text:
    Laughlin Brothers’ Company, Incorporated, Appellant, v. Philadelphia & Reading Railway Company.

      Railroads — Carriers—Common carriers — Delivery—Negligence—Perishable goods — Custom.
    Where a railroad company permits consignees of produce to sell the produce to retailers from cars in a yard known as a market yard, but, under a long-established custom, known to all parties, does not permit any one consignee to have more than three cars at a time in the market yard, and other cars of the consignees are kept in another yard until a car-is emptied and released in the market yard, a consignee cannot recover damages for a loss resulting from a deterioration of produce in the cars in the storage yard, where the railroad company is in no way negligent, and the delay in delivering cars to the market yard is due to the inability or the neglect of the consignee to empty and release cars in time to prevent the deterioration.
    Argued March 22, 1909.
    Appeal, No. 357, Jan. T., 1908, by plaintiff, from order of C. P. No. 2, Phila. Co., Dec. T., 1906, No. 3,078, refusing to take off nonsuit in case-of Laughlin Brothers Company, Incorporated, v. Philadelphia & Reading Railway Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.

      Assumpsit for breach of a contract of a common carrier. Before Wiltbank, J.
    The opinion of the Supreme Court states the case.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      George P. Rich, for appellant.
    So long as anything remains to be done by the carrier to complete the transportation, to wit, to put the goods where they can be delivered to the owner, or where the owner can get them, the liability as a carrier continues: Shenk v. Phila. Steam Propeller Co., 60 Pa. 109; National Line Steamship Co. v. Smart, 107 Pa. 492; McMasters v. R. R. Co., 69 Pa. 374; Independence Mills Co. v. Burlington, etc., Ry. Co., 72 Iowa, 535 (34 N. W. Repr. 320).
    The plaintiff, having given evidence that its onions, which arrived here in good condition, were delivered to it by the carrier in a damaged condition, had cast the burden of proof upon the carrier to prove that this was not due to its negligence; which was sufficient to carry the case to the jury: Buck v. R. R. Co., 150 Pa. 170; Schaeffer v. R. R. Co., 168 Pa. 209.
    If the ruling of the court below is correct, it follows that the carrier can, by its own mere usage or practice, relieve itself from the consequences of its own negligence and utter disregard of its duties and liabilities, although it could not have done so by express contract with the shippers.
    A common carrier cannot by contract relieve itself from the consequences of its own negligence. It is against public policy: Willock v. R. R. Co., 166 Pa. 184; Ruppel v. Ry. Co., 167 Pa. 166; Hughes v. R. R. Co., 202 Pa. 222; Eckert v. R. R. Co., 211 Pa. 267; Grogan v. Express Co., 114 Pa. 523; Schaeffer v. R. R. Co., 168 Pa. 209.

      John G. Lamb, for appellee.
    The custom was a reasonable one: McMasters v. Penna. R. R. Co., 69 Pa. 374; Adams v. Pittsburg Ins. Co., 95 Pa. 348; Carter v. Coal Co., 77 Pa. 286; Allam v. R. R. Co., 183 Pa. 174; The Viola, 90 Fed. Repr. 750; Randall v. Sprague, 74 Fed. Repr. 247; Bartlett v. Cargo of Lumber, 41 Fed. Repr. 890; Sloan v. R. R. Co., 126 N. C. 487 (36 S. E. Repr. 21).
    October 11, 1909:
    The appellees are not presumed to be experts in the care of onions, or to know that they would not keep as well stored in a car as they might in a warehouse other than the cars themselves.
    They were compulsory bailees of the onions, bound only to such reasonable care as a prudent and honest man would take of property of which he has become the involuntary custodian: The Bobolink, 6 Sawyer, 146.
   Opinion by

Mr. Justice Potter,

This was an action of assumpsit, in which the plaintiff sought to recover damages from the defendant company, for alleged breaches of contract as a common carrier. At the trial, judgment of nonsuit was entered, and from the refusal to set it aside, the plaintiff has appealed.

It appears from the evidence that the plaintiff was engaged in raising and shipping onions. At various times during the months of October and November, 1906, it shipped from Nappanee, Ind., to Philadelphia, Pa., over the road of the Philadelphia & Reading Railway Company, eleven car loads of onions, one consigned to J. S. Wright & Son, and ten to the shippers themselves. The bills of lading for seven of these cars contained"instructions “to notify P. S. Scott, with privilege of inspection.” Scott had purchased the onions, subject to" examination upon arrival. The eleven cars arrived at Philadelphia between October 27 and November 14. It appears that the defendant company maintains a terminal yard at Erie avenue in which all cars loaded with produce are placed upon arrival, and immediate notice is given to parties interested. Admittedly, such notice was given in this case. There are no facilities for unloading at Erie avenue.

The company has another yard located at Second and Master streets known as the “delivery yard” or “potato yard.” Here it delivers the produce to the consignees in the cars, and the consignees are permitted to sell from the cars to their customers. This yard has become, therefore, a general market place for the sale of produce, chiefly potatoes, cabbages and onions, to the retail dealers. The capacity of the yard being limited to about 100 cars, the railway company will not deliver to one consignee more than two or three car loads at once, and if he has other cars consigned to him in the terminal yard, they will be held there, until the cars already delivered have been emptied. As soon as a car is empty, the consignee can have it removed and one of the waiting cars brought from the terminal yard and delivered in its place. This method of delivery has been customary for many years and is well known and recognized by the produce trade. It appears also that the railway company maintains other yards in Philadelphia at which delivery might have been made if desired, but Scott, the purchaser of the onions, wanted them delivered to the market yard at Second and Master streets. The loaded cars were permitted to remain in the terminal yards for various periods of from six to twenty-nine days, and when finally delivered at the market yard, the contents were considerably damaged.

There was evidence that the deterioration in the value of the onions, was caused by their being kept for so long a time in the cars; and plaintiff claimed that the delay was due to the refusal of the company to deliver them when demanded, and that the company was therefore responsible for the loss. The trial judge held that the evidence showed the custom in the trade, above noted, to deliver to consignees only at the delivery yard, Second and Master streets, and, on account of the limited space in that yard and its use as a market place, to deliver not more than three cars at a time to any one person or firm; and to deliver additional cars only as those first delivered were emptied and released. He held that plaintiff was bound by this custom, and as it appeared from the evidence that the company had been governed by such custom and had adhered to it in making their deliveries in this case, no negligence was shown on its part and there was no ground on which plaintiff could recover.

Both Scott and Wright, who handled the onions for plaintiff, testified to their knowledge of the custom, and Mr. Laughlin, president of the plaintiff company, testified that he knew that the yard at Second and Master streets, was a market, and that the contents of the cars sent there, were sold from the cars.

It further appears from the testimony, that both Wright and Scott had other car loads of produce, besides the onions shipped by plaintiffs, consigned to them, which were waiting in the company's storage yard for delivery, and that they ordered deliveries made from time to time from all the cars so consigned, and not alone from plaintiff's cars. Otherwise, the latter might have been delivered much sooner. For some reason, there was an unusual number of cars awaiting delivery in October and November, 1906, which caused a congestion in both yards.

A careful examination of the evidence in this case, has satisfied us that the judgment entered by the court below is entirely correct.

It was the duty of the consignees to unload the produce upon its arrival. Instead of promptly ordering the cars to be sent, three at a time, from the terminal yard to the market yard, and unloading them, and then sending for three more, and thus continuing, until all were unloaded, the consignees undertook to use the cars for storage purposes, until they could sell the onions to dealers. The railroad company permitted this to be done, as a favor to the consignees, but certainly such a concession is not to charge it with responsibility for the delay of the consignees in making sales. It is very clear that the delay in delivery was due to the failure of the consignees to designate the cars to be placed in the market yard, and not to any fault upon the part of the railway company. As we said above, under a well-recognized custom, the reasonableness of which is not questioned, the consignees were each entitled to have three cars at one time in the yard. If they had ordered plaintiffs' cars placed in the yard immediately upon the receipt of notice of their arrival, they might have received them all in the course of a few days. But instead of doing so, they requested that other cars from other consignors, should be first delivered to them, and as a result, they were not entitled, under the custom which they admitted, to receive the plaintiff's cars until the others had been discharged and released. The company merely held the cars, subject to the order for delivery which would have been complied with as soon as the consignee had released the cars then in the yard.

The custom being admitted, and reasonable, was binding upon all parties, and must be regarded as part of the contract. Under the custom, the defendant company fully performed its duty, and it cannot be held responsible for the loss occasioned by the delay. The point is raised that the defendant was not bound to deliver until the bills of lading were produced. But there is testimony that the company practically waived this requirement. At any rate the refusal to deliver the cars in the present case was not based on the non-production of the bills of lading, but upon the fact that the consignees had all the time, three cars in the delivery yard, and, in order to entitle them to further deliveries, one or more of the cars then in the yard must first be emptied and released. The court below did not place its decision upon the ground of the nonproduetion of the bills of lading, but upon the effect of this custom on the contract. We agree entirely with the view, and the conclusion of the trial judge.

The specifications of error are overruled, and the judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Griesmer v. Hill, Appellant.

