author: Per. Curiam,

text:
    Dickson, Appellant, v. Wood.

      Landlord and tenant—Ejectment—Habere facias possessionem—Abuse of legal process—Trespass—Nonsuit.

    In an action of trespass for an alleged abuse of legal process, it appeared that the plaintiff had leased a house from the defendant for the term of one year from April 1st, at a certain rental per month payable monthly, or within five days thereafter. On expiration of the lease the property was to be surrendered without further notice. The lease further provided that' if the lessee failed to pay the rent, or remove from the premises at the termination of the lease, any attorney of record might confess a judgment in ejectment, and authorize the immediate issuing of habere facias possessionem “with clause of fi. fa. for rent due and costs, to be released upon payment of the rent due, costs of suit and five per cent attorney’s commissions or fees within five days from the confession of said judgment.” Before the end of the term plaintiff knew that the defendant would not continue the lease, and had in fact leased the property to another person. Two days after the termination of the lease the defendant issued a writ of habere facias possessionem with clause of fi. fa. for the last month’s rent and costs. The writ was executed the same day it was issued, and, while no levy was made, the month’s rents and costs were paid to the sheriff. Held, that the defendant was not compelled to wait five days before executing the writ of habere facias, that he acted within his rights, and that a nonsuit was properly entered in the action of trespass.
    Argued May 9 1904..
    Appeal, No. 109, Jan. T., 1904, by .plaintiff, from order of C. P. Fayette Co., June T., 1903, No. 229, refusing to take off nonsuit in case of William J. Dickson v. Thomas S. Wood.
    Before Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Trespass for alleged abuse of legal process. Before Rep-pert, P. J.
    The facts appear by the opinion of Reppert, P. J., refusing to take off nonsuit which was as follows :
    By agreement dated April 1, 1902, Thomas S. Wood leased ■ to William J. Dickson a certain house and lot situate in the borough of Uniontown, for the term of one year from date at the rate of $25.00 per month, payable monthly.as it fell due or within five days thereafter. On expiration of the lease the property was to be surrendered without further notice. It was further provided as follows :
    “ And on failure of the lessee to pay the installments of rent as due, keep all the covenants of this lease, or remove from the premises at the termination of the same, then the lessee hereby authorize and empower any attorney of any court of record of Pennsylvania, to appear in said court and confess a judgment in an amicable action of ejectment for the premises above described, and authorize the immediate issuing of a writ of habere facias possessionem with clause of fi. fa. for rent due and costs, without asking leave of court; to be released upon the payment of rent due, costs of suit and five per cent attorney’s commission or fees, within five days from the confession of said judgment.”
    This is an action of trespass for damages for the illegal eviction of the plaintiff from the premises described in the lease and the illegal collection of rent and costs. At the time the plaintiff was evicted the term of his lease had expired. There was no evidence from which the jury would have been warranted in finding that the defendant liad in any way whatever consented to a renewal or continuance thereof. On the contrary he had leased the property to another tenant, which was known to the plaintiff, and was endeavoring to get some assurance from the plaintiff that he would observe his agreement to surrender at the end of his term, or, in order to avoid a resort to legal proceedings to recover possession, within a reasonable time thereafter. The plaintiff declined to give any such assurance, and asserted his right, under his view of the terms of the lease, to remain if he saw fit without the consent or permission of the landlord. The defendant thereupon issued a writ of habere facias possessionem with clause of fi. fa. for the last month’s rent and costs. The writ was executed.the same day it was issued, and, while no levy was made, the month’s rent and costs were paid to the sheriff.
    As we view the provisions of the lease the term had expired, and the plaintiff produced no evidence that would warrant the jury in finding that he continued thereafter lawfully in possession. It was not therefore a case of forfeiture because the plaintiff had nothing to forfeit. The term having ended the defendant was not compelled to wait five days after issuing his writ before he could execute it, nor could the payment of the rent due and the costs release the judgment if paid within five days from its confession. The defendant acted within his rights under the terms of the lease.

      Motion to take off nonsuit is overruled.

      Error assigned was refusal to take off nonsuit.

      Edward Campbell, with him E. C. Higbee, for appellant.

      Nathaniel Ewing, with him John M. Core, for appellee.
    May 23, 1904:
   Per. Curiam,

The judgment is affirmed on the opinion of the learned judge of the common pleas.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Hays v. Allegheny County Prison Inspectors, Appellant.

      Municipalities—Public officers—Mayor of Pittsburg—City recorder—Acts of March 23, 1865, P. L. 607, March 7, 1901, P. L. 20, and April 23, 1903, P. L. 284.
    The Act of March 23, 1865, P. L. 706, provided that the mayor of Pitts-burg should be a member of the board of inspectors of Allegheny County Prison. The Act of March 7, 1901, P. L. 20, provided “ that the executive power in cities of the second class shall be vested in a city recorder and in the departments authorized hy this act. The office of mayor of said cities is abolished.” The Act of April 23, 1903, P. L. 284, provided “that the title of the chief executive of cities of the second class, which is now city recorder, is hereby changed to mayor; this shall in no way change the powers or duties pertaining to such office or officers.” Held, that since the passage of the act of April 23, 1903, the mayor of Pittsburg is a member of the board of inspectors of Allegheny prison.
    Argued May 10, 1904.
    Appeal, No. 95, Oct. T.,1904, by defendant, from order of C. P. No. 3, Allegheny Co., Feb. T., 1904, No. 669, awarding a writ of peremptory mandamus in case of William B. Hays v. Inspectors of Allegheny County Prison.
    Before Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Petition for a writ of peremptory mandamus.
    From the record it appeared that the question involved is whether the mayor of Pittsburg is a member of the board of inspectors of Allegheny County Prison.

      The Act of March 23, 1865, P. L. 607, provides :
    “That the persons now holding the following offices, and their successors in Allegheny county, shall compose a board to be known by the name and style of inspectors of the Allegheny County Prison, to wit: The judges of the court of common pleas and district court of said county; the sheriff, controller and county commissioners thereof; the mayors of the cities of Pittsburg and Allegheny.”
    The cities of Pittsburg and Allegheny are cities of the second class.
    By the general Act of March 7, 1901, P. L. 20, it is provided :
    “ That the executive power in cities of the second class shall be vested in a city recorder, and in the departments authorized by this act. The office of mayor of the said cities is abolished.”
    By the Act of April 23, 1903, P. L. 284, it is provided:
    “ That the title of the chief executive of cities of the second class, which is now city recorder, is hereby changed to mayor; but this shall in no way change the powers or duties pertaining to such office or officers.”
    MoClung, J., filed the following opinion :
    The act of 1865, in designating the parties, who shall compose the- prison board, names inter alias, the persons holding the office of mayor of the city of Pitts burg and his successors.'
    The act of 1901 abolished the office of mayor in the city of Pittsburg. It however provided for an officer, who was called the recorder, but who might, with equal propriety, have been called mayor, as his duties were substantially the same as .those of the former mayors. He was the chief executive officer of the city.
    By the act of April 23, 1903, the title of the chief executive officer of the city was changed and again became mayor.
    If we concede that the mere change of name broke the sucsession, so that the recorder could not be considered as designated, by the act of 1865, as one of the prison board, reasoning in the same line, we must conclude that the restoration of the name gives us a party who comes within the designation of the act, as we now have one who is not only the successor of the person who was mayor of Pittsburg, as the incumbent of the chief executive office, but is also the mayor of that city.
    When the act of April 23, 1903, restoring the names, provides that it “ shall in no way change the powers or duties pertaining to such office or officer,” it does not at all affect the question now before us.
    The act of 1865 does not define the duties pertaining to the office of mayor, but simply refers to the occupant of that office, for the purpose of designating a person upon whom certain duties, outside of his official ones, shall devolve.
    The return to the alternative mandamus is insufficient and the demurrer to it must be sustained.
    The plaintiff is entitled to a peremptory writ as prayed for.

      Error assigned was the order of'the court.

      R. B. Petty, for appellants.

      W B. Rodgers, with him George II. Oalvert, for appellee.
    May 23, 1904:
   Per Curiam,

The judgment is affirmed on the opinion of Judge Mo-Clung.


text:
    Packard v. Thiel College, Appellant.

      Corporations—■Franchises—Parties—Equity—Act of June 19, 1871, P. L. 1360—College—Location.

    While the Act of June 19, 1871, P. L. 1360, was not intended to permit an inquiry at the instance of a private suitor as to the validity of a charter .or as to its forfeiture, it was intended to enlarge and make clear the rights of individuals to inquire into the charter franchises of corporations when asserted to their individual injury.
    Where an act for the incorporation of a college provides that the college shall be permanently located as shall hereafter be determined by the trustees, and the trustees have permanently located the college at a particular place, its location cannot be changed without an amendment of its charter. In such a case persons who have contributed funds for the establishment of the college in the place where it was located, have a standing to maintain a suit in equity to prevent its removal.

