text:
    Dorsey versus Abrams et al.

    1. Where upon the face of a check it is apparent that it was not drawn in the usual course of business, that it was not a commercial check, a cashier has no authority to certify such a check, and such certificate is not binding upon the bank, nor can it be made so by any subsequent acts of ratification by said cashier. ’
    ’ 2. A check contained this recital: “ To hold as collateral for 1000 P. T. oil, pipage paid,” &c., and across its face the cashier of the bank certified “ Good when properly endorsed.” Held, that this check was not drawn in the usual course of banking business and the certificate of the cashier would not bind the bank.
    October 19th 1877.
    Before Agnew, C. J., Mercer, Gordon, Paxson, Woodward and Sterrett, JJ. Siiarswood, J., absent.
    Error to the Court of Common Pleas of Clarion county: Of October and November Term 1877, No. 138.
    Assumpsit by Patrick Dorsey against William M. Abrams and others, trading as the Citizens’ Saving Bank, on a check, a copy of which will bo found in the opinion of this court.
    Demand was made for the payment of this check on the 10th of January 1876, which was refused. At the trial before Jenks, P. J., there was evidence to show that the certificate of Mr. Foster was a forgery, and also that by his subsequent acts and declarations, he had recognised and confirmed his certificate.
    It was also in evidence that Foster had, at other times, certified checks; but it did not appear that they were other than ordinary checks received in the usual course of business.
    It was admitted that when McCullough drew the check he had no funds in the bank, and no right to draw.
    Among the points submitted by plaintiff were two which embraced substantially these propositions: First, that if Foster ratified the endorsement of the check, such act would amount to an acceptance of the check, and plaintiff- is entitled to recover; and, second, if the jury believe, from the evidence in the case, that the managers of the bank had knowledge that Foster, their cashie was certifying checks for their customers to give such custom credit in the oil market, and did not promptly repudiate such act, they would be bound by such certificate, whether the act was within the scope of the cashier’s authority or not.
    Both of these points the court refused.
    Two of defendant’s points were as follows:—
    1. That as there is no sufficient evidence that the cashier of the bank had authority to accept a draft as security for the oil to be delivered, the plaintiff cannot recover; and
    2. That under all the evidence in the case the plaintiff cannot recover; which the court answered, in their general charge, as follows:—
    “ The certification of a check written out would contain a statement that the drawer had funds sufficient to meet it in the bank, applicable to its payment, and an agreement on behalf of the bank that these funds should be retained and paid upon the check whenever it was presented. The cashier has a right, by virtue of his office, to make this certificate when the drawer has funds: Cooke v. The Bank, 52 N. Y. 96. [Even if the drawer had no funds we apprehend that the certificate of the cashier would hold the bank when the transaction was within the range of its legitimate business, but the acts of the cashier, or other officer of the bank, only bind the stockholders when such acts are within the regular and just sphere of banking transactions : Lloyd v. West Branch Bank, 3 Harris 172. We do not think this transaction within such a sphere. The certificate of the cashier upon the paper upon which suit has been brought would not, therefore, bind the stockholders, without proof that they authorized him to make such certificate, or without proof of such usage and practice on the part of the cashier as would justify third persons in believing that such usage was authorized.] Plaintiff having failed in proving such authority or usage, we answer defendants’ second point in the affirmative. We also answer defendants’’ seventh point in the affirmative. As this disposes of the case, further answer to points of either plaintiff or defendants is unnecessary.
    The verdict was for the defendants, and, after judgment, plaintiff took this writ, assigning for error the portion of the charge noted in brackets and the refusal of his points.

      Corbett & Clark and Knox Moffett, for plaintiff in error.—
    Such a certificate as here made by the cashier, when the maker has no funds in the bank, is an act which merely transcends his authority as against his co-partners, but being within the general scope of his business, binds the partnership in favor of third persons transacting business with said bank: Lloyd v. The West Branch Bank, 3 Harris 172. The holder of a check so certified, “good,” stands in the same position to the bank as the original depositor: Girard Bank v. Bank of Penn Township, 3 Wright 98. If the cashier ratified the transaction after it was done without his authority, it would have the same effect as if done by his authority: 1 Parsons on Notes and Bills 101. And when so done would be an absolute engagement to pay the money to the holder of the check: Rayborg v. Peyton, 2 Wheat. 386. The evidence of ratification should have been permitted to go to the jury: Rees v. Jackson, 14 P. F. Smith 486.

      James Campbell, Wilson & Jenks and David Lawson, for defendants in error.
    — The bank gave the cashier no authority to accept oil certificates, nor is the check in the usual course of business for the payment of money. The bank never had any interest in the check. They had no money of the maker to meet any checks he might draw, and Foster’s certificate was, therefore, simply his undertaking to pay the debt of another, which was clearly not within the scope of his functions as cashier: Parke v. Smith, 4 W. & S. 289; Sutton v. Irwine, 12 S. & R. 13.
   Mr. Justice Paxson

delivered the opinion of the court, November 19th 1877.

This was a suit brought against the defendants, an unincorporated banking association, to recover the amount of a check held by the plaintiff, a copy of which is here given:—

“ No. East Brady, Pa., Dec. 30, 1875.

Citizens’ Savings Bank, East Brady, Pa., pay to P. Dorsey, Esq., or order, two thousand dollars.

To hold as collateral for 1000 P. T. oil, pipage paid to Jan. 4, 1876.

A. W. McCullough.

Good when properly endorsed.

J. Y. Foster.

Endorsement on back of check, P. Dorsey.”

The J. Y. Foster who certified the check is the cashier of the defendants’ bank. It was alleged upon the trial, and there is evidence tending to prove, that the certificate of Mr. Foster was a forgery. The plaintiff contended that if a forgery, Mr. Foster had recognised and confirmed it by his subsequent acts and declarations. We do not regard the question of the alleged forgery as an important element in the discussion of the case. It was conceded that at the time McCullough drew the check upon the bank, he had no funds there and no right to draw. It is also apparent that the check was entirely out of the usual course of banking business. This is plain from the face of the instrument. Instead of being a mere order upon a bank to pay a certain sum of money to a person therein designated, or to bearer, it has the significant endorsement in one corner, to hold as collateral for 1000 P. T. oil,” &c. This indicates plainly that the check was given merely as collateral security for the delivery of the oil. If any doubt could exist upon this point it is put at rest by the testimony of Dorsey (plaintiff) himself. He says: “ The first cl^eck was given for borrowed oil; if the oil was not returned the check was to be paid ; that check was carried for thirty days ; supposed it was all right and not forged ; the second check was taken when oil was advancing, and I would not extend the check without he would give me a check which would secure me for the return of the oil.” If the certificate of Poster that the check was good when properly endorsed ” is to bind the bank, then the cashier has made the bank security for the delivery of 2000 barrels of oil. This he could not do without authority. It is an act entirely outside of any of the ordinary, recognised duties of the cashier of a bank. There is not a word in the evidence to show that the defendants or any of them knew of this transaction, much less sanctioned it. An attempt was made to show a similar course of dealings by the bank as to prior transactions, that is to say, to certify checks drawn without funds, to be held as collateral for oil. It was not successful, however. The checks certified were what the witnesses call straight checks,” by which we understand commercial checks for the payment of money free from clog or condition. As to such checks it is not perhaps outside of the line of a cashier’s duties to certify them when requested, and the drawer has the funds in the bank. It has been decided that he has a right to make such a certificate by virtue of his office s Cooke v. The Bank, 52 N. Y. 96. The effect of such a certificate we need not discuss, as the question is not before us. Nor need we consider at length the proposition that the plaintiff was a bona fide holder for value. The face of the check was notice that it was not drawn in the usual course of business; that it was not a commercial check. The plaintiff’s own testimony shows, as we have seen, that he was to hold it only as security for the oil. He had no right to draw the money upon the check until default in the delivery of the oil. There was ample to put him upon inquiry as to the authority of the cashier.

We are of opinion that the learned judge of the court below was entirely accurate in his rulings embraced in the first assignment. This practically disposes of the case. We may say, however, in regard to the fifth assignment, that the point referred to was not based upon any evidence in the cause. There was no error therefore in declining to answer. Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Woodward

license: Public Domain

text:
    Guthrie versus Kerr.
    1. A paper was taken from the register’s office in 1852 which purported to be a will, but about the probate of which there was grave doubt. The subscribing witnesses had testified to its execution and their affidavit was endorsed thereon by the register. It was, however, neither filed nor recorded and was taken from the register’s office. Twenty-four years thereafter it was directed to be filed and recorded by a judge of the Common Pleas. Held, that this was an undue exercise of judicial discretion.
    2. The rule that if one party pay money to another for the use of a third person, or having money belonging to another, agrees with that other to pay it to a third, an action lies by the person beneficially interested, does not apply where the contract is for the benefit of the contracting party and the third person is a stranger to the contract and consideration ; the action then must be by the promisee.
    3. Whore the contract leaves the promisor subject to a suit by the promisee or his personal representatives, and likewise to a third person beneficially interested, the latter cannot maintain an action.
    4. A legatee cannot maintain a common law proceeding against the debtor of his testator’s estate.
    5. Blymire v. Boistle, 6 Watts 482, followed.
    October 19th 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Swarswood, J., absent.
    Error to the Court of Common Pleas of Qlarion county: Of October and November Term 1877, No. 3.
    Debt by Rebecca Kerr, formerly Guthrie, against James W. Guthrie, for a legacy under the provisions of an alleged will of her father, Alexander Guthrie, Sr.
    The defendant pleaded nil debet, payment with leave, &c.
    The case is stated fully in the opinion of this court.
    The verdict was for the plaintiff. The defendant assigned for error, inter alia, the admission in evidence by the court, Jenks, P. J., of the paper purporting to be the last will of Alexander Guthrie, Sr., and the entry of judgment for plaintiff upon the point reserved, which was “ that under the pleadings and evidence the plaintiffs cannot recover.”