      Replevin — Judgment—Affidavit of defense — Return day — Practice, C. P. — Act of April 19, 1901, P. L. 88.
    1. Under the replevin Act of April 19, 1901, P. L. 88, judgment for want of an affidavit of defense may be entered against the defendant before the return day of the writ, if the defendant has failed to file an affidavit of defense in fifteen days after the filing of the declaration and service of copy thereof.

      October 11, 1909:

      Appeals — Assignments of error — Appeal from, Superior Court. .

    2. On an appeal from the Superior Court to the Supreme Court, the proper form of an assignment of error is that “the Superior Court erred in not sustaining (or in sustaining as the case may be) the first assignment of error to the judgment of the Common Pleas to wit, ’’-'etc. If there are any new and further matters raised by the judgment of the Superior Court itself, they should be assigned separately in their due order.
    3. An assignment merely specifying error in affirming the judgment of the court of common pleas, without more, and assignments merely alleging error by the court below, and not by the Superior Court, are not in the prescribed form.
    Argued April 12, 1909.
    Appeal, No. 241, Jan. T., 1908, by defendants, from judgment of the Superior Court, Jan. T., 1908, No. 30, affirming judgment of C. P. Luzerne Co., Oct. T., 1906, No. 321, discharging rule to strike off judgment in case of Jacob Griesmer v. James Lewis Hill and James C. Hill.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Appeal from the Superior Court. See 36 Pa. Superior Ct. 69.
    The assignments of error were as follows:
    1. The Superior Court erred in affirming the judgment of the court of common pleas.
    2. The court of common pleas erred in entering judgment for want of an affidavit of defense.
    3. The court of common pleas erred in discharging the rule to show cause why the judgment should not be stricken from the record.

      Andrew Hourigan and James L. Lenahan, for appellants.

      R. Laura Cannon, for appellee.
   Opinion by

Mr. Justice Potter,

The sole question raised by this appeal, is whether, under the replevin Act of April 19, 1901, P. L. 88, judgment for want of an affidavit of defense may be entered against the defendants, before the return day of the writ. This appeal is from the judgment of the Superior Court, and the assignments of error should be in the form recommended in Mellick v. Penna. R. R. Co., 203 Pa. 457. The present chief justice there said (p. 459), “The question here is, whether the Superior Court .... was correct in its dealings with the alleged errors of the court below. In regard to the assignment of errors, an appeal from the Superior Court to this court is analogous to an appeal from a judgment of the common pleas or orphans’ court on exceptions to the findings and report of an auditor or referee. The proper form, therefore, is that 'the Superior Court erred in not sustaining (or in sustaining as the case may be) the first assignment of error to the judgment of the common pleas, to wit;’ etc. The assignments of error in the Superior Court are therefore the principal errors with which this court is usually concerned and which will generally develop the whole controversy, but if there are any new and further matters raised by the judgment of the Superior Court itself, they should be assigned separately in their due order.” In the present case, the first assignment merely specifies error in affirming the judgment of the court of common pleas, without more. The second and third assignments allege error by the court below, and not by the Superior Court. The assignments under the present appeal, all fail to set forth any of the assignments filed in the Superior Court, and they are not therefore in the prescribed form.

Passing to the merits of this appeal, it seems that the practice of entering judgment for want of an affidavit of defense in replevin suits was first authorized by the Act of April 19, 1901, P. L. 88. Section 4 provides: “The plaintiff in such action shall file a declaration, verified by oath, which shall consist of a concise statement of his demand, setting forth the facts upon which his title to the goods and chattels is based.” Section 5 provides: “The defendant or party intervening, shall within fifteen days after the filing of such declaration, file an affidavit of defense thereto, setting up the facts denying plaintiffs’ title and showing his own title to said goods and chattels; and in the event of his failure so to-do, upon proof that a copy of said declaration was served upon him or his attorney, judgment may be entered for the plaintiff and against the defendant or party intervening.” It will be seen that the statute plainly requires the defendant to file an affidavit of defense within fifteen days after the filing of the declaration. In the present case, the statement was properly filed with the praecipe for the writ, and a copy served by the sheriff on defendants together with the writ. This was complete notice to them that the statement had been filed, and they were bound to take notice of the requirement of the statute, to file an affidavit of defense within fifteen days. They failed to do so, and judgment as authorized by the statute was properly entered. As the trial judge says, the evident intent of the lawmakers was to speed the cause. Judgment by default may be taken at any time after the commencement of a suit, when either party is in disregard of the provisions of a statutory rule.

The judgment is affirmed.


text:
    Commonwealth, Appellant, v. Massi.

      Judgment — Confession of judgment — Warrant of attorney — Exhaustion of power — Second judgment — Bail bond.

    1. The entry of judgment on a bond and warrant of attorney, exhausts the power of the warrant, and a second judgment entered thereon will be put aside. This rule applies to a second judgment entered on a bail bond.
    2. A second judgment entered on a bail bond is void although the first judgment has been stricken off as premature and improvidently entered. In such a case the first judgment is voidable as to the defendant, but not as to other parties. When it was entered it was a valid judgment, and the warrant upon which it was entered became functus officii.
    Argued April 13, 1909.
    Appeal, No. 332, Jan. T., 1908, by plaintiffs, from order of C. P. Luzerne Co., Oct. T., 1907, No. 1,202, making absolute rule to strike off judgment in case of Commonwealth, at the instance of The Wilkes-Barre Law and Library Association, v. James Massi and E. E. Wagner.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Rule to strike off judgment entered upon a warrant of attorney and a bail bond. Before Lynch, J.
    The facts are set forth in the opinion of the Supreme Court.

      Error assigned was order making absolute rule to strike off judgment.

      Granville J. Clark, for appellant.
    The position of the plaintiff in this action is that there was no use or attempted use of the warrant of attorney in No. 297, October Term, 1907, and that the judgment in that case was void, the defects appearing plainly on the record. If the judgment in No. 297, October Term, 1907, was void ab initio it could have no legal effect in avoiding the judgment in the case at bar, because a void judgment is no judgment: Philadelphia v. Johnson, 208 Pa. 645; Osterhout v. Briggs, 37 Pa. Superior Ct. 169; Bassett v. Hawk, 114 Pa. 502; Union Trust Co. v. Means, 201 Pa. 374; McKinney v. Brown, 130 Pa. 365; Mutual Life Ins. Co. v. Tenan, 188 Pa. 239.

      S. S. Herring and W. S. Casterline, for appellees.
    When a judgment has been entered under a clause in an instrument, no second judgment can be entered under the same clause; and this is the case, although the first judgment may have been prematurely entered or may have been voidable from matters outside the record: Philadelphia v. Johnson, 208 Pa. 645; Cook v. Gilbert, 8 S. & R. 567; Osterhout v. Briggs, 37 Pa. Superior Ct. 169; Campbell v. Canon, Add., 267; Martin v. Rex, 6 S. & R. 296; Neff v. Barr, 14 S. & R. 166; Ulrich v. Voneida, 1 P. & W. 245; Adams v. Bush, 5 Watts, 289; Ely v. Karmany, 23 Pa. 341; Davis v. Hood, 13 Pa. 171; McCalmont v. Peters, 13 S. & R. 196; Flanigen v. City of Phila., 51 Pa. 491; Church v. Wood, 61 Pa. 96; Limbert v. Jones, 118 Pa. 589.
    October 11, 1909:
   Opinion by

Mr. Justice Potter,

On July 5, 1907, James Massi and E. E. Wagner entered into a recognizance to the commonwealth of Pennsylvania, in the sum of $3,000 for the appearance of Massi at the next court of quarter sessions of Luzerne county, to answer a criminal charge. The recognizance provided that “in the event of the foregoing recognizance being forfeited I do hereby authorize and empower the district attorney of Luzerne county, whoever he may be, or any other attorney of any court of record of the state of Pennsylvania, or elsewhere, to appear for me in any action instituted for the collection of this recognizance,” and confess “judgment or judgments” therein against the obligees for the sum of $3,000, the amount of the recognizance.

On July 6, 1907, judgment was entered on the above recognizance in the court of common pleas of Luzerne county, by virtue of the warrant of attorney contained therein.

On October 7, 1907, a rule to strike off the judgment was allowed, which on November 9, 1908, was made absolute.

The ground on which the judgment was stricken off was, that as the recognizance had not been forfeited at the time it was entered, the judgment was premature and improvidently entered; the warrant of attorney authorizing the entry of judgment only in the event of the forfeiture of the recognizance.

On September 12,1907, an action of assumpsit was brought by the 'commonwealth of Pennsylvania, at the instance of the Wilkes-Barre Law and Library Association against the obligors in the recognizance, the same having been duly forfeited on September 11, 1907, and judgment was confessed against the defendants, by virtue of the warrant of attorney contained in the recognizance, in the sum of $3,000.

On October 14, 1907, a rule was granted to show cause why this second judgment should not be stricken off, and on November 9, 1908, the rule was made absolute'. Plaintiffs excepted to the order striking off the judgment and .have appealed. The error assigned is making absolute the rule to strike off the judgment.

