text:
    Colonial Trust Company, Administrator, Appellant, v. Hoffstot.

      Bailment — Pledgor and pledgee — Borrower and lender — Confidential relation — Fiduciary relation.

    Where the relation between the parties to a bill in equity is that of borrower and lender, and as to the collateral for the loan, that of pledgor and pledgee, the relation is not a confidential relation, and not in any but a very limited sense, if at all, a fiduciary relation, and in such a case there is no reason why the parties should not deal freely with each other in regard to the property held in pledge.
    The fact that the lender undertook and did in fact, not only advance money to the borrower, but assisted him in financing his affairs, and in pursuance thereof, through an agent, took part in the management of Ms business, does not change the status of the parties towards each other.

      Contract — Insanity—Mental depression — Suicide—Equitable duress.

    Where a man during a period of nervous depression from financial troubles, in which he is brooding over the idea of suicide, makes a contract, and thereafter actually commits suicide, the mere fact of suicide without other evidence, is not sufficient to support a finding that he was non compos mentis at the time he made the contract; and much more is this so where there is a large amount of evidence that he personally attended to many and diversified corporate interests with no hint from any business connection or associate of his incompetency, or even of impaired keenness. Insanity is not a legal deduction from suicide.
    Where a man during a state of nervous depression resulting from desperate financial straits, but with full mental capacity, secures the loan of a large sum of money, and the lender to protect himself against the great risk involved, requires the borrower to transfer to him all of his assets as collateral for the loan, the lender cannot be charged with equitable duress in the transaction.
    Argued Nov. 4, 1907.
    Appeal, No. 109, Oct. T., 1907, by plaintiffs, from decree of C. P. No. 2, Allegheny Co., April T., 1906, No. 1,174, dismissing bill in equity in case of The Colonial Trust Company, Administrator of the Estate of W. C. Jutte, deceased, Jane C. Jutte, and Mercantile Trust Co., Guardian, v. F. N. Hoffstot and James W. Friend.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.

      Bill in equity for an account.
    Before Shafer, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      A. Leo Weil, with him B. M. Ambler, Wm. M. Galbraith and Charles M. Thorp, for appellants.
    The contracts were made by defendants with Jutte while they occupied to him a confidential relation: Darlington’s Est., 147 Pa. 624; Miskey’s App., 107 Pa. 611; Stepp v. Frampton, 179 Pa. 284; Dunn v. Dunn, 42 N. J. Eq. 431 (7 Atl. Repr. 842).
    Advantage was taken by defendants of Jutte’s financial embarrassment and frantic condition to drive with him a grossly extortionate and unconscionable bargain, Jutte being at the time and all the time under equitable duress to defendants. i
    Even if Jutte in his extremity was compelled to submit to whatever terms the defendants might demand, a court of equity will not permit advantage to be taken of this extremity to enable defendants to extort from him an unconscionable and oppressive agreement: Story, Eq. Juris, sec. 188; 1 Page on Contracts, sec. 234; Miller v. Miller, 68 Pa. 486; McAllister’s App., 59 Pa. 204; Huguenin v. Baseley, 2 Lead. Cases in Equity, *556.
    Mr. Jutte was mentally weakened when he made these contracts, and so continued until his death: McElroy’s Case, 6 W. & S. 451; Lancaster County Natl. Bank v. Moore, 78 Pa. 407; Nace v. Boyer, 30 Pa. 99; Longenecker v. Church, 200 Pa. 567; Allore v. Jewell, 94 U. S. 506; Harding v. Wheaton, 2 Mason, 378; Smee v. Smee, L. R. 5 P. D. 84; Boyse v. Rossborough, 6 H. L. Cas. 2; Dew v. Clark, 3 Addams, 79; Thornbrough v. Baker, 2 White & Tudor, L. C. 1984; Stepp v. Frampton, 179 Pa. 284; Allore v. Jewell, 94 U. S. 506; Maddox v. Simmons, 31 Ga. 512; Cruise v. Christopher, 5 Dana (Ky.), 181; McCormick v. Malin, 5 Blackf. (Ind.) 509; Cobb v. Day, 106 Mo. 278.

      James H. Beal, of Reed, Smith, Shaw & Beal, with him Chas. Gibbs Carter, for appellees.
    There can be no relief on the ground of confidential or fiduciary relation, because (a) it was not set up in the bill, and (b) there was no proof of any such relation: Greenfield’s Estate, 14 Pa. 489; Clark v. Everhart, 63 Pa. 347: Geddes’s App., 80 Pa. 442; Allcard v. Skinner, L. R. 36 Ch. D. 145; Knight v. Marjoribanks, 48 Eng. Ch. Rep. 10; Conley v. Nailor, 118 U. S. 127; Dean v. Fuller, 40 Pa. 474.
    January 6, 1908:
   Opinion by

Mr. Chief Justice Mitchell,

This case involves the review of financial transactions between borrower and lender. Except for the large amounts dealt with, the complication of the transactions, and certain sensational features having no real bearing on the law or the merits of the case, it does not differ from the common run of such cases. The general subject of the litigation is thus clearly summed up by the learned judge below before whom the case was tried: “ The bill is for an injunction to restrain the sale by the defendants of collateral of plaintiffs’ decedent for a debt alleged to be due from him under certain contracts; to set aside those contracts as being made while decedent was insane, and as being unconscionable and oppressive, and for a receiver and an account.

“ Tho trial of this case lasted many weeks, the testimony taken amounting to nearly 4,000 pages, in addition to over 300 exhibits, some of them quite voluminous, forming a record of a volume believed to be unprecedented in the courts of this county. Tho trial was conducted with elaborate care and great skill on both sides, and was prolonged by the great complication of decedent’s affairs, the general situation of which at various times was deemed an important element in the determination of the matters in issue.”

The main facts which are found in detail by the learned judge below, are that Jutte prior to 4899 had been engaged' for many years in mining and shipping coal, with which business he was entirely familiar. In 1899 he and others joined in forming what is called for convenience the River Coal Company, sold to that company for a large price their plants; including goodwill, etc., part of tho consideration being his agreement not to engage in the same business within tho terri-' tory where the coal company operated for a period of ten years. Being disappointed in his expectation of becoming-an officer of the coal company he promptly disregarded Ids agreement not to engage in the business (see Monongahela etc., Co. v. Jutte, 210 Pa. 288) and in 1900 started a rival corporation, with subordinate auxiliary companies, in which he and others including the defendants put large amounts of money for the purchase of coal lands, river barges, a landing on the Monongahela river, etc. The operations were on a large scale, but not presently remunerative. The result was that in the fall of 1901 his affairs were greatly involved. His assets were large, but nearly all pledged for indebtedness which was rapidly maturing, and his creditors were pressing for payment. As found by the court below, his own liabilities exceeded his assets from $200,000 to $300,000, while C. Jutte & Company owed on bills and accounts payable about $281,000, to meet which they had in cash, bills receivable, coal, coal barges, etc., about $275,000, and owned the Gilchrist float and an interest in the Marine Coal Company, worth together about $115,000, making their margin of assets over liabilities about $109,000. The business of C. Jutte & Company was the income producer on which as a going concern the salvation from bankruptcy of the connected operations depended.

In this situation of his affairs, complicated by his indictment in West Virginia for forgery in connection with some papers concerning a bridge company, which though subsequently quashed, worried him greatly, Jutte applied to defendants for aid, and on November 5, 1901, made the first of a series of contracts between the parties which gave rise to this litigation.