      Wilson & Jenks and B. J. Reid, for plaintiff in error.
    The alleged will of Alexander Guthrie was not proved at the trial. Was it ever previously proved, so as to be evidence ? The certificate of the present register shows that no letters have ever been issued upon it, and that he has never judicially acted upon the question of its probate. In pursuance of a verbal order of the Court of Common Pleas, upon a former trial of this case, directing the paper to be filed and recorded, he filed and recorded it. His act was merely ministerial, carrying into effect an order that was coram nonjudice. The register, or the Orphans’ Court (formerly Register’s Court), on appeal can alone pass upon the sufficiency of proof to admit a will of personal estate to probate. We do not pretend that a formal decree of probate or approval of a will is essential, but if it is wanting, its place must be supplied by some judicial act of the register that necessarily implies such an adjudication, such as the granting of letters thereon: Shinn v. Holmes, 1 Casey 142; Logan v. Watts, 5 S. & R. 214; Holliday v. Ward, 7 Harris 489.
    The plaintiff cannot recover in this action of debt under the pleadings. There is no mutuality, no privity of contract or estate between the parties, and no consideration passed from plaintiff to defendant: Beach v. Morris, 12 S. & R. 16; Robertson v. Reed, 11 Wright 115.
    The Orphans’ Court alone has authority to ascertain the amount of a decedent’s property, and order its distribution among those entitled to it. But here is a demand to recover a distributive share of an intestate’s estate by an action at law against the executor of an administrator, without a settlement of any account in the only tribunal which has jurisdiction of the subject or power to ascertain its amount: Whiteside v. Whiteside, 8 Harris 474, affirmed in Dundas’s Estate, 23 P. E. Smith 479, and cases there cited.
    The testator himself evidently meant that his estate should be administered upon; that his executors should collect the balance due from James upon his contract, and then make distribution to those entitled. Hence his direction that receipts for payments made by James to his other children should be produced to his executors, and should be taken and received by them as payments on the article.
    If it be contended, under the ruling in Torrens v. Campbell, 24 P. F. Smith 470, that plaintiff had a right to sell in his own name, on the ground that the defendant had money or property in trust for her, the action would be barred by lapse of time.

      Corbett & Clarke and James Campbell, for defendant in error.—
    The will was formally proven by the subscribing witnesses and attested by the register, in conformity with the act providing for the probate of wills: Holliday v. Ward, 7 Harris 489; Thompson v. Thompson, 9 Barr 235; Long v. Kennedy, 1 W. & S. 399.
    By the agreement of 1844 Rebecca Kerr was made the party to whom the money was made payable. The executors of Alexander Guthrie would not have been the proper parties to bring the suit; it should be the legatee.
    Where one pays money for the use of a third person, or having money belonging to another, agrees with him to pay it to a third person, assumpsit lies by the person beneficially interested: Blymire v. Boistle, 6 Watts 182; Commercial Bank v. Wood, 7 W. & S. 89; Flinn v. McGonigle, 9 Id. 75; Beers v. Robinson, 9 Barr 229; Keim v. Taylor, 11 Id. 163.
   Mr. Justice Woodward

delivered the opinion of the court, January 7th 1878.

Articles of agreement between Alexander Guthrie, senior, and James W. Guthrie, the defendant below, were executed on the 26th of January 1844, in which the terms of a former agreement made between the same parties on the 16th of May 1840, were recited, explained and construed. Alexander Guthrie, senior, transferred to the defendant, who was his son, all his real and personal estate, except certain household furniture and cattle then in the possession of himself, his daughter Rebecca, and his son Isaiah. In the first agreement, the consideration was stated to be $5750, and the further sum of $500, if that should be required by the father to be paid. The revised agreement fixed the consideration at the sum of $6250, which was not to bear interest until after the expiration of one year from the father’s death. This was followed by stipulations in these words: “ And it is further understood between the parties that any money, or its equivalent, that the said James W. Guthrie may heretofore have paid, or may hereafter pay to any of my children, for which he will produce their receipts, are to be taken as a credit on the agreement hereinbefore recited, provided said payments shall not exceed the amount given and bequeathed to them respectively by my last will and testament. * * * And it is hereby agreed that the said James W. Guthrie will, in a decent, comfortable and respectable manner, support and maintain his said father, Alexander Guthrie, during his lifetime.”

On the trial, a paper, purporting to be the last will of Alexander Guthrie, senior, was offered and admitted in evidence. It was dated on the 5th of January 1846. The subscribing witnesses, on the 25th of March 1852, testified to its execution, and their affidavit was endorsed upon it by the register. The same day the persons named in it as executors endorsed a renunciation of their right to letters testamentary. The paper was then taken from the office, and was first produced afterwards in court by the plaintiff on the 2d of February 1876. Continuing the cause, which was then on trial, a verbal order to the register to file and record the alleged will was made by the court. The view which is entertained of the rights of these parties will make a final disposition of this litigation, and any extended inquiry into the question raised by the exception to the admission of this paper would be superfluous, but it may be said that there is grave doubt whether any act was done either by the register of 1852 or by the register of 1876, that amounted to a probate of this will. If it had been expressly declared to be proved — if, without that, it had been recorded — if letters testamentary or letters of administration cum testamento annexo had been issued — or, perhaps, if it had been simply filed, an adjudication by the officer would be presumed. Here, nothing was done in 1852 except to administer and endorse the oath of the subscribing witnesses. The paper was taken from the office, while the 17th section of the Act of the 15th of March 1882, expressly declares that all wills, after probate, shall remain in the register’s office, “ except when required to be had before some higher tribunal, by certiorari or otherwise, and if removed for such cause, shall be returned in due course to the office to Avhich they belong.” In 1876, twenty-four years later, the filing and recording were directed by a judge of the Common Pleas. This was the exercise of a judicial discretion certainly, but it was not the judicial discretion which the law directs to be exercised in the admission of a will to probate.

In the instrument executed by him, Mr. Guthrie bequeathed to his daughter Rebecca, the plaintiff below, $2300, the horned cattle in his possession, and his household and kitchen furniture. Legacies of $800 each Avere given to two of his daughters, and one of $850 to his son, William Guthrie. $800 were bequeathed to his executors, $400 of which were directed to be divided amongst certain specified religious institutions. Any balance that should' remain after payment of the legacies, was given to his daughter Rebecca. Asserting a personal right to recover from the defendant under the terms of the agreement of the 26th of January 1844, and the provisions of the alleged will of her father, the plaintiff brought this suit for her legacy of $2300 on the 15th o.f July 1872. In the charge of the court the folloAving instructions were given to the jury : “ The consideration mentioned in the article is $6250, to be paid by J. W. Guthrie; $200 of this was paid when the article Avas signed, leaAÚng $6050. This sum, less the debts and expenses of administration, would constitute the fund out of which the legacies were to be paid pro rata. Whether the money referred to in these receipts and orders Avas paid, and whether it was paid outside of the maintenance and support of Alexander Guthrie, and what part thereof, are questions to be determined by the jury.” The verdict was' for the plaintiff for $3759.82.

It is to be observed that neither the name of the plaintiff nor the name of any other beneficiary was mentioned in the original and recited agreement of 1840, or in the revised agreement of 1844. By the former the balance of the consideration was provided to be paid as Alexander Guthrie, senior, should thereafter direct. By the latter, it was indicated rather than expressed, that it should be paid to legatees in his last will and testament. The instrument, given in evidence as a will, was executed two years after the second agreement was entered into, and the interests of the beneficiaries were then for the first time created and defined. Without a will the plaintiff could not move one step, and this paper is the very foundation of her title to the fund in controversy. Putting aside the general question whether a legatee can maintain an action against the debtor of a testator, on an express contract between them that the debtor should pay a particular legacy, it is necessary to ascertain what, under the will she sets up, she was entitled to receive, and upon and through whom she was given the right to make a claim. The bequests to the testator’s children ■were followed by this clause: “ It is further my will and desire that any money, or its equivalent, that my son James W. may heretofore have paid or expended for the use and benefit of my children hereinbefore named, or that he may hereafter pay or expend for their benefit, for which he shall produce their receipts to my executors, shall be taken and received by them as payments to be applied on the agreement between myself and him of the date of January 26th 1844, and shall bo considered and taken by them as payments, or part payments, of the specific sums therein bequeathed, provided that the said receipts shall set forth and specify that they are to be applied as payments on the legacies aforesaid ; and provided that the payments made by him to my other children shall in no case exceed the sums to them respectively bequeathed.” It was the manifest intention of Mr. Guthrie in the testamentary disposition of his estate, to provide that it should be administered by his personal representatives. The bequest of a possible residue to his daughter Rebecca, creates a necessary implication of such an intention. And his purpose could only be carried into effect through the instrumentalities of the register’s office and the Orphans’ Court.

At the time of Mr. Guthrie’s death the situation of the fund for the payment of legacies was such as to require the adjustment of questions with which a jury in the trial of a common-law action are unfit to deal. It was said by Black, C. J., in Holliday v. Ward, 7 Harris 491, that “juries are less competent to state an account requiring long calculations than for any other duty that could be assigned them.” After the receipt by Mr. Guthrie of §200 at the date of the revised agreement, 86050 of the consideration remained unpaid. The pecuniary legacies bequeathed amounted to §5550. But the receipts admitted in evidence proved the payment of §2515.86 by the defendant to his father in his lifetime. Allowance was claimed for other sums, but they were rejected, and are of no present importance. Of the fund to meet §5550 of legacies, there remained in the defendant’s hands only §3714.14. In this sum all the legatees were interested, and, in the disposition of it, all had the right to be heard. An attempt was made by the jury to apportion the plaintiff’s share to her, and possibly approximate accuracy was reached. Her proportion of the §8714.14 was something like §1450, and the jury seem to have fixed something less than §1600 as the principal sum on which interest was cast to produce the verdict. Still, the attempt to marshal and distribute the assets of a dead man’s estate through common law forms is always awkward, cumbrous and unsafe. And the employment of those forms in the settlement of an estate like this was equally novel and inappropriate. Each of the other legatees could have a separate action if the action of one could be maintained. The same questions would arise in each trial, and the jury in each case would erect an equitable standard of adjustment and apportionment for themselves. The defendant would be harassed by oppressive litigation, and, at the same time, be deprived of the safeguards against haste and prejudice which the patient, careful and deliberate investigation-of the Orphans’ Court provides for him.