      Argued May 10, 1904.
    Appeal, No. 98, Oct. T., 1904, by defendants, from decree of C. P. Mercer Co., Oct. T., 1908, No. 1, on bill in equity in case of John R. Packard and L. L. Keck v. Tbiel College of the Evangelical Lutheran Church et al.
    Before Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Bill in equity to restrain the removal of Thiel College from Greenville, where it was located in 1872, to Greensburg.
    Miller, P. J., filed an opinion which was in part as follows :
    It seems so plain to us that the location of Thiel College is an essential part of its charter that such location cannot be changed without an amendment of the charter that argument in support thereof is unnecessary. Ordinarily the act of incorporation or the charter fixes the corporate location by name, but in the present case the act left the location to be determined by the trustees, the words of the act being: “ To 'be permanently located at such place in western Pennsylvania as the trustees hereafter may determine.”
    Manifestly the act contemplated but one location as made by the trustees, and that this should be the permanent corporate location of the college in the same sense that it would have been if the name of the place to be selected by the trustees had been written in the act itself. No power is given to the trustees to make any temporary location and no power is given to them to make any second location or relocation. The act simply authorized the trustees to make one single permanent location, and this is all they had any authority to do under any circumstances.
    The college having been actually located by the trustees at Greenville in the year 1872, a site procured, college buildings erected and the work of the college carried on without interruption for more than thirty years, it seems too plain for argument that the college could not be removed from Greenville, at least without an amendment of its charter.
    The only other question to be determined is, have the plaintiffs a legal standing to maintain this suit to prevent the unlawful removal of the college ? It is well settled that individual citizens can maintain suits in equity against corporations to restrain unlawful acts committed in exercise of corporate power where such acts are a transgression of private property or contract rights. If a suitor can show that his private individual rights, which are personal to him and which do not pertain to him as an ordinary citizen in common with others, are about to be invaded by an unwarranted exercise of power on the part of the corporation, we are of opinion and so hold that he has a right to prevent it by the remedy afforded by injunction. To hold that the plaintiffs have no standing to maintain this suit would be to declare that they never acquired any rights whatever under their contract for the location of the college and for which they paid their , money. The express language of the act of June 19, 1871, giving to the courts power to restrain by injunction unlawful acts of corporations at the suit of individuals, covers all cases where it is alleged “ that the private rights of individuals are injured or invaded by a corporation claiming to have a right or franchise to do the act from which such injury results.” Certainly this act is broad enough in its terms to cover the injury complained of in this case and include the plaintiffs in the class of persons for whom these provisions were intended.
    DECREE.
    And now, April 4, 1904, the preliminary injunction granted September 5, 1908, and continued by order of this court on September 24, 1903, is made perpetual, and it is ordered and decreed that the defendants, and each and every one of them, are enjoined and restrained from moving, disposing of or selling the personal property in and about the buildings situate in Greenville, and known as “ Thiel College,” and that they be perpetually enjoined and restrained from selling, dismanteling, or committing any act that will injure or lessen the value of the real estate of Thiel College, and that the defendants, and each and every one of them, be perpetually enjoined and restrained from removing Thiel College from Greenville, Pennsylvania, to Greensburg, Pennsylvania, or to any other place. And it is further ordered and decreed that the defendants shall pay to plaintiffs their legal costs incurred in this proceeding.

      Error assiyned was the decree of the court.

      W. A. Griffith, of Lyon, MeKee £ Mitchell, with him J. Boyd Buff, for appellants.

      Q. A. Gordon, with him E. S. Templeton, W. <7. Pettit, H. L. Keck, T. G. Whiteman and J. J. Donaldson, for appellee.
    May 23, 1904:
   Per Curiam,

The decree entered in this case is fully sustained by the reasons stated in the opinion of the court. By a special act of incorporation Thiel College was to be permanently located at such place in western Pennsylvania as should thereafter be determined by the trustees. After it had been permanently located by action of the trustees at Greenville, Mercer county, that place became as distinctly its only legal location as though it had been named in the charter. The plaintiffs, having contributed to a fund for the establishment and support of the college, have interests springing from their contract which differ from those of the public at large. While the Act of June 19, 1871, P. L. 1360, was not intended to permit an inquiry at the instance of a private suitor as to the validity of a charter or as to its forfeiture, it “ was intended to enlarge and mate clear the rights of individuals to inquire into the charter franchises of corporations when asserted to their individual injury Windsor Glass Co. v. Carnegie Co., 204 Pa. 459.

The decree is affirmed at the cost of the appellant.


text:
    Swope, Appellant, v. Snyder.

      Appeals—Assignments of error—Exceptions—Eguity—Practice.

    The Supreme Court will not consider on an appeal in an equity suit, assignments of error which relate to the admission or exclusion of testimony at the trial, and to the findings of fact and conclusions of law where the record shows that no exceptions were filed in the common pleas. Rule 67 of the Supreme Court relating to such assignments is mandatory and its violation cannot be overlooked.
    Argued May 11, 1904.
    Appeal, No. 23, Jan. T., 1904, by defendant, from decree of C. P. No. 8, Phila. Co., March T., 1900, No. 706, on bill in equity in case of James S. Swope v. Charles S. Snyder.
    Before Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Bill in equity to declare a deed void, and for a reconveyance.
    The court entered a decree in accordance with the prayer of the bill.

      Errors assigned were (1-44) various rulings on evidence, findings of fact and conclusions of law, none of which assignments were based upon exceptions filed in the common pleas.

      J. Howard Morrison, for appellant.

      Edward W. Manderson, H. Legrand Ensign and Alex. Simpson, Jr., for appellee.
    May 23, 1904:
   Per Curiam,

The assignments of error relate to the admission or exclusion of testimony at the trial, and to the findings of fact and conclusions of law. No exceptions were filed in the common pleas, and there is nothing to sustain the assignments. The rules of equity practice expressly provide for the filing of exceptions to cover all objections to rulings on evidence, findings of fact or law and to the decree in order that there may be an opportunity for a careful review by the judge who heard the case, or by the court in banc. Rule 67 is : “ Upon appeal to the Supreme or Superior Court such matters only as have been so excepted to and finally passed upon by the court shall be assignable for error.” It was said in Beatty v. Harris, 205 Pa. 377 : “ These rules are mandatory and their violation cannot be overlooked.”

The assignments of error are dismissed, and the decree is affirmed at the cost of the appellant.


author: Mb. Chief Justice Mitchell,

text:
    Commonwealth ex rel., Appellant, v. Couch.

      Public officers—Tax collector—Election—Term of office—Acts of April 13, 1868, P. L. 1017, February 27, 1872, P. L. 179, June 25, 1885, P. L. 187, and June 6, 1893, P. L. 333. .
    Section 13 of the Act of June 25, 1885, P. L. 187, relating to the collection of taxes in boroughs and townships, which provides that the act shall not apply to any taxes the collection of which is regulated by a local law, prevents the Act of June 6,1893, P. L. 333, providing for the election of tax collectors for the term of three years in the boroughs and township of the commonwealth, from repealing the local Act of February 27, 1872, P. L. 179, which extended to Huntingdon county the provisions of the Act of April 13, 1868, P. L. 1017, establishing a special system for the collection of taxes in Bedford county.
    Commonwealth v. Wunch, 167 Pa. 186, overruled.
    Argued April 19, 1904.
    Appeal, No. 82, Jan. T., 1904, by relator, from order of C. P. Huntingdon Co., Sept T., 1908, No. 82, refusing writ of peremptory mandamus in ease of Commonwealth ex rel. A. S. Peterson v. A. L. Couch et al., County Commissioners.
    Before Mitchell, C. J., Dean, Brown, Potter and Thompson, JJ.
    Affirmed.
    Petition for writ of peremptory mandamus.
    The petition alleged the relator’s election and qualification as tax collector in Franklin township, and averred that he was entitled under the general system provided by the Acts of June 25, 1885, P. L. 187, and June 6, 1898, P. L. 333, to the collection of the state and county taxes in said township, and that the county commissioners had instead delivered the duplicates of said taxes to the county treasurer, who was proceeding with the collection thereof, and prayed a mandamus requiring the commissioners to recall said duplicates and the county treasurer to return them to the commissioners for delivery at the proper time to relator.
    The return admitted that the duplicate had been delivered to the treasurer for collection, and that he was proceeding to collect said taxes, but averred that under .the local Act of April 13, 1868, P. L. 1017, entitled “ Act to provide for the collection of state, county, poor and military taxes in the county of Bedford,” extended to Huntingdon county by Act of February 27, 1872, P. L. 179, it was directéd' that the 'duplicates of such taxes be delivered to the county treasurer for collection, and that said local act had never been repealed.
    The court, in an opinion by Bailey, P. J., refused the writ.

      Error assigned was the order of the court refusing the writ.

      W B. Simpson, with him J. B. Simpson, for appellant.
    Thé act of 1885 and the act of 1893 being in pari materia, are to be construed together: Neeld’s Road, 1 Pa. 353; Jacoby v. Shafer, 105 Pa. 614; Com. v. Middletown Boro., 3 Pa. Dist. Rep. 639.
    Boroughs and townships are created by general laws, andaré the proper subjects of appropriate independent general legislation as such : Evans v. Phillipi, 117 Pa. 226 ; Com. ex rel. v. Macferron, 152 Pa. 244. This case is ruled by Com. v. Wunch, 167 Pa. 186.

      J. E. Schooh, with him S. I Spyher, for appellees,
    cited: Com. v. Bedford County Comrs., 6 Pa. Superior Ct. 211; Buckwalter v. Lancaster County, 12 Pa. Superior Ct. 272.
    May 25, 1904:
   Opinion by

Mb. Chief Justice Mitchell,

By the Act of April 13, 1868, P. L. 1017, a special system “ for the collection of state, county, poor and military taxes ” was established for the county of Bedford. By the Act of February 27, 1872, P. L. 179, the provisions of the act of 1868 were extended to Huntingdon county. The single question ■in the present case is whether the local system thus established is repealed by the Act of June 6, 1893, P. L. 333.

