to show that a release by one of the two joint obligees is a bar to a suit by the second. Without noticing them at length, we may say that they clearly sustain the defendant’s proposition to this extent: A release by one of several creditors, each having an entire control over the whole debt, discharges the debtor of all liability to the other creditors upon the debt in respect of which the release was given. But if the creditors have a several interest a release by one will not discharge the liability of the debtor to the other. Story on Contracts, sec. 995.
    Were Hefright and Wharton joint creditors of Petriken in such sense as to give eitlier entire control of the .whole debt?
    Theirs is not the case of an obligation given to two creditors for their joint claim ; we are to determine their rights in view of tíre circumstances out of which the demand arises. They were privy to no contract with Petrikin. The bond is to the treasurer, and the legal right to recover is in him for their use. They have a right to the money because they happen to be tenants in common of the land now represented by the bond. Through no act of theirs,but by operation of law, the bond has been substituted for the land, and their interest in the land transferred to the money represented by the bond. As Hefright had no such control over the land as would have enabled him to convey the whole of it, neither has he snch control over the bond as will enable him to release the half payable to Wharton.
    The purchaser of land at a tax sale assumes the risks when he undertakes to settle the equities of the owners by payment to one to secure a release for all. The pixrper and only safe course is that suggested by the Supreme Court in Irish v. Johnston, 1 Jones, 483, and Crawford v. Stewart, 2 Wright, 34. Let him pay the amount of his bond into Court, that an auditor may hear and determine the rights of the owners. The defendants points reserved are denied, and it is directed that judgment be entered on the verdict for the plaintiff.”
    The defendant thereupon took this writ, assigning for error the action of the Court in refusing to affirm his points as above, and in directing judgment to be entered for the plaintiff on the points reserved.
    . P. B. Petriken and M. M. McNeil for plaintiff in error.
    Hefright and Wharton were as to the bond joint obligees. Both, therefore, must sue. Whenever a right is given to two or more, it is a general presumption of law that it is a joint right. Words of express joinder are not necessary for the purpose ; but, on the other hand, there should be words of severance in order to produce a several right. 1 Parson on Contracts, 11.
    A contract with several persons for the payment to them of a sum of money is a joint contract with all, and all the payees have therein a joint interest, so that no one can sue alone for his proportion. 1 Parson on Contracts, 13 ; Lane r. Lrinkwater, 5 Tyrwhitt, 40 ; Meason ». Kaine, 17 P. F. Smith, 126, 136 f Marys *. Anderson, 12 Harris, 272. The title and right to the debt being joint, the release of Hefright was a complete bar.

      Brown, Bailey & Brown for defendants in error.
    With the taking of a surplus bond, its form, terms, and conditions, the owners of the land sold have nothing to do. It is taken by the treasurer in the form and manner prescribed by law. Wharton had no power to direct that in the taking of the bond the treasurer should sever the interests of the joint owners in it, and take one half payable 'to Hefright and the other half to himself. When two join voluntarily, oue may release the whole, but where they are compelled to join, then a release by one does not bar the others. Shepperd’s Touchstone, 335. The surplus bond is a substitute for the land sold. Lien creditors have the right to collect them, and have proceeds applied to their debts, which were liens upon the land sold. Act of April 14, 1840.
    After a sale of land by the treasurer-to a- stranger, and the time for redemption has passed, one of two tenants in common may purchase it from the treasurer’s vendee, and such purchase will not enure to the benefit of the other tenant in common. Reinboth v. The Zerbe Run Imp. Co., 5 Casey, 139.
    October 1, 1883. —
   Per Curiam :

This case was decided correctly. One tenant in common of the land had no power to release the half of the bond given and held for the benefit of his co-tenant.. The judgment is affirmed on the opinion of the learned judge, in directing judgment to be entered on the verdict.

Judgment affirmed.


text:
    July Term, 1882,
    No. 146.
    May 22, 1883.
    White et ux. v. Robinson et al.

    1. The writ of alias habere facias possessionem, under the act of February 1, 1834, (Purd. Dig., 536,) ought not to be issued without notice to the party against whom it is directed.
    2. Where such a writ lias been issued without notice, and on application of the persons named therein, the Court, before execution, has inquired into the state of facts existing when it issued, and refused to stay the writ, such inquiry and refusal were substantially an order, nunc pro tunc, confirming the previous issuing thereof, and it will not be presumed that the evidence upon which the Court acted was insufficient to justify its conclusions.
    Before Mercur, C. J.; Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. Clark, J., absent.
    Error to the Common Pleas of Huntingdon Qounty.