Under the particular facts presented here, no review is required of the cases in which the right of a third person to sue in his own name on a promise made for his benefit by one to the other of two contracting parties has been involved. While they are all not readily reconcilable, the distinction stated by Mr. Justice Sergeant in Blymire v. Boistle, 6 Watts 182, has generally been kept in view. The rule laid down in that case was that if one pay money to another for the use of a third person, or having money belonging to another, agree with that other to pay it to a third, action lies by the person beneficially interested. But where the contract is for the benefit of the contracting party, and the third person is a stranger to the contract and consideration, the action must be by the promisee. In the one instance the promisor becomes the custodian and trustee of a fund actually belonging to the beneficiary. In the other he undertakes to pay some sum or do some act in consideration of a benefit conferred on himself. The first branch of the rule was stated by Mr. Justice Mercur, in Torrens v. Campbell, 24 P. F. Smith 470, to be, that where the promisor receives money, or personal property to be converted into money, in trust for a third party, the action may be sustained in the name of the latter. And the reason given for the distinction may be gathered from the opinion in Blymire v. Boistle. Where the fund actually belongs to the beneficiary, he ought to have the right to release the demand or recover it by action. But where the contract leaves the promisor subject to a suit by the promisee, if he were also subject to a suit by the third party, he would be liable to two actions at the same time for the same debt. Here, some of the covenants of the defendant in the article of agreement could have been enforced by an action in the name of Alexander Guthrie in his lifetime, and a suit for the breach of any or all of them could have been maintained by his personal representatives. It would be a harsh rule of law that would throw on the defendant the additional burthen of a suit by each of the legatees.

There is nothing in the revised statutes settling the powers of the different courts to warrant this proceeding. Under guards provided for the protection of the personal representatives and the estates of testators, the Common Pleas and Orphans’ Court have concurrent jurisdiction to enforce the payment of legacies not charged on land. Under the 47th section of the Act of the 24th of February 1834, such payment may be directed by the Orphans’ Court, on the application of a legatee, or any other person interested, the applicant executing the requisite refunding bond. This was the proceeding in Dundas’s Estate, 23 P. F. Smith 474. By the 50th section of the same act, a legacy may be recovered in an action of debt, detinue, account render, or on the case; but it must be brought against the executors; and before execution can issue the same security must bo given that is required by the 41st section from distributees. The right to an action of debt for a legacy was declared to be clear in Gilliland v. Bredin, 13 P. F. Smith 393. But a common-law proceeding by a legatee against the debtor of a testator’s estate is justified neither by statute nor precedent nor principle.

Various other questions were raised on the trial below and in the argument hero, but no practical good would come from their discussion. Judgment reversed.


author: Mr. Justice Mercur

text:
    Given versus Kelly et al.

    1. One joint owner of a chattel may maintain trover against his fellow if the latter so dismantle or dispose of the property as to render it unfit for the use for which it was designed.
    2. Defendant was joint owner of an oil-well and the machinery used in working the same. lie sold part of the tubing, caused another part of the machinery to be removed and applied to his own use, and sold the boiler for old iron. Held, that this misuser of the property practically worked its destruction, and the other joint owners could maintain trover against defendant therefor.
    October 22d 1877.
    Before Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Agnew, C. J., and Swarswood, J., absent.
    Error to the Court of Common Pleas of Armstrong county: Of October and November Term, 1877, No. 86.
    Trover, by John J. Kelly and others, against George Given, to recover from defendant one-fourth of the value of a boiler, engine and the machinery of an oil-well.
    Defendant pleaded the general issue.
    In 1870 a company was formed to put down an oil-well, the stock in which was limited to sixteen shares, of which at the time of this suit the plaintiffs owned four shares, and the defendant the remainder. The well did not prove a success, and the defendant, who had been in possession and control of the well for about a year, in 1873 abandoned it and removed part of the machinery to another oil-well which he owned, and sold the rest of the machinery and gear of the well for “junk.”
    At the trial plaintiffs submitted the following point:—
    2. That if the jury find from the evidence that plaintiffs were the owners of the one-fourth of the property in dispute, and the defendant three-fourths of the same, and the said defendant dismantled the well and detached the machinery, using a part at other wells, selling part for junk and destroying a part, in that event he is guilty of conversion, and the plaintiffs are entitled to recover the value of their shares or interests with interest, from the date of conversion.
    The answer of the court, Boggs, P. J., was in the affirmative, as explained in the general charge.
    Defendant submitted the following points, to which are appended the answers of the court:—
    2. That if the jury believe the evidence that the plaintiffs and the defendant, George Given, owned together, though in unequal proportions, the property in controversy at the time of its removal, then they are tenants in common in the property, and this action cannot be sustained, and their verdict must be for the defendant.
    Ans. “ Affirmed as the general rule, but qualified as explained in the general charge.”
    3. That if they find from the evidence, that the plaintiffs and the defendant were tenants in common, or owned the property jointly at the time of its removal, then there cannot be a recovery, unless they should find from the evidence that there was a complete destruction of the property in controversy caused by the defendant.
    Ans. “Affirmed as qualified and explained in general charge.”
    4. That the mere taking apart of the several pieces of the machinery, casing, tubing, &c., does not cause destruction, nor does the removal of the property from the well, nor from one place to another; but destruction would consist in this case in rendering the property wholly unfit for the use and purpose for which it was made.
    - Ans. “ The first clause of this point is affirmed, as explained in general charge ; the last is answered in the negative as to the purpose thereof, as explained in the general charge.”
    The court in the general charge said :—
    “ If you find from the evidence these allegations on the part of the plaintiffs to be true, I instruct you they are entitled to recover in the present action the one-fourth of the value thereof. The defendant, by his counsel, contends that the action cannot be maintained in the form in which this suit was brought, and that raises a question of law for the court. By a careful examination of authorities, it seems that the sale by one of several joint owners of a chattel, denial of the rights of the other co-tenants, and exclusive use by the one having the chattel still in existence, have never been held sufficient to enable the excluded owner to maintain either trover or trespass. The principle on which a tenant in common cannot sue his co-tenant in trover or trespass is that he has another remedy, his right to take and use the chattel at all times when not actually occupied by the other, but this right ceases, and consequently a right of action accrues when the chattel is destroyed and trover or trespass lies. What constitutes destruction is an important legal question in this cause. The evidence tends to show that tlie defendant, by his employees, drew out of the well the sucker-rods and tubing, and the greater part of the casing, part of it having become detached and remained in the well, and to show that he sold and otherwise disposed of those things, together with the boiler and engine, and nearly everything belonging to the well, against the wishes and protest of the plaintiffs, and that he sold the boiler for old junk, and if you find these facts to bo true, from the evidence, I instruct you, if you find also the allegations of the plaintiff to be true, that they were joint owners, as already explained of the chattel, it was equivalent to destruction of the property.
    “It is contended by the learned counsel of the plaintiffs, that selling the boiler for old junk, to be smelted in a furnace, was destruction of the engine and machinery, and everything belonging to the well; and here, I remark, the engine would cease to perform the wmrk for which it was designed by the owners of the well, and for which it was used; it could not operate without steam, and steam could not be raised without the boiler, and so you observe, for want of the boiler the engine and whole machinery and pumping apparatus inevitably stood still, and such I hold is destructive of the chattel. It is destruction for one tenant in common or joint tenant to take the exclusive possession of the chattel and appropriate it to a purpose not designed by the owners, against the protest of his co-tenants, denying to them the use of it and entirely refusing to apply it to the purposes for which it was held by both. This doctrine is taken from the language of Justice Lewis, in Agnew v. Johnson, 5 Harris 378: ‘ When one misuses the joint property by appropriating the joint property to uses for -which it was not designed, and refuses to apply it to the purpose for which it was held by both, in such case trover can be maintained.’ I remark, that in case the one joint owner destroys such portion of the chattel as renders it useless and unfit for the purpose designed, it is equivalent to destruction of the chattel, and the design cannot be determined, as contended for by the learned counsel for the defendant. Ho contends it is the design of the working of the chattel that must govern in such case; that destruction consists in rendering the property wholly unfit for the purpose it was made. While the learned counsel of the plaintiffs contends it is the design of the purchasers and owners which rules the question. The latter position is clearly right; the maker of an engine or -boiler designs it either for his own use or for sale, while the purchaser designs it for his own use in the line of his business, and if one joint tenant thus destroys the chattel by rendering it useless for the purpose designed by the owners, and used by them, such is equivalent to destruction of the property in point of law. You will first take up the theory of the plaintiffs, and determine from the evidence how the issue formed by the allegations of the plaintiffs, on the one hand, and the allegations of the defendant on the other hand is. If you find the theory of the plaintiffs to he true, they are entitled to recover the value of one-fourth of the chattel so destroyed, with interest from the time of the destruction.”
    The verdict was for plaintiffs, and after judgment the defendant took this writ, the assignments of error being the foregoing answers to points, and the portion of the charge quoted.

      David Barclay, for plaintiff in error.
    — Neither trover nor trespass can be maintained by one joint tenant against another for any injury to a chattel which falls short of its destruction: Trout v. Kennedy, 11 Wright 387; Walworth v. Abel, 2 P. F. Smith 374.