By this contract defendants were to procure for Jutte a loan of $200,000 for a year to enable him to pay off his most pressing debts, and tide him over the crisis. For this he was to pay six per cent commission, six per cent interest, to put up all his industrial stocks and bonds as security, to give defendants one-half of whatever O. Jutte & Company should be worth after he should get back the money he had put into that concern, taking the amount, however, in bonds instead of cash, and in the meantime, a nominee of defendants, one Guffey, was to be taken into the employ of C. Jutte & Company, to look after the business and see that the securities were handled in accordance with the agreement.

Between this first contract of November 5, 1901, and May, 1903, four other contracts were made between the parties altering or supplementing the original terms, but none of them material to be dwelt upon now. The court below in its finding, No. 26, said: “The situation which confronted Jutte in May, 1903, would therefore appear to have been this: He had not succeeded in paying off any material part of the debts for which he had procured an extension. He had been and was obliged to pay interest on them. The extension would expire the next winter. He was unable to withdraw from any interest in which he was concerned any money to pay them or' the interest on them, but, on the contrary, each enterprise in which he was concerned needed money. The success of C. Jutte & Company was absolutely necessary to prevent financial ruin. O. Jutte & Company could not be a success unless it got its coal opened and transported to the market upon a considerable scale. ... It was, therefore, absolutely necessary that C. Jutte & Company should have more money with which to operate; and this could only be had, if at all, by the sale of its bonds. In order to get any sum of money worth while, it was necessary to make an issue of bonds of considerably over $1,000,000. The only substantial assets of C. Jutte & Company upon which a bond issue could be founded, were the steamboats and other craft on the river, the Neal landing and the Pike Run coal. . . . The coal itself furnished the principal basis of the loan. Now, even if the coal were supposed to have increased in value more than three times what Jutte paid for it, it, together with the other properties of C. Jutte & Company, would not make a very substantial basis for a loan of $1,000,000, and to sell bonds of an issue of $1,600,000, or any substantial sum over $1,000,000 on that property, on the market, was impossible.”

The court then continues: “ On May 12, 1903, the contract was made upon which the defendants claim the right to do that which the plaintiffs seek to enjoin. This contract is in the form of a letter from Jutte to Friend and Hoffstot, which was afterwards accepted by them. Although in this form it was undoubtedly agreed upon between the parties before it was written, and, therefore, while by its form it appears to be the words of Jutte only, yet in fact the words are equally those of each party. Bearing this in mind, the substance of the contract may be stated as if in Jntte’s words, and he says: ‘J confirm, the contracts heretofore made with you, referring to the contracts above mentioned, and I find I have not provided securities for O. Jutte & Company to obtain the ■ necessary working capital, and I think its bonded indebtedness ought to be increased to $1,600,000. I want you to join me in' surrendering the present issue of bonds and I will take $750,000 of the new issue, instead of that amount of the old and in order to get myself out of debt I wish to sell you this $750,000 of the new bonds at ninety cents on the dollar. I will • use the proceeds to pay what I owe you, and apply the balance to the rest of my debts, and then T will make the division of securities heretofore agreed on. As to the $800,000 of new bonds that will be left, I wish you to sell them to' Blair- & Company, as I understand you can, at par, giving them $80,000 preferred stock of C. Jutte & Company and your personal guaranty to buy back the preferred stock at par and the bonds at 111 within three years, and-I will indemnify you for this guaranty to- Blair & Company, leaving with you all my real and personal estate as security, and if you have to make good your guaranty with Blair & Company, I authorize you to sell the bonds ■ and stocks repurchased from them on ten days’ notice. 'l am also to have the privilege of buying back $160,000 of the common stock of C. Jutte & Company at fifty cents on the dollar, at any time before April 1st, 1906.’ The substance of the contract is that Friend and Hoffstot agree to buy outright Jutte’s $750',000 of bonds at ninety cents on the dollar, and the new $600,000 of bonds from C. J utte & Company at par, and J utte guarantees them that this $600,000 of bonds and the $200,000 belonging to Friend and Hoffstot shall be worth 111 per cent on the market in three years, and that the $80,000 worth of preferred stock of O. Jutte & Company shall also be worth par.”

These contracts, particularly the last, are attacked by the appellants, representing the interests of Jutte, on the grounds first, that a confidential fiduciary relation existed between-the parties ; second, that Jutte was of impaired and-unsound mind; third, that advantage was taken of his financial distress, amounting to equitable duress, to extort oppressive and unconscionable agreements from him.

First, there was no confidential or fiduciary relation proved. The parties were borrower and lender, and in regard to the stocks, etc., as to which the bill seeks an accounting, the relation in which they stood, as found by the court below, was “ that of pledgor and pledgee, which is not a confidential relation, nor in any but a very limited sense, if at all, a fiduciary relation, and furnishes no reason why the parties should not deal freely with each other in regard to the property held in pledge. No confidential or fiduciary relation between the parties was alleged in the bill or set up as a ground of relief.” That defendants undertook and did, in fact, not only advance him money but assisted in financing his affairs, and in pursuance thereof did, through Guffey as agent, take part in the management of his business, does not change their status towards him. They were interested financially in his successful extrication from his pecuniary difficulties, and they worked for that result in his behalf as much as in their own. No act is shown which sustains any opposite view.

Second, that Jutte was non compos mentis in any material sense is even less tenable. That in the latter part of 1901 he was ill, nervous, dejected and brooding over the idea of suicide may be conceded. He made an attempt at suicide in 1901, and another successful one in 1905. But insanity is not a legal deduction from suicide. As the learned judge below said, he had at various periods the idea that suicide would be the best thing for him, “ but this was not because he was insane but because of his knowledge of his financial situation. For a man in the situation in which he knew himself to be in the latter part of November, 1901, to commit suicide, is by no means unheard of. In May, 1905, when he committed suicide, he must have seen clearly that his affairs and the affairs of C. Jutte & Company were in such a state that there was no hope whatever of the bonds being worth 111, or anywhere near that amount, in less than one year from that time, and that upon his guaranty that they 'would be worth that amount he would lose everything he had.” Apart from suicide the testimony as to insanity consists of the usual loose talk of relatives, physicians and acquaintances as to peculiarities of speech and action, such as always crops up on such issues, but rarely makes itself heard while the person referred to is alive and treading his daily path of life. Against such flimsy evidence as this there is in the present case the indisputable fact that during the four years of these transactions, with the exception of shprt trips to the seashore and to Europe, for the benefit of his physical health, Jutte attended personally to his many and diversified corporate interests, with no hint from any business connection or associate of his incompetency or even of impaired keenness. As an illustration of the extent of his operations, it appears in the evidence that from day to day during the months of October and November, 1901, he made or indorsed twenty-eight promissory notes, amounting to $496,052.85, and during the same period drew checks, aggregating $213,112.09, on his individual account in one bank, besides keeping individual accounts in a number of other banks, as well as having charge of the bank accounts of five corporations. Not a single one of these acts was, or is now, challenged as showing impaired mental capacity. In the face of such facts the theories and opinions advanced are worthless.

Third, there was nothing amounting to equitable duress compelling Jutte to make unconscionable agreements. With the failure to show mental incapacity this part of the case falls almost of course. But there was no evidence that shows any such equitable duress as will permit a court to set aside an executed contract. The defendants carried out all their agreements as they had made them. No doubt they drove a hard bargain, but when did money lenders ever do otherwise when they were taking a dangerous risk ? Jutte was a bold, skillful and for a time successful operator, who, like many another, finally let his boldness get the better of his discretion and brought himself to the end of his resources. The situation was desperate, but it was of his own creation, and no one saw it more clearly than himself. He went to the defendants for help, and securing themselves by all the available assets he had they gave him help, taking ■ thereby a big risk for the chance of a big profit. It was a transaction such as the business world in which both parties moved is doing every day.