    Ejectment by H. C. Robinson, Bruce X. Blair, John A. Blair, Annie j. Blair, and D. Blair, guardian of Sarah Blair, against Sarah Hockenberry and Johnston Henry, to recover possession of three lots of ground situated in the borough of Orbisonia.
    Judgment was entered January 18, 1880, against the defendants for want of an appearance, and on J une 14, 1881, the plaintiffs were put in possession by means of a habere facias, and the writ was returned executed.
    On August 20,1881, the plaintiffs filed a petition for an award of an alias writ of habere facias possessionem under section one of act of February 1, 1834, setting forth that on the day they obtained possession of the lots, “Sarah Neal, the real defendant, took a lease from them for the same at a certain monthly rent; . . . that since the execution of the aforesaid writ of habere facias, a certain Samuel White and his wife, Mrs. White, claiming under the said Sarah Neal, have got into possession of the house and lots,” mentioned therein, “the said Sarah Neal having left the same.” The writ was awarded the same day, and issued September 12, 1881. On October 3, 1881, the petition of Samuel White and Mrs. M. J. White was presented, setting forth, inter alia, a claim of title paramount to and distinct from that of the plaintiffs’ , alleging that the petition for the alias writ was presented without their knowledge, and praying for a stay of said writ until next Argument Court, so that the petition might then be presented to the judge thereof for a rule to show cause why the writ should not be quashed, or for such order “as may be just and equitable.” Whereupon, execution was stayed, as prayed for, until the next Argument Court, when, on consideration, October 25, 1881, the Court refused to further stay the writ. White and wife then superseded the writ by means of an appeal to and certiorari from the Supreme Court. At May term, 1882, an appeal of White and wife to the Supreme Court was quashed and the record returned. On May 29, 1882, a second pluries writ of habere facias was issued, served, and a levy was made on the personal property of White, and on June 5, 1882, the same was advertised for sale. On June 21, 1882, petition was again made for a stay and stay refused, whereupon White and his wife took this writ of error, assigning for error, inter alia, (1) the decree of August 20, 1881, awarding an alias writ of hob. fac. poss.; (2) the decree of October 25, 1881, refusing to stay the writ.

      T. H. Beers for the plaintiffs in error.
    The act of February 1, 1834, under which the plaintiffs below presented their petition for the alias hab. fac. poss., was for the prevention of the “inconvenience caused by the reentry of the defendants, or persons claiming under them,” and not to affect the right of parties claiming in their own right. The Court had power to award the writ only “on cause shown.” Act of February 1, 1834, Purd. Pig., 536. Not having notice of the decree awarding the alias writ until it was placed in the hands of the sheriff, the decree is absolutely void as to the plaintiffs in error, and restitution should be awarded them: Breading ®. Blocher, 5 C., 347; Ervine’s Appeal, 4 EL, 263-; EEoffner ®. Wynkoop, 1 Out., 130.
    The writ itself is void: Cadmus ®. Jackson, 2 Smith, 295; Patterson’s Appeal, 1 W. N. C., 454.

      David Blair (with him John S. Blair) for defendants in error.
    Under the writ of error, inquiry can only be had into the proceedings antecedent to the execution of the original habere facias: Ruhlman ®. Commonwealth, 5 Binn., 24 ; Commonwealth ®. Beaument, 4 Rawle, 366 ; Hummel ®. Bishoff, 9 Watts, 431; Appeal of Northampton County, 57 Pa.., 452; Wellock ®. Cowan, 16 S. &. EL, . 318.
    The whole complaint is that it does not appear by the record that notice was given of the application for the alias habere facias. To this the reply is that before any execution thereof the plaintiffs in error were in Court, the writ was stayed, and at the regular term of Court all their applications were refused. The “cause shown” at the time of the allowance of the. alias was not, in the minds of the Court below, overcome by anything proved, alleged, or offered.