      Golden & Patton, J. V. Painter and G. S. Crosby, for defendants in error. —
    If it be true that an action of trover or trespass is denied to one joint owner as against another, upon the principle that each is equally entitled to the possession as long as they do not destroy the property, but keep the specific property in possession, the reason cannot apply when one joint owner destroys the joint possession by an actual destruction of the thing itself: White v. Osborn, 21 Wend. 72; Fennings v. Grenville, 1 Taunt. 245; Lowe v. Miller, 3 Gratt. 205; Agnew v. Johnson, 5 Harris 378.
   Mr. Justice Mercur

delivered the opinion of the court, October 29th 1877.

The right of a party to maintain trover depends on his ability to establish his right of possession against the defendant in the action. Where the defendant is a joint owner with him of a chattel, the right of each to the possession is equal, and therefore for the mere detention by one joint owner the action cannot be sustained. Nor can it be sustained against the vendor for a mere sale of a chattel in which he was a joint owner, for such a sale passes to the vendee the individual interest only of the vendor. This rule, however, should be restricted to cases in which the property remains in specie. Hence, where a hogshead of rum was held in joint ownership, and one of the owners had sold it, presumptively at retail, he was held liable to his co-tenant in trover. This was because he had practically made the liquor irrecoverable. It was substantially a destruction of the property: Wilson v. Gibbs, 3 Johns. 175. Where a joint owner destroys a chattel, trover will undoubtedly lie against him by his co-tenant. The question arises, what constitutes destruction in law ? The sale of the rum in the manner stated was held to be one form of destruction. That, however, is not the only mode of destroying a joint owner’s portion of the property. It was said in Agnew v. Johnson, 5 Harris 373, where one misuses the joint property by appropriating it to uses for which it was not designed, and refuses to apply it to the purposes for -which, it was held by both, trover may be maintained. In the case now under consideration, the learned judge denied the right of the defendant in error to recover, unless a destruction of the property was proved. He charged substantially, that rendering the property wholly unfit for the use and purpose for which it was made, was destruction. In this he committed no error, if the evidence was sufficient to justify the submission of the fact to the jury. We think it was sufficient. •

The parties had been jointly interested in an oil-well in Armstrong county, and were joint owners of all the machinery used in working the same. The machinery consisted in part of boiler, engine, pump, pipe, casing, tubing, ropes, belting, sucker-rods, swivels, elevator, tanks, &c.

The evidence tended to show that the plaintiff in error tore up and removed from the well all the machinery. He sold part of the'tubing, and caused the remainder of tho machinery to be taken to Butler county, and applied the same to his own private use. Subsequently he sold the boiler as old iron. If he thus stripped the well of all its working power, removed dismembered portions of the machinery into an adjoining county, and appropriated portions of it to other purposes than those for which it had been designed and used by the joint owners, and caused the identity of other portions to be destroyed, it was manifestly such a misuser of the property as practically to work a destruction of the interest of the defendant in error. Judgment affirmed.


author: Mr. Justice Sterrett

text:
    Parkinson, for use, versus The City of Parker.
    1. Where the pleadings admit the proper execution of tho bond in suit the plaintiff has a right to read it in evidence to the jury ; he has then a prima facie case, and the entry of a compulsory nonsuit is error.
    2. Where the general practice and a rule of court require tho plea of non est factum the plea nil debet will be declared bad upon demurrer.
    3. The seal of a corporation to a bond is prima facie evidence that the corporation duly authorized its execution.
    4. Tho right of a borough to borrow money within the prescribed limits, and issue certificates therefor, bearing interest, is conferred by the borough law of the state, and the fact that the bond in this case called for eight per cent, interest did not invalidate it, and it was only void for the excess over the legal rate of interest.
    October 22d 1877.
    Before Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Agnew, C. J., and Swarswood, J., absent.
    Error to the Court of Common Pleas of Armstrong county: Of October and November Term 1876, No. 230.
    Debt brought by John Parkinson, for the use of J. Overy and J. P. Coulter, against the city of Parker upon a bond, issued by the borough of Lawrenceburg, in Armstrong county. The borough of Lawrenceburg was incorporated 14th December 1870, by the Court of Quarter Sessions of Armstrong county, under the general borough laws of the Commonwealth. The city of Parker was incorporated by an act of the legislature, April 7th 1873, Pamph. L. 193. By that act the borough of Lawrenceburg was included within the corporate limits of the city of Parker and the city made liable for the debts of Lawrenceburg.
    The bond bore date November 21st 1872, for $500, with interest at eight per cent., and was signed by the burgess and clerk of the borough of Lawrenceburg, and sealed with its corporate seal.
    The defendant pleaded nil debet, want of consideration, set off, and specially, that the consideration of the bond sued on was a note executed by John Pai-kinson and D. L. Miller, officers of the Parker’s Landing and Lawrenceburg Water Company, which note was due and unpaid.
    It was contended that this plea of nil debet was bad, under the 65th rule of the Court of Common Pleas, which is set forth in full in the opinion of this court.
    At the trial the plaintiff put in evidence the record of the Court of Quarter Sessions incorporating the borough of Lawrenceburg, the charter of the city defendant, and the bond executed by the borough under its corporate seal.
    The defendant then moved for a nonsuit, on the ground that “ plaintiff has shown no authority for the issuing of the bond in suit,” which the court, McDermitt, P. J.,'entered and subsequently refused, on motion, to take off.
    Plaintiff then took this writ, assigning this action of the court for error.

      Golden & Patton and J. V. Painter, for plaintiff in error.
    Under the plea of nil debet the due execution of the bond was admitted. 1 Chit. Pl., 6th Am. ed., 518, 519; Tr. & H. Pr., pt. 1, 458; Barrington v. Bank, 14 S. & R. 405; Smith v. Weld, 2 Barr 55; Zeigler v. Sprenkle, 7 W. & S. 179.
    The court seemed to hold that the plaintiff under the pleadings w'as required to prove not only the consideration of the bond but the authority to issue it. The seal itself was prima facie evidence that the contract had been duly entered into by the corporation. If it were in fact affixed by persons having no authority, that was a matter for subsequent consideration by the jury: Berks and Dauphin Turnpike Road v. Myers, 6 S. & R. 16; Commonwealth v. Pittsburgh, 5 Wright 284. At the time of granting the nonsuit the only legitimate evidence before the court and jury was the bond, the due execution of which had been admitted by the pleading and the proof of demand before suit brought, and the bond being in due form of law under the seal of the corporation and nothing appearing upon its face showing any illegality or absence of consideration or want of power to issue it, was protected by the presumption that it had issued for a legitimate debt of the corporation which the borough had general powers to create, as well as the special power conferred by the Borough Acts of 1834 and 1851 and 1870: 1 Purd. Dig. 165,166, 167,168,169, especially the power to borrow' money and to issue certificates given by the Act of 3d of April 1851: Purd. Dig. 169. And hence it is clear that the nonsuit was improper.

      J. Gilpin, for defendant in error.
    — By the 65th rule the plea of non est factum would have only denied that the bond was signed or sealed in point of fact; w'hat the defendant did deny rvas that the seal and signatures were there as the authorized act of the borough. Nothing more than the mere physical execution of the.bond was admitted. Nil debet was therefore the proper and only plea, and as the plaintiffs did not demur but went to' trial, the burthen was upon them to prove the rvhole case: Brubaker v. Taylor, 26 P. F. Smith 87; Zeigler v. Sprenkle, 7 W. & S. 179; Moyer v. Fisher, 12 Harris 516.
    The burgess and clerk had no authority to issue bonds unless authorized to do so by resolution of councils : Commonwealth ex rel. Gest v. Pittsburgh, 7 Wright 395.
    The bond in this case which calls for “ the just and full sum of five hundred dollars, with eight per cent, interest in nine months from date,” is not therefore, as plaintiff’s have stated in their argument, regular on its face, but on the contrary its face shows beyond question that it was and is void and was not and could not legally be the bond of Lawrenceburg borough.
   Mr. Justice Sterrett

delivered the opinion of the court, January 7th 1878.

This action of debt was upon a bond, executed by a municipal corporation and prima facie regular on its face. The only question is, whether the court was right in entering judgment of non-suit, after the bond had been given in evidence in connection with other testimony, introduced by the plaintiff. The pleas were 7iil debet, want of consideration, set off, and specially, that the consideration of the bond was a certain overdue and unpaid note, executed by the officers of The Parker’s Landing and Lawrenceburg Water Company. The 65th rule of the Common Pleas provides, that “ in debt on specialty and covenant, the plea of non est factum shall operate as a denial of the execution of the instrument sued on, in point of fact only; and all other matters, including those which make the instrument void or voidable in law, must be specially pleaded, or be particularly set forth in a specification filed before or with the plea of the general issue.” Under this rule, as well as according to general practice, nil debed was not a good plea, and if a demurrer had been interposed it would have been declared bad; but, inasmuch as the plaintiff chose to go to trial without objection, it could not be treated as a nullity. The greatest advantage that the defendant could claim was, that it let him into any defence that he might be able to prove. It did not, however, impose on the plaintiff the onus of proving that the bond was executed and delivered by the borough for whose debts the corporation defendatit was made liable by the terms of its charter. The pleading must be considered as admitting the execution of the bond, and the plaintiff had a right to read it in evidence to the jury: 1 Chit. Pl., 6th ed., 518, 519; 1 Tr. & H. Pract. 458; Zeigler v. Sprenkle, 7 W. & S. 179, and authorities there cited. Having given in evidence the record of the Court of Quarter Sessions, incorporating the borough of Lawrenceburg, the charter of the city defendant and the bond executed by the borough under its corporate seal, he had a prima facie case. As remarked by Chief Justice Gtbson, in The Berks and Dauphin Turnpike v. Myers, 6 S. & R. 16, “ the seal itself was prima facie evidence that the contract had been duly entered into by the corporation.” The right to borrow money within the prescribed limits and issue certificates therefor, bearing interest, was conferred by the general borough law; and the fact that the bond in this case calls for eight per cent, interest does not invalidate the obligation. It is only void as to the excess over the legal rate of interest. The power, says Mr. Justice Strong, in Commonwealth v. Pittsburgh, 5 Wright 284, “to execute and issue bonds, contracts and other certificates of indebtedness, belongs to all corporations, public as well as private, and is inseparable from their existence. It is for this they hold a common seal. Ho one will doubt that, for a legal and authorized debt, a municipal corporation might give its bond under its general corporate powers. If a bond given by such an obligor be void, it is not because of the form of instrument nor because general corporate powers do not warrant giving bonds, but because the debt for which the bond has been given was created without authority, against law or without law.” Whether the bond in controversy was issued without consideration or the debt for which it was given “ was created without authority, against law. or without law,” are questions which might have arisen if the defence had been developed and such testimony introduced as would have been admissible under the pleadings; but none of these questions are now before us. It is sufficient to say that when the plaintiff rested, he had a prima facie case, which entitled him to go to the jury; and the learned judge therefore erred in entering the judgment of nonsuit.