The act of 1898 is entitled “ An act to authorize the election of tax collectors for the term of three years in the several boroughs and townships of this commonwealth,” and the enacting portion of it consists of a single section directing that “ the qualified voters of every borough and township .... shall triennially .... elect one properly qualified person for tax collector in each of said districts, .who shall serve for the term of three years.” A second section merely repeals acts and parts of acts inconsistent therewith. This act is too incomplete to admit of administration by itself. The qualifications, .powers and duties of the tax collectors are nowhere indicated, and for them it is plain that we must look elsewhere. The gap is filled by the Act of June 25, 1885, P. L. 187, entitled “ An act regulating the collection of taxes in the several boroughs and townships of this commonwealth ” which defines the election, qualifications, bonds, duties and powers of the collectors and provides a carefully worked out system for the collection of taxes in boroughs and townships. It is a general system and would clearly apply to all the boroughs in the state and thus supersede all local systems were it not for the express provision to the contrary in section 13 that “ this act shall not apply to any taxes the collection of which is regulated by a local law.”

Reading the acts of 1885 and 1893 together, as we must do to give the latter any vitality for administration, it is plain that the later act .though not expressly so-called is a supplement to the former, and so considered its purpose is entirely clear. By the act of 1885 the tax collectors were elected annually for a term of one year. The act of 1893 authorizes and directs the election for a term of three years. This is the entire scope of the title “ to authorize the election of tax collectors for the term of three years ” and so far as appears the whole intent of the act. It repeals no provision of the act of 1885 expressly and none by implication except such as are inconsistent and the only one inconsistent is the term of office. To hold that it repealed the local Huntingdon act would be in plain disregard of the saving clause in section 13 of the act of 1885 without any warrant for so doing.

Com. ex rel. v. Wunch, 167 Pa. 186, is cited by appellant as sustaining a contrary view. In that case the local act in question, March 18, 1852, required the collection of taxes in the township of Long Swamp, to be given to the lowest bidder. The court of common pleas of Berks county held that this provision was inconsistent with the directions of the act of 1893 that the tax collectors should be elected by the qualified voters of the township. The inconsistency between the two acts was manifest and the learned judge in so deciding went further and expressed the opinion that all local laws in like manner inconsistent were repealed by the act of 1893. The decision was affirmed in a per curiam opinion by our late Brother Williams, in which his language was broad enough to sustain a similar construction. In Com. ex rel. v. Commissioners, 6 Pa. Superior Ct. 211, the Bedford (and Huntingdon) act of 1868 was in question, and the Superior Court held that it was not repealed, distinguishing Com. v. Wunch on the ground of the inconsistency between the act in question there and the act of 1893 and the absence of such inconsistency in the case in hand. The distinction unquestionably exists, and if the act of 1893 were a substantive act capable of standing by itself, the distinction would justify both decisions. But as already noted the act of 1893 is in substance only a supplement, a mere branch having no trunk to sustain it except the act of 1885, and the express provision in section 13 of that act stands immovably in the way of the construction of repeal. In Com. v. Wunch the limited scope of the act of 1893 and the express saving of local laws by the act of 1885 were not given their proper weight, and further consideration compels us to overrule that case.

Judgment affirmed.


author: Mb. Chief. Justice Mitchell,

text:
    Hoffman’s Estate.

      Inmacy—Persons of feeble mind—Act of June 25, 1895, P. L. 300—Will— Codicil—Presumption.

    The Act of June 25, 1895, P. L. 300, entitled “An act for the protection of persons unable to care for their own property,” is in pari materia with the lunacy acts, and should receive a construction upon the-same general lines. It establishes a legal status or condition, intermediate between normal mental capacity and insanity or idiocy, a state of weak or enfeebled mind, neither mens sana nor non compos mentis. It is a dangerous statute easily capable of abuse by designing relatives to accomplish the very wrong intended to be guarded against, and therefore to be administered by the courts with the utmost caution and conservatism.
    A decree under the Act of June 25, 1895, P. L. 300, that a person is of weak and enfeebled mind, and not able to take care of his property, raises a presumption that the person who is the subject of the decree is incapable of making a codicil to his will, but it does not close all inquiry as to the person’s capacity at the time of the execution of the codicil. The proponent of the codicil has the burden upon him to show testamentary capacity.
    Argued April 25, 1904.
    Appeal, No. 54, Jan. T., 1904, by Kate- F. Leñare, from decree of O. C. Erie Co., Nov. T., 1903, No. 19, dismissing appeal from Register of Wills in estate of Edward Hoffman, deceased.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Thompson, J J.
    Reversed.
    Appeal from register of wills.
    Walling, P. J., stated the facts to be as follows :
    Edward Hoffman made his last will on July 31, 1902, and in December, 1902, his daughter instituted proceedings in the court- of common pleas of Erie county to have him declared of weak mind under the Act of June 25, 1895, P. L. 300, entitled “ An act for the protection of persons unable to care for their own property.” In which proceeding the said court, on March 12, 1903, entered a decree that said Edward Hoffman, owing to weakness in mind, was not able to take care of his own property, and appointed a guardian for that purpose.
    Thereafter, on April 15, 1903, said Edward Hoffman, while under said guardianship, made and executed a codicil to his said last will. He died October 1, 1903. The will and codicil were admitted to probate, and thereupon Kate F. Leñare, whose legacy under the will was revoked by the codicil, took this appeal from the register’s decree admitting the codicil to probate ; and on her behalf it is urged that a subsisting decree of court declaring a person to be of weak mind under said act renders him legally incapable of making a will. It is not alleged that Edward Hoffman was, as a matter of fact, incompetent to make a will at the date of the codicil.
    The evidence of the three doctors and two lawyers who were witnesses to its execution satisfied the register of his testamentary capacity; and such capacity is also averred in respondents’ answer, and not denied.
    The codicil was in favor of Eulalia Hoffman, testator’s daughter.
    The court dismissed the petition and refused an issue.

      Error assigned was the decree of the court.

      Greorge A. Allen, with him Louis Rosenzweig, for appellant,
    cited: Albro’s Case, 7 Pa. Dist. Rep. 763; Heft’s Case, 8 Pa. Dist. Rep. 99; McLaughlin’s Est., 8 Pa. Dist. Rep. 113.

      Frank Giunnison, with' him Isador Sobél, Charles A. Mertens and Henry E. Fish, for appellees.

      May 25, 1904:
   Opinion by

Mb. Chief. Justice Mitchell,

The Act of June 25, 1895, P. L. 300, is in pari materia with the lunacy acts, and should receive a construction upon the same general lines. It is entitled “ An act for the protection of persons unable to care for their own property,” and establishes a legal status or condition, intermediate between normal mental capacity and insanity or idiocy, a state of weak or enfeebled mind, neither mens sana nor non compos mentis. This is a condition previously recognized in the law in regard to the* question of undue influence in the making of wills, now established by this statute in regard to the power of contract and of general management of estate and affairs—a dangerous statute easily capable of abuse by designing • relatives to accomplish the very wrong intended to be guarded against, and therefore to be administered by the courts with the utmost caution and conservatism.

The difficulty in the case which probably misled the learned judge below was that the claims of both parties are extreme, and neither can be sustained in its entirety. The testator was decreed to be of feeble mind and incapable of managing his affairs in December, 1902, and made the codicil to his will which is the cause of contention here in April, 1903. Appellant relying on the literal wording of section 5 of the act that after the decree “ the said person shall be wholly incapable of making any contract or gift whatever or any instrument in writing,” contends that the codicil is ipso facto void as a matter of law and must be totally disregarded. The proponents of the codicil on the other hand contend that as there is no expressed intent to repeal the provisions of the Wills Act, the words “any instrument in writing ” do not include a will, and the codicil is prima facie valid, and there being no evidence that the testator was non compos when he executed it, it must stand without further contest.

Neither position is altogether sound. Section 7 of the act provides that “ if at any time after the decree .... the party .... shall become able to care for his property, he or any of his family may present a petition to the court setting forth such fact,” and after hearing the court may so decree and discharge the guardian, etc. This is an express provision for setting aside the decree and restoring the status of contractual capacity during the lifetime of the party, but it is not exclusive of the ordinary rights and proceedings in regard to wills. The will of Edward Hoffman was made before the decree of incapacity against him. But that would not prevent a contestant from showing that he was non compos when he made it. And on the other hand the making of the codicil after the decree would not bar the parties from showing that he was of sound disposing mind when he made it. The contention of appellant therefore that the death of Hoffman without any revocation by the court of the decree of incapacity closed all inquiry on that subject is too broad and cannot be sustained.

On the other hand the claim of the appellees is equally untenable. As already said, this act and the lunacy act of 1836 are in pari materia and must receive a similar construction. Neither takes away the right and power of a sane man under the act of 1833 to make a will, but an adjudication by inquest or decree under either, raises a presumption of incapacity which can only be overcome by evidence of restoration of mental faculties or at least of lucid interval. The intent of both statutes was the same, the protection of the person and property of those not able to do it for themselves, and especially in the case of the act of 1895 to prevent the party’s estate from being squandered by him or unfairly obtained from him by designing persons, and to preserve it for him during his life and his family afterwards. It would defeat the larger part of the intent of the act to hold as we are asked to do that a man was incapable of making a sale of a ten dollar cow even for its full value, and yet capable of disposing of his entire estate by will. Whatever the difference in capacity required between a contract and a will, the latter is an “ instrument in writing ” and prima facie within the prohibition of the statute, and if made during the existence of a decree, the presumption against its validity can only be overcome by satisfactory evidence of restoration of capacity. The present case is an illustration of the danger of any other construction. It comes with bad grace from a daughter who had her father adjudged incapable in December, to present a codicil favorable to herself made by him in the fallowing April and claim validity for it without any evidence at all of a change of mental'condition between times.