The learned judge below, after most patient hearing and consideration, filed an elaborate opinion which has greatly lessened our labors, and which would have been adopted in full except for the fact that it naturally discusses details which, while of interest to the parties, have no legal importance to others and would, therefore, unnecessarily incumber the reports. The most careful review fails to shake any of his conclusions either of fact or of law.

The decree is affirmed at the costs of the appellants.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Fischer v. Riehl, Appellant.

      Equity — Equity jurisdiction — Account—Principal and agent.

    A bill in equity by a principal against an agent for an account is prima facie cognizable in equity, and the jurisdiction of equity is not subsequently ousted by the fact that the substantial contest between the parties finally narrows down to a single item.
    Argued Nov. 4, 1907.
    Appeal, No. 126, Oct. T., 1907, by defendant, from decree of C. P. No. 3, Allegheny Co., Nov. T., 1905, No. 425, on bill in equity in case of George Fischer, Executor of John Fischer, deceased, v. Leonard Riehl.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity for an account.
    Before Kennedy, P. J.
    From the record it appeared that John Fischer and the defendant, Leonard Riehl, stood in the relation of father-in-law and son-in-law to each other. Riehl was also Fischer’s agent under a power of attorney. The bill sought for an accounting for various items, but the contest finally narrowed down to the question as to whether Riehl was entitled to retain for his services $2,000 out of moneys which he had collected. The court disallowed the claim and entered a decree against the defendant for $2,000.

      Error assigned was the decree of the court.

      Wm. M. Hall, with him O. P. Metcalf, for appellant.
    — The plaintiff has an adequate remedy at law either in assumpsit or trespass, and, the account being unilateral, not complicated, and not requiring discovery, equity has no jurisdiction: Paton v. Clark, 156 Pa. 49; Graham v. Cummings, 208 Pa. 516; Holland v. Hallahan, 211 Pa. 223.

      Samuel McClay, of Reed, Smith, Shaw & Beal, with him Alexander Gilfillan, for appellee.
    A bill in equity for an account can be maintained in this case: Bredin v. Kingland, 4 Watts, 420; McFadden v. Sallada, 6 Pa. 283; Reeside v. Reeside, 49 Pa. 322.
    January 6, 1908:
   Per Curiam,

The bill being by a principal against an agent for an account was prima facie cognizable in equity. As stated by the . learned judge below, the bill was “ filed to compel an accounting by the defendant, not only of the moneys collected under the power of attorney mentioned, but also of the investments named ; and it is sought in said account to have the defendant surcharged with the investments claimed to be worthless.” There was no denial of the duty to account but a dispute as to some of the items of plaintiff’s claim, and an averment of a settlement. The issue, therefore, was one calling for an account, and the fact that the substantial contest finally narrowed down to a single item did not oust the jurisdiction of equity which had attached on the face of the pleadings.

Decree affirmed.


text:
    Murphy v. McMullin, Appellant.

      Contract — Sale—Evidence—Memorandum charge — Res gestee.

    On the trial of an issue to determine whether the defendant had or had not sold certain stock to the plaintiff, it is proper to exclude an offer on the part of the defendant of a memorandum charge handed by the defendant to his bookkeeper at the time of the alleged sale, to be followed by the books in which the charge was entered. Such a memorandum is not a part of the res geste, but is a secret act of the defendant of which the plaintiff had no notice, and could not be supposed to have acquiesced in by silence.
    Argued Nov. 5, 1907.
    Appeal, No. 127, Oct. T., 1907, by defendants, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1904, No. 133, on verdict for plaintiff in case of John Murphy v. M. K. McMullin and F. A. Clark, trading as M. K. McMullin & Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Assumpsit to recover the value of certain stocks pledged by the plaintiff to the defendants as collateral for a loan of $4,000. Before Young, J.
    At the trial it appeared that plaintiff borrowed from defendants $4,000 and pledged certain stock as collateral for the debt. Plaintiff claimed that subsequently he paid $2,000 on account of the loan and thereafter tendered the balance due, and demanded back his collateral. The defendants, however, cláimed that the $2,000 was paid, not on account of the indebtedness, but on account of a purchase of twenty shares of the Farmers’ Deposit Hational Bank stock at the rate of $1,750 per' share.
    F. A. Stolzing, a witness for the defendant, being upon the witness stand, exhibit 10 having been shown him, and he having testified that he first saw the exhibit on June 22, 1903, it being handed to him by Mr. McMullin for the purpose of entering it on the books, the following offer of evidence and ruling was made. (Exhibit 10 being as follows: “John Murphy bought 20 Farmers, $1,750 — $35,002.50'—6-22-03.”) ,
    Mr. Ferguson: I propose to prove by the witness on the stand that exhibit 10 came into his hands on June 22, 1903; that it is the ordinary charging memorandum of the office; that it was handed to him for entry upon the books, and that upon June 22, 1903, he did enter upon the books of M. K. McMullin & Co., a charge in pursuance of this memorandum; and I propose to produce the books in corroboration of that fact.
    Objected to as incompetent and irrelevant, and not competent for the purpose of proving a special contract for the purchase of this stock. What McMullin said to the bookkeeper or directed his bookkeeper to do would be no evidence to corroborate his statements as to the sale of the stock to Mr. Murphy. And it is further objected to, because' the testimony of the witness establishes the fact that the paper, whatever it may be, is not in the handwriting of the defendant.
    Objection sustained.

      To which ruling of the court counsel for the defendants except, and thereupon at their request exception noted and bill sealed. [1]
    F. A. Clark, a witness on the stand, defendants’ counsel offers in evidence exhibit 10, a charging memorandum made by Mr. McMullin. (Exhibit 10 being as follows: “ John Murphy bought 20 Farmers $1,750 — -$35,002.50—6-22-03.”)
    Objected to as secondary evidence, and as incompetent and irrelevant, and as an attempt to corroborate the testimony of the defendant, and for the further reason that the evidence is that the paper is not in the handwriting of - the defendant, except partially.
    Objection sustained.
    To which ruling of the court counsel for defendant excepts and thereupon, at his request, exception noted and bill sealed. [2]
    Verdict and judgment for plaintiff for $3,880. Defendants appealed.

      Errors assigned amongst others were (1, 2) ruling on evidence, quoting the bill of exceptions.

      J. S. Ferguson, with him E. G. Ferguson, for appellants.

      L. K. Porter, with him F. H. Kennedy and S. G. Porter, for appellee.
    January 6, 1908:
   Per Curiam,

The memorandum offered as well as the books by which it was to be followed, was in defendant’s own interest. It was not part of the res gestae, for several reasons, the principal and conclusive one of which was that it was a secret act of the defendant of which the other party had no notice and therefore could not under any rule be supposed to acquiesce in by silence. The cases where such declarations or memoranda become evidence are where the claim is challenged as an afterthought and it becomes material to show that it was, as it purports to be, cotemporary with the transaction.

. The other matters in the case were questions of fact for the ¡Fry.

Judgment affirmed.


author: Mr. Justice Mestrezat,

text:
    Follett, Appellant, v. Butler County.

      Taxation — Land—Mansion house — Township—Borough—Acfs of July 11, 1842, P. L. 321, and April 25, 1850, P. L. 569.
    Whore a farm is divided by a township and borough line, and the mansion house is in the borough, the land in the township is to be assessed in the township and the land in the borough is to be assessed in the borough, and the rule applies whether the land outside of the borough, lies in one township, or in several townships.
    Argued Nov. 5, 1907.
    Appeal, No. 50, Oct. T., 1907, by plaintiff, from judgment of Superior Court, April T., 1905, No. 229, affirming decree of C. P. Butler Co., June T., 1904, No. 3, dismissing bill in equity in case of James Follett v. Butler County et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Appeal from Superior Court. See 30 Pa. Superior Ct. 21, and 31 Pa. Superior Ct. 571.
    The opinion of the Supreme Court states the case.