Judgment reversed and a procedendo awarded.


text:
    McLaughlin versus McLaughlin.
    1. A writ of execution is entirely within the control of the plaintiff therein, and he may go on or stay it at will, provided he does not affect the rights of third parties.
    •2. Where the writ has been levied on land as between the plaintiff therein and the defendant particular equities might be raised by particular circumstances, but as against judgment creditors and other outside parties, the plaintiff has the right, after levy, to delay proceedings to secure condemnation, so long as may suit his reasonable convenience.
    October 22d 1877.
    Before Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Agnew, C. J., and Sharswood, J., absent.
    Error to the Court of Common Pleas of Armstrong county : Of October and November Term 1877, No. 162.
    Ejectment by Thomas McLaughlin against Mary McLaughlin, for twenty-two aeres of land. Both parties claimed the land in controversy, under conflicting sheriffs’ sales made of it as the property of William McLaughlin. William McLaughlin was the husband of defendant, and on the 3d of April 1861 owned the land in dispute. On that day a judgment was entered against him in favor of J. E. Willis, to March Term 1861, No. 102. Upon this judgment a fi. fa. issued to June Term 1861, No. 78. Under this writ the sheriff levied (no date given) on said land, but afterwards endorsed, thereon “ This writ stayed by order of plaintiff’s attorney.” On the 30th of January 1862, in pursuance of a prsecipe from the plaintiff’s attorney, a certified copy of this fi. fa. was issued a,nd placed in the sheriff’s hands. Upon this copy of fi. fa. an inquisition was held, and the property condemned, which proceedings were duly approved by the court on their return thereto. A writ of vend, ex. then issued, and the property was sold to Willis, the plaintiff in the execution. At the time of said sale, William McLaughlin, the defendant in the execution, was in possession of the land, and by a written lease became thereafter the tenant of Willis, and so continued until his death, in 1864. After his death, his wife, Mary, the defendant, continued to reside on the land, as the tenant of Willis, until 1869, when, with her own means, she purchased the same, and received from Willis a "deed therefor.
    On the 21st of March 1861, a judgment was entered against William McLaughlin, in favor of John Hildinger, for use of Thomas McLaughlin, to March Term 1861, No. 170. Upon this judgment a scire facias to revive was issued to September 1863, upon which judgment was entered on September 19th 1863. On this a fi. fa. issued, and the sheriff levied on the interest of said William McLaughlin, in 'the land in dispute. An inquisition was held, and the property condemned, and after approval of these by the court a vend. ex. issued, a,nd the property was sold to Thomas McLaughlin, who brought this action.
    At the trial, the defendant made three offers which, in substance, were as follows : 1. To show judgment against William McLaughlin ; sheriffs sale afterward to Willis; sale by Willis to defendant; continued possession by her from time of purchase, and that she paid for land with her own money. 2. The fi. fa. and levy thereunder upon the land in dispute; its inquisition and condemnation, and the approval of the court; the vend. ex. thereon, to be followed by proof that at the time of the sheriff’s sale, under which plaintiff claims, public notice was given of the title to said land being in Willis, to show that at time of said sheriff’s sale to plaintiff William McLaughlin had no title to said land. 3. To show by witness that subsequent to the sale to Willis, William McLaughlin surrendered his possession and became the tenant of Willis, and that he was such prior to the sale to plaintiff; to show that said William McLaughlin acquiesced and ratified said sale to Willis, and to estop those claiming under him from disputing the validity of said sale to Willis. All these offers the court rejected, and they constituted respectively, the first, second and fifth assignments of error.
    The defendant submitted the following points, to which are appended the answers of the court:—
    1. That the return of the sheriff on fi. fa. No. 78, June Term 1861, stayed by order of the plaintiff’s attorney, neither vitiates nor destroys the levy endorsed thereon, but is merely a suspension for the time being of the execution of the process which may be resumed or renewed at the next or any subsequent term.
    “ Refused.”
    2. That the issuing of a copy of the fi. fa. is a resumption of process of execution at and from the point at which they were suspended, and being a mere continuance, the two papers are to be considered as one, and, if in form, the proceedings thereon are valid.
    “ Refused.”
    3. That the inquisition and condemnation made or held on that copy of fi. fa. are equivalent to the holding on the original writ after its return-day, and no objection being made to its approval by the defendant in execution, no person claiming under him can now ■ object.
    “ Refused; for the writ being stayed the copy is of no validity.”
    4. That the approval of the inquisition and the issuing of a vend. ex. by the court, and the acknowledgment of the sheriff’s deed, cures all defects in the execution or its process that could have been corrected by the court before the acknowledgment of the deed, and, if there was any in the writ upon which the sale to J. E. Willis was made, it was an irregularity and was cured by the acknowledgment of the deed.
    “Refused.”
    5. That the sheriff’s deed, under which the defendant claims title, being the elder of the two, divests the title of William M’Laughlin in the land, and the plaintiff to this suit derived no title by virtue of his sheriff’s deed to the land in controversy.

      Ans. “ As a general rule this is the law; but we think the sale to Willis was without authority of law, and thus explained the point is negatived.
    The court, McDermitt, P. J., after recapitulating the facts in evidence, in the charge to the jury, inter alia, said:—
    “ No authority has been cited, nor is any known to the court, as to whether a fi. fa. stayed by the plaintiff after levy, but before inquisition and condemnation can be the legal basis of a vend, ex., so that the sale thereon will vest title in the purchaser.
    “ The copy of the fi. fa., filed as before mentioned, affects the merits of the case in no conceivable way ; for a copy of the writ is as lifeless as the writ itself.
    “ A sheriff, in selling real estate, acts under a naked statutory power, and he who purchases under a power takes no title unless the power exists: Shields v. Miltenberger, 2 Harris 76; St. Bartholomew’s Church v. Wood, 11 P. F. Smith 96; Caldwell v. Walters, 6 Harris 79. The acknowledgment of a sheriff’s deed cures mere irregularities and non-essentials in the sale process, but not the want of authority in the sheriff: Shields v. Miltenberger, supra.

      “ Where a levy is set aside by the court, and a vend. ex. is issued without a fresh levy, a sale vests no title in the purchaser : Burd v. Dunsdale, 2 Binn. 80. The control of the plaintiff over his writ is the same, whether real or personal property is levied on. In Dorrance v. Commonwealth, 1 Harris 160, where personal property was the subject of the levy, the court says, ‘ It would hardly be contended that the plaintiff, or his attorney, has no control over the writ even after the return-day. He may, if he chooses, release the debt or waive the levy, either by a written or verbal order, and the sheriff would be bound to obey him.’ In Shryock v. Jones, 10 Harris 303, where the levy was on realty, the court says : ‘ Process is under the control of the party issuing it until the rights of others become vested. The plaintiff or his attorney may stay the writ at any moment before the sale, provided his dominion over it be so exercised * * * as not to mislead the purchaser * * * but whether it shall go on, or be stayed, is a matter over which the plaintiff has, while it is in fieri, absolute authority.’
    “A fi. fa. relied on as the basis of a vend. ex. is in fieri until the sale is consummated by the latter. When lands have been extended the defendant has vested rights of which the plaintiff cannot divest him by staying the writ: Miller v. Milford, 2 S. & R. 35.
    “ When the sheriff has not time between the levy and the return day to hold an inquisition, and the writ has not been stayed, it may be held after the return day: Weaver v. Lawrence, 1 Dal. 405. When the writ has been stayed by the court, or by the plaintiff, when he has the power to do it, inquisition cannot be had on it; for it is then as though never issued. True, a vend. ex. is in contemplation of law issued by command of the court, but there are some things a court cannot command a sheriff to do ; and among them is to sell real estate on a vend. ex. without a preceding and still living fi. fa. for its basis. Levy,' inquisition and condemnation are but the incidents of a fi. fa., and when it is stayed, so are they. The stream lives no longer than its fountain. A vend. ex. is the fruit of a living, not of a dead fi. fa. A stayed fi. fa. is dead.
    “ You are instructed, 1. [That the sheriff’s deed to Willis, under whom the defendant claims, vested no title in him.] 2. That if the evidence reasonably satisfies you that the sheriff’s deed to Thomas McLaughlin was for the land in controversy, then your verdict must be for the plaintiff. If it does not so satisfy you, then it must be for the defendant.”
    The verdict was for the plaintiff, and the defendant took this writ, and among the errors assigned were those heretofore noted, . and twelfth, to the portion of the charge in brackets.