The court below struck off the second judgment on the ground that by the entry of the first judgment the power to confess and enter judgment against the defendants, by virtue of the warrant of attorney in the recognizance, was exhausted, and the warrant was functus officii.

It is the settled doctrine of our cases, that the entry of judgment on a bond and warrant of attorney, exhausts the power of the warrant, and a second judgment entered thereon will be set aside. See Phila. v. Johnson, 208 Pa. 645. In that case, the first judgment was prematurely entered, and for that reason the action was discontinued. But it was held that, although the entry was premature it exhausted the power conferred by the warrant of attorney, and it could not be used a second time. In the present case, the court below relied also upon Osterhout v. Briggs, 37 Pa. Superior Ct. 169, which does rule this case very closely. The facts are very much the same, except that the judgment there was entered on an ordinary judgment note, while here it is on a bail bond.

. We see no merit in the suggested distinction that the judgment in the case at bar was void, and not voidable merely. It was voidable, but if the defendant had not raised the question that it was prematurely entered, it would have stood upon the record as a valid judgment. As regarded parties other than the defendants, it was not even voidable. This principle is clearly set forth in the opinion of the Superior Court, in Osterhout v. Briggs, 37 Pa. Superior Ct. 169, supra, and is sustained by the cases there cited.

The assignments of error are overruled and the judgment is affirmed.


text:
    Shiffer, Appellant, v. Mosier.

      Evidence — Written instrument — Material alteration — Addition of name of witness.

    1. The addition of the name of a witness to the signatures of a paper, after its execution, without the knowledge or consent of the obligors, is a material alteration, which renders the paper inadmissible in evidence.
    2. An altered instrument is so far vitiated that no recovery can be had on its original or altered terms. It cannot be considered as void for the unauthorized change and valid in other respects, but is void altogether.
    8. Any material alterations of a writing releases a party who does not consent thereto, no matter how many other parties have consented. This is so whether the alteration is fraudulent or innocent. It avoids the contract not only as to the party making it, but as to an innocent transferee, such as a bona fide assignee who was not an indorsee.
    4. Subsequent assent to a material change of a written instrument is a waiver of the right to rely upon the alteration as a defense to an action brought on the instrument; but a ratification by one of several who are parties to the instrument as originally written binds him only, and not those who do not assent.
    5. Where the name of a witness to the signatures of a contract is added after the execution of the contract, and without the knowledge or consent of the obligors, the contract is wholly void for a material alteration, and a suit cannot be maintained upon it although a copy of the agreement is attached to the statement of claim without the attestation, and the signers themselves are called to prove their own signature.
    Argued April 13, 1909.
    Appeal, No. 369, Jan. T., 1908, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1905, No. 282, refusing to take off nonsuit in case of Frank E. Shiffer, surviving executor of the estate of J. B. Shiffer, deceased, to use of Gertrude I. Heeley, v. James H. Mosier et al.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit on a written instrument. Before Lynch, P. J.
    At the trial it appeared that the suit was brought on an agreement in writing signed by seven persons. The copy of the agreement attached to the plaintiff’s statement of claim showed no attesting witness.
    When E. H. Hughes, a witness for plaintiff, was on the stand, plaintiff’s counsel made the following offer:
    We now offer in evidence the paper marked “for identification, plaintiff’s exhibit ‘A,’ ” being the agreement a copy of which is affixed to the plaintiff’s statement and on which this suit is brought. The affidavit of defense not denying the signatures of the paper by the defendants under the court rules it is not necessary to prove them.
    Defendants’ counsel: We object to the paper because it is not the paper declared upon, the paper offered in evidence has a subscribing witness thereto and the witness must be called to establish the signatures of the obligors as the law requires.
    Plaintiff’s counsel: We want to add to the offer so as to get it on the record. The affidavit of defense and court rule No. 19, sec. 1, p. 34.
    The Court : It appears that the instrument sued upon is identical with the one offered in evidence excepting that the copy of the one sued upon and attached to the statement in this case has no subscribing witness. The paper now offered in evidence has this in addition “witness to the seven signatures, E. H. Hughes.” The effort on the part of counsel for the plaintiff seems to be to avoid proving the execution of the paper offered in evidence in the ordinary way. The objection is sustained, exception noted and bill sealed for plaintiff. [2]
    “Q. I believe you testified that you were a clerk in this People’s Bank in 1894? A. Yes, sir.”
    Paper marked “For identification, plaintiff’s exhibit ‘A,’ ” shown witness.
    “Q. I show you the words ‘witness to the seven signatures, E. H. Hughes.’ Whose handwriting is that? A. Mine. Q. State when those words were placed upon this paper with reference to the date of the signatures? A. I could not tell you. Q. Whether before or after the paper was signed? A. After the paper was signed. Q. You were not present when the persons whose names are signed to this paper affixed their signatures? A. No, sir. Q. You are familiar, however, with the signatures of these parties? A. I think so, yes, sir. Q. I show you the first signature on the paper. Whose signature is that? ”
    Defendant’s counsel: We object to that as not being the proper way of proving the signature to a document that has a witness or. is attested by a subscribing witness.
    Examination by defendant’s counsel.
    “Q. Who brought this paper to you when you first saw it? A. J. B. Shiffer. Q. That is the J. B. Shiffer whose name appears upon that paper? A. Yes, sir. Q. As the obligee in the bond? A. Yes, sir. Q. Where was it? A. In the bank, in the People’s Bank. Q. Were these names all signed to it at the time? A. They were. Q. Were any of the people there? A. They were not, positively. Q. What did he say to you? A. He stated the very words 'write “witness” to the within signatures and your name.’ Q. He said that to you? A. Yes, sir. Q. And in his presence you did it? A. Yes, sir. . Q. Then you handed the paper back to him? A. Yes, sir.”
    The Court: Objection sustained, exception noted for the plaintiff, bill sealed. [3]
    Plaintiff’s counsel: I offer in evidence the paper marked “ for identification, plaintiff’s exhibit ‘A,’ ” with that explanation of the attestation clause, showing why it was not copied in the declaration, why it was left out of the declaration.
    Defendant’s counsel: We object to that until the paper is properly proven.
    The Court: Objection sustained, exception noted, bill sealed for the plaintiff. [4]
    Plaintiff’s counsel: We now ask the court to allow the attestation clause, the words, “witness to the seven signatures, E. H. Hughes,” to be stricken out or canceled on the paper marked “plaintiff’s exhibit 'A’ for identification.”
    Defendant’s counsel: We object to that.
    The Court: It appears that Mr. Hughes, the witness, by' procurement of Mr. Shiffer, -in the absence and without the assent of the other obligors or redelivery put his name to this instrument. We think, under these circumstances, and under the cases cited, that the plaintiff would have no right to cancel the name of Mr. Hughes as a witness to the instrument, that would be practically sustaining the instrument.
    Objection sustained, exception noted, bill sealed for the plaintiff. [5]
    Plaintiff now stipulating that the words “witness to the seven signatures, E. H. Hughes” are by her canceled so as to restore the paper in the same condition that it was in when it was executed, offers the paper as originally executed in evidence.
    Defendant’s counsel: We object to the plaintiff striking out the attestation clause for the reason that the obligee in the bond fraudulently procured the said attesting witness to attach his name to said paper as a subscribing witness in the absence of the other obligors in the bond and without any request on their part for the alleged attesting witness to so subscribe his name.
    The Court: It appears in the argument at bar that suit had been previously brought upon this instrument in this court and that the case was brought into trial and that the plaintiff in that case took a voluntary nonsuit. Now, this action was brought in assumpsit and the same instrument which was then declared upon is. now offered in evidence. The objection is sustained, exception noted, bill sealed for the plaintiff. [7]
    James H. Mosier, sworn for the plaintiff.
    Direct examination by Mr. Woodward.
    “Q. Do you live in Pittston? A. West Pittston. Q. On February 13, 1894, were you a director in the People’s Savings Bank of Pittston? A. No, sir. Q. I show you a paper marked 'for identification plaintiff’s exhibit “A,” ’ and call your attention to the signature of James H. Mosier, being the first of the signatures to that paper. Please examine it and state whether that is your signature.”
    Defendant’s counsel: We object for the reason that the paper has attached to it on its face a subscribing witness and it appearing that the witness attached his name as a subscribing witness to the paper after its execution by the fraudulent procurement of the obligee in the bond in the absence of and without the request or assent of the obligors, the question is objected to as being immaterial and irrelevant.
    The Court: The objection sustained, exception noted, bill sealed for the plaintiff. [8]
    E. H. Hughes, recalled for the plaintiff.
    Direct examination by Mr. Woodward.
    “Q. I call your attention to a writing at the bottom of the agreement marked 'For identification, plaintiff’s exhibit “A,” ’ which reads as follows: 'I hereby apply four thousand dollars on this within contract, the same being amount of salary paid me by resolution of the board of directors for services rendered. [Signed] J. B. Shiffer.’ Do you know in whose handwriting the body of that writing is written?”
    Defendant’s counsel: Objected to as immaterial and irrelevant.
    The Court: What is the purpose of the offer?
    Plaintiff’s counsel: Plaintiff proposes to show that on February 19,1896, two years after the execution of the paper offered in evidence, the obligee, J. B. Shiffer and the assignor of the present plaintiff, being then president of the People’s Savings Bank of Pittston, Pa., referred to in said agreement, remitted $4,000 of his salary as president, to apply on this contract, thereby relieving the obligors in the contract of payment pro tanto, with their knowledge and consent.
    Defendant’s counsel: When that offer is properly presented the defendants will be prepared to meet it. The offer as made now from the paper is a receipt, as to whose handwriting that receipt is in.
    Plaintiff’s counsel: Further to show by this witness that the body of the writing is in the handwriting of the cashier of the bank, Mr. Polen.
    The Court: Objection sustained, exception noted, bill sealed for the plaintiff. [10]
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      October 11, 1909:

      Errors assigned'weve (1) refusal to take off nonsuit; (2-8,10) rulings on evidence, quoting the bill of exceptions.