      Error assigned was the judgment of the Superior Court.

      Lev. McQuistion, with him W. D. Brandon, and J. C. Vanderlin, for appellant.

      H. H. Goucher, with him F. J. Forquer and Everett L. Ralston, for appellee.
    January 6, 1908:
   Opinion by

Mr. Justice Mestrezat,

This is a bill in equity filed by James Follett, the plaintiff, to restrain the collection of taxes assessed and levied on his farm in Parker township, Butler county. In the year 1901 Follett was the owner of 100 acres of seated land in Parker township, and on September 2 of that year the court of quarter sessions erected the borough of Bruin out of a portion of the territory within the township. Twenty-five acres of Follett’s farm, including the mansion house and other outbuildings, are included within the limits of the borough. The whole of the 100 acre farm was assessed for the purposes of taxation in 1902 and 1903 in the borough of Bruin and the taxes thereon for those years were paid by the plaintiff in the borough. In 1903 the seventy-five acres of the farm located in Parker township were assessed in that township for the purposes of taxation, and the collector was proceeding to collect the taxes levied on this part of the farm by the township when this bill was filed.

The plaintiff claims that the entire farm of 100 .acres should be assessed in the borough of Bruin because. that portion of the farm on which the mansion house and other buildings are erected is within' the territorial limits of the borough; and that,, therefore, the seventy-five acres or residue of the farm lying in Parker township is not assessable in that township. The bill 'prayed that the assessment in the township be decreed invalid'and void, and that the defendants be restrained from levying and collecting the tax heretofore assessed, and hereafter from assessing any part of said tract of land in the township and school district of Parker.

The court of common pleas dismissed the bill and its decree was affirmed by the Superior Court from which we have this appeal.

As the law stood prior to the Act of July 11, 1842, P. L. 321, 2 Purd. (12th ed.) 1982, there is no doubt that the twenty-five ‘acres of the plaintiff’s farm lying in Bruin borough would have been assessed for the purposes of taxation in the borough, and the residue of the farm, located in Parker township, would have been subject to taxation in that township. Such is the general rule governing the imposition of taxes upon lands within the territorial limits of the authority imposing the taxes. Each municipality was vested with the authority of levying and collecting taxes on real estate situated within its own territorial limits. For reasons well stated by Mr. Justice Strong in Bausman v. Lancaster County, 50 Pa. 208, the legislature of this state, however, has modified-to a certain extent the rule just stated.

By the fifty-ninth section of the act of July 11, 1842, it is enacted as follows: “ The assessors of the several counties within this commonwealth shall, on seated lands, make the assessment in the. township in which the mansion house is situate, where township linos divide a tract of land.” Where, therefore, a farm is divided by a township line, and parts of it were in two townships, the effect of the act, according to its letter, was to require the whole of it to be assessed in the township in which the mansion house was located. In interpreting the statute in Bausman v. Lancaster County, supra, we held that it applied not only where a line passing through a farm divided two townships, but also where a line passing through a farm divided a township from a borough or city and part of the farm was in a township and part was in a borough or city, and that the whole farm was taxable in the borough, city or township where the mansion house was located. As the law stood immediately after the passage of the act of 1842, therefore, the plaintiff’s mansion house being on the part of his farm located within Bruin borough, his entire farm would bo taxable by the borough. If there had been no subsequent legislation the contention of the plaintiff that his farm should be taxed within the borough would be correct, under the provisions of the act of 1842, and the taxing officers of Parker township would have no authority to subject to, taxation that portion of the farm lying within the township.

The section of the act of 1842, above quoted, has, however, been modified and restricted in its operation by the fifteenth section of the Act of April 25, 1850, P. L. 569, 2 Purd. (12th ed.) 1982, which provides as follows: “ The 59th section of the act of 11th July, 1842, entitled 'An act regulating election districts, and for other purposes,’ shall not be construed to extend to lands lying in different townships, the mansion house of which is in an incorporated borough or city.” This act was clearly intended to limit the operation of the act of 1842. Under that act, as we have seen, the whole farm was considered within the limits of the borough or city for taxable purposes if the mansion house was located on the part of the farm within the borough or city. What changes in or limitation on the act of 1842 did the act of 1850 make? Clearly, we think, that the act of 1842 was to be limited in its operation so as not to apply where lands are divided by a borough or city line and “the mansion house of which is in an incorporated borough or city.” Prior to the act of 1850 such lands would have been taxable in the borough or city ; now under its provisions they are not so taxable. Each part of the farm, divided by a borough or city line, is now taxable within the territorial limits in which it is located. In the passage of the act of 1850, the legislature manifestly thought that it would be unjust to make an entire farm taxable in a borough or city because the owner’s residence happened to be located on a small part of it within the municipal limits. Taxes are higher and more numerous in a borough or city than in a township, and it is manifestly to the interest of the owner of a farm that as small a portion of it as possible be made subject to taxation within the borough or city limits. In the creation of a borough-as well as in the attempt to add additional territory to boroughs already in existence, by proceedings under the laws of the commonwealth, there has always been a disposition on the part of the owner of farming lands to object to it being included in the borough or city. The owner of such lands regards it as undesirable as well as oppressive that his lands should be taken into a borough or city and be made subject to the payment of additional taxes. The records of the courts of the state show many litigated cases in which the owner of the farm has strenuously opposed the inclusion of his land within the borough or city limits. His right to object to his farm or a part of it being included within municipal limits is recognized by the legislature in the enactment of various laws giving him an opportunity to prevent such action by the municipal authorities. The legislature in enacting the statute of 1850 manifestly had in view the purpose to exclude from the jurisdiction of the borough or city for taxing purposes all farming lands which were beyond the municipal limits, and thereby protect the owner of such lands from being taxed without such lands receiving any benefit from the municipality.

We are not impressed with the contention that the act of 1850 does not apply to the facts of this case because the plaintiff’s land lies in but one township and not in different townships. Why the act should apply in a case where the farm lies in two or more townships and a borough or city, and does not apply where the land lies in one township and a borough or city has not been demonstrated to our satisfaction. The scrivener who drew the act of 1850 could have used language ■which would have removed the doubts expressed as to its application in this case, and he certainly should have done so, but in construing this statute, we must interpret it in the light of the act of 1842 and the manifest purpose for which the former act was passed. We did this in construing the act of 1842 in Bausman v. Lancaster County, 50 Pa. 208. The letter of that act would have confined it to cases where a farm was divided by a line leaving a part of the farm in each of two townships, but we held that the reason of the legislation from which we should judge of the intent of the legislature made the act applicable where a farm was divided by a township, borough or city line and part thereof was within the municipality. Here the reason for the act of 1850 is the same whether the owner’s land lies in one or different townships. The evils arising from taxing his whole farm in a borough or city because part of it is located in the borough or city, are the same whether the residue of his farm is in one or a half dozen townships. That is quite apparent and, guided by the reason for the legislation in question, we are satisfied that the act applies wherever the mansion house is in an incorporated borough or city and the balance of the farm is outside of the municipal limits, regardless of the number of townships in which it is located.

Our conclusion is that, under the act of 1850 where a farm is situated partly in a borough or city and partly in a township that the whole tract is to be assessed together when the mansion house is on the part located in the township, but where it is on the part situate in the borough or city, the land in the township must be assessed by the township authorities and the land in the borough or city by the municipal authorities. In the case before us, therefore, the taxing authorities of Parker township were duly authorized to assess and levy taxes on the part of plaintiff’s farm situate in the township, and ho cannot maintain this bill to restrain the township authorities from levying and collecting the taxes.

The decree of the Superior Court is affirmed,


author: Mr. Justice Potter,

text:
    Fry v. National Glass Company, Appellant.