      John Gilpin and John V. Painter, for plaintiff in error.
    — What was the effect of the order to stay ? The court below held that it was annihilation, and destroyed not only all future action upon the writ, but also everything that had been previously done under it. Was this ruling correct'{

    A writ stayed for a definite period is but suspended during that period, and we submit that a stay for an indefinite period is but a suspension until the plaintiff in execution gives notice to the sheriff to proceed : Deacon v. Govett, 4 Phila. 7. Or at most, it merely stays the further execution of the writ. The arrival of the return day before the sheriff has fully executed a fi. fa., may prevent him making a further levy thereunder, but surely a levy which he had previously made is not thereby annulled.
    In regard to the practice in Armstrong county where writs have been stayed by order of attorney, reference was made to Blythe v. Richard, 10 S. & R. 262; Kostenbader v. Peters, 30 P. F. Smith 430; Cochran v. Cummings, 4 Yeates 136.

      Golden & Patton, for defendant in error.
    — The only practice in existence in Armstrong county is what we believe to be the general practice in the Commonwealth; when the sheriff has levied upon real estate by fi. fa. and returns inquisition not held for want of time, or where he has actually held inquisition which has been subsequently set aside by the court, in either case he may'take out copy of fi. fa., and after giving due notice, hold an inquisition. But where the writ has been stayed after levy and before inquisition, and so returned to the office and docketed, that writ is ended, and if the plaintiff desires proceeding further upon his judgment, he may, upon motion to the court strike off the levy and proceed de novo or issue an alias fi. fa. with copy of levy.

      The indefinite staying of this writ was an end of it, and its lien as a fi. fa. was gone with its life. And had the levy been on personal property it would not be contended that the sheriff might take out a copy of the writ after it had slept in the office for a period of six months, and sell the personal property. What is the difference then between a levy upon real estate and one of personal property ? If the writ is dead to the latter by its stay and return, is there any legal or logical magic to save it in the former ?
   Mr. Justice Woodward

delivered the opinion of tho court, January 7th 1878.

In the trial of this cause in the court below, the parties asserted their respective titles to the land in controversy under conflicting sheriffs’ sales made of it as the property of William McLaughlin. The first sale was by virtue of process issued in a judgment entered on the 3d of April 1861, in favor of J. E. Willis. A fieri facias went into the sheriff’s hands on the 5th of April 1861, under which a levy on this land was made, and on which it was endorsed. Subsequently the writ was stayed by the order of the attorney for the plaintiff, and was returned to the office files. On the 80th of January 1862, in pursuance of the praecipe of the attorney, a certified copy of the writ was made out and delivered to the sheriff, who hold an inquisition on the 28th of February, when tho property was condemned. The inquisition was approved by the court on the 5th of March. A venditioni exponas was issued on the 14th of July; the land was sold to J. E. Willis, the plaintiff in the judgment, on the 30th of August; and the sheriff’s deed was acknowledged in open court on tho 3d of September 1862. Throughout these proceedings William McLaughlin, the defendant in the judgment, was in possession of the property, and immediately after the execution of the sheriff’s deed entered into a written lease with Willis, and became his tenant. He was drafted into the army in 1864, and was killed in the early part of 1865. His widow, the defendant below, remained in possession as Willis’s tenant until the 10th of September 1869, when she purchased and received a conveyance of the land.

An earlier judgment than that of Willis’s was a lien against William McLaughlin. It was entered on the 21st of March 1861, in favor of John Hildinger, as plaintiff, and the same land was levied on and condemned under a fieri facias to December Term 1863, and sold under a writ of venditioni exponas to Thomas McLaughlin, the plaintiff below, on the 30th of January 1864.

Numerous exceptions were taken in the course of the trial, and twelve errors have been assigned to the rulings of the court on questions of evidence, to the answers to the points presented, and to the instructions given to the jury. Everything contained in them, however, that is essential in the present inquiry, is covered by the first, second and fifth errors assigned to the final rejection of the defendant’s first two offers of evidence, and the offer specified in the fifth error, which, in the first instance, had been admitted, and by the twelfth error, complaining of the peremptory direction in the concluding portion of the charge, that “ the sheriff’s deed to Willis, under whom the defendant claims, vested no title in him.” The reason for the direction had been previously stated by the judge to be, that when a writ of fieri facias has been stayed by order of the court, or by the plaintiff, when he has the power to do it, inquisition and condemnation cannot be had on it, for it is then as though never issued.”

In some of the northern counties of the Commonwealth, according to the recollection of two members of this court, the practice of placing writs on which real estate levies had been endorsed, and which had been stayed by plaintiffs or their attorneys, in the sheriff’s hands for purposes of inquisition and condemnation, has been long pursued. Writs have been sometimes stayed in pursuance of agreements between the parties, sometimes to serve the convenience of sheriffs, sometimes for want of time, and sometimes on account of the absence or engagements of attorneys. Would a writ thus stayed become a simple nullity ? Or would the levy only be annulled, and an alias fieri facias be the only process open to the plaintiff? What, then, would be the fate of the levy ? How could it be eliminated from the face of the record ? The fact of its existence would be just as absolute as the fact of the existence of the fieri facias itself. A fresh writ against chattels could not go out, for the levy would intervene between the judgment and such a writ. A venditioni exponas could not go out, for an inquisition would not have been held on the land. In Shryock v. Jones, 10 Harris 303, it was held that “ process is under the control of the party issuing it until the rights of others become vested. The plaintiff or hi§ attorney may stay the writ at any moment before the sale, provided his dominion over it be so exercised as not to mislead the purchaser, but whether it shall go on or be stayed, is a matter over which the plaintiff, while it is in fieri, has absolute authority. Even a stay of proceedings on a writ levied on personal property, does not involve the loss of the lien, and does not affect the plaintiff’s right as against the defendant or the goods, although it exposes him to the risk of having his execution postponed: 1 Tr. & H. 831. A stay by the order of a plaintiff of a venditioni ex-ponas of goods, where there is no collusion shown between him and the defendant, and where the property was left in the defendant’s possession, was used by him as before the levy, and either consumed or disposed of by himself or sold under subsequent judgments and executions, will not operate to postpone in favor of junior judgments the lien of the plaintiff’s judgment on the real estate of the defendant: Morrison v. Hoffman, 1 Barr 13; Campbell’s Appeal, 8 Casey 88. So, the plaintiff may withdraw his writ without necessarily discharging his lien on the real estate as respects other judgment creditors: Cathcart’s Appeal, 1 Harris 416. The case is still stronger in favor of a plaintiff whose writ has been levied on land. As between him and the defendant, particular equities might be raised by particular circumstances, but as against judgment creditors and other outside parties, he has the right after levy to delay proceedings to secure condemnation so long as may suit his own reasonable convenience. And this right seems to have been recognised throughout the history of the state. In Weaver v. Lawrence, 1 Dall. 380, decided in 1788, it was held whore an inquisition on lands under a fi. fa. had been quashed for irregularity, tlie sheriff might proceed to hold a new inquest after the return of the fi. fa., without a new writ. Usually, the original execution has been withdrawn from the files, but it may well be that the more methodical and safer practice in all cases would he that which was pursued here of delivering a certified copy into the sheriff’s hands.

Not only wore the proceedings on the Willis judgment not objected to by William McLaughlin, but after the sale was made, ho became the tenant of the purchaser. He acquiescing in the validity of the process by which his title was divested, no other person, in the absence of proof of collusion or fraudulent practice, could make that process the subject of debate. At the utmost, the condemnation by the sheriff’s inquest, under the authority of the certified copy of the original writ, was an irregularity, and of that the defendant in the judgment could alone complain. In Crawford v. Boyer, 2 Harris 380, it was held that only the defendant, and he within a reasonable time, might object to the want of a confirmation of an inquisition as required by the Act of 188C. And the consent of the defendant will validate a sheriff’s sale of improved land without inquisition, although without such consent the sale vould be void: Wray v. Miller, 8 Harris 111. A sheriff’s sale of a defendant’s real estate upon a judgment and execution against him, without a condemnation or waiver of inquisition in that particular case, and a deed acknowledged to the purchaser without objection, and the proceeds of sale appropriated to the defendant’s debts, will divest the title of the defendant to the premises, and a subsequent sheriff’s sale of the premises as the property of the defendant will confer no title on the purchaser. A defendant must object in a reasonable time, and such reasonable time is before the confirmation of the sale and the acknowledgment of the deed: Spragg v. Shriver, 1 Casey 282.

Where the essential requisites of a judicial proceeding are shown to have been complied with, the law will not annul it for failure of directory formalities. A levy and sale by a sheriff on an execucution issued upon a judgment against a testator’s executors, without naming them, vests a good title in the purchaser: Jones v. Gardner, 4 Watts 416. In Speer v. Sample, Id. 367, an execution issued on a judgment after the death of the defendant, was held not void, but only voidable, and a sale on the execution was held to vest in the purchaser a good title. Here the inquisition was expressly approved by the court on the 5th of March 1862, five days after it was taken, and on the 3d of September 1862 the deed was duly acknowledged. The effect of this action has been settled by a long line of cases. The Act of 1806, as well as the subsequent statutes, made it the duty of the sheriff to give notice o.f an inquisition to be held on real estate which he seized in execution. But the omission to give notice was an irregularity for which the sale might have been set aside. It never was a reason for declaring the purchaser’s title void after deed made and payment of purchase-money”Black, G. J., in Meanor v. Hamilton, 3 Casey 137. The provisions of the Act of. Assembly in relation to the acknowledgments of sheriff’s deeds are directory, and after a deed has been acknowledged and delivered to the purchaser, it is to be presumed that they have been complied with: Stroble v. Smith, 8 Watts 280. It is true that the acknowledgment by a sheriff of a deed executed by him is not such res adjudicate/ as precludes an inquiry into the legality of the proceedings: Braddee v. Brownfield, 2 W. & S. 271. And the absence of authority, or the presence of fraud, utterly frustrates the operation of a sheriff's sale as a means of transmission of title, and may be insisted on after the acknowledgment: Shields v. Miltenberger, 2 Harris 76. But it is sufficient to raise the presumption, in the first instance, that the statutory requisites for notice to parties have been complied with, and this presumption must prevail until it is rebutted by satisfactory countervailing proof: St. Bartholomew’s Church v. Wood, 30 P. F. Smith 219. It cures all defects of the process or its execution, which the court has power to act upon: Thompson v. Philips, 1 Bald. 246. And it cures mere irregularities of every kind: Blair v. Greenway, 1 Brown 219. The stay of the fieri facias of Willis was a mere suspension of the proceedings against William McLaughlin’s land. But if it had been more than that — if strict rules of practice had required an application to strike off the levy, and for leave to issue a fresh writ — the confirmation of the inquisition by the court, the award of the venditioni exponas, and the acknowledgment of the sheriff’s deed, would have clothed the process with thoroughly effective vitality, and have cured all irregularities and defects of form. The evidence specified in the first and second assignments of error, and the testimony specified in the fifth assignment, should have been submitted to the jury. The cause must go back for a fresh trial. It may possibly present other features than those now disclosed. If it do not, however, it is not seen how the defendant’s right to a verdict can be made a debatable question.