      Wheaton, Darling & Woodward, with them Willard, Warren & Knapp, for appellant,
    cited: Kountz v. Kennedy, 63 Pa. 187; Shepard v. Whetstone, 51 Iowa, 457; Fuller v. Green, 64 Wis. 159; Milbery v. Storer, 75 Maine, 69.

      John T. Lenahan, with him Cormac Francis Bohan, for appellee,
    cited: Henning v. Werkheiser, 8 Pa. 518; Beary v. Haines, 4 Whart. 17; Foust v. Renno, 8 Pa. 378; Neff v. Horner, 63 Pa. 327; Craighead v. McLoney, 99 Pa. 211; Laubach v. Meyers, 147 Pa. 447; Hartley v. Corboy, 150 Pa. 23; Citizens’ Nat. Bank v. Williams, 174 Pa. 66; Babb v. Clemson, 10 S. & R. 419; Fulmer v. Seitz, 68 Pa. 237; Gettysburg Nat. Bank v. Chisholm, 169 Pa. 564; Fisher v. King, 153 Pa. 3; Flitcraft v. Com. Title Ins., etc., Co., 211 Pa. 114; Lancaster Bank v. Woodward, 18 Pa. 357; Clay v. Cottrell, 18 Pa. 408; Bircleback v. Wilkins, 22 Pa. 26; Edgar v. Kline, 6 Pa. 327; Thompson v. McClelland, 29 Pa. 475.
   Opinion by

Mr. Justice Potter,

This was an action of assumpsit in which it was sought to recover upon an article of agreement, signed by seven persons, who stipulated to make payment of a certain sum of money to one J. B. Shiffer, within a period of three years. Some time after the execution of the paper, Shiffer asked E. H. Hughes, who was familiar with the handwriting of the signers, to attest the signatures, and this he did, without the knowledge or consent of the signers. Upon the trial the court below held that the addition of the attestation was a material alteration which destroyed the validity of the instrument, and judgment of compulsory nonsuit was entered. The correctness of this position is questioned by this appeal. Counsel for appellant concede the fact of the alteration of the paper after its execution, without the knowledge or consent of the obligors, and they frankly admit that the general rule of law in Pennsylvania is, that the addition of the name of a witness to the signatures of a paper, after its execution, without the. knowledge or consent of the obligors, is a material alteration, which renders the paper inadmissible in evidence. Such a rule was laid down by this court in Marshall v. Gougler, 10 S. & R. 164, and was followed in Henning v. Werkheiser, 8 Pa. 518; Foust v. Renno, 8 Pa. 378, and other cases.

It is also a general principle of law that: “An altered instrument is so far vitiated that no recovery can be had on its original or altered terms. It cannot be considered as void for the unauthorized change and valid in other respects, but is void altogether:” 2 Cyc. L. & P. 182, sec. c. It is further true that: “The vitiating effect of an alteration cannot be obviated by afterward attempting to restore the instrument, as by erasing words unauthorizedly inserted, especially after an attempt to recover upon the instrument in its altered form. This rule seems especially applicable in favor of one who is subject to no liability but that created by the instrument:” 2 Cyc. L. & P. 182, sec. d.

But while admitting the general rule, counsel contend that the circumstances of this case take it out of the usual order. In support of -this position, they allege that the use plaintiff, Gertrude I. Heeley, was an innocent purchaser of the agreement from the executors of the payee. But we cannot find that any evidence was offered to show any such fact. The assignment of the agreement is embodied in plaintiff's statement, and it does not show the consideration, if any, which was paid, but it does show that she was one of the heirs of J. B. Shiffer, entitled to a one-third interest in his estate, and presumably the assignment was made on account of her interest in the estate. It was made when payment under the terms of the instrument was long overdue. The agreement was not a negotiable instrument, and the assignee would therefore take it subject to any defense which could be set up against the assignor. The authorities are against the position taken by counsel for appellant. Thus, in 3 Page on Contracts (1905), sec. 1529, it is said: “A material alteration avoids the written contract. Thus a material alteration of a contract, though with the consent of the other parties thereto, releases a surety thereon. . . . Any material alteration releases a party who does not consent thereto no matter -how many other parties have consented. This is so whether the alteration is fraudulent or innocent. ... A material alteration avoids a contract not only as to the party making it, but as to an innocent transferee, such as a bona fide assignee who is not an indorsee. A negotiable instrument which has been altered materially is unenforceable; even in the hands of a bona fide holder without notice who takes it for value and before maturity.” Kountz v. Kennedy, 63 Pa. 187, is cited in justification of the claim to disregard the alteration of the paper. But Kountz v. Kennedy has not been followed in subsequent cases. In Fulmer v. Seitz, 68 Pa. 237, Justice Agnew said (p. 242): “It is supposed that the case of Kountz v. Kennedy, 63 Pa. 187, is opposed to this view, and it is cited as authority against it. That case is a very close one, and was decided doubtingly on its peculiar, circumstances. One of our number (Justice Sharswood) expressly dissented, and I gave my own assent with hesitation.” And in Craighead v. McLoney, 99 Pa. 211, Chief Justice Sharswood, after referring to Kountz v. Kennedy, said (p. 214): “My own opinion is that the courts have gone far enough in permitting writings to be tampered with.”

In the cases of Hartley v. Corboy, 150 Pa. 23 (29), Gettysburg Nat. Bank v. Chisholm, 169 Pa. 564 (573), and Citizens' Nat. Bank v. Williams, 174 Pa. 66 (70), this court declined to follow Kountz v. Kennedy. In the latter case Justice Green said (p. 71): “The tendency of all our recent decisions is to hold parties more strictly responsible for alterations of any kind particularly in the case of negotiable instruments, and we do not think that the ruling in Kountz v. Kennedy should be extended a single step beyond its own peculiar facts.”

The second contention of appellant, that the receipt written upon the agreement in the handwriting of J. L. Polen, one of the obligors, operated as a ratification of the altered contract, we do not consider tenable. In any event, the action of Polen would affect himself only. The offer of evidence does not show whether the receipt was indorsed before or after the attestation clause was added, but if it was made afterwards it would not be sufficient to give life to a contract which had been made void by the act of the obligee.

“Subsequent assent to a material change of a written instrument is a waiver of the right to rely upon the alteration as a defense to an action brought upon the instrument. But a ratification by one of several who are parties to the instrument as originally written binds him only, and not those who do not assent:” 2 Cyc. L. & P. 172. And in the same text-book it is further stated that: “In order that any acts may be construed as a ratification of an alteration, the particular act must be done with full knowledge of the alteration. . . . The party must have knowledge in fact, and it is no answer to say that he had means of knowledge:” 2 Cyc. L. & P. 175.

In the present case, it does not appear that there was any offer to show knowledge of the alleged payment, upon the part of anyone but Polen. We see no merit in any of the assignments of error; they are therefore overruled, and judgment is affirmed.


text:
    Corrigan v. Wilkes-Barre & Wyoming Valley Traction Company, Appellant.

      Practice, C. P. — Trial—Remarks of judge — Evidence.
    1. Where a trial judge refuses to permit a witness to testify as to what parts of the day in a particular locality are the warmest during the winter time, and no exception is taken to the ruling, the party offering the witness cannot complain because the judge adds by way of comment, “It is well known, especially in this part of Pennsylvania, it would be almost impossible to answer that question, unless a man kept an actual record, ” and then adds, in substance, that the temperature might vary at the same hour on different days.

      Evidence — Reputation—Competency of witness.

    2. Where- witnesses testify to an acquaintance of several years’ standing with a person whose reputation is in question, they may testify that they had never heard it questioned.

      Practice, C. P. — Charge—Witness.
    3. A trial judge may rightfully refuse a request to charge that the testimony of a witness for the plaintiff was that of one vitally interested in the verdict, and that such interest was contradicted by disinterested witnesses of the defendant. In such a case the judge may properly tell the jury that it is for them to say whether or not the witnesses are disinterested.
    4. Conscious falsehood, or intentional misstatement must be found upon the part of the witness before the jury will be entitled to disregard the whole of the testimony of such witness.

      Appeals — Assignments of error — Exceptions—Instructions.