      T. H. Beers in reply.
    Error lies on an award of execution: Harger v. Comm., 2 Jones, 251.
    October 1, 1883. —
   Per Curiam :

The writ of alias hah. fac. possessionem ought not to have issued without notice, but notice was given before it wras executed. On application by the plaintiffs in error, before it was executed, the Court inquired into the facts existing when it issued, and refused to stay the writ. This was substantially an order, nunc pro tunc, confirming the previous issuing of the writ. The evidence under which the Court acted is not before us. We will not presume it to have been insufficient to justify the conclusion at which the Court arrived. Care should be taken that no collusions be sanctioned whereby a third person shall obtain possession under the defendant after a judgment in ejectment and before writ of possession be fully executed.

Judgment affirmed.


text:
    January, 1883,
    No. 356.
    May 22, 1883.
    Zentmyer’s Appeal.
    1. Unsolicited payment of the principal, together with interest and ordinary costs, upon a judgment entered upon a note due and containing an agreement to pay attorney’s commissions, will not prevent the plaintiff’s recovery of commissions from the defendant where a demand for the interest had previously been made upon him and had not been complied with.
    2. Under a contract by a debtor to pay to his creditor attorney’s commissions for collection of the debt, the Court should fix the compensation, if any, proper to be paid.
    Before Mercur, C. J., Gordon, Paxson, Trunk ey, Sterrett, and Green, JJ. ; Clark, J., absent..

      Appeal of John Zentmyer from a decree of the Common Pleas of Huntingdon County, discharging a rule to open a judgment.
    Judgment was entered December 28, 1878, upon a note of John Zentmyer in favor of Maggie V. Zentmyer for $3,144 14, dated September 1, 1878, payable one day after date, and containing the following clause : “And I hereby authorize any attorney of any Court of Record to confess judgment against me therefor, with costs of suit, release of errors, and with five per cent, additional for attorney’s commission.”
    It was entered by D. Caldwell, Esquire, a member of the Huntingdon county bar, at the request of the plaintiff, Mrs. Zentmyer, for $3,301 34, including debt, interest, and attorney’s commissions of five per cent.
    No demand was made at any time for the payment of any portion of the principal debt, but interest was asked for several times, and was not paid. The note remained in the hands of Mr. Caldwell, and lie' was instructed by the husband and agent of the plaintiff below to collect it. On April 30, 1881, the defendant below called upon Mr. Caldwell, and paid him $3,672, receiving his receipt for that amount “ on account of the above-stated judgment,” made up as follows :
    Debt,..............$3,144 14
    Interest, ............. 503 06
    --$3,647 20
    Atty and paid, ......... $4 25
    Pro. wms.,.......... 35
    Add,...... 20 20
    -- 24 80
    $3-, 672 00
    Mr. Caldwell refused to receipt in full, claiming in addition to debt, interest, and record costs, $157 20, five per cent, commission as attorney’s fee for collecting.
    Mrs. Zentmyer was notified the same day by the defendant’s attorneys of his resolution not to pay the attorney’s commissions demanded, and they required her to satisfy the judgment of record. On July 8, 1881, plaintiff issued a fieri facias on her judgment, subject to a credit of $3,672.
    On July 11, 1881, the defendant presented a petition praying the Court to stay they?, fa., open the judgment, and award an issue to determine whether the said judgment was not paid. The Court awarded a rule to show cause, under which, depositions were taken upon both sides.
    February 19, 1883, the Court below, Dean, P. J., discharged the rule, and filed the following opinion:
    “The law applicable to these facts seems to me to be this : The five per cent, stipulation was one of indemnity to plaintiff against payment of attorney’s fees in and about the securing and collection of the debt and interest. It is payable solely to the plaintiff. It does not belong to his attorney, does not conclude the attorney as to the amount of compensation he may claim from his client. The rate fixed in the contract is not conclusive on defendant. More cannot be claimed from him than that stipulated. When material facts are in dispute, perhaps a jury should intervene to determine them ; where they are not in dispute, or are clearly established as in this case, it is the duty of the Court to determine what amount the plaintiff can reasonably demand as attorney’s commissions.
    “The amount ordinarily allowed as commissions on sums no larger than this is five per cent, for collection. But no part of the sum here paid, except the interest, was collected. As to the interest, demand had been made, and defendant neglecting, to pay, the attorney was instructed to collect it. It was afterwards paid to the attorney. Plaintiff might reasonably claim he was entitled to five per cent, on the interest thus collected. Plaintiff can further reasonably claim attorney’s commissions for properly entering the confession of judgment, and seeing that it was properly indexed on the lien docket. The defendant went voluntarily to the attorney of record for the plaintiff, and paid to him the amount of debt, interest, and costs, which the attorney receipted; this imposed upon the attorney the duty of ascertaining the amount, receipting the docket, and carefully transmitting the money to his client in Clearfield county, and the attorney pan for this reasonably claim attorney’s commissions. If the defendant had paid the amount directly to the plaintiff, such charge would not be reasonable, but he chose, doubtless for his own convenience, to pay to the attorney in Huntingdon rather than to the plaintiff in Clearfield county, thus furnishing the basis for a charge for compensation against his client by plaintiff’s attorney. But, in view of the facts, a charge of five per cent, on the whole amount for all the services rendered is unreasonable. The professional knowledge, vigilance, and responsibility required in the collection of such an amount was not here demanded, and defendant should not be called upon to pay for it. I am of opinion that two and a half per cent, would be a reasonable allowance to plaintiff under the contract for attorney’s commissions.
    Thus, amount of debt and interest paid 30th April, 1881,...............$3,647 00
    Two and a half per cent, on this amount, . . $91 17
    Deduct amount already paid,........ 20 00
    Leaves,................ $71 17
    For this sum $71 17 we direct the judgment shall stand in favor of plaintiff and against defendant, and she shall have right to issue execution therefor against defendant if not paid within twenty days. As to the remainder of judgment in excess of this amount, it is ordered that it lie marked satisfied.”
    The defendant thereupon took this appeal, assigning for error, inter alia, the entering of the above decree ana the refusal to open the judgment and award an issue.