It is argued by appellees that it was admitted by the appellant that the testator was of sound, mind, and the learned judge below based his opinion partly on the absence of a specific averment in appellant’s petition, that the testator was incompetent to make a will at the date of the codicil. He accordingly treated the question as one of law only, whether the decree of weak mindedness was conclusive of incompetency. But there was in fact no admission by appellant of soundness of mind, and as already said the judge was probably misled by the appellant’s extreme contention. The decree of weakness of mind was not conclusive as appellant argued, but it did raise a presumption which has not been met. The proof by the witnesses to the codicil was of the ordinary formal kind for purpose of probate and wholly insufficient to overcome the existing presumption under the decree.

The decree is reversed at the costs of the appellees, and the record is remitted with directions to revoke the probate of the codicil and award an issue devisavit vel non as to said codicil, in which the proponents shall be plaintiffs and be charged with the burden of proof.'


author: Mb. Justice Thompson,

text:
    Presbyterian Board of Foreign Missions v. Smith, Appellant.

      Contract—Consideration—Test of good consideration.

    A test of good consideration for a contract is whether the promisee at the instance of the promisor, has done, forborne or undertaken to do anything real, or whether he has suffered any detriment, or whether in return for the promise he had done something that he was not bound to do or had promised to do some act or has abstained from doing something. If any of the elements of such test be established the consideration becomes sufficient to support a promise although its inadequacy may be grossly disproportionate to the promise. The law does not consider such inadequacy.
    Where a person gives an obligation to a foreign missionary society to pay a sum of money designated, on condition that the society will expend the money in foreign mission work in a particular field, and thus establish a memorial to the donor’s mother, and the society accepts the obligation, receives a payment on account, sends missionaries to the particular field designated, and refrains from collecting other money for that field, the obligation is based upon sufficient consideration, and recovery may be had upon it against the estate of the maker after his death.

      The general trend of judicial decision is in the direction of sustaining contracts for subscriptions or donations to churches, or charitable or kindred institutions where the same have been duly accepted, their acceptance constituting a good consideration for the reason that obligations are thereby assumed. Per Thompson, J.
    Argued May 3, 1904.
    Appeal, No. 98, Jan. T., 1904, by defendant, from judgment of C. P. Warren Co., Dec. T., 1902, No. 10, on verdict for plaintiff in case of Board of Foreign Missions of tbe Presbyterian Church in the United States of America v. Sam. Q. Smith, Executor of M. Waters, Deceased.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Assumpsit on an obligation in writing. Before Thomas, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $2,199.65. Defendant appealed.

      Error assigned among others was refusal of binding instructions for defendant.

      Edward Lindsey and W E. Rice, with them W. D. Hinckley, J. H. Alexander and Earle V. MacDonald, for appellant.
    The paper writing on which the plaintiff seeks to recover in this case is a promise to give to a charity, without consideration, and as such was revoked by the death of Waters and is not binding on his estate: Thum’s Est., 18 Pa. C. C. Rep. 615; Cottage St. Church v. Kendall, 121 Mass. 528 ; Pratt v. Elgin Baptist Society, 93 Ill. 475; Helfenstein’s Est., 77 Pa. 328; Kennedy v. Ware, 1 Pa. 445; Smith’s Est., 144 Pa. 428; Phipps v. Jones, 20 Pa. 260 ; Yard v. Patton, 13 Pa. 278; Trough’s Est., 75 Pa. 115; Withers v. Weaver, 10 Pa. 391; Kidder v. Kidder, 33 Pa. 268 ; Scott v. Lauman, 104 Pa. 593 ; Appeal of Waynesburg College, 111 Pa. 130 ; Kern’s Est., 171 Pa. 55; McNutt v. Loney, 153 Pa. 281; Flanagan v. Nash, 185 Pa. 41; Walsh’s App., 122 Pa. 177 ; Cowen’s Est., 3 Pitts. 471; Clapper v. Frederick, 199 Pa. 609; Hafer v. McKelvey, 23 Pa. Superior Ct. 202; Hamilton College v. Stewart, 1 N. Y. 581; Reimensnyder v. Gans, 110 Pa. 117; Presbyterian Church v. Cooper, 112 N. Y. 517; Johnson v. Otterbein University, 41 Ohio, 527.

      O. W. Stone and D. I Ball, for appellee.
    The paper writing on which the plaintiff seeks to recover in this case is an obligation founded on a valid and sufficient consideration, and as such is binding on the estate of M. Waters, the obligor: Irwin v. Webster, 36 L. A. R. 239 ; Helfenstein’s Est., 77 Pa. 328; Collier v. Baptist Education Society, 8 B. Monroe, 68 ; Ladies’ Collegiate Institute v. French, 82 Mass. 196; Maine Central Institute v. Haskell, 73 Me. 140; McDonald v. Gray, 11 Iowa, 508; Kentucky Female Orphan School v. Fleming, 73 Ky. 234; Keuka College v. Ray, 167 N. Y. 96 (60 N. E. Repr. 325) ; Roche v. Roanoke Classical Seminary, 56 Ind. 198; Garrigus v. Home Frontier & Foreign Missionary Society, 3 Ind. App. 91 (28 N. E. Repr. 1009) ; Johnston v. Wabash College, 2 Ind. 555; Albert Lea College v. Brown, 60 L. R. A. 870 ; Amherst Academy v. Cowls, 23 Mass. 427; Phipps v. Jones, 20 Pa. 260; Pierson’s Est., 18 Pa. C. C. Rep. 651; Farmington Academy v. Allen, 14 Mass. 172; Homes v. Dana, 12 Mass. 190 ; Hart’s Est., 7 W. N. C. 162; Methodist Episcopal Church v. Garvey, 53 Ill. 401.
    May 25, 1904:
   Opinion by

Mb. Justice Thompson,

The appellant’s contention in this case turned upon the question whether there was a good consideration for the instrument of writing upon which this suit was brought. A test of good consideration is whether the promisee at the instance of the promisor, has done, forborne or undertaken to do anything real, or whether he has suffered any detriment or whether in return for the promise he has done something that he was not bound to do or has promised to do some act or has abstained from doing something.

If any of the elements of such test be established the consideration becomes sufficient to support a promise although its inadequacy may be grossly disproportionate to the promise. The law does not consider such inadequacy and a learned judge-has significantly said that “ the smallest spark of benefit or accommodation was sufficient to create a valid consideration for a promise.” If therefore the proofs in the present case establish any of these elements which constitute a good consideration, appellant’s contention that there was none must necessarily fail.

The instrument in question was made May 25, 1901, by the decedent, M. Waters, and by it he promised “ to pay to Mr. Charles W. Hand, or his successor, Treasurer of the Foreign Mission Board of the Presbyterian Church, North, the sum of Ten thousand dollars ($10,000), in payment as follows, viz: two thousand dollars annually on the first day of June, 1901, 1902, 1908, 1904 and 1905, without interest ” reserving “ the privilege of paying any part or all of the above amounts in advance of the dates specified.” It is added in the instrument: “ The foregoing is a memorial of my mother, Mrs. Polly Waters, and is to be used in foreign mission work by the Foreign Mission Board of said Presbyterian Church.” Upon the back of the instrument was indorsed, “ Paid on the within, New York, May 28, 1901, Two thousand dollars ($2,000) The Board of Foreign Missions, of the Presbyterian Church in the U. S. A., Charles W. Hand, Treasurer.”

The decedent when he executed this obligation contemplated certain terms in regard to it. Those were that the board would accept it and undertake to expend the money in foreign mission work and thus establish a memorial of his mother. The Reverend Mr. Smith testified that he told Mr. Waters that he would go to New York and take the obligation with him and present it to the board of foreign missions and that if they refused to accept it on the terms that he wished that he would return and bring it back to him. He testifies: “ I was to ask the board if they would accept it on these terms. It was to be spent in foreign mission work preferably in China, and I went to New York and consulted with the secretary of the board.” He further testifies that he stated to the board that if they would accept the $10,000 it would be paid to them, provided they would accept and expend it in doing mission work in China. That he came back and reported to Mr. Waters that the board had so agreed and that the treasurer would receive this money for this purpose. And again he stated that he came back and reported to him that they would accept it on these conditions and that he was entirely satisfied. That when he went to New York at the request of Mr. Waters, he took with him a draft for $2,000, the first payment provided for, which he gave to Mr. Hand, who received it as treasurer,- and he gave him a receipt for the same which he delivered to decedent.

Mrs. Waters testifies that Dr. Smith told her husband that everything was arranged and that so soon as they could they would put missionaries in the field, using the money for that purpose.

The secretary of the board of foreign missions testified that under the agreement with Mr. Waters two missionaries were appointed and sent to China to the province of Hunan and that because of this obligation of Mr. Waters the board had refrained from attempting to raise funds for the maintenance and prosecution of missionary work in the province in question. That it would have been obliged to raise money for that province if it had not been for its reliance upon this obligation.