      Charge — Points—Construction of contract — Fraud.
    Where in an action on a contract the plaintiff presents a point for the construction of the contract, and the court affirms the point, the defendant cannot assign as error an addition to the affirmance, to the effect that the mere fact of the affirmance would not of itself entitle the plaintiff to recover. Such an addition was obviously made by the court to prevent the jury from misunderstanding the answer to the prejudice of the defendant.
    Where a contract is attacked on the ground that one of the parties obtained it by stating that he was not acting for any corporation or trust, and the party avers that at the time he made the statement it was true, and that he was only acting for himself, the question of fraud on the conflicting evidence is for the jury; and the court would not be justified in taking the case from the jury because the party subsequently entered into an arrangement with a corporation or trust.
    Fraud in fact is always a question for the jury, and however convincing may be the evidence on the subject, it would be to confound the province of the two tribunals for the court to assume the decision of it.
    Argued Nov. 5, 1907.
    Appeal, No. 128, Oct. T., 1907, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1901, No. 95, on verdict for plaintiff in case of George W. Fry v. National Glass Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Assumpsit on a contract. Before Macfarlane, J. See 207 Pa. 505.
    The court charged in part as follows:
    In 1900 Mr. Fry says that he had an option on the Union-town glass plant, and, as he wanted natural gas, he entered into negotiations with some gentlemen there who had not taken out a charter, but they called themselves the Union-town Gas Company, to secure a supply of gas, and he seems to have had a verbal promise from them that they would give him gas for this factory when they secured it. He then entered into the written contract, dated May 21, 1900, with the defendant company for the sale of this plant and for the securing of the gas contract. He agrees to make a sufficient warranty deed for this property, and he agrees to have executed and delivered to the party of the second part (that is, the National Glass Company, the defendant here, and no one else), a certain gas contract with the Uniontown Gas Company to supply the above described works with gas for a period of two years from the date of turning gas into the meter for use in said factory, at the following rates: For the first year, two and a half cents per thousand cubic feet, and for the second year, at the rate of three cents per thousand cubic feet. This seems to have been considered a favorable contract and a desirable one for that factory.
    * * ******
    You have then, to repeat, a contract which has not been performed. Mr. Fry says that along in the spring of 1901, perhaps late in the winter, he was told by some of the officers of this company, the National Glass Company, to have this gas contract made out in the name of the George W. Fry Company. His son, Thomas Fry, who was at that time in the employ of the glass company, employed at these very works, says that he was told by the secretary or the treasurer —perhaps he said both, I am not sure, but I think he said they were both there, something of that kind ; you will remember that — to get this contract made in the name of the George W. Fry Company. Further, the plaintiff stated that among those who told him this was his brother, the president of the company, Henry C. Fry. Henry C. Fry says that he has no recollection of giving any such instructions, and it is denied by Mr. Thompson and Mr. Case that they gave any such instructions. Mr. Case, as I recall it, was not quite so positive in his statement. He simply said, “ I do not recall: I have no recollection of this.”

      % Sfc
    If you find that this contract was changed, and that Mr. Fry was told substantially to go to the gas people and get a contract with the George W. Fry Company, and that he did go and got this George W. Fry Company contract, exhibit “ 13 ” in this case; that he brought it to the company, Mr. Case, I believe, in April, 1901, and offered it. It is conceded that he brought it there and offered it and it was refused, and then you would have the question whether the defendant had a right to refuse it. They had a right to a contract for the supply of gas for these works for two years at two and a half cents the first year and three cents the second year.
    If you believe the witnesses for the defendant, and they are to a partial, extent corroborated by the testimony of the plaintiff, that the contract which George ~W. Fry made with the Menallen Gas Company for the supply of gas to the George "W. Fry Glass Company was obtained on the faith of his representation and statement that.he was not connected with any corporation or trust, and this statement turned out to be untrue before the contract was entered into, and for this reason the Menallen Gas Company refused to deliver gas under said contract with the George W. Fry Glass Company, then your verdict should be for the defendant for such amount as would compensate it under the rule I will give you presently.
    ****-#-*#*
    It is upon that that I have instructed you, that, if you believe that this gas contract was obtained upon the faith of that representation — it is for you, but my opinion is that the circumstances will show that it was — and they notified this company that they would not furnish them gas, that is an end of the plaintiff’s case and he cannot recover.
    It is true, as stated in the third point of the plaintiff, “ Under the terms of exhibit ‘ No. 3,’ the Menallen Gas Company would have been compelled to furnish the Union town plant with gas on the terms as provided in the contract marked exhibit ‘ A.’ ”
    This point is affirmed, with the addition that it would have been obliged to furnish gas to the George W. Fry Glass Company, but those terms by themselves convey in no way the idea that this entitles the plaintiff to recover. [1]
    If it was true that Mr. Fry told the gas people that he was not connected with any trust — and he admits that he said he was not connected with any corporation — and they found this out after they made the contract with the George W. Fry Company, if they made that contract with that understanding and did not know that he had turned this property over to the National Glass Company, then they had a perfect right to refuse to go ahead and furnish any gas, even though on the face of the contract, by its terms, there was an obligation on their part to do so.
    Yerdict and judgment for plaintiff for $5,000. Defendant appealed.

      Errors assigned were (1) answer to plaintiff’s third point, quoted in the charge ; (2) answer to defendant’s second point, quoted in the opinion of the Supreme Court; (3) refusal of binding instructions for defendant; (4) refusal of judgment for defendant non obstante veredicto.

      Thomas Patterson, of Patterson, Sterrett & Acheson, for appellant.

      Warren I. Seymour, with him H. H. Patterson and H. K. Siebeneck, for appellee.
    January 6, 1908:
   Opinion by

Mr. Justice Potter,

In a former trial of this case, the plaintiff set up a contemporaneous oral agreement for the purpose of modifying a written contract. Upon appeal to this court (Fry v. National Glass Co., 207 Pa. 505), we held that evidence of the parol agreement was inadmissible, and reversed because it was admitted. A new trial was awarded, because the defendant had pleaded set-off, and might be entitled to a certificate in its favor. After the record had been remitted to the court below, plaintiff filed an amended statement, in which it was averred that “ Subsequent to the execution of said contract defendant company instructed and directed this plaintiff to have said certain gas contract, above referred to, executed in the name of the George W. Fry Company, which was in due course duly incorporated and organized, and for the entire time of the events herein recited, existed as a corporation under the laws of the State of Pennsylvania. Said incorporation of the George •'W. Fry Company, and its management subsequent to said incorporation, was conducted by the defendant company. It was officered and managed exclusively by defendant company, and was for all intents and purposes part and parcel of the National Glass Company, defendant above named, the sole purpose and object of keeping up its separate corporate existence being for the purpose of thereby obtaining illegal and unwarranted rebates from the Glass Association.” This was denied by the affidavit of defense. Upon the succeeding trial, the plaintiff offered testimony in support of these averments, and the case was submitted to the jury, who found in favor of the plaintiff. Judgment was entered upon the verdict, and defendant has appealed.

The first assignment alleges error in affirming plaintiff’s third point, which asked for a construction of the agreement between the Fry company and the incorporators of the glass company. The court added to the affirmance a statement that the obligation was to furnish gas to the Fry company, and cautioned the jury that this fact of itself, would not entitle plaintiff to recover. This instruction was clearly right and it is manifest that the court was endeavoring to prevent the jury from misunderstanding his answer, to the prejudice of the defendant. This is emphasized by referring to the oral charge of the court in connection with the presentation of this point.