      R. M. Speer and E. S. MoMurtrie for appellant.
    We contend that no charge for collection beyond the $20 paid by John Zentmyer having been paid or incurred by the appellee, the attempt here is, under the cloak of commissions, to recover usurious interest, and appellant is not liable therefor. The payment of the principal sum, at least, was entirely voluntary, and, under the circumstances, should prevent the recovery of the commissions claimed: Imler v..Imler, 13 Norris, 372; Lewis v. Germania Savings Bank, 15 Norris, 86.
    The allowance of commissions on the interest was error; the record shows that the plaintiff’s claim was for five per cent, upon the principal of the note, $3,144 14.

      Z>. Qaldwell and R. B. Petrilcin for the appellee.
    The only issue in the case was whether the plaintiff was entitled to recover the commissions, $157 20, which defendant had stipulated to pay, less the sum of $20 00 already paid. The Court committed no error in refusing to award an issue and fixing itself the amount of commissions to be allowed under the defendant’s contract: Daly v. Maitland, 7 Norris, 387.
    The allowance of commissions on $3,647 was proper, as that was the amount collected.
    October 1, 1883.
   — Per Curiam :

The only question here relates to the liability of the appellant to pay attorney’s commissions. He agreed to pay them. The evidence shows he failed to pay the interest on the judgment, although several times requested so to do. The attorney was therefore instructed to collect. He rendered services therein. It was held in Daly, v. Maitland, 7 Norris, 387, that the Court should fix the compensation proper to be paid. In this case, the Court fixed it at two and a half per cent. Under all the evidence, we see no cause for disturbing the conclusion at which the Court arrived. The appellant presents no just cause of complaint with the decree.

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


author: Geeen, J.:

text:
    JEFFERSON COUNTY.
    October and November Term, 1882,
    No. 37.
    October 2, 1882.
    Evans et al. v. Owens.
    1. An offer to prove agency by evidence that the alleged agent in a suit between third parties swore that he was such agent without giving the language of the declarations or describing the kind of agency to which he had testified is clearly inadmissable.
    2. The authority of an agent cannot be established by proof of the declarations of the agent.
    3. In a suit to recover for goods furnished upon the order of an alleged agent, a letter from the principal to the vendor saying: “ Have written Mr. W. (the alleged agent) that I would send check for $130 54, amount of account, less the credits, if you would give a receipt in full, and would hold payment on property until I heard from him, so that I could send it all in one draft, if you accepted,” was properly admitted in evidence.
    4. In a suit against A, books were produced containing an account in the name of B, and evidence was given to show that as to some of the items of charge B was the agent of A, and that they were furnished upon the credit of A. The plaintiff testified that the books were his books of original entry, but there was no preliminary examination as to who made the entries, or when the items were entered, or when the goods were delivered with reference to the dates of the charges. Meld: That the books were improperly admitted in evidence.
    5. It is very questionable whether the items claimed against A could have been given in evidence, except after distinct proof as to each of those items, accompanied with proof that they had been ordered by A or his authorized agent.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.