      5. An answer of the trial judge to a communication from the jury not excepted to, cannot properly be assigned for error.
    Argued April 14, 1909.
    Appeal, No. 84, Jan. T., 1909, by defendant, from judgment of C. P. Luzerne Co., Feb. T., 1906, No. 442, on verdict for plaintiffs in case of James Corrigan et al. v. Wilkes-Barre & Wyoming Valley Traction Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries suffered by James Corrigan, a minor, suing by his next friend and father, Patrick Corrigan.
    At the trial Betterly, a witness for defendant, was asked this question:
    “Q. Do you know what parts of the day in this valley during the winter time beginning, say, first of December and running on until the first of March, are the warmest? "
    Objected to as irrelevant and immaterial.
    The Court: Take that.
    “Q. Do you know? A. Why, yes. Q. What parts of the day during those months are the warmest? ”
    Objected to. Sustained.

      “ Q. Whether or not you know this from observation and from the records that you have kept? A. From observation. Q. What parts of the day are the warmest?"

      Objected to as irrelevant and immaterial. Sustained. Defendant’s counsel ask for an exception.
    The Court: It is well known, especially in this part of Pennsylvania, it would be almost impossible to answer that question unless a man kept an actual record. May be warm in the morning or cool that time of the year and cool at noon and at night. May be cold in the morning and warm in the middle of the day and medium in the evening.
    Defendant’s counsel: We desire to take an exception to the statement of your honor made here with reference to the general knowledge in this valley.
    The Court: Note an exception as to what the court said. [1]
    James May, sworn for plaintiffs, in rebuttal.
    Direct examination.
    “Q. How long have you known Mrs. Corrigan? A. Why, about between eight and nine years. Q. Where do you live now? A. Same street, Slocum street. Q. How far from where she lives? A. Oh, now! Q. Where do you live now? A. Slocum street. Q. How far is that from where Mrs. Corrigan now lives? A. I don’t know where she lives now. Q. How long did you live a neighbor to her? A. Probably a year, about that, something like that. Q. During the time you lived neighbor to her do.you know from speech of the people right there'in the neighborhood what her reputation was for truth and veracity?”
    Objected to.
    “A. I know nothing wrong about her. Q. Do you know what her reputation was in the neighborhood for truth and veracity?”
    Defendant’s counsel objects to the question. Objection overruled, question allowed, exception noted, bill sealed for defendant. [2]
    A similar ruling was made as to the testimony of another of the plaintiffs’ witnesses. [3]
    The court charged the jury in part as follows:
    [The loss of the leg, of course, is permanent; but if he has sustained other injuries by this accident are they permanent or are they temporary, and if only temporary, how long will they last, according to the evidence in the case?] [4]
    Defendant presented these points:
    2. Conceding that the testimony of Mrs. Corrigan tends to show negligence upon the part of the defendant, it must be remembered that she is vitally interested in the verdict and her testimony in this respect being contradicted by the disinterested witnesses of the defendant, including the motorman, it is the duty of the jury to most carefully scrutinize and weigh her testimony in the light of the interest which she has in the result of this case. Answer: This point is affirmed except this “and her testimony being contradicted by the disinterested witnesses on the part of the defendant, including the motorman.” The court does not say they were disinterested or unbiased. The court says it is for you to say whether the motorman and the witnesses offered on the part of the defendant were disinterested or biased. It is your duty to believe all witnesses sworn in a case if you can conscientiously do so. If you cannot, then you must exercise your right to believe whom you will and ascertain who were biased or who were interested as the evidence may develop. [6]
    7. If the jury find that any of the plaintiffs’ witnesses told a falsehood as to any material fact narrated in their testimony, then the jury would be entitled to disregard and throw out the whole of the testimony of such witness. Answer: I decline to charge so, “if the jury find that any of the plaintiffs’ witnesses told a falsehood as to any material part.” If you believe any of plaintiffs’ witnesses consciously and intentionally lied or told a falsehood, you would be so warranted; but if one simply made a mistake as to a fact, intending to tell the truth, it would not be right. I say the same concerning defendant’s witnesses. [7]
    Verdict and judgment for James Corrigan for $6,000 and for Patrick Corrigan for $750. Defendant appealed.

      Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions; (4, 6, 7) above instructions and (5) answer of the trial judge to the communication of the jury.

      October 11, 1909:

      John T. Lenahan, with him Paul Bedford and Frank A. McGuigan, for appellant.

      James L. Lenahan, with him James McQuade, for appellees.
   Opinion by

Mr. Justice Potter,

In the statement of questions involved in this appeal, counsel for appellant have given us no intimation of the nature of the controversy, or of the precise questions to be determined. Nor does the history of the case supply any particulars which aid us in getting at the points to be determined. Counsel have also injected into the history of the case an uncalled for reflection upon the trial judge, in the statement that after rejecting an offer of evidence, he proceeded to give testimony upon the subject. We do not find anything in the record to justify this assertion. The matter referred to is set out in the first assignment of error, wherein it is alleged that the court erred, when, after refusing to allow a witness to testify as to what parts of the day in that locality are the warmest during the whiter time, from the first of December until the first of March, the court added, by way of comment, “It is well known, especially in this part of Pennsylvania, it would be almost impossible to answer that question unless a man kept an actual record, ” and then added in substance, that the temperature might vary at the same hour on different days. The court had previously thereto ruled that if the witness would state that he had kept an account, or could say from recollection what the warmest part of the day in question was, he might testify; but the witness would not attempt to say on what part of the particular day in question the temperature stood at a certain point. We think the ruling of the trial judge, in this respect, was correct. As the comment of which counsel complain referred to evidence which was excluded, we do not see that the comment did any harm. The exclusion of the testimony itself is not assigned as error. If its admission had been deemed important, counsel should have taken an exception, and assigned error to its exclusion by the court.

In the second and third assignments of error, counsel for the defendant complain of the admission of the testimony of two character witnesses whose testimony was negative only. Each of these witnesses testified to an acquaintance of several years’ standing, with the person whose reputation was in question. The ordinary result of long acquaintance would be to place them in a position, where they would have been likely to hear comment upon the reputation, if it had been made; and not having heard it questioned, they could so testify. Their evidence was perhaps of no great importance, but its weight was for the jury, and it was corroborative of other character witnesses. We see no error in the admission of this evidence.

In the fourth assignment, complaint is made of the charge of the court, as set forth in this extract: “The loss of the leg, of course, is permanent; but if he has sustained other injuries by this accident, are they permanent or are they temporary, and if only temporary how long will they last, according to the evidence in the case?” There was testimony showing other injuries, beside the loss of the leg, such as cuts above the knee, and on the head, and on the hands and face, and bruises on the body. And also as to pain in the leg after the amputation. The court did not say to the jury that these injuries were permanent, but left that question for their determination.

The fifth specification of error is without merit. The answer of the trial judge to the communication from the jury, was entirely proper. No exception to it was taken by counsel for appellant, and it cannot properly be assigned for error.

In the sixth specification, complaint is made of the qualification of defendant’s second point, in its affirmance by the court. In the point the court was asked to say that the testimony of a witness for the plaintiff was that of one vitally interested in the verdict, and that she was contradicted by disinterested witnesses of the defendant. The court rightfully refused to pronounce upon the bias of the witnesses, and said to the jury, that it was for them to say whether or not the witnesses were disinterested. The trial judge was also correct in saying to the jury that conscious falsehood or intentional misstatement must be found upon the part of a witness, before the jury would be entitled to disregard the whole of the testimony of such witness.

The assignments of error are all overruled, and the judgment is affirmed.


text:
    Wentz’s Estate.

      Executors and administrators — Decedents’ estates — Account—Distribution — Claims against distributees — Set-off—Partnership.
    1. It is against the policy of the law to permit an executor to set off his individual claims against a distributee; and the orphans’ court has no jurisdiction to decree such set-off.
    2. Partnership affairs between an executor and a brother, both executor and brother being distributees of the estate, must be settled between them personally, and not through the account of the ejecutor.
    3. The mingling of an administration account with a distribution account is very bad practice.
    4. The duty of an executor is to collect assets and pay debts and present a clear and distinct account to the orphans’ court showing the balance on hand for distribution. It is then for the court to supervise the account and pass upon any other claims that may be presented against the estate and award distribution to those legally entitled thereto.
    Argued April 14, 1909.
    Appeal, No. 116, Jan. T., 1909, by W. K. Gresh & Sons, from decree of O. C. Luzerne Co., No. 266 of 1902, dismissing exceptions to adjudication in Estate of George S. Wentz, deceased.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Reversed.
    Exceptions to adjudication. Before Freas, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was in dismissing exceptions to adjudication.

      James L. Morris and J. P. Hale Jenkins, for appellants.
    The debt due to the personal representative individually by a legatee or distributee may not be set off against his legacy or distributive share of the estate to the beneficiaries: Bradshaw’s App., 3 Grant, 109.
    October 11, 1909:
    The orphans’ court has no power to consider the indebtedness of a distributee to the-representative personally: Siegfried’s Est., 1 Woodward, 77; Carter’s App., 10 Pa. 144; Ottinger’s Est., 4 Pa. Dist. Rep. 711; Landis’ Est., 2 Phila. 217; Geisz v. Geisz, 7 Pa. Dist. Rep. 615.