The second assignment of error complains of the refusal to affirm defendant’s second point, which was “ If the jury believe the uncontradicted evidence of the plaintiff, and of the witnesses for defendant, that the contract which George W. Fry obtained with the Men alien Gas Company for the supply of gas to the George W. Fry Company, at the rate therein mentioned, was obtained on the faith of his representation and statement that he was not connected with any corporation or trust,- and this statement turned out to be untrue before the contract was entered into and for this reason the Menallen Gas Company refused to supply gas under said contract to the George W. Fry Glass Company, then the verdict of the jury should be for the defendant for such amount as will compensate it, under the evidence, for the excessive amount paid by it for gas during the term of the contract over and above the price of gas as fixed in said contract.”

The difficulty with this point, is that it does not accurately ' state the evidence of the plaintiff. His answers do not show ' clearly what was in his mind, but while admitting that in securing the gas contract, he stated that he was not acting for any corporation or trust, he denied that he made the statement as an inducement to get the contract for the gas. He insists also that at the time he made the statement that ho was not acting for a trust, but ivas acting for himself, it was true. How then could the trial judge have said that this statement, if true at the time made, afterwards became untrue ? If plaintiff afterwards entered into arrangements with a trust, this would not falsify his previous statement, that he was acting for himself, when he so stated it. It would have been error to have affirmed this point.

The remaining assignments of error are to the refusal of binding instructions or to enter judgment non obstante veredicto for the defendant. The first ground upon which counsel rested, has been abandoned, as it is conceded that under the authority of Fries v. Penna. R. R. Co., 98 Pa. 142, and Spees v. Boggs, 204 Pa. 504, this case is not res adjudicata because of the decision in this court of the former appeal. If a reversal of a judgment without a new venire is not of itself a bar to a second action for the same cause, much less is a reversal with a new venire.

The other ground upon which binding instructions were asked is that the gas contract was obtained by plaintiff by fraud and misrepresentation, and was therefore not enforceable or assignable. But it appears from plaintiff’s rebuttal testimony that he denied the fraud, and this would take the question to the jury. The case turned upon oral evidence, and under the authorities it must have gone to the jury: see Vandevort & Co. v. Steel & Iron Co., 194 Pa. 118. The point is also discussed by our Brother Stewart in Bartlett v. Rothschild, 214 Pa. 421, where he says (p. 427): “ It is never permissible in an issue of this kind for the court to direct a verdict for the plaintiff, except where the evidence is exclusively documentary and admittedly correct. Where plaintiffs’ claim rests upon oral testimony, the credibility of the witnesses is always a matter to be passed on by the jury, and the court cannot relieve them of it. . . . Again in Grambs v. Lynch, 20 W. N. C. 376, a case cited and applied later in Harlow & Co. v. Homestead Boro., 194 Pa. 57, it is declared to be ‘settled law that when a case depends upon oral testimony, such testimony must be submitted to the jury.’ Here the plaintiff’s case rested almost wholly upon oral testimony; if believed by the jury, it established a prima facie case, and entitled the plaintiff to a verdict; but the jury alone could say through their verdict, whether the condition had been met.” .

The fact that the question here involved was one of fraud, is an additional reason why the court should not have given binding instructions. “ Fraud in fact is always a question for the jury, and however convincing may be the evidence on the subject, it would be to confound the province of the two tribunals for the court to assume the decision of it:” Loucheim v. Henszey, 11 Pa. 305.

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


author: Mr. Justice Fell,

text:
    C. Jutte & Company, Appellant, v. Pfeil.

      Contract — Fraud—Evidence—Statement as to liabilities — Equity.
    Where a bill in equity is filed to compel the delivery of stock of a corporation sold by the defendants to plaintiff, without payment by the plaintiff of a balance of purchase money withheld by the plaintiff on the ground of a false statement as to the liabilities of the corporation, the bill is properly dismissed where the court finds on sufficient evidence the fact that the statement submitted was true, and that it misled no one.
    Argued Nov. 5, 1907.
    Appeal, No. 130, Oct. T., 1907, by plaintiff, from decree of C. P. No. 1, Allegheny Co., March T., 1906, No. 390, dismissing bill in equity in case of C. Jutte & Company v. P. M. Pfeil et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction and to compel the transfer of stock.
    Before Macfarlane, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      David A. Reed, of Reed, Smith, Shaw & Beal, with him Wm. M. Robinson, for appellant,
    cited: Lomerson v. Johnston, 47 N. J. Eq. 312; Boyd v. Browne, 6 Pa. 310; Rheem v. Naugatuck Wheel Co., 33 Pa. 358; Stewart v. Wyoming Cattle Ranche Co., 128 U. S. 383.

      Willis F. McCook, for appellee.
    January 6, 1908:
   Opinion by

Mr. Justice Fell,

The object of the bill in equity filed in this case was to restrain by injunction one of the defendants from selling shares of stock of the Marine Coal Company, held by him as trustee for himself and others as a pledge to secure the payment of a debt due by the plaintiff. The facts material to the question involved are these : In June, 1901, the defendants owned seventy-two per cent of the stock of the Marine Goal Company, and the plaintiff, the C. Jutte Company, owned the remaining twenty-eight per cent. The defendants agreed to exchange their stock for stock of the Jutte company of the value of $360,800 and all of their shares excepting twenty, which were used to qualify five directors and keep up the organization of the company, were transferred to the Jutte company and they received in exchange temporary certificates of stock of that company. Before the defendants had received their final certificates of the stock of the Jutte company, they discovered that it had after the exchange and without notice to them incumbered its property with a first mortgage bond issue of $1,000,000 for the purpose of raising money with which to pay its purchase money notes. They then filed a bill for the recision of the contract of exchange and a return of their stock in the Marine Coal Company. While the case was on trial, a settlement was proposed and during the negotiations the defendants offered to accept $200,000 and to cancel the agreement of exchange, or to buy the plaintiff’s stock in the Marine Coal Company at the same rate, and to give the plaintiff the right of first choice. The plaintiff elected to purchase, but could not pay in cash as the defendants had offered to do. The offer was then modified so as to require a cash payment of $40,000 and the pledging of the stock to secure the deferred payments. The cash payment of $40,000 was raised by the declaration of a dividend of that amount by the Marine Coal Company, which was paid to the Jutte company and by it paid to the trustee. The deferred payments have all been made or tendered except the sum of $13,187. From the payment of this the plaintiff claims to be released because of a statement of the affairs of the company made during the negotiations mentioned. The only dispute of fact in the case related to this statement.

The plaintiff alleged that the statement exhibited ivas a ledger balance of December 1, 1902, which showed that the accounts payable were $717. The defendants alleged that the statement was a statement as of October 31, 1902, which showed the accounts payable to be $14,910. On this question the court found for the plaintiff, but a decree in its favor was refused for the reason that the statement of December 1 was a correct statement from the books ; that it did not purport to include the accounts payable for November and could not have done so because they had not been received and audited ; that it was made up by the bookkeeper of the Marine Coal Company, the management of which for eighteen months had been in the control of the plaintiff; that it was used to ascertain whether the company had enough quick assets to meet the payment of a dividend of $40,000 and for no other purpose ; and that in fact no one was misled by it.

The learned judge considered the transaction as it really was without regard to the form of the agreement signed. The plaintiff was buying back its own stock given in exchange for the stock of the Marine Coal Company and paying for it with money ánd by giving its obligations. It was concerned to know where it could get the money and on the suggestion that it could be realized from the quick assets of the Marine Coal Company, the statement was produced in order to see what these were. The statement had that bearing and no other. As stated in the opinion of the court: “ The question was as to quick assets. The Jutte company was settling a lawsuit and was willing to pay $200,000 and take back its stock, if it could pay the* $40,000 in cash out of the quick assets of the Marine Coal Company.”

The plaintiff was neither deceived nor harmed, and the bill was properly dismissed.