      Error to the Court of Common Pleas of Jefferson County

      Assumpsit by C. E. Evans and J. B. Evans, trading as C. E. Evans & Bros., against Reese Owens to recover for goods alleged to have been sold and delivered.
    Upon the trial in the court below, the plaintiff called David E. Stanford, who testified inter alia in substance: I believe I am acquainted with W. E. Williams. I am acquainted to some extent with the operation of Reese Owens. I recognized W. E. Williams in 1879 as Owens’ agent there. I was subject to him in shipping some lumber of Owens. The first time that I saw Williams he was introduced to me as in the place of R. B. Little. Little introduced me to him, and said any business I had to do with him or Owens, to apply to Mr. Williams. I was subject to his order in handling the balance of that lumber. I got some orders from Little directly to ship some of that lumber. As to in what capacity he was acting, I know nothing more than I supposed him to be the agent of Owens.

      Squire Marlin, for the plaintiff, testified inter alia:
    • It is three, four, or five years since I was first attorney for Mr. Owens. He does business in Pittsburgh. Mr. Owens had some lumber in this county that John A. Crawford was manufacturing for him. I am acquainted with Mr. Little, I think Mr. Little was a clerk or agent for Mr. Owens.' I believe he is a clerk yet for Mr. Owens. My understanding was that Williams was up here to superintend some other business and also acting as agent for John Crawford. He was to see that Reese Owens got his boards.

      David E. Stanford recalled for cross-examination: I had no information from Reese Owens by which I recognized Williams in any capacity whatever. From Mr. Little I had. I was getting my pay for that work through Mr. Owens, and Mr. Little had paid me some time previous to this, and he tells me now when he introduced me to Williams, “Now,” he said, “anything you have to do with us, do with Williams, for I have so many other things to attend'to I cannot be here.” After that I went to Williams for all I wanted with one exception. I went there and got groceries, fiour, postage stamps, and stationery. I got them from Mr. Evans. I went to Williams and spoke to him about the flour. He said to me to go Charles there, and he would see to that.

      William T. Cox, for the plaintiff, testified in substance,

      inter- alia: I am acquainted with Reese Owens. He told me in Pittsburgh, that he was going to send this man Williams up here Fo see about his things, his business here. I had a settlement with Williams. Little told me that them articles had been sent up to Rockdale to Williams, and he told me to go up there and make a settlement with Williams, and send the account back to Pittsburgh and they would send me a check for my money. I went to Rockdale and settled with Williams, and he sent the account to Pittsburgh and sent me a check.

      Esquire Patton, for the plaintiff, testified in substance, inter alia:
    There was a case before me in which W. H. Williams appeared. The name of the case was Elenor Harvey against John A. Crawford. Mr. Williams appeared before me in that case for Mr. Owens. He said he was there for the interest of Mr. Owens. I am a justice of the. peace for that township. I have nob the exact date that case was tried, but it was in the fall of 1879.

      Q. “Hid he do anything more than say he was agent of Reese Owens ? Hid he swear to it before you %

    A. Yes. He swore to it.”
    Objected to by counsel for the defendant, and the objection was overruled and an exception granted.

      O. D. Evans, one of the plaintiffs, testified, in substance, inter alia:

    W. H. Williams was acting for Reese Owens in our neighborhood there in that lumbering job.. Milligan and John A. Crawford had been acting for him before Williams came there. I heard Williams say he was doing business for Reese Owens. He was doing a general business, and I believe ordered cars to ship lumber. He gave me verbal orders for goods. These goods are charged in our books to John A. Crawford. Williams told me shortly after he came to Rockdale. I had a little account on my books then against Crawford, and I told him I did not want to furnish Crawford any more, and he said the account of John A. Crawford was right, and any account I would make with Crawford would be right. He said that as the agent of Reese Owens. After that time, these goods were all furnished to John A. Crawford I furnished men that were working on the hill with goods, and men that hauled lumber to the railroad, and all parties, under the direction of W. H. Wil-, liams. Little at one time looked over the account I have here and he admitted, I believe, something over $200 of the account to be all right, as against Owens. Williams looked over it a time or two before, and he made a part of the account to Crawford and part to Owens. I wrote to Owens and got a letter in reply, signed by Reese Owens & Co. I did not make a proposition and never had no settlement.
    Counsel for plaintiff offered in evidence the following letter:
    “ Office of Reese Owens & Co.,
    Pittsburgh, Pa., January 1880.