      J. Q. Creveling, with him Wm. G. Freyman, for appellee,
    cited: Romig v. Erdman, 5 Whart. 112.
   Opinion by

Mr. Justice Potter,

This is an appeal from the decree of the orphans’ court, of Luzerne county, dismissing certain exceptions to the distribution account of the executor of the will of George S. Wentz, deceased. The appeal is taken by Gresh & Sons, assignees of all the right, title and interest of C. Perry Wentz, one of the devisees of George S. Wentz. The exceptions are to the charges made by the accountant against the share of C. Perry Wentz, in the fund for distribution. It appears from the record, that George L. Wentz, the executor of his father’s will, was in partnership with his brother C. Perry Wentz under the firm name of the C. P. Wentz Company. In January, 1906, the firm was indebted to Gresh & Sons, wholesale tobacco dealers, in a sum exceeding $50,000. To pay this indebtedness the executor made use of securities of the estate as collateral, to secure a loan of $28,500, and turned the proceeds over to the Wentz Company. The further sum of $19,484.50 was raised by the sale of certain stocks belonging to the estate, so that the sum of $47,984.50 of the funds of the estate was used by the executor in liquidation of the partnership indebtedness to Gresh & Sons. By the direction of C. P. Wentz, who was the active partner, the bookkeeper of the firm credited on the books the amount as having been contributed, one-half by each partner. C. P. Wentz contends that the same division of the funds drawn from the estate should have been made by the executor in stating his account. But instead of so doing, the executor charged C. P. Wentz with $35,960.62 and himself with $11,963.88. This division was not accurate, for it lacks $60.00 of making the total taken from the estate to pay partnership indebtedness. The reason given by the executor for attempting to make such a division, and such a charge, is that the partners, while equally liable for the debts of the firm, and equally interested in the profits, had not drawn from the firm the same amount; that C. P. Wentz had drawn out $34,187.01, while he, George L. Wentz, had drawn but $10,190.72, and he, therefore, undertook to restore the balance, by charging the larger amount to his brother, as in distribution of the funds of the estate. Here again the figures seem to be inaccurate, even if such action on the part of the executor was permissible. But it was not. The whole thing was wrong. It was an attempt upon the part of the executor to pay to himself, out of the funds of the estate in his hands, a debt owed to him by his brother. It is against the policy of the law to permit an executor to set off his individual claims against a distributee. In the present case the executor took the matter in his own hands, without waiting for the process of distribution by the orphans’ court; but even that court in settling a distribution account, would have no jurisdiction over a claim by the administrator or executor in his own right, against a distributee. “To entertain a claim made by the administrator for a debt due from one of the distributees, by the orphans’ court, after final decree of settlement or before, would be totally without warrant in the statute, and contrary to the universal practice of the orphans’ court. It would be involving that court in the settlement of claims belonging to the common-law courts, and not appertaining to its jurisdiction:” Carter’s Appeal, 10 Pa. 144. Claims against the shares of distributees are not to be considered by the orphans’ court, unless the shares have passed by assignment, or have been attached in the hands of the executor or legal custodian. In the case now before us, the estate had nothing whatever to do with the settlement of the partnership affairs between the executor and his brother, C. P. Wentz. That was a personal matter. Therefore the amount for which credit is claimed as of June 8, 1907, of $35,960.62 paid to Wentz Company, and the following item of $1,288.83 as interest thereon, have no proper place in the account, and should be stricken out. The same thing is to be said of the item of $11,963.88 charged to George L. Wentz for the same purpose. The partnership affairs between the brothers should be settled between them personally, and not through the account of the executor.

We feel that we ought to say further that the mingling of the administration account with the distribution account, as has been done in this case, is very bad practice. It is very confusing. The duty of the executor is to collect the assets, and pay the debts, and present a clear and distinct account to the orphans’ court, showing the balance on hand for distribution. It is then for the court to supervise the account, and pass upon any other claims that may be presented against the estate, and award distribution to those legally entitled thereto. The orphans’ court has not in this case made any schedule of distribution, showing the amount to which each of the devisees is entitled, imder the terms of the will, nor the amount chargeable to each as advancements. Nor does the schedule prepared by the accountant show how the amounts paid to the various distributees, compare with the amounts to which they were entitled under the will of the decedent. As the schedule was presented, it is quite apparent that insufficient provision was made for the payment to the grandchildren, of the amount due them under the terms of the will, while an undue amount of cash was advanced by the executor to himself, and to his brother, C. P. Wentz.

All the assignments of error are sustained, and the decree of the orphans’ court confirming the account as stated, is reversed; and it is ordered that the account be restated in accordance with the principles expressed in this opinion, and that a schedule and decree of distribution, in accordance with the terms of the will, be prepared by the orphans’ court. The costs of this appeal to be borne by the executor.


text:
    Prouty v. Marshall, Appellant.

      Mortgage — Record,—Mistake in recording — Indexing.
    1. When a mortgage is defectively recorded and wrongly indexed, by inserting a wrong initial in entering the name of the mortgagor, the correct name being entirely omitted from the record, a purchaser of the mortgaged premises, without actual notice, is not chargeable with notice of such mortgage, and, as terre-tenant of the premises, is not subject to its enforcement against him.
    2. The chief object to be attained, by recording and indexing an instrument, affecting the title to real estate, is to give notice of the incumbrance; it is therefore the duty of a person offering an instrument for record to see that it is both properly recorded and properly indexed. If he fails to do so, he cannot shift the consequence upon an innocent purchaser.
    3. Under the Act of March 18, 1875, P. L. 32, defective indexing is as fatal to a mortgage as against subsequent purchasers and mortgagees, as defective recording.
    Argued April 20, 1909.
    Appeal, No. 260, Jan. T., 1908, by defendants, from judgment of Superior Court, Oct. T., 1907, No. 75, affirming judgment of C. P. Clearfield Co., Sept. T., 1906, No. 115, on verdict for plaintiff in case of Agnes Prouty v. L. J. Marshall and A. A. La Rue, Terre-tenant.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed .-
    Appeal from judgment of the Superior Court. See 36 Pa. Superior Ct. 527.
    The facts appear by the opinion of the Supreme Court, and from the report in 36 Pa. Superior Ct. 527.

      Errors assigned were in affirming the judgment of the trial court.

      A. L. Cole, for appellants.

      W. C. Pentz, with him W. L. Calkins, for appellee.

      October 11, 1909:
   Opinion by

Mr. Justice Potter,

The precise question here presented for determination is whether, when a mortgage is defectively recorded, and wrongly indexed, by inserting a wrong initial, in entering the name of the mortgagor, the correct name being entirely omitted from the record, a purchaser of the mortgaged premises, without actual notice, is chargeable with notice of such mortgage, and as terre-tenant of the premises, subject to its enforcement against him.

It appears from the record, that on January 20, 1900, L. J. Marshall executed and delivered to Agnes Prouty a purchase money mortgage, secured upon premises in Dubois borough, Clearfield county. On February 6, 1900, the mortgage was delivered for record by the mortgagee to the recorder of deeds for Clearfield county, and the fee for recording paid to him. The recorder subsequently returned the mortgage to the mortgagee, with his certificate indorsed upon it, certifying that it had been recorded.

The recorder, however, had not recorded the mortgage as executed by L. J. Marshall, and had not indexed it under the name of L. J. Marshall. But upon the record the name of the mortgagor, wherever it appeared, was written “S. J. Marshall, ” and the only name entered on the indexes was that of “S. J. Marshall.”

On August 25, 1903, A. A. La Rue purchased the mortgaged premises and the same were conveyed to him by Marshall. La Rue had no actual notice of the mortgage to Prouty. On July 10, 1906, a scire facias was issued on the mortgage against Marshall as mortgagor and La Rue as terre-tenant, to recover a balance claimed to be due the mortgagee. La Rue, the terre-tenant, defended upon the ground that neither the mortgage books nor the mortgage indexes in the recorder’s office showed any mortgage executed by L. J. Marshall or contained any record of the mortgage sued on.

Upon the trial in the court of common pleas, the trial judge directed a verdict for the plaintiff, reserving a point requesting- binding instructions for the defendants. The court subsequently overruled a motion for judgment on the reserved point, non obstante veredicto, and entered judgment on the verdict. The terre-tenant appealed to the Superior Court, which affirmed the judgment of the court below. The present appeal is by the terre-tenant from the decree of the Superior Court, which is assigned for error.