It is clear therefore that the obligation was delivered to appellee and duly accepted by it. That by reason of such acceptance it undertook to expend the money in missionary work in China and to establish thus a memorial in honor of the mother of decedent. There was thus clearly on its part an obligation assumed by it to perform the work designated and in pursuance of this agreement to do the work it received the first payment on account of the same. It accordingly undertook and entered upon the performance of an integral part of the work in question. Relying upon this obligation it refrained from collecting money for missionary purposes in the province in China and employed and sent two missionaries there for the purpose of doing the work that it had stipulated to perform by the acceptance of the obligation. It does not, however, appear when these missionaries were sent, whether before or after the death of Mr. Waters, but it would seem that taken in connection with the inference from the terms of the instrument and with the receipt of the part of the money stipulated therein to be paid, the presumption arises that the work was undertaken and the expenditures therefor incurred, prior to the death of Mr. Waters, and not subsequent to it. The acceptance of the instrument, the obligation imposed and assumed to do the work for the purposes contemplated, the receipt of the money and the entering upon the performance of an integral part of the work, the refraining from making collections and the employment of missionaries, establish beyond doubt that there was a sufficient consideration for the obligation in question. It has been held that the acceptance of an obligation sucli as the instrúment sued upon alone and without anything further con7 stitutes a sufficient consideration therefor. In the case of Helfenstein’s Estate, 77 Pa. 328, where the note was delivered after the death of the maker to the seminary in whose favor it was drawn, it was said by Mr. Justice Sharswood : “ Or if the note had been accepted by the trustees before the death of the promisor, it would have stood on the footing of the principle applied in Chambers v. Calhoun, 18 Pa. 13 : for in such case if the trustees assumed the duty imposed upon them by the terms or condition of the note, it would have been a sufficient consideration to sustain the promise. But when the decedent died, the trustees had not accepted the note, and his death was a countermand in law of' the offer, for such it must be considered until accepted. In Phipps v. Jones, 20 Pa. 260, where there was a subscription with others for the benefit of a proposed association to build a church, it was held that it was a mere proposal, revocable until the association was formed and the promise accepted, and the death of the subscriber was such a revocation.”

In Maine Central Institute v. Haskell, 73 Me. 140, it is said :

. “ The promise was of money for a specified purpose “ to make up a'building fund for said institution.” This purpose was ever recognized by the law as a public charity. The promise was made to a definite payee by name, one legally competent to take, incorporated for the express purpose of carrying out the object contemplated in the promise and therefore amenable to law for negligence or abuse of the trust. It is not of course binding upon the promisor until accepted by the promisee and may up to that time be considered as a revocable promise. But when so accepted and much more when the. execution of the trust has been entered upon, when money has been expended in carrying out the purpose contemplated, it becomes a completed contract binding upon both parties; the promise to pay and at least the -implied promise to execute, each being a consideration for the other.”

See Albert Lea College v. Brown, 60 L. R. A. 870 ; also Garrigus v. Home Frontier and Foreign Missionary Society, 3 Ind. App. 91.

In Roche v. Roanoke Classical Seminary, 56 Ind. 198, it is said: “ It was the absolute and unconditional promise of the maker of the note, not dependent by its terms upon the acts of any other man or body of men, to pay as therein stipulated for the purpose therein expressed. And in our opinion, the only matters which could have been answered in this action, to constitute a failure of consideration of the note in suit, would have been an alleged abandonment by the appellee of the enterprise for which it was incorporated and in aid of which the note was executed.”

See Keuka College v. Ray, 167 N. Y. 96; Athol Music Hall Company v. Cary, 116 Mass. 571.

In case of Amherst Academy v. Cowls, 23 Mass. 427, it is said: “ But it is quite sufficient to create a consideration that the other party the payee, should have assumed an obligation in consequence of receiving the note, which he was compellable either at law or in equity to perform, unless the promisor should be able to show when sued, that the payee had refused, or was unable or had unreasonably neglected to perform the engagement on his part; in which cases a defense might be raised on the ground of a failure of the consideration.”

See Ladies’ Collegiate Institute v. French, 82 Mass. 196.

The general trend of judicial decision may therefore be said to be in the direction of sustaining contracts for subscriptions or donations to churches or charitable or kindred institutions, where the same have been duly accepted, their acceptance constituting a good consideration for the reason that obligations are thereby assumed. Assuredly such contracts should not be stricken down by the enforcement of a close technical rule, made for the possible protection of the individual, but upon broad principles, should be sustained by judicial authority so as to effectuate the purposes intended. In the present case there was not only the obligation to pay directly, but the acceptance of the same by appellee, its receipt of part of the money, its part performance of the obligations assumed, its undertaking to carry them out and the refraining on its part from making collections on account of the instrument. It. was not therefore a gift revocable upon the death of the donor, but it was an express obligation to pay, based upon a good consideration.

The very able and learned argument of the appellant, with it varied citation of authorities, failed to shake the position taken by the appellee, because the facts as stated had rendered it impregnable.

The assignments of error are not sustained and the judgment is affirmed.

       Also reported 28 N. E. Repr. 1009.—Reporter.

       Also reported 60 N. E. Repr. 325.—Reporter.


text:
    Laughead, Appellant, v. H. C. Frick Coke Company.

      Accord and satisfaction—Payment—Release—Receipt.

    Where an accord is founded upon a new consideration and is accepted as satisfaction it operates as such and bars the remedy on the old contract. There is an obvious distinction between an engagement to accept a promise in satisfaction and an agreement requiring performance of the promise. If the promise itself and not its performance is accepted, in satisfaction, this is a good accord and satisfaction without performance.
    The accord is sufficiently executed when all is done, which the party agrees to accept in satisfaction of the pre-existing obligation. This is ordinarily a matter of intention, and should be evidenced by some express agreement to that effect, or by some unequivocal act evidencing such a purpose. This may be done by surrender of the former securities, by release or receipt in full, or in any other mode. All that is requisite is, that the debtor should have executed the new contract to that point whence it was to operate as satisfaction of the pre-existing liability, in the present tense.
    Where a person gives to a corporation a receipt in full for unliquidated damages upon a disputed claim, and accepts at the time a certain amount of cash and a promise from the corporation's general manager to give him a salaried position in another company when a certain contingency should happen, the transaction is a complete accord and satisfaction and the person giving the receipt cannot recover upon his original contract.
    Argued May 9, 1904.
    Appeal, No. 97, Jan. T., 1903, by plaintiff, from order of C. P. Fayette Co., March T., 1900, No. 211, refusing to take off nonsuit, in case of Walker W. Laughead v. H. C. Frick Coke Company.
    Before Fell, Broto, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Assumpsit for services. Before Umbel, J.
    The facts appear by the opinion of the Supreme Court.

      The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      J). M. Herteog, with him Edward Campbell and Robinson McKean, for appellant.
    There are two essential elements in the transactions: (1) an agreement to do something or an accord, and (2) the execution of that agreement or performance of what was agreed to be done, which performance operates as the satisfaction. Until both parts of the new transaction are complete in all respects there is no satisfaction of the original claim and suit thereon is not barred: Spruneberger v. Dentler, 4 Watts, 126; Hearn v. Kiehl, 38 Pa. 147; Hosler v. Hursh, 161 Pa. 415; Hart v. Boller, 15 S. & R. 162.
    A receipt is always open to explanation: Nichols v. Nichols, 133 Pa. 438.

      Katinl Ewing, with him George D. Howell, for appellee.
    This claim being disputed, and the promised employment being the obligation of a third party, and the agreed sum having been paid by the defendant and accepted By the plaintiff and a receipt in full of the claim given, that receipt is conclusive and impeachable only for fraud, accident or mistake: Keim v. Kaufman, 15 Pa. C. C. Rep. 541; McClymonds v. Stewart, 2 Pa. Superior Ct. 310.
    May 25, 1904:
   Opinion bt

Mb. Justice Thompson,

Accord and satisfaction and a receipt in full given by appellant to appellee in settlement of a disputed claim for unliquidated damages, it was contended by appellee, were a bar to appellant’s right to recover and were the principal grounds upon which the learned trial judge based his reasons for a compulsory nonsuit.

In the early part of 1894, appellant, who in July, 1894, was in the employment of the appellee, as a superintendent of the Oliphant furnace, met Thomas Lynch, its general manager, and spoke to him in regard to some negotiations for the purchase of certain coal lands on behalf of appellee. These negotiations had been previously begun by it. The general manager suggested that if appellant “ would turn in to make the purchase for them ” that appellee would “ pay him for his services ” and “ would in the future gladly do anything for him.” Appellant stated that he thought that he could make the purchase for $187,000, and began negotiations with the owners with a view to accomplishing that result. Subsequently on May 14, 1894, the general manager wrote appellant, authorizing him to make the purchase at the price of $850 per acre, or an aggregate price of $185,000. Accordingly in pursuance of this authorization, he procured the owners of the property to enter into an agreement for its sale for $187,000 and the purchase of the property was consummated. By virtue of it a deed was executed August 16, 1894, to a nominal purchaser who subsequently made a conveyance to appellee. Up to the date of the purchase no specific compensation had been stipulated to be paid to appellant by appellee for his services, but in December, 1894, appellee’s general manager, being at the Oliphant furnace, said to appellant, “We have never paid you for buying the Brownfield coal; we want to pay you. We think you ought to be paid. What do you think would be a fair price ? ” Appellant replied, “ What do you think would be a fair price ? ” and added that he would think the matter over and see him later upon the subject. A few days after this interview he received from appellee a check for $300 and a voucher for the same. Appellant having declined to accept this, it was then proposed to arbitrate the matter of compensation, and an arbitrator was agreed upon, but he declined to act. Some three or four weeks later the manager was again at the Oliphant furnace and said to appellant, that he could add another $100 and that he had a check and voucher for the same. Appellant asked him if he intended to give him a position and added, “ If you give me the position and $500 in money, we will not say anything further about it.”

The position referred to was a position in the employment of the Union Supply Company, the duties of which were the purchase of cattle. That company was a company distinct from appellee, but of which appellee’s general manager was an official. A day or two after this interview, the occupant of the position referred to died, and Mr. Lynch stated to appellant that he could have it but that he could not get it until certain questions in regard to mining rights were settled and until then the temporary occupant would continue to occupy it. Subsequently appellee having agreed to appellant’s proposition sent him a check and a voucher. He collected the $500 and returned to appellee the voucher receipting in full of all claims for services. It clearly appears that he made the settlement ■ upon Mr. Lynch’s promise to give him the position. He knew that it was filled. When asked the question whether he expected to get the position before the mining rights were settled he stated that he did not know. He further testified that the settlement was made in February, 1895, and he expected to get the position either in May or the first of June following. That he was led to believe that whenever the mining rights were settled the position would become vacant and he would be employed to fill it. He thus rested upon the promise of Mr. Lynch to obtain the position at a future day and continued to do so until 1897, when he called upon him and inquired what he expected to do about it and received the reply, “ As soon as the place is vacant I will let you have it,” and in 1900 the present suit was brought.