The decree of the court is affirmed at the cost of the appellant.


text:
    Rinaker v. Dollar Savings Fund & Trust Company, Appellant.

      Equity — Subrogation—Pledge of collateral — Fraud—Payment—Executors and administrators — Insolvent estate.

    An administrator is not entitled to retain bonds wrongfully pledged by the decedent, until he is paid the amount he has expended in payment of the decedent’s note for which the bonds were a collateral security. In such a case, the payment of the note gives no right to subrogation. Royal Arcanum v. Cornelius, 198 Pa. 46, followed.
    The fact that the person really entitled to the bonds knew where the bonds were and that they had been wrongfully pledged, before the administrator paid the note and redeemed the bonds, does not estop such person from asserting his right to the bonds.

      Equity — Jurisdiction—Remedy at law — Practice, C. P.

    Objection to jurisdiction in equity because of an adequate remedy at law, comes too late, if it is not made until after the findings of fact and law have been filed, and a decree nisi has been entered.
    Argued Nov. 5, 1907.
    Appeal, No. 115, Oct. T., 1907, by defendant, from decree of C. P. No. 3, Allegheny Co., Aug. Term, 1906, No. 826, on bill in equity in case of Thomas Rinaker, Receiver of the Enterprise National Bank of Allegheny v. Dollar Savings Fund & Trust Company, a Corporation, Administrator c. t. a. of the Estate of T. Lee Clark, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction, and to compel the surrender of bonds.
    Evahs, J., filed the following opinion:
    EmDLNGS OP PACT.
    1. The Enterprise National Bank has for many years been a corporation in the city of Allegheny, county of Allegheny, and state of Pennsylvania, and on October 18, 1905, said bank was declared to be insolvent by the comptroller of the currency, and on December 1, 1905, the plaintiff, Thomas Rinaker, was appointed receiver, with authority from the said comptroller to wind up the affairs of said bank.
    2. The defendant, the Dollar Savings Fund & Trust Company, is a corporation of Pennsylvania, and was in the month of October, 1905, appointed administrator c. t: a. of the estate of T. Lee Clark, deceased, who died on October 18, 1905, testate.
    3. On or about October 6, 1903, said Enterprise National Bank discounted the note of David G. Gregg for $2,100, who pledged with the bank as collateral security for the payment of the same three bonds of the Columbia Plate Glass Company, a corporation of Pennsylvania, in the denomination of $1,000 each, numbered 101, 102 and 103, respectively, dated July 1, 1901, payable twenty years after date, and bearing interest at the rate of sis per cent per annum.
    4. Some time between the date of July 1, 1903, and October 18, 1905, T. Lee Clark, who was the cashier of the said Enterprise National Bank, and while acting as said cashier, fraudulently abstracted from the said Enterprise National Bank the three bonds described in the foregoing paragraph, and appropriated the said bonds for his own use; and subsequently, on October 2, 1905, pledged the said stocks, inter alia, with the Bank of Pittsburg, National Association, as collateral security for the payment of his individual note for the sum of $5,946.87, and the said bonds were still in the possession of the said Bank of Pittsburg, National Association, pledged as the security of the said note of T. Lee Clark on the day of the death of said Clark, to wit: October 18, 1905.
    5. On May 9, 1906, the defendant, the administrator of the estate of said Clark, paid to the Bank of Pittsburg, National Association, the amount of the debt of said Clark evidenced by his note, and thereupon said three bonds of said Columbia Plate Glass Company were delivered to the defendant.
    6. David G. Gregg has never paid his indebtedness to the Enterprise National Bank for which he pledged the said bonds of the Columbia Plate Glass Company as collateral security.
    7. The defendant, as administrator of the estate of said Clark, has collected the coupons on said bonds maturing January 1, 1906, and July 1, 1906, amounting to $180.

      CONCLUSIONS OF LAW.
    1. The plaintiff, as receiver of the Enterprise National Bank and pledgee of David G. Gregg, is entitled to the possession of the three bonds of the Columbia Plate Glass Company, mentioned in the findings of fact, and the defendant has not right or title thereto as against the plaintiff and David G. Gregg.
    2. The plaintiff is entitled to a decree enjoining and restraining the defendant from, in any manner, selling or disposing of the said three bonds of the Columbia Plate Glass Company.
    3. The plaintiff is entitled to a decree adjudging that defendant deliver to him the three bonds of the Columbia Plate Glass Company, mentioned in the findings of fact, unconditionally, and shall pay to the said plaintiff the sum of $180, interest on the said bonds received by it.
    4. That the costs be paid by the defendant.

      Error assigned was the decree of the court.

      Edward C. Chalfant, with him Thomas P. Trimble, for appellant.
    The appellant in this case would never have redeemed these bonds if it had known they belonged to the bank instead of to the decedent. It would not have dared to use the trust funds of the creditors for such a purpose. On the other hand, it was the duty of the receiver of the bank to notify the appellant of its claim to these bonds after receiving the list of notes and collateral of the decedent above mentioned: Westinghouse v. German Nat. Bank, 188 Pa. 630; Roland v. Lancaster County Nat. Bank, 135 Pa. 598.
    It is not a sufficient reason for the interference of a court of equity that the defendant is insolvent. Insolvency alone is not a ground for equitable interference: Heilman v. Union Canal Co., 37 Pa. 100.
    There was an adequate remedy at law: Pittsburg & Allegheny Drove Yard Co.’s Appeal, 123 Pa. 250; Goodwin Co.’s Appeal, 117 Pa. 514.

      John S. Wendt, with him Johns McCleave, for appellee.
    — The question of the jurisdiction of the court below to entertain a bill in equity in this case was not raised until after the bearing, and until after the court below had made its findings of fact and conclusions of law, which we submit is too late.
    However, the jurisdiction of a court of equity to entertain a bill in cases of this character is settled. Stocks and bonds may be recovered in specie by a suit in equity where they have been fraudulently obtained by one who stood in a confidential relation to the owner thereof: Steinmeyer v. Ewalt Street Bridge Co., 190 Pa. 471; Abbott v. Reeves, 49 Pa. 494.
    A suit by a receiver of an insolvent national bank to compel restitution of property unlawfully diverted by an officer of the bank, is one to execute a trust, and involves an account as to trust funds, and hence is of equitable cognizance: Cooper v. Hill, 94 Fed. Repr. 582; Hayden v. Brown, 94 Fed. Repr. 15.
    Notwithstanding the fact that the bonds in question were pledged by Clark to the Bank of Pittsburg as security for his debt, and that his administrator paid the debt of Clark out of the funds of his estate in order to acquire possession of said bonds, plaintiff is entitled to recover the bonds without reimbursing the administrator: Royal Arcanum v. Cornelius, 198 Pa. 46.
    January 6, 1908:
   Opinion by

Mr. Justice Fell,

The cashier of the Enterprise National Bank fraudulently abstracted bonds which had been pledged with it as collateral security for a loan of money, and pledged them with other bonds as security for a loan he obtained from the Bank of Pittsburg on his own note and for his own use. His note was unpaid, and the bonds were in the possession of the Bank of Pittsburg at the time of his death. The administrator of his estate, on receipt of notice from the bank that unless the note was paid the collateral would be sold, paid the note and received the bonds.

The release of the bonds from the lien and possession of an innocent holder for value was the result of the- payment of a debt by one whose duty it was to pay it, and who paid it with funds appropriated for that purpose. It gave rise to no right of subrogation. In-principle there is no ground on which the case can be distinguished from Royal Arcanum v. Cornelius, 198 Pa. 46, in which it was held that an executrix was not entitled to retain bonds wrongfully pledged by a decedent until she was paid the amount she had expended in payment of the note for which they were a collateral security.