    Mr. C. D. Evans, Rockdale Mills, Pa.:
    Deab Sib : Your favor of the 19th at hand and noted. I cannot see why, when I furnished the goods, I should not get credit with them. Have written Mr. Williams that I would send check ¿or $130 54, amount of account, less the credits, if you would give a receipt in full, and would hold payment on property until I heard from him, so that I could send it all in one draft, if you accepted.
    Truly yours,
    Reese Owens & Co.”
    It was admitted that the letter offered was in the handwriting of Little.
    Counsel for defendant objected to the offer, because it was a matter of Reese Owens & Co., and contained some kind of a proposition which was not accepted.
    The offer was admitted under exception.
    The witness, upon cross-examination, said : The account in the ledger reads: J. A. Crawford and Reese Owens. When I made out that ledger off the book of original entries, it read, first, J. A. Crawford. There was a part of this same account J. A. Crawford before Williams came there at all. It is all carried into this one account. After that account stood charged to Crawford, I wrote the Reese Owens at the heading. I cut off the tops of some accounts. I think that I did have it made out against Crawford, assumed by the agent of Reese Owens ; something of that kind; I don’t remember. I did not cut the heading off and stick another on after it was sworn to. Crawford gave me a note, a judgment note, and judgment embracing this account. I entered up that note as a judgment against Crawford and issued execution on it.
    Upon reexamination-in-chief, the witness said: Those are my books of original entry.
    Counsel for plaintiff offered to prove ‘ ‘ an account having been on the books charged to John A. Crawford, the evidence having shown they were directed to so charge it by the agents of Reese Owens, for the purpose of charging Reese Owens, and this, in connection with the testimony of Mr. Evans, who heretofore testified to it, stating that he gave credit to Reese Owens and not to Crawford.”