The proofs show that he agreed to settle his claim against the appellees for the sum of $500 and the promise of the position indicated by the Union Supply Company, the employment to commence when a vacancy in the position should occur, but that such vacancy was to be dependent upon a settlement of matters growing out of certain mining rights in which the then occupant was interested. It does not appear that the contingency upon which such vacancy was to arise has yet occurred. Appellant accepted the promise and received the $500 in question and having received the same, he receipted in full for services. The accord and satisfaction thereby became complete and the appellant cannot recover upon his original contract.

In Hosler v. Hursh, 151 Pa. 415, Mr. Justice Sterrett says: “ It is no doubt true, as was held in Babcock v. Hawkins, 23 Vermont, 561, cited by the learned president of the common pleas, that where the accord is founded upon a new consideration and is accepted as satisfaction, it operates as such, and bars the remedy on the old contract. There is an obvious distinction between an engagement to accept a promise in satisfaction and an agreement requiring performance of the promise. If the promise itself and not its performance is accepted, in satisfaction, this is a good accord and satisfaction without performance.”

In the case referred to, Babcock v. Hawkins, 23 Vermont, 561, it is said : “ The accord is sufficiently executed when all is done, which the party agrees to accept in satisfaction of the pre-existing obligation. 'This is ordinarily a matter of intention, and should be evidenced by some express agreement to that effect, or by some unequivocal act evidencing such a purpose. This may be done by surrender of the former securities, by release or receipt in full, or in any other mode. All that is requisite is, that the debtor should have executed the new contract to that point whence it was to operate as satisfaction of the pre-existing liability, in the present tense.”

The receipt in the present case was in full and was a receipt for unliquidated damages upon a disputed claim and as such became final and conclusive because not successfully impeached upon the ground of fraud, accident or mistake. If standing alone unimpeached, it became a bar to appellant’s recovery, it certainly cannot cease to be so operative, because in addition thereto and in connection therewith he accepted from another company, distinct from appellee, a promise of a certain position in that company’s employment. In the case of Flynn v. Hurlock, 194 Pa. 462, it is held:

“ Where a receipt is given ‘ in full of all demands ’ because the debtor refused to pay any more money without it, the creditor must be assumed to have received the money upon the express condition that it was in full of all demands, and he is concluded by it, notwithstanding his assertion at the time, that he ‘waived no rights.’”

In view of the above conclusion it is unnecessary to discuss the question whether the tender of the $500 was a necessary condition to be performed before suit could be brought by appellant.

The assignment of error is not sustained and the judgment is affirmed.


author: Me. Justice Mesteezat, Mb. Justice Bbown, Mb. Justice Potteb :

text:
    Welker v. Metcalf, Appellant.

      Contract—Breach of promise of marriage—Form of action—Trespass— Assumpsit—Pleading—Objection to form of action.

    Where an action for breach of promise of marriage is brought in trespass, it is too late for the defendant to object to the form of action after he has ruled the plaintiff to file her declaration, has himself filed a plea of “not guilty,” has then ruled the plaintiff to file a bill of particulars, and subsequently when the ease is first called for trial secures a continuance at his own cost.

      Contract—Breach of promise of marriage—Defense—Character of woman —Chastity.

    In an action by a woman against a man to recover damages for breach of promise of marriage, where the court affirms the defendant’s point that “there is no evidence in the case, that the defendant at the time of the alleged promise to marry, had any knowledge of the conduct of the plaintiff being other than that of a chaste and virtuous woman,” it is error for the court to submit to the jury the question whether or not the defendant knew the plaintiff was of bad character for chastity at the time he entered into the alleged marriage contract.
    Argued May 10, 1904.
    Appeal, No. 140, Jan. T., 1908, by defendant, from judgment of C. P. Blair Co., June T., 1901, No. 246, on verdict for plaintiff in case of Emma Welker v. H. Z. Metcalf.
    Before Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Reversed.
    Trespass to recover damages for an alleged breach of promise of marriage. Before Bell, P. J.
    At the trial plaintiff testified that about September 1,1898, there was a mutual agreement to marry entered into between herself and defendant; that the defendant put off the marriage, alleging the illness of his daughter, and finally in May, 1901, broke the engagement altogether. The defendant denied the contract. A number of letters between the parties were offered in evidence. The defendant alleged that during the years from 1897 to 1900, plaintiff was leading an improper life, but that he knew nothing of it.
    The court charged in part as follows:
    [Then you will have with you in your jury room the letters written by Mr. Metcalf to Mrs. Welker, which she has produced here. She says there were others written, but these are the only ones that have been preserved. You will examine these letters and determine whether they are love letters, such as she alleges them to be, or whether they are letters of platonic friendship, such as Mr. Metcalf alleges. She testifies that one reason why they are apparently cold in their tone and do not seem to be very amorous or loving letters is that Mr. Metcalf requested her to abstain from putting anything in the nature of affection or love in the letters for fear they might fall into other hands than his own, for fear, especially, that his daughter might get hold of them. He denies that. Then it is claimed on the part of Mrs. Welker, the plaintiff, that these letters, or at least some of them, wind up with “ much love and kisses,” and in one or two letters he says, “ now dear,” etc.; and it is claimed on the part of Mr. Metcalf that some wind up “ yours with respect,” and when he sends love to Mrs. Welker he always sends it to her friend, “Mazie.” You have heard these letters and their contents commented upon by the respective counsel. You will have them in the jury room and you can determine how they strike you, whether as love letters or letters of friendship. Of course, if they are love letters, such letters as a man of age, education and position in life of Mr. Metcalf would write to a lady of the age and position in life of the plaintiff, they would be very strong corroboration of the allegation that there was an engagement of marriage.] [3]
    [If you determine on the weight of the evidence that there was no engagement of marriage between them, then you would stop right there and find for the defendant; but if on the weight of the evidence you determine there was an engagement of marriage between them then you would go on and inquire in the second place as to the character of Mrs. Welker for chastity. It is alleged on the part of the defendant that in 1897, 1898, 1899 and 1900, he did not know that Mrs. Welker was leading an unchaste life; that she was living over Mateer’s drug store with a companion, “ Mazie,” and that these two ladies had no ostensible means of livelihood, and that they received entirely too many gentlemen visitors; that gentlemen, some of them from out of town, and some citizens of Altoona, went there at unseemly hours of the night, as testified by the two policemen; that Mrs. Welker was of unchaste character, and that Col. Maxwell lived there on rather equivocal terms, and that Col. Maxwell, on one occasion, as testified to by Mr. McKee, was there to a beer lunch, and Mr. McKee says Col. Maxwell took her out of the parlor, and it is insinuated at least on the part of the defendant that Col. Maxwell was criminally intimate with the prosecutrix. Then you have the testimony of ex-sheriff Bell, that he went there and took a gentleman by the name of Graham, from a distance, there. On the contrary it is claimed by Mrs. Welker that she came to Altoona with the idea of getting some employment; that she had $8,000 of her own money, and it was not necessary for her immediately to go to work, and in 1897 or 1898, she became engaged to Mr. Metcalf, and was waiting from time to time for him to marry her; and that the men going there at night, if they did go there at all, went there to see Col. Maxwell, and did not go there to see her at all. You will determine on the weight of the evidence whether Mrs. Welker, the plaintiff, at the time she entered into the alleged contract of marriage, and down to 1901, was of bad character for chastity, you will determine that question on the weight of the evidence ; if on the weight of the evidence you determine that she was not of bad character for chastity, then you can dismiss that question of character for chastity from the case entirely; but if on the weight of the evidence you determine she was of bad character for chastity, then you can give such bad character for chastity two results. First. If Mr. Metcalf was ignorant of her character when he entered into the engagement to marry, if he did enter into such engagement, then he would not be bound to carry it out with a woman of bad character for chastity, and your verdict should be for the defendant. But if when he entered into the contract to marry her he knew that she was of bad character for chastity, or found it out during the course of the engagement, and still persisted in keeping up the engagement, all the effect that the bad character for chastity would have would be to mitigate the damages which a jury should give the plaintiff in the case.] [5]
    [Now, gentlemen, all the plaintiff would be entitled to in this case, if you find for the plaintiff, would be compensatory damages, unless you find that the defendant, without any probable cause, made an uncalled for attack on her chastity here in court. It is the law that where a defendant in a breach of promise case makes an uncalled for attack, an attack without probable cause on the chastity of the plaintiff, and fails to establish such want of chastity, that then the jury can consider such uncalled for attack and determine whether it warrants them in punishing the defendant by imposing exemplary or punitive damages. Exemplary or punitive damages are the fourth class of damages, and the word punitive suggests the definition, damages which are intended not to compensate the plaintiff, but to punish the defendant, but such exemplary damages are not to be allowed by the jury in this case unless when an attack on the chastity of the plaintiff is made there is a want of probable cause. Probable cause is a reasonable ground to believe that the allegation is true. And if you arrive at this question you ask yourself, if 'you find it was not true, had Mr. Metcalf in his defense a reasonable ground for believing that these aspersions on the character of Mrs. Welker were correct, or did he make them knowing they were incorrect and untrue, with the idea of holding her up to public ridicule and scorn on false accusations in the courthouse. If he had reasonable ground for making aspersions, even if they are not true, you should not allow any punitive or exemplary damages.] [6]
    Verdict and judgment for plaintiff for $2,466.67. Defendant appealed.