An examination of the cases cited in the opinion of the Superior Court, shows that none of them presented facts similar to those in the case at bar, and in none of them was the exact question here presented, considered. Thus in Speer v. Evans, 47 Pa. 141, the case turned upon the question of actual notice, and it was held that actual notice is equivalent to the constructive notice given by the mortgage index. In Brooke’s Appeal, 64 Pa. 127, the point decided was, that, under the Act of May 28, 1775, 1 Sm. L. 94, a mortgage has priority of lien from the moment when it is left with the recorder for record, not from the time when it is actually recorded. In Schell v. Stein, 76 Pa. 398, the instrument was properly recorded, but not indexed, in a general index. It was helcTYhat as the law then stood, the recorder of deeds was not required by the Act of March 29, 1827, P. L. 154, to keep a general index of all the deed and mortgage books in his office, but only to keep an index for each book. The law in this respect has been changed by the Act of March 18, 1875, P. L. 32, and general indexes are now required to be kept, and failure to index renders the record defective. The case of Wood’s and Brown’s Appeal, 82 Pa. 116, also arose before the passage of the act of 1875, and it held, that the entry of the mortgage in the proper book gave it a hen, which failure to index would not disturb. The case of Glading v. Frick, 88 Pa. 460, also arose before the act of 1875. It was there decided that, “Where certain instruments of writing are not required by law to be recorded in a particular book, they may be recorded in any book kept by the recorder; and a building contract is valid although recorded in a deed book.” In Wyoming National Bank’s Appeal, 11 W. N. C. 567, the syllabus reads: “Where a mortgage is left for record and actually recorded, its lien will not be postponed to a subsequent judgment, by reason of the fact that the recorder has failed to enter the same on the book of entries, or upon the index.” But this court was careful to point out (p. 568) that, “The mortgage in question was left at the recorder’s office in 1873, prior to the passage of the act of March 18, 1875, so that it is not necessary to inquire whether the failure to index deprived the mortgagee of his security.” Clader v. Thomas, 89 Pa. 343, and Paige v. Wheeler, 92 Pa. 282, enunciate no new principle, and both cases arose prior to the act of 1875. Stockwell v. McHenry, 107 Pa. 237, does not bear directly upon the question raised by the present appeal. As pointed out by the Superior Court, the case related to an instrument recorded in 1865, and therefore the indexing act of 1875 did not apply. It was expressly held (p. 244) that the act of 1875 was not retroactive. In the case of Farabee v. McKerrihan, 172 Pa. 234, the mortgage was actually recorded and indexed, but in the deed book and deed index, and not in the mortgage book and mortgage index. It was held that as recording in the deed book, and indexing in the deed index placed the incumbrance in the line of title of the mortgagor, where it could be discovered with the same ease and certainty as if it had been placed in the mortgage book index, by anyone examining the title, it was sufficient notice to preserve the lien.

The great object to be attained, by recording and indexing an instrument affecting the title to real estate, is to give notice of the incumbrance. This principle seems to have been overlooked in the present case, for in reaching a conclusion, both the Superior Court and the trial court apparently gave little heed to the fact that the prime purpose of the law, in providing for the recording of deeds and mortgages, is to give notice to intending purchasers, or to others who may be interested, that the conveyance or incumbrance stands in the line of title to the property which it describes. The object of the recording acts is to give notice to the world of that which is spread upon the record. Therefore, the record is constructive notice to all persons, without regard to the fact of actual notice. Under our system, the record is open to everyone who desires to ascertain the condition of the title to any piece of real estate, in so far as its ownership is concerned, or as to incumbrances thereon, and everyone is bound to take notice of what the record shows, and searchers may rely upon the record as it stands. If this were not so, no one would be safe in purchasing real estate, or in loaning upon the strength of it, as security.

In the present case, the mortgage sued upon was never correctly recorded. The mortgage on record purports to have been executed by S. J. Marshall, and the name of L. J. Marshall does not appear upon it. The record of a mortgage given by S. J. Marshall is not notice to anyone seeking for incumbrances against L. J. Marshall. The same error was made in indexing the instrument. It was indexed as S. J. Marshall, and no mortgage given by L. J. Marshall appears upon the index. As the statute requires the recorder to keep mortgage indexes, and sec. 3 of the Act of March 18, 1875, P. L. 32, expressly provides that the entry of mortgages in said index, shall be notice to all persons of the recording of the same, the appellant here was entitled to rely upon what appeared on the index, and that showed no mortgage given by L. J. Marshall.

Considerable stress was laid upon the fact that the recorder had certified that the mortgage was recorded; but that can make no difference whatever as to notice to the purchaser, which is the only question that concerns him. He never saw the certificate of the recorder; that was given to the mortgagee, and was for her benefit. If the recorder was negligent in his duty, and gave her a false certificate, she has doubtless her right of action for damages against him. But the error made by the recorder does not alter the fact that no notice of the mortgage, either actual or constructive, was given to the purchaser. He therefore took the land free of any such incumbrance, and it cannot be enforced against him. The motion for judgment in favor of defendant, non obstante veredicto, should have been sustained.

It should be remembered that in this case the mortgage was neither recorded properly nor indexed properly; both recording and indexing were alike defective, and each of the defects was fatal to the claim of the mortgagee.

The failure to index properly is made so by the Act of April 18, 1875, P. L. 32, which after requiring in the first section, the recorder to prepare and keep two general indexes, the one direct, and the other ad sectum, of all mortgages recorded in his office, goes on to provide:

“Sec. 2. As soon as said indexes are prepared, it shall be the duty of the recorder to index in its appropriate place and manner every deed and mortgage thereafter recorded in his office, at the time the same is recorded; and in case he neglect to do so, he and his sureties shall be liable in damages to any person aggrieved by such neglect.” In Pyles v. Brown, 189 Pa. 164, our Brother Fell said (p. 168), that this act “was probably passed to remedy the defects in the recording acts pointed out by Chief Justice Agnew in the opinion in Schell v. Stein, 76 Pa. 398, decided in 1874.” There it was said (p. 400): “The question presented byHhe record in this case is, whether a deed regularly acknowledged or proved, and recorded in the proper book, and indexed in the separate index appropriated to the book, but not in the general index of all the deed books, is not defectively recorded. If it be, the conceded principle is, that a deed defectively registered is a nullity as to subsequent purchasers or mortgagees. There is no law which requires the recorder to keep a general index to all the deed or mortgage books in his office. That it is a great convenience, and in the populous counties of the state has become a necessity, is evident, but it is the province of the legislature, and not of this court, to make this convenience or the necessity the subject of law.”

The needed legislation thus pointed out, requiring the keeping of general indexes, was provided by the act of 1875, and thereafter under the reasoning of Justice Agnew, supra, the failure to index in the general index became such a defect in the recording, as to make it a nullity to subsequent purchasers or mortgagees.

In 1 Jones on Mortgages (6th ed., 1904), sec. 515, it is said: “If the record of a deed be defective for any cause, it is constructive notice of only what the record contains, in case the record is not an accurate transcript of the instrument. This is the view sustained by the greater number of decisions and by the greater weight of reason, as distinguished from the view that the filing of the deed operates as a record of it, and that it is constructive notice from such time of the actual contents of the deed,” citing Heister v. Fortner, 2 Binn. 40; Schell v. Stein, 76 Pa. 398, and cases in California, Indiana, Maine, Maryland, Michigan, Minnesota, Missouri, New Jersey, New York, Virginia and Wisconsin.

So also in 2 Pomeroy’s Equity Juris. (3d ed., 1905), sec. 654, there is a clear statement of what we think is a sound principle. It is there said: “A record is a constructive notice only when and so far as it is a true copy, substantially even if not absolutely correct, of the instrument which purports to be registered, and of all its provisions. Any material omission or alteration will certainly prevent the record from being a constructive notice of the original instrument, although it may appear on the registry books to be an instrument, perfect and operative in all its parts. The test is a plain and simple one. It is whether the record, if examined and read by the party dealing with the premises, would be an actual notice to him of the original instrument and of all its parts and provisions. By the policy of the recording acts, such a party is called upon to search the records, and he has a right to rely upon what he finds there entered as a true and complete transcript of any and every instrument affecting the title to the lands with respect to which he is dealing. A record can only be a constructive notice, at most, of whatever is contained within itself. . . . The same rule applies to the record of mortgages and all other incumbrances which can be recorded. The language, both of the original and of the record, must be such that if a subsequent purchaser or incumbrancer should examine the instrument itself, he would obtain thereby an actual notice of all the rights which were intended to be created or conferred by it.”

In the case at bar, the duty was upon the mortgagee to give notice that L. J. Marshall had executed to her a mortgage upon the premises in question. If from any cause she fell short of giving legal notice, the consequence must fall upon her. She cannot hide behind the mistake of the recorder. It is an easy matter for a mortgagee, or a grantee in each particular instance, either in person, or by a representative, to look at the record, and see that the instrument has been properly entered. The instrument itself is at hand. The names of ,the parties are known, and comparisons are easily made. How would it be possible for a subsequent purchaser to know anything about the facts? The duty thus imposed upon the mortgagee in this respect, involves no more, and no less, than is required of a mortgagee, for his own protection, when before the money is paid out upon the loan, an inspection of the judgment indexes is necessary to see whether or not a judgment has been entered against the mortgagor upon the same day on which the mortgage is recorded. Some care must be exercised in every such transaction. There is every reason why it should be made the duty of the mortgagee to see that his instrument is properly recorded. This will not in any way interfere with the principle that when the instrument is certified as recorded, it shall import notice of the contents from the time of filing. But that must be understood as in connection with an instrument properly recorded. As said above, the record is notice of just what it contains, no more and no less. The obligation of seeing that the record of an instrument is correct, must properly rest upon its holder. If he fails to protect himself, the consequence cannot justly be shifted upon an innocent purchaser.