      Counsel for defendant objected to offering in evidence “any account charged to John A. Crawford, as this suit is against Beese Owens, the witness having already stated that he has taken a judgment note from John A. Crawford for that same account, that he has entered that note up, and has attempted to collect it by issuing an execution thereon.”
    He further objected to the offer “ of that account on the grounds that it is legally a forgery, having been altered for the purpose of charging Beese Owens and prejudicing his interest.” «
    The Court. We will admit the books and the items thereon charged, for the reason that the witness testifies that the charges were made against John A. Crawford, but the goods were delivered on the credit of Beese Owens. We regard the form of the transaction as quite unimportant. The question for the jury to determine is : First, whether the credit was given to Owens, and second, whether Evans was authorized, by any one having sufficient authority, to give the goods on Owens’ credit.
    Exception by defendant’s counsel.
    The witness further testified that the whole amount of the goods sold under the arrangement spoken of with Williams -was about $500, and that Little admitted about $240.
    There was further evidence as to declarations of agency by Williams.
    Counsel for defendant produced evidence by the defendant, Williams and Little, to show that prior to February, 1880, there was no one in Jefferson County authorized to contract debts in his name.
    The Court charged the jury as follows :
    “The plaintiff claims to recover from the defendant the sum of $457 90. He alleges that he sold goods by the authority of the defendant to a certain John A. Crawford. The defendant recites the claim, and alleges that he gave no authority to any person to contract' debts in his name. Did the defendant authorize any person to obtain from the plaintiff goods upon his credit ? Is there anything in the evidence from which such authority can fairly be inferred? If such authority can fairly be inferred from the evidence, to what extent was the agent authorized to contract debts for and on account of the defendant.
    The plaintiff alleges that this authority can fairly be inferred from the evidence. He says that he has shown by a certain Mr. Cox that the defendant told him that Williams was coming up to superintend his business. The plaintiff further says that he has shown by the oath of Mr. Owens (I think "in a case in equity) that he admitted that Williams was his agent. [He alleges that he is in possession of a letter signed by Owens in reply to one claiming this bill, and he says that in that letter Owens offers to pay $130 of this bill.] He says that he has proved through transactions, in which Williams was the actor, that Owens ratified the acts ; he also says that he has shown by the testimony of McCollough that Owens told him that Williams was authorized to act for him, and that McCollough was not to give any goods unless Williams or Evans ordered them.
    He says from these and other circumstances that the jury are fairly authorized by the evidence to believe and find that an authority was given by the defendant to Williams to contract debts for him with Evans, and that under the evidence they have shown that Evans would fairly be authorized to believe that Williams had authority to contract debts in the name of Owens. Gentlemen, we leave the evidence as to this with you, instructing you that you must first find the authority ; to bind Owens, the authority must come from him.
    Did Owens authorize Williams or any one to run a bill in his name at the plaintiff’s store, and if he did authorize Williams or any one to run a bill for him at the plaintiff’s store, to what extent did he authorize them to run that bill, and on what account ? You must find that from the evidence.
    The defendant, on his side, alleges that he gave no such authority. He says himself, under oath, that he gave no authority to contract debts on his account. Mr. Little, his clerk, says he gave no authority to him to contract debts on his account, and Mr. Williams says he gave no authority to him to contract debts on his account Mr. Little says that in looking over the accounts with Evans, there were $208 that was made up of items furnished to persons who were working for Crawford in the interest of Owens. He says that he promised to pay that much, but that the balance of the claim he did not promise to pay. He says that even this promise he was not authorized to make by Owens.
    It would seem, then, from that testimony that there was a part of the goods that were furnished John A. Crawford for his own benefit, and part of the goods were furnished for the benefit of the men who were working for the advantage of Owens, and that this clerk held the men who had got goods who were working for Owens' benefit, ought to be paid by Owens, and the other furnished to Crawford ought not to be furnished at all. You have heard his statement, and you heard Evans’ statement ; it is bearing upon this branch of the case. What amount did the defendant authorize persons to buy on his credit? It bears on that question.. Under all the evidence, gentlemen, can you fairly infer that Owens authorized this indebtedness to be contracted on his account with the plaintiff ? If you find that he never authorized it, then your verdict will be for the defendant; but if he authorized debts to be contracted with the plaintiff, then you will inquire, under the evidence, how much does the evidence fairly show that he authorized to be contracted. These questions are for you. Under the evidence, we leave the case with you. Be careful, on your part, not to be influenced by any prejudice, either for or against either of these men ; they are entitled to have a completely fair trial under the evidence, and there should not be any passion in the case at all.
    Now, .take all the evidence on part of the plaintiff, and consider it; then take all the evidence on part of the defendant, and consider it; and from the whole evidence, has the plaintiff fairly shown any authority to contract a debt with the plaintiff in the name of the defendant, and if so, then what does the evidence fairly show — that the person contracting the debt had right to contract it ?
    Remember that this debt is charged in the name of Crawford. The plaintiff says that he was authorized to keep it in that name ; the defendant says not. [The defendant- says that the fact that the note of Crawford was given for the money is strong evidence that the credit was given to Crawford ; the plaintiff says not,] that Williams told him to furnish the goods ; and he says he has shown Williams was authorized by the defendant to so direct him. We leave the case with you. [If you find for the plaintiff, state how much; ] if you find for the defendant, find for the defendant generally.”
    Defendant’s counsel excepted to those portions of the charge inclosed between brackets.
    December 15, 1881. Yerdict for plaintiff, $410. A motion for -a new trial was refused, provided the plaintiff should release so much of the verdict as exceeded $300, which was done, and judgment entered.
    Defendant took out, a writ of error, and assigned that the Court erred:

      First. In admitting evidence of the acts and declarations of W. D. Williams to establish, the fact that he was an agent of Reese Owens.

      Second. In admitting without qualification the letter of Reese Owens & Co. to C. D. Evans.

      Third. In admitting without qualification the books of 0. I). Evans & Bro. as to an account Evans swears he charged to J. A. Crawford, and for which he took his note.
    Fourth, Fifth, and Sixth. In those portions of the charge within brackets.

      Stewart cfe Marlin for plaintiff in error.
    Agency cannot be proved by the declarations of the agent. The agent’s authority must be clearly proved: Moore v. Patterson, 4 Casey, 505 ; Grim v. Bonnell, 28 P. F. Sm., 152; R. R. v. Johnson, 7 W. & S., 317; Shelhamer v. Thomas, 7 S. & R., 106.
    An offer in writing by one of the parties, not acceded to by the other, cannot be read in evidence: Tryon v. Miller, 1 Wh., 11; Slocum v. Perkins, 3 S. & R., 295; 1 Green! on Ev., sec. 192!
    Under the Statute of Frauds, plaintiff could not charge Reese Owens by his book-account in Crawford’s name-: R. R. v. Johnson, 7 W. & S., 317; Seltzer v. Coleman, 8 Casey, 493.