Judgment is reversed, and venire facias de novo awarded.


author: Mr. Justice Paxson

text:
    The Union Express Company versus Shoop.
    Where one earner company receives goods at the end of a second carrier company’s line, and the second company neglects to inform the first company that the freight was paid, the first company is not responsible for this omission, and has the right to retain the goods in its possession for a reasonable time, until it can inquire into and ascertain the facts.
    October 23d 1877.
    Before Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Agnew, C. J., and Swarswood, J., absent.
    Error to the Court of Common Pleas of Armstrong county: Of October and November Term 1877, No. 187.
    This was an appeal from the judgment of an alderman for $40, in favor of John II. Shoop, against the Union Express Company. Shoop filed a narr. in assumpsit, to which were filed the usual pleas, non-assumpsit, payment with leave, &c.
    The action was to recover the value of a box of furs, amounting to $26.25, shipped from Philadelphia, November 30th 1872, by W. V. Lippincott & Co., and consigned to John II. Shoop, Free-port. The shipment from Philadelphia was by the Adams Express Company, which line terminated at Pittsburgh, at which place the goods were transferred to the Union Express Company, its line running north of Pittsburgh, through the town of Freeport, the residence of the consignee. The substance of the shipping receipt will be found in the opinion of this court. The two express compapanies were wholly different and independent carriers. The relations of the two companies are shown in the following testimony of an officer of one of the companies :• — ■
    “ The same agreement exists between the Adams and Union Express companies that exists between all other forwarding companies, that each pays the charges of the other for all services rendered for them on their lines. The Union Express looks to the Adams Express Company for expressagc fees on packages expressed at Philadelphia to Freeport, when prepaid, and will have notice of the fact, providing the Adams Express Company prepays the Union Express Company in Pittsburgh her charge from Pittsburgh to Freeport. We settle between the Adams Express Company and Union Express Company every day. When the goods come from Philadelphia to Freeport, prepaid or not, we send them on as rapidly as possible.”
    In this instance the transportation charges were paid in Philadelphia to the Adams Express Company, but by some neglect of that company the fact of prepayment was neither marked upon the box nor upon the way-bill. The Union Express Company had no knowledge or notice of such prepayment, and the agent of said company at Freeport had no authority to deliver goods without the payment of the charges. On the arrival of the goods at Freeport, notice w7as given to the consignee, who sent his clerk for them; and although the plaintiff had the receipt of the Adams Express Company showing the prepayment' of the box, he at no time mentioned it or exhibited it to the agent. The agent refused to deliver the goods unless Shoop paid the charges or satisfied him that they were prepaid, stating at the same time that, if the charges had been prepaid, he would refund them to Shoop on being satisfied of' the fact. Shoop refused to pay the charges, but brought suit for the value of the goods, which remained in the office of the express company, unopened and uninjured.
    The fourth point of defendant was,
    “ That if the jury believe from the evidence that neither the waybill nor the box containing the plaintiff’s property, when delivered to’ the defendant at Pittsburgh by the Adams Express Company, presented any proper evidence, under the practice and arrangement of. the transportation .company, that the goods had been prepaid to Ereeport, in that event the defendant had a right to demand the payment of charges from the consignee at Ereeport, and upon his refusal to pay, hold the goods until such payment was made or satisfactory evidence furnished of prepayment in Philadelphia.”
    In reply to which the court, Boggs, P. J., said, “Answered in the negative, as explained in the general charge.”
    The portion of the charge alluded to was in these words:—
    “ If you find from the evidence this theory of the defendants to be true, and that the plaintiff had notice or knowledge, within a reasonable time, that the goods were at the office ready for delivery to him on payment of express fees, we instruct you that the agent of the defendants had no right to detain the goods, if it is true that the express charges were prepaid in Philadelphia; they Avere bound to deliver them in their usual way as soon as the goods arrived at the place of destination and the consignee called for the same."
    The verdict was for the plaintiff, and defendant took this Avrit, its sixth and thirteenth assignments of error being the refusal of the fourth point and the foregoing portion of the charge.

      E. S. Golden and W. D. Patton, for plaintiff in error.
    — The question, briefly stated, is whether a second carrier company, receiving goods at the end of the first carrier company’s line and transporting them to their destination without any fault in itself, is responsible for the faults or errors of the first company, and that without any privity of contract with or existing obligation to the first company. There is no case to be found in England or America furnishing a precedent in law for the affirmative of the proposition.

      J. A. McCullough and David Barclay, for defendant in error.
    ■ — The Union Express Company, by receiving the box from the Adams Express Company, became Shoop’s agent, and undertook to perform the contract which he had made with the Adams Express Company. Here was privity. The transfer then, of the goods from the Adams Express Company to the Union Express Company placed Shoop and the Union Express Company in the identical-position, as to their relative rights and duties, as existed between Shoop and the Adams Express Company when the contract was made, by the delivery of the goods in Philadelphia and the payment of the charges. If this be the legal relation of the parties, then what case has the plaintiff in error here? The Union Express Company was bound to know the charges had been paid, and it was that company’s duty to deliver .the goods the moment they were called on. But their agent refused to do so, and in that refusal the liability arose.
   Mr. Justice Paxson

delivered the-opinion of the court, November 19th 1877.

The application of a moderate amount of common sense with a reasonable spirit of accommodation would have saved the parties the expense of this litigation. The original contention was about a very small matter, the sum of §1.25, for express charges upon a package of merchandise of the value of §26.25, shipped by Lippincott & Johnson, Philadelphia, to John II. Shoop (plaintiff below), Free-port, Pa. The package was delivered to the Adams Express Company, in Philadelphia, and the express charges were prepaid to Freeport. This company carried the package to Pittsburgh, and then delivered it to the Union Express Company, plaintiff in error, which company carried it to Freeport, its place of destination. By the neglect of the Adams Express Company the package was not marked prepaid on the way-bill. Upon its arrival at Freeport the Union Express Company notified Mr. Shoop that the package was at their office, but declined to deliver without payment of the charge for freight. There is evidence that the agent of the company offered to refund the freight if it subsequently appeared that it had been paid at Philadelphia. It is also undisputed that Mr. Shoop wrote to the shippers in Philadelphia, and received from them a reply, enclosing the receipt of the Adams Express Company. After the receipt of this letter, Mr. Maxler, the clerk of Mr. Shoop, called at the express office and exhibited the letter, but did not show the receipt. This omission was singular, the more so, as in all probability the production of the receipt would at once have ended the difficulty. Why it was not done has not been explained.

Upon the refusal of the company to deliver the package under the foregoing circumstances, the plaintiff below brought this action of trover to recover its value. The court below ruled that under the contract with the Adams Express Company the Union Express Company was bound to deliver the package to Mr. Shoop, upon its arrival at Freeport, without payment of the charge for freight, upon the ground that by the arrangement between the two companies, the plaintiffs in error took upon themselves to complete the performance of the contract implied in the express receipt given in evidence, by expressing the goods from Pittsburgh, the end of the Adams line, to Freeport, then to deliver the goods in a reasonable time to the consignee, as the law requires. It is undoubtedly true that by virtue of the receipt and the understanding between the companies, the plaintiffs in error undertook to complete the contract made with the Adams company, so far as to safely carry the goods from Pittsburgh to Freeport, and to deliver them within a reasonable time to the consignee. But this was the extent of their obligation. They did not assume responsibility for any acts or omissions of the Adams company. The shipping receipt of the latter company contained this clause: “ And if the same is intrusted or delivered to any other express company or agent (which said Adams Express Company are hereby authorized to do), such company or persons so selected shall be regarded exclusively as the agent of the shipper or owner, and as such alone liable, and the Adams Express Company shall not be, in any event, responsible for the negligence or non-performance of any such company or person, and the shipper and owner hereby severally agree that all the stipulations and conditions in this receipt contained, shall extend to and inure to the benefit of each and every company or person to whom the Adams Express Company may intrust or deliver the above-described property for transportation, and shall define and limit the liability therefor of such other company or person.” The plain meaning of this is that each company shall be responsible to the shipper or owner for the property while in its custody, but not for the default or negligence of any other company or person. How, in what was the Union Express Company in default ? They had carried the package safely, and were ready to deliver upon payment of the freight charges. But it is said it was their duty to have informed themselves as to whether the express charges were paid or not. They w7ere informed by the way-bill that the charges were not paid. It is true this was an error. But whose fault was that? Manifestly that of the Adams Express Company, by whose neglect it occurred. Under the circumstances, the Union company being in no default, what was its duty ? The answer is not difficult. It was to deliver to the consignee within a reasonable time upon notice and satisfactory evidence that the freight charges had been paid. If such notice was not given by the consignee at Freeport, he has no ground of complaint if the company declined to deliver until such reasonable time as they could inquire into and ascertain the facts. Still less reason has the consignee to complain if he had in his possession the evidence of the prepayment of the freight and neglected or refused to produce it. The Union Express Company were entitled, under the circumstances disclosed by the evidence, to a reasonable time, to be measured by the distance to Philadelphia, and the facilities of communication, to ascertain whether the charges had been paid to the Adams Express Company, after which it would be their duty to deliver the package, in case of such prepayment, to the consignee when required. These views of the law, as it will be seen, differ essentially from the rulings of the learned judge of the court below in his answer to the defendant’s fourth point, and also in that portion of his charge embraced in the 13th assignment of error. We notice nothing else in this record that needs to be discussed.