      Errors assigned were (1) in overruling defendant’s demurrer; (2) in refusing to instruct the jury that no recovery could be had because the action was brought in trespass and not in assumpsit ; (3, 5, 6) above instructions, quoting them.

      A. A. Stevens, of Stevens Paseoe, with him W. II. Bridenbaugh, for appellant.
    Damages for breach of promise of marriage are recoverable in an action of assumpsit, not in trespass : Donovan v. Foley, 5 Pa. Dist. Rep. 91; Harding v. Lee, 12 Pa. Dist. Rep. 49 ; Von Storch v. Griffin, 77 Pa. 504.
    A man is not bound by a contract of marriage, if in ignorance of her true character he has entered into it with a woman who has earned an evil reputation by a vicious or reckless life : Von Storch v. Griffin, 77 Pa. 504.

      J. F. Sullivan and A. V. Dively, of Dively Dively, for appellee.
    Trespass was the proper action: Hay v. Graham, 8 W. & S. 27 ; Baldy v. Stratton, 11 Pa. 316 ; Moritz v. Melhorn, 13 Pa. 331; Phelin v. Kenderdine, 20 Pa. 354 ; McCormick v. Robb, 24 Pa. 44; Beelman v. Roush, 26 Pa. 509; Wagenseller v. Simmers, 97 Pa. 465 ; Gring v. Lerch, 112 Pa. 244 ; Bleiler v. Koons, 132 Pa. 401.
    The only case reported in which an action of assumpsit was brought is the case of Van Storch v. Griffin, 77 Pa. 504. That case was decided by this court May 10, 1875. The question of the form of action was not raised before this court.
    The defendant is too late to object to the form of action when he has ruled the plaintiff to file his declaration and entered his plea of “ not guilty,” ruled the plaintiff for bill of particulars and received same, and subsequently, when the cause was reached and ready for trial, has it continued on his motion and at his expense, and placed on the trial list and ready for trial a second time : Coates v. McCamm, 2 Brown, 173; Stimmel v. Miller, 8 Pa. C. C. Rep. 128; Hoopes v. Pusey, 2 Chester County, 306 ; Beitler v. Study, 10 Pa. 418 ; Stoekle v. Stoekle, 2 W. N. C. 534; Myers v. Wogan, 55 Pa. C. C. Rep. 266.
    Parties are presumed to intend what their conduct fairly indicates ; an engagement to marry him may with perfect propriety be inferred by the jury from their conduct, their treatment to each other, their epithets, their letters, their habits : Wagenseller v. Simmers, 97 Pa. 465 ; Waters v. Bristol, 26 Conn. 398.
    Mere improprieties not amounting to unchastity is no defense to an action of breach of promise of marriage, but only goes in mitigation of damages : Von Storch v. Griffin, 71 Pa. 240.
    May 25, 1904:
   Opinion by

Me. Justice Mesteezat,

The defendant was too late in raising the question of the right of the plaintiff to maintain an action of trespass for the injuries complained of in this case. The writ was issued on May 29, 1901. The defendant appeared by counsel, and on July 8 ruled the plaintiff to file her declaration on or before the first Monday of the following August. The plaintiff’s statement was filed on July 13, and on the same day she ruled the defendant to plead. The plea of “ not guilty ” was entered by the defendant on August 5, 1901, and on September 2 he ruled the plaintiff to file a bill of particulars, which was done on September 16, 1901. The case was called for trial on November 11, and was continued on..the application and at the costs of the defendant. On February 5, 1902, defendant’s counsel moved the court for leave to withdraw the plea and to file a special demurrer. The record discloses no action by the court on this motion. The demurrer was filed and overruled.

In this state of the record the learned judge was right in refusing to permit the defendant to withdraw his plea. The statement which he ruled the plaintiff to file informed him of the cause and of the form of action. He then had the information as well as the opportunity to enable him to plead intelligently and to attack the form of action, if he so desired. Instead of filing a demurrer and raising the question of the right of the plaintiff to maintain trespass for the cause of action set out in the statement, he entered a plea of not guilty, thereby admitting that the action was proper in form, and waiving his right to attack it on that ground. Subsequently he ruled the plaintiff to file a bill of particulars, and when the case was on the trial list, had it continued at his own cost without any suggestion by him that the plaintiff had mistaken her form of action. It was nearly three months after the postponement of the trial, that he made his first attempt to abate the action by filing a demurrer. He was clearly too late, and by his delay must be held to have waived any defect or error in the form of action.

The fifth assignment must be sustained. The court affirmed the defendant’s fourth point that “ there is no evidence in the 'case that the defendant at the time of the alleged promise to marry, had any knowledge of the conduct of the plaintiff being other than that of a chaste and virtuous woman.” It was therefore manifest error to submit to the jury, as the trial court did, the question whether or not the defendant knew the plaintiff was of bad charactor for chastity at the time he entered into the alleged marriage contract. The plaintiff’s character for chastity at that time and the defendant’s knowledge of it, were both material facts in the case. If her character in this respect was bad at the date of the contract, and the defendant then knew the fact, her bad character would be no defense to this action! If, however, he was ignorant of the fact, her bad character can be interposed as a defense and the contract cannot be enforced against him. “ A man has a right to require,” says Woodward, J., in Von Storch v. Griffin, 77 Pa. 504, “ that his wife shall come to him with an unstained name. If he is inveigled into an engagement by a harlot, he is the victim of a sheer, bald fraud. Elaboration of a subject like this would be simple platitude. It is enough to say, that the law will not enforce a contract of marriage in favor of a party to it who is not fit to be married at all. A man is not bound by such a contract if, in ignorance of her true character, he has entered into it with a woman who has earned an evil reputation by a vicious or reckless life.”

The learned judge submitted to the jury with proper instructions, the question of the character of the plaintiff for chastity. There was sufficient evidence to warrant the submission. He then told the jury that if Mrs. Welker’s character for chastity was bad, and the defendant was ignorant of the fact, the verdict should be for the defendant, but if he knew her character when he entered into the contract, or found it out during the engagement and persisted in keeping up the engagement, her bad character would not prevent a recovery, but would only mitigate the damages. The verdict was for the plaintiff. The jury, therefore, under the charge found that the plaintiff’s character for chastity was not bad, or that it was bad but the defendant knew the fact. What their finding was on this question is, of course, not known. But that they may have found that the defendant knew the plaintiff’s character was bad when there was no evidence to support the finding requires the verdict to be set aside. The jury should have been plainly told that if they found that Mrs. Welker’s character for chastity was bad at the time the marriage contract was entered into, there could be no recovery in the action, and the verdict should be for the defendant.

As the case goes back for a retrial, we do not deem it necessary to consider the other assignments of error. The letters were admissible as evidence tending to prove the alleged contract and we think the charge, taken as a whole, left the weight to be given them to the judgment of the jury.

The fifth assignment is sustained, and the judgment is reversed with a venire facias de novo.

Mb. Justice Bbown,

concurring:

I concur in the reversal of this judgment, but would reverse it without a venire. The defendant moved for leave to withdraw his plea of not guilty, and the court thereupon permitted the demurrer to be filed, and acted upon it. Having thus permitted the defendant to raise the question of the plaintiff’s right to sue in trespass, instead of bringing her action in assumpsit for breach of contract, the demurrer should have been sustained.

Mb. Justice Potteb :

. I concur in the view expressed by my Brother Bbown.


author: Mb.. Justice Dean,

text:
    Continental Title & Trust Company v. Devlin, Appellant.

      Practice, C. P.—Affidavit of defense—Written contracts.

    Where in an action of assumpit it appears that the ease turns upon the interpretation of written contracts set forth in the statement of claim and affidavit of defense, and there is no substantial dispute as to facts, the court has jurisdiction to direct a verdict for one side or the other in accordance with its interpretation of the writings.

      M ortgage—M erger—Payment—Intention.

    The rule “that if the holder of a senior mortgage purchase the equity of redemption, the sale being made on a junior mortgage held by him," subject to the lien of the senior mortgage, such purchase operates as a payment of the debt evidenced by the senior mortgage, and such mortgage is barred from further remedy on the debt,” applies only where it is the intention of the parties that the purchase should operate as a payment of the debt evidenced by the senior mortgage. If it appears that there was an express agreement of the parties that the senior mortgage should be held until certain advances were repaid, then the purchase under the junior mortgage will not operate as a payment of the debt evidenced by the senior mortgage.

      Mortgage—Res adjudicata—Judgment.

    Where on a scire facias sur mortgage given on land being improved by a building operation, no defense is entered that the plaintiff had defaulted in making advances agreed upon, no such defense can subsequently be set up in a suit on another mortgage between the same parties.
    Argued Jan. 15, 1904.
    Appeal, No. 163, Jan. T., 1903, by-defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 19Ó2, No. 2397, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Continental Title & Trust Company v. John Devlin.
    Before Mitchell, C. J., I)ean, Fell, Bbown, Mestbezat, Pottee and Thompson, JJ.
    Affirmed.
    Scire facias sur mortgage.
    Rule for judgment for want of a sufficient affidavit of defense.
    The material averments of the statement of claim and the affidavits of defense are set forth in the opinion of the Supreme Court.
    The court made absolute the rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Edward W. Magill, of Alexander ft Magill, for appellant.
    The courts of Pennsylvania and of other jurisdictions uniformly hold that if a holder of a senior mortgage purchase the equity of redemption, the sale being made on a junior mortgage held by him, subject to the lien of the senior mortgage, such purchase operates as a payment of the debt evidenced by the senior mortgage, and such mortgagee is barred from further remedy on the debt: Steele v. Walter, 204 Pa. 257; Dollar Savings Bank v. Burns, 87 Pa. 491; Carpenter v. Koons, 20 Pa. 222; Hansell v. Lutz, 20 Pa. 284; Bryar’s App., 111 Pa. 81; Cock v. Bailey, 146 Pa. 328; Zeller v. Henry, 157 Pa. 1; Fuel Co. v. Gas Co., 162 Pa. 78; Worcester Savings Bank v. Thayer, 136 Mass. 459.