      Gordon & Gorbit for defendant in error.
    The fact of agency was proved.
    The letter offered was an acknowledgment or evidence of liability, and not written for the purpose of compromise.
    October 25, 1882.
   — The opinion of the Court was delivered by

Geeen, J.:

This was an action against Reese Owens for goods which were, in point of fact, sold, delivered, and charged on the plaintiff’s book of original entries, to John A. Crawford. It was alleged that Owens was liable for the debt because they were sold to Crawford on the verbal authority of one W. D. Williams, acting as the agent for Owens.

On the trial, the plaintiffs, as one of the means of establishing the agency, called a justice of the peace before whom a suit, by one Harvey against Crawford, was tried, to prove that on that trial W. D. Williams had testified that he was agent for Owens. This was objected to, and admitted under exception, and the first error assigned is to the admission of this testimony. The whole of the testimony offered and admitted under this exception is comprised in a single question and answer, to wit:

Q. Did he do anything more than say he was agent of Reese Owens ? Did he swear to it before you ?

A. Yes, he swore to it.

There was clear error in admitting this testimony. The witness did not pretend to give the language of the person to whose declarations he was testifying. He did not decribe the kind of agency to which Williams had testified, and hence it is impossible to tell whether the agency, whatever it was, authorized Williams to order goods to be sold on the credit of Owens. This alone is quite enough to condemn the evidence, but, apart from that, the mode of proof was not legitimate.

It is a perfectly familiar rule that the authority of an agent cannot be established by proof of the declarations of the agent: Clark v. Baker, 2 Whart., 340; Chambers v. Davis, 3 Whart., 44; Jordan v. Stewart, 11 Har., 244; Grim v. Bonnell, 28 P. P. S., 152.

As most of the proof offered consisted of the mere statement or declaration of Williams that he was agent for Owens, the fact that the declaration was made under oath, as a witness in a cause, is entirely immaterial. Owens was not a party to the cause, nor was he present at the trial.

The first assignment of error is sustained.

We do not think the second assignment can be sustained.

The letter in question was not an offer of compromise. It was a letter written by the defendant to one of the plaintiffs, in which he relates that he had written to Mr. Williams, stating that he would send a check for $130 54, if he [Evans] would give a receipt in full, and would hold payment on property until he heard from him, “so that I could send all in one draft if you accepted.” That is all. There is no offer in this letter. It is a mere description of the contents of another letter. It contains some evidence of the agency of Williams, and we think it was therefore admissible.

We think the evidence submitted under the third assignment was not competent. The witness, C. D. Evans, being on the stand, testified, in answer to a question, that certain books were his books of original entries. No preliminary examination was made as to who made the entries, or when the items were entered, or when the goods were delivered, with reference to the dates of the charges, and the account itself was against Crawford and not against Owens.

In this condition of the testimony, the books were admitted in a lump, and also all the items thereon charged against Crawford. Of course, in such circumstances, the book entries were not admissible. It is true that afterwards the Court did interrogate the witness as to the manner and time of making the entries, and proper answers were given, which, as against Crawford, in an action against him, might have constituted sufficient prima facie proof to warrant their admission. But the cross-examination had also developed that the account contained items against Crawford which were not claimed against Owens. Nevertheless, and without any selection and proof of the items claimed as against him, the account was admitted as an entirety.

There is much confusion in the testimony, and the account itself is not printed. We do not discover anywhere in the testimony a distinct presentation of the particular items which, it is alleged, were ordered by Williams. There is some testimony that the whole amounted to about $500, but, of course, that would not make the entire account admissible.

We think it very clear that in no aspect of the testimony was the account competent as a book-account of original entries in the present action against Owens.

It is not charged to him at all, and it is very questionable whether the individual items claimed against Owens could have been given in evidence, except after distinct proof as to each of those items, accompanied with proof that they had been ordered by Owens or his authorized agent. We cannot find any such itemized proof in the testimony. As an entirety, the account certainly was not admissible.

We do not think there is any merit in the remaining assignments and they are not sustained.

Judgment reversed and venire facias de novo awarded.