The judgment is reversed, and a venire facias de novo awarded.


text:
    Shepler versus Scott.
    1. Where one brings an action to recover compensation for procuring a sale of real estate under a special contract it is not necessary to show that lie had a license to act as a real estate broker.
    2. Where a contract itself is silent as to the time within which an act is to bo performed, the implication is that it should be done within a reasonable time, and what is a reasonable time is a question for the jury to determine.
    3 Where it is attempted to be shown by parol that the operation of a contract was to be limited to a particular time, the evidence thereof must be positive and clear.
    October 24th 1877.
    Before Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Agnew, C. J., and Sharswood, J., absent.
    Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1876, No. 261.
    Covenant by Joseph H. Scott against Davis Shepler on the following instrument:—
    “Agreement made this 6th day of May 1874, by and between Joseph II. Scott, of Washington county, Pennsylvania, of the one part, and Davis Shepler, of Westmoreland county, Pennsylvania, of the other part, witnesseth, that the said party of the first part, for the consideration hereinafter mentioned, is to use his best endeavors to sell for the said second party one hundred and twenty six acres of coal, more or less, situate in Rostraver township, Westmoreland county, and in case of sale of said coal by said first party, or from his efforts to sell the same, the said second party hereby binds himself, his heirs and executors to pay to the said first party all that the said property shall be sold for over and above §50 per acre. In witness, the said parties have hereunto set their hands and seals this 6th day of May 1874.
    (Signed) Davis Shepler. [seal.'
    Joseph II. Scott, [seal.'

      Defendant pleaded non infregit conventionem, covenants performed absque hoc, &c.
    The facts are mainly stated in the opinion of this court.
    The second point of plaintiff, which the court, Logan, P. J., affirmed, was as follows: “If the jury find that the plaintiff was the procuring cause of the sale, he would be entitled to recover under his contract, unless it had terminated by lapse of time or was rescinded before the sale to Moses Scott.”
    In their general charge the court said:—

      “ There is, however, a further question, which is one particularly for you. The defendant, Davis Shepler, insists that this contract, instead of being, as written upon its face, without any limitation as to time in which the sale is to be made, was limited to a period of three weeks, and that it was agreed between the parties at the time the paper was made that Joseph Scott should only have three weeks in which to consummate the sale, and at a time before the sale the parties met, and it was agreed between Joseph Scott and Davis Shepler that the sale not having been made within the three weeks, the paper was declared off, and it was so agreed between them. If this fact be so — if you are satisfied under all the testimony in the case that it is so, that will defeat the right of the plaintiff to recover. In determining that, you will look at all the testimony in the cause. The paper is with the plaintiff; the contract as read is as it is alleged to have been by the plaintiff. The burden, therefore, rests with the defendant to satisfy you by positive and clear testimony that the contract embraced the terms the defendant says it did, and not recited in the paper, that the time was limited to three weeks, and at the end of three weeks they agreed to give up that paper. You will scan all the testimony in the cause, and say whether the defendant has satisfied you by clear and positive proof of the fact that it was limited to three weeks, and the contract declared off at the end of three weeks. If he had insisted upon the paper conveying simply the coal at the time, he ought to have stood upon it, or at least given Joseph Scott notice of it, and an opportunity to be heard. There is no evidence that he did give such notice, and if the facts are so, as they seem to be under the testimony in the cause, then this matter of additional privileges would not.be considered an element of defence on the part of the defendant.”
    The court reserved the question whether the failure of the plaintiff to show the fact that he had a license as a broker, either under the law of the United States or of Pennsylvania, defeats the right of action.
    The verdict was for the plaintiff for $600, and the court subsequently overruling a motion to enter judgment for, defendant non obstante veredicto, he took this writ, assigning this refusal to enter judgment, the answer to plaintiff’s point, and the. portion of the charge noted, for error.

      Henry D. Foster, for plaintiff in error.
    — The instruction that to contradict the written contract, the evidence must be positive and clear, was too exacting, and deprived the defendant of the benefit of valuable testimony. On the question of the license, cited Act of May 27th 1841, Purd. Dig. 180,181; Commonwealth v. Holmes, 1 Jones 468; Clapp v. Hughes, 1 Phila. 382; Commonwealth v. Manley, 2 Id. 173; Kellogg v. Conklin, 6 Id. 177; Holt v. Green, 23 P. F. Smith 198.

      H. P. Laird and H. C. & J. A. Marehand, for defendant in error.
    —The rulings of the court in Pennsylvania Railroad Co. v. Shay, 1 Norris 198, and Snyder v. Snyder, 6 Binn. 483, justify the instruction of the judge as to the character of testimony necessary to vary a written contract. Defendant was not bound to show that he had a license before he could recover on this contract. It is to be presumed he had one, until otherwise shown. There was no evidence that lie held himself out as a broker, and he is entitled to recover under the terms of his agreement: Chadwick v. Collins, 2 Casey 130.
   Mr. Justice Sterrett

delivered the opinion of the court, January 7th 1878.

According to the terms of the contract executed by the parties on the 6th day of May 1874, the plaintiff below agreed to use his best endeavors to sell, for the defendant, one hundred and twenty acres of coal, and in case of a sale by him, “ or from his efforts to sell,” the defendant agreed to pay him all that it should “be sold for over and above $50 per acre.” On the fourth of August following, the coal was sold, by articles of agreement, to Moses Scott for $55 per acre, and the plaintiff, claiming that the sale had been effected by his agency, demanded $600 as compensation for his services, rendered in pursuance of the contract.

The main grounds of defence were that the time, within which the plaintiff was authorized to negotiate a sale, was limited to three weeks, and had expired before Moses Scott agreed to purchase ; that the sale to Moses Scott embraced grants and concessions, by the defendant, which the plaintiff was not authorized to make in any sale he might have effected under his agreement with the defendant, and that the plaintiff could not recover without showing that he had a license to act as a real estate broker.

The question of law, involved in the last-mentioned ground of defence, was reserved, and afterwards rightly decided in favor of the plaintiff below. Under the pleadings his right to recover did not depend on proving that he had a license; and, aside from this, there was no evidence that the plaintiff was engaged in the business of a real estate broker, as an occupation, or that he held himself Out to the public as such.

The court was clearly right in affirming the plaintiff’s second point and thereby instructing the jury that if they found the plaintiff was the procuring cause of the sale he would be entitled to recover under his contract, unless it had been terminated by lapse of time, or was rescinded before the sale to Moses Scott.” The questions of fact upon which the case mainly turned were thus fairly presented and submitted to the jury. If the sale to Moses Scott was negotiated by the plaintiff, or resulted from his efforts, he was entitled to the compensation fixed by the agreement, unless the jury found from the evidence that the contract had previously expired by limitation, or had been rescinded by the parties. The contract itself is silent as to the time within which the plaintiff ivas authorized to negotiate a sale; but the implication of law would be that it should be done within a reasonable time, and this would be a question for the jury. The defendant, however, contended that when the contract was signed, it was expressly agreed that the time should be limited to three weeks; that afterwards, the plaintiff requested an extension of time, which was refused, and it was then mutually understood that the contract was no longer in force. Testimony bearing on this point was offered by both parties, and submitted to the jury with instructions as to the nature of the proof required to establish the limitation contended for by the defendant. This portion of the charge is assigned for error.

After stating to the jury what was claimed by the defendant, as to the limitation agreed upon at the time the contract was executed, &c., the learned judge instructed them, that if they were satisfied from all the testimony in the cause that the facts were so, the plaintiff could not recover; that the written contract, as it stood, was with the plaintiff, and therefore the onus was on the defendant to satisfy them by “ positive and clear testimony,” that the time was limited to three weeks ; that they should “ scan all the testimony in the cause,” and say whether the defendant had satisfied them “ by clear and positive proof, of the fact that it was limited to three weeks and then declared off.” After referring to the conflicting testimony of the parties themselves, and the corroborative testimony introduced on both sides, he concluded by saying, “ all these circumstances you will take into account in determining whether or not the contract is as written, or whether it is as claimed by the defendant.”

The plaintiff in error has no reason to complain of this branch of the charge. The testimony was fairly submitted to the jury, with proper instructions as to the character of the proof that Avas required to sustain his proposition. While the parol testimony introduced by him did not contradict anything expressed in the written contract, its purpose Avas to restrain its operation as to time, and thus vary its legal effect. In such cases it is not requiring too high a 'degree of proof to say that the testimony should be clear as Avell as positive. It should undoubtedly be clear, and there is no reason why it should not be positive also, as contradistinguished from testimony of a negative character. It is in this sense that the instruction Avould be understood by the jury. None of the testimony Avas Avithheld from the jury. They were instructed, as we have seen, to carefully consider it all, and take into account all the circumstances; and if they were satisfied, “ by clear and positive proof,” that the time was limited to three weeks, they should so find. This was quite as favorable as the plaintiff in erroi had a right to ask. We find no error in any of the assignments.

Judgment affirmed.