The judgment of the Superior Court is reversed, as is also that of the court of common pleas, and it is ordered that judgment in favor of the terre-tenant be entered, «ion obstante veredicto.


author: Mr. Justice Stewart,

text:
    Beck’s Estate.

      Will — Devise—Heirs—Construction of will.

    1. The word “ heirs” when used in a will is to be understood in its legal or technical sense, unless there be something in the context showing that the testator meant it to be understood in its popular sense.
    2. In its legal and technical sense the word “ heir ” is understood as designating the persons appointed by law to succeed in case of intestacy, and whenever the word occurs in a will unaccompanied by qualifying or explanatory expressions, it must be allowed the meaning the law gives it, and those only will come within the class thus described who would take under the intestate laws. And where qualifying expressions are relied on to give other than technical meaning, these must be so direct and unequivocal as to imperatively require such interpretation.
    3. A testator may doubtless use the word “ heirs” as synonymous with “ children,” but his intent thus to use it must be gathered from something more than implication. It must be expressed.
    4. Testator at the time of the making of his will had nine children. Five of them had separate homes, and to these five he had made advancements of an equal sum to each. Of the remaining children three were mutes. To the four remaining children he gave his mansion farm at a valuation which would advance them correspondingly with the other five children, and then directed that the remainder of his real and personal estate should be converted and distributed to and among his lineal heirs share and share alike. The devise of the mansion farm was, “to my youngest sons (naming them) and to my two daughters (naming them) to be held jointly and equally — and in the case of the death of one, then that portion shall descend to the other three, and so on until the death of the last one of the aforesaid children, at which time I direct my executors — that they expose the said real estate to public sale, and divide the proceeds equally among their heirs, share. and share alike.” Three of the devisees died intestate, unmarried and childless. The other, a son, died leaving a widow and three children. Held, that the son’s children were not entitled to the whole of the proceeds of the sale of the mansion farm, but that the same should be divided per stirpes among the heirs of the four devisees, and as such the son's children were entitled to one share.
    Argued April 22, 1909.
    Appeals, Nos. 125, 126 and 127, Jan. T., 1909, by Viola Beck et al., from decree of O. C. Huntingdon Co., dismissing exceptions to auditor’s report in Estate of Jacob Beck, deceased.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Exceptions to report of T. W. Myton, Esq., auditor. Before Woods, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing exceptions to auditor’s report.

      J. F. Schock and H. H. Waite, for appellants.
    To sustain the contention of the appellants it is only necessary to give the term, “their heirs,” as used in the will the meaning of “their children,” or “their lineal heirs.” This may be done to effectuate the clear intention of the testator: Braden v. Cannon, 1 Grant, 60.
    Joint tenancy with the incident of survivorship may be created by will: Jones v. Cable, 114 Pa. 586; Man’s Est., 2 Pa. Dist. Rep. 830; Lamb v. Lamb, 8 Watts, 184; Cowden’s Est., 2 Montg. 177.
    The heirs of a testator are to be determined at his death. Those of another person (the life tenants in this case) may be determined at a later period: Breese’s Est., 2 Pa. Dist. Rep. 364; 32 W. N. C. 166.
    The fund for distribution is distributable as money, there having been conversion by the direction in the will of Jacob Beck, that the land be sold by his executors and the money divided: Ingersoll’s Est., 167 Pa. 536; Lackey’s Est., 149 Pa. 7; McWilliams’ App., 117 Pa. 111.

      W. I. Woodcock, with him W. H. & J. S. Woods and W. M. Henderson, for appellees.
    The word “heirs” ex vi termini implies representation, “ and in this respect its meaning is not changed by being coupled with the word ' children ’: ” Ashburner’s Est., 159 Pa. 545; Guthrie’s App., 37 Pa. 9; Ashton’s Est., 134 Pa. 390.
    It is a general rule that where there is an antecedent, absolute gift, independent of the direction and time of payment, the legacy is vested: McClure’s App.; 72 Pa. 414; Lane v. Goudge, 9 Ves. 225; Balmain v. Shore, 9 Ves. 500; Manderson v. Lukens, 23 Pa. 31; Womrath v. McCormick, 51 Pa. 504.
    October 11, 1909:
   Opinion by

Mr. Justice Stewart,

These several appeals are from the same decree: they present the same questions, and may be disposed of together.

If the particular gift here to be considered should be thought singular, some reason for it will be found in the peculiar situation with respect to his family which confronted the testator when he came to make final disposition of his estate. He was the father of nine children, five of whom had left the family home and were living in established homes of their own. To each of these testator had advanced the sum of $2,000, and had charged them each with this sum in his book of advancements. Of those remaining all with the exception of Catherine, an unmarried daughter, were mutes. To these four, Abednego, John, Catherine and Nancy, he gave his mansion farm at a valuation which would advance them correspondingly with the other five children, and then directed with respect to the balance of his estate, which included another farm, that it should be converted and distributed to and among his lineal heirs, share and share alike. The devise of the mansion farm was as follows, “To my two youngest sons, Abednego and John, and to my two daughters, Catherine and Nancy — to be held jointly and equally— and in the case of the death of one, then that portion shall descend to the other three, and so on until the death of the last one of the aforesaid children, at which time I direct my executors — that they expose the said real estate to public sale, and divide the proceeds equally among their heirs, share and share alike.” Abednego, Catherine and Nancy died in the order named, unmarried and childless. John, the last survivor, left a widow and three children. The present controversy arises over the distribution of the proceeds of sale of the mansion farm devised as above. The auditor holding to the view that the word “ heirs ” as it occurs in the gift was to be interpreted according to its strict, legal and technical meaning, and deriving from the general scheme of the will a controlling purpose to -have the heirs share as classes, divided the fund accordingly and distributed it per stirpes, that is to say, in six equal parts, awarding to the children of the deceased brother and the children of the deceased sisters their parent’s share. The distribution so made was confirmed, and from the decree of confirmation John’s children appealed, their contention being that by the word “ heirs ” testator meant .the lineal heirs or children of the devisees of the mansion farm, and that inasmuch as they alone answered this description the whole fund should be awarded to them. This position can be maintained only as it can be shown from the will itself that the testator used the word “heirs” in its popular rather than its technical sense. “The word 'heirs’ when used in a will is to be understood in its legal or technical sense, unless there be something in the context showing that the testator meant it to be understood in its popular sense: ” Porter’s App., 45 Pa. 201; Eby’s App., 50 Pa. 311. In its legal and technical sense the word “heir” is understood as designating the persons appointed by law to succeed in case of intestacy, and wherever the word occurs in a will unaccompanied by qualifying or explanatory expressions, it must be allowed the meaning the law gives it, and those only will come within the class thus described who would take under the intestate laws. And where qualifying expressions are relied on to give other than technical meaning, these must be so direct and unequivocal as to imperatively require such interpretation. “A testator may doubtless use the word 'heirs’ as synonymous with children, but his intent thus to use it must be gathered from something more than implication. It must be expressed: ” Criswell’s App., 41 Pa. 288. An examination of the will before us reveals nothing that gives any reason for supposing that the testator understood and used the word in any more restricted or qualified sense. It is significant that in disposing of the residue of his estate he directed an equal distribution of the same among and between his own lineal heirs, while with respect to this particular fund he directs an equal distribution among the heirs of the devisees of the farm. But such circumstance makes rather against than for appellant's contention. When a testator uses terms of technical import differing in signification from those used with respect to wholly distinct and separate bequests, such circumstance in itself affords no ground for inference that he used them as equivalent, the presumption rather being that he used them with intelligent discrimination to indicate his exact purpose. Here everything in the will indicates an intelligent understanding of the difference between the words “heirs” and “lineal heirs,” and a discriminating and purposeful use of them. Twice in the will, in connection with the gift over, those who are to take are described simply as the heirs of the first takers. All agree that the general scheme of the will contemplates an equal distribution of the entire estate between all of testator’s children, as far as practicable. The will clearly discloses such a purpose. Were we to give to the word “heirs” the meaning contended for by appellant, such purpose would be defeated, since the share received by John and his children would in such event be largely in excess of that received by others standing in equal degree. In construing the word “heirs” according to its legal meaning the court below adopted the correct view.

The héirs of the four devisees of the mansion farm were a surviving brother, Jeremiah, two surviving sisters, Mrs. Gray and Mrs. Buck, the children of Mrs. Henderson, a deceased sister, the children of Mrs. Buck, also a deceased sister, and the children of John, here the appellant. By the mode of distribution adopted the fund was divided into six equal parts, and distributed per stirpes, the children of those deceased taking their parent's share. We do not understand that the correctness of this mode is questioned. If John’s children are entitled to take simply as heirs, their advantage lies in a per stirpes rather than a per capita distribution, and hence they are not objecting to the mode, should failure follow their effort to establish their right as sole legatees. This with the fact that we have no appeal but on behalf of John’s children shows acquiescence on the part of all in the method adopted. We are therefore relieved from inquiry with respect to it. We may, however, add, that it finds strong support in Miller’s App., 35 Pa. 323, and in the later case of Hoch’s Est., 154 Pa. 417. The decree is affirmed, and appeals are dismissed at costs of appellants.