      Alex. Simpson, Jr., with him Eraneis ShunJc Brown, for appellee.
    The reason why a purchaser may not hold a debtor on the bond accompanying a paramount mortgage is because the mortgaged land is primarily liable for the payment of the debt secured by the mortgage. Here, however, as between the defendant and us the mortgaged land is primarily liable for the advances made by us. Cessante ratione cessat et ipsa lex. And it is inapplicable for the further reason that there is no attempt in this case to proceed upon the bond, but only upon the mortgage itself as against other property included in it.
    That a property is relieved from the lien of all existing securities given for a debt, when the property itself is sold for the payment of the debt, would seem to be a necessary consequence of the sale, and has been many times decided: McGrew v. McLanahan, 1 P. & W. 44; Pierce v. Potter, 7 Watts, 475; Morris v. Campbell, 186 Pa. 589; Ruth’s App., 20 W. N. C. 375; Clarke v. Stanley, 10 Pa. 472; Berger v. Hiester, 6 Wh. 210; West Branch Bank v. Chester, 11 Pa. 282; Moyer v. Garrett, 96 Pa. 376 ; Hartz v. Woods, 8 Pa. 471.
    Defendant’s ownership in the eighty properties having been divested by the sheriff’s sale, the only remaining interest he could have would be in the other land bound by this mortgage. He does not pretend that any notice was given us not to release the eighty lots from the lien of that mortgage, yet notice was essential if he wished to preserve any of his alleged rights, and to prevent us from releasing after the sheriff’s sale: Taylor v. Maris, 5 Rawle, 51; McIlvain v. Assurance Co., 93 Pa. 30; Snyder v. Crawford, 98 Pa. 414; Hemperley v. Tyson, 170 Pa. 385.
    Itis averred that the eighty houses were not completed because of plaintiff’s default in not making the advances agreed upon. This is res adjudicata: Myers v. Kingston Coal Co., 126 Pa. 582; Orr v. Ins. Co., 114 Pa. 387; Reehling v. Byers, 94 Pa. 316 ; Meckley’s App., 102 Pa. 536.
    June 15, 1904:
   Opinion by

Mb.. Justice Dean,

This is an appeal by defendant from a judgment entered against him in the court below for $28,852.84 in default of a sufficient affidavit of defense.

It is necessary to an understanding of appellant’s complaint of error, to briefly state the facts. The defendant was the owner of a plot of ground in Germantown and also of land in the southern part of the city. Plaintiff advanced to defendant $50,000 to be applied as purchase money and. to the discharge of two small mortgages on the Germantown property and for this took from him as security the mortgage on that property now in dispute. Then, defendant desiring to build on this property cut it up into eighty lots, and agreed with plaintiff, that it should advance to him money to build upon the lots as the money was needed for the buildings, defendant to deliver to plaintiff as security therefor eighty separate mortgages in the whole aggregating $200,000, one on each lot. It was further agreed that the first or $50,000 mortgage should stand also as security for the completion of the houses and as a protection against mechanic’s and municipal liens; it was further agreed that the trust company would release the lien of the $50,000 mortgage on the eighty lots upon which the money was to be expended by defendant in the contemplated building operations.

After a sheriff’s sale on the eighty mortgages the company did record a release on the properties sold. But no release was formally executed and delivered at the time by plaintiff nor did defendant ever demand one. Defendant went on with his building operations, plaintiff advancing him from time to time large sums of money; after some time a dispute arose between them, defendant alleging that the advances were not so rapidly made nor so large as agreed upon, stopped his work. Then the parties came together and adjusted their dispute, by another agreement, to wit: plaintiff to advance $65,000 to defendant on another wholly different building operation, and to be wholly relieved from further'ad vanees on the Germantown improvements; defendant agreeing that the advances already made should be repaid within ninety days; and that the $50,000 mortgage should stand as security to plaintiff for such advances until repayment.

Defendant did not repay the advances as he agreed, to do; thereupon plaintiff issued sci. fa. and took judgment on each of the eighty mortgages, issued lev. facias and the sheriff sold the lots. Nearly all of them were purchased by plaintiff. Defendant was present at the sale and bid on several of the lots. No notice was given by him of any defect in the title or any' incumbrance by prior lien, nor was there any motion to set aside the sale after it was made. After this sale of the eighty lots, plaintiff alleging that it had not been repaid its loans by the money realized at the sheriff’s sale nor had it been repaid advances made on the $50,000 mortgage, issued this sci. fa. on that mortgage to collect the amount still payable to it. To this suit defendant filed affidavit of defense, averring that the $50,000 mortgage was held by plaintiff only to protect it against mechanics’ liens and municipal liens which might be filed against the eighty houses and to insure the completion of the houses, and that it had received other mortgages aggregating $200,000 as collateral security for the payment of the money advanced; that plaintiff did not hold the $50,000 mortgage as security for any money loaned to him, the defendant, and that all the property described in the said last named mortgage had been purchased by plaintiff at the sheriff’s sales ; and further, that plaintiff is not entitled to judgment on said mortgage because it has suffered no loss by any default of defendant or any failure by him in his contracts. The court gave judgment in default of a sufficient affidavit of defense.

An inspection of plaintiff’s statement of claim on which the sci. fa. is founded, and the affidavit of defense filed, shows a very wide dispute as to the interpretation of the written contracts, but no substantial dispute of fact is disclosed. Therefore the court below had jurisdiction and properly, without the intervention of a jury, entered judgment, for had the issue come to a trial before a jury it would have been the duty of the court,, if it had interpreted the writings, to have peremptorily directed a verdict for one side or the other.

As we have already noticed, after the eighty separate mortgages were given and the defendant was proceeding with his building operations, a dispute arose between the parties, which was settled by an agreement dated April 13, 1901. In that agreement is this stipulation: “ That all security mortgages and bonds held by the said company as security for the completion and against liens of the said one hundred and sixty-four houses, shall also be held by said company as security for the repayment of all moneys due it on the Germantown operation, with the same force and effect as though security mortgages and bonds had been originally given for both operations.” The plaintiff averred that the $50,000 mortgage on which this sci. fa. is issued was one of the security mortgages held by.it under this description; that the eighty separate mortgages which had been foreclosed and sheriff’s sales had, were also security mortgages specified in the same clause of the agreement. Before this last agreement was made, one had been executed by the parties on February 23, 1900, in which this §50,000 mortgage is specially referred to as a security then held by the plaintiff for advances, liens, completion of houses, etc. In the agreement first noticed, that of April 13, 1901, there was further this additional clause : “ And the said John Devlin further releases the said company from any and all claims to make further advances to him under a certain agreement relating to his operation in Germantown, and agrees to repay the company all moneys heretofore advanced to him under said agreement together with its proper charges within ninety days from the date hereof.”

The plaintiff fully and specifically sets out in its statement all the advances made by it on the different mortgages, with credits of all payments made, whether by receipt or proceeds of sheriff’s sales or otherwise, and avers that on this mortgage there is still a sum certain due and unpaid.

It is very clear to us that by a proper construction of the two agreements, that of February 23, 1900, with that of April 13, 1901, it was the intention of the parties that all the mortgages on the Germantown property were to be held by plaintiff as security for all the advances made to defendant on all the property described in these mortgages. The defendant avers this §50,000 mortgage was given only to cover mechanics’ liens and as a guarantee for the completion of the houses, but the averment is negatived by the seventh clause of the agreement of April 13. Plaintiff agrees only upon the performance by defendant of that condition, payment of money due it and its proper charges, to assign or transfer the mortgage. This intention is further reiterated in the short supplemental agreement (exhibit O) of the same day where substantially the same language is repeated.

We think the manifestly correct interpretation of all the agreements when viewed together, is, that the parties intended when plaintiff advanced the §65,000 for the new operation in another part of the city, it was to be relieved from any further advances on the Germantown operation, but all the securities then held by plaintiff by reason of advancements on that property were to be retained by it until the money already advanced was repaid.

But appellant argues, that if the “ holder of a senior mortgage purchase the equity of redemption the sale being made on a junior mortgage held by him, subject to the lien of the senior mortgage, such purchase operates as a payment of the debt evidenced by the senior mortgage, and such mortgage is barred from further remedy on the debt.” The soundness of this rule cannot be questioned; whether the result should follow in any particular case depends on whether the facts in the particular case demand its application. Like the doctrine of “ merger,” it depends upon the intention of the parties whether an incumbrance shall merge in the estate of a purchaser on a subsequent lien. It may to subserve some honest purpose be kept alive: Moore v. Harrisburg Bank, 8 Watts, 138; Richards v. Ayres, 1 W. & S. 485. As to third parties who might have been misled by it, such intention might be ineffective. But here the only parties interested are appellant and appellee, and they, as we have already shown, with the expressed intention that the trust company should be protected in advances made on the §50,000 mortgage, agreed that it should be held by the company until such advances were repaid.

Defendant in his affidavit avers that the eighty houses were not completed because of the trust company’s default in not making the advances it had agreed to make while the buildings were being put up. Every question of this kind was, necessarily, at issue in the suit on the eighty mortgages and must be considered as settled by the judgments in those suits. Nothing in the assignment of errors calls for further notice. The judgment entered by the court below with the limitations and exceptions therein set forth is affirmed.