The fact that the plaintiff was given a list of the notes on which the name of the cashier appeared as maker or indorser, with the securities pledged for their payment, before the administrator paid the note and redeemed the bonds in question, did not estop Mm from asserting his right to the bonds. The list was not given to him in order that he might ascertain whether the securities pledged belonged to the bank; no request for information was made; nor was notice of an intention to redeem the bonds given. Assuming, as we do, because an offer of proof to that effect was overruled, that the plaintiff knew that the Bank of Pittsburg held the bonds, neither this knowledge nor the notice received imposed a duty upon him to speak.

If there was any merit in the objection to jurisdiction in equity because of an adequate remedy at law, the objection came too late. It was first made after the findings of fact and law had been filed and a decree nisi had been entered: Fidelity Co. v. Weitzel, 152 Pa. 498; Harrington Brothers v. Florence Oil Co., 178 Pa. 444; Williams v. Church, 193 Pa. 120.

The decree is affirmed at the cost of the appellant.


text:
    Dilworth, Appellant, v. Schuylkill Improvement Land Company of Philadelphia.

      Constitutional law — Exercise of judicial functions — Act of July 9, 1897, P. L. 213.
    The Act of July 9, 1897, P. L. 213, entitled “An Act declaring the construction of words in a deed, will, or other instrument importing a failure of issue,” is not a wrongful exercise of judicial functions, and is constitutional.

      Wills — Construction—Default of issue — Life estate — Act of July 9, 1897, P. L. 213.
    By will made in 1901, a father bequeathed and devised all his residuary estate to his daughter “for her sole and separate use, free from any estate or control in any husband she may have, now, or in contemplation, with power to appoint among her children or their issue, if any she have; and in default of issue of my said daughter,” to named collaterals. Both at the date of the will and at testator’s death, the daughter was neither married nor in contemplation of marriage. Held, (1) that the Act of July 9,1897, P. L. 213, applied; (2) that the will implied a definite failure of issue; and (3) that the daughter took a life estate only.
    Argued Nov. 5, 1907.
    Appeal, No. 79, Oct. T., 1907, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., April Term, 1906, No. 816, on case stated in suit of Carrie S. Hays Dilworth v. The Schuylkill Improvement Land Company of Philadelphia.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Case stated to determine the marketable title to real estate.
    Shafer, J., filed the following opinion :
    This is an amicable action for the purchase money of land which the defendant refuses to pay because, it says, the plaintiff does not own the land in fee, but has only a life estate.
    From the case stated it appears that the plaintiff’s title is under her father’s will, by which the testator devises to her the residue of his estate, of which the land in question is a part, with power to appoint among her children or their issue if any she had, and “ in default of issue of my said daughter ” then to certain named persons, and if either of these should die without issue, then to the survivors. The gift to the daughter was intended to be for her sole and separate use, but it appears that she was not then married or in contemplation of marriage. The will was executed in the year 1901. It was practically admitted upon the argument of the case that if this will had been made before the passage of the Act of July 9, 1897, P. L. 213, it would have given a fee to the plaintiff, the property being given to her and in default of issue of the first'taker to the other named persons.
    The act in question provides that in a deed or will the words “ die without issue,” or “ die without leaving issue,” or “ have no issue,” or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the death of such person, and not indefinite failure of his issue, unless a contrary intention shall appear in the instrument.
    It is contended by the defendant that this act has changed the rule of law above mentioned, under which it is admitted, if it were not for this act, the plaintiff would take a fee tail, which under the act of 1855 would be deemed a fee simple. It is claimed by the plaintiff that the act is unconstitutional and void, and that even if constitutional it does not affect the construction of the will in the present case.
    The general result intended to be accomplished by the act is quite plain. Certain words and phrases in regard to failure of issue of a grantee or devisee had acquired in the law a certain meaning and effect, which was, that subject to the power of the grantor or devisor to express a different meaning, they had the legal effect of giving a fee to the first taker. This not being the meaning which one not learned in the law would usually conceive the words to have, led to frequent failures of testators to accomplish what they really intended, and was well known in numerous cases to have frustrated the actual intention, giving a fee tail where only a life estate was intended. It seems plain that the intention of the legislature was to provide that these words and expressions which, standing by themselves, heretofore imported a fee tail, and thus a fee simple, unless the contrary was otherwise indicated in the will, should thereafter indicate a life estate, unless otherwise indicated in the will. That the legislature has power to do this, we cannot doubt. It is competent for it to direct in what sense words and phrases shall be used in wills and contracts thereafter made. It is true that the act does not directly express that the words shall mean so and so, but that they shall be “ construed to mean” so and so, and this, it is argued, is an attempt to direct the courts in the exercise of a judicial function, and therefore a usurpation of judicial functions on the part of the legislature. Taken in a strictly literal sense, this might be true, but the expressions “ shall be construed,” “ shall be deemed,” etc., have been used time out of mind in statutes to import the same as “ shall mean.” For example, in the act of 1855, it is provided that wherever an estate tail would be created by existing laws, it “ shall be taken and construed to be a fee simple.” It is not intended to be an interference with the conclusions of the court as to the meaning of certain words, but a direction to those who use the words, in what sense they shall be used. The only case to which we have been referred by counsel for the plaintiff in support of their contention of the unconstitutionally of the act is that of Titusville Iron Works v. Keystone Oil Company, 122 Pa. 627, in which case there was before the court an act which undertook to give to laborers a mechanic’s lien by direction to the courts to construe the acts already existing so as to include laborers. This was either an attempt to amend the existing laws as to mechanic’s liens without reciting them for amendment, as the constitution requires, or else it was a direction to the courts to overrule its former decisions in regard to the meaning of those acts, and to construe them otherwise. As a matter of course the act was void, taking it either way, and the court expressly points out that such acts are void by reason of the provisions of art. 3, sec. 6, of the constitution, which would not have been void as to future cases under the previous constitutions. The effect of the act in question in this case is not to change in any respect any previous statutory provision, but only a common-law rule, as to the change of which no particular form is required by the constitution. We are therefore of opinion that if the meaning and effect of the act be as above stated, it is not an attempt on the part of the legislature to exercise a judicial function, but is an attempt to change a rule of the common law, which the legislature has power to do.
    We have said that the intention of the act is to change the meaning of certain expressions so as to make them mean a definite failure of issue instead of an indefinite, in the absence of other indications to the contrary contained in the instrument, and we understood it to be admitted on the argument that such was its effect if valid, although it was suggested by plaintiff’s counsel .that the language of the act is self-contradictory. It must be admitted that the phraseology of the act is somewhat peculiar and in a sense ambiguous. The enactment is that words which may import either X or Y shall be construed to mean X and not Y, unless it appears by the will that they mean Y. These words may be read in such a sense that the futile result would be a direction to construe words importing X to mean X and. words importing Y to mean Y. The obvious meaning, however, is that words which may import X or may import Y, that is, as to which it is doubtful from the words themselves which they import being applicable to either, shall be construed to mean the first, unless a contrary intention appears in the instrument by something besides the words themselves. The act, therefore, appears to mean that if words are used which in themselves leave it doubtful whether the failure of issue intended is definite or indefinite, they shall mean a definite failure of issue, unless something else in the instrument shows that they are not so intended. The words of the will in this case, “in default of issue of my said daughter,” are in themselves applicable to a definite or to an indefinite failure of issue, and would be applied to either as the intention of the testator should appear from the will. They are, therefore, words which in the language of the act may import either a failure of issue of the daughter at her death or an indefinite failure of her issue. The rule of law prior to the act was that in the absence of any indication in the will to the contrary these words imported an indefinite failure of issue, and the effect of the act is to change that rule so that in the absence of other indications in the will the words are to mean a definite failure of issue. We are of opinion, therefore, that the act is directly applicable to this case.
    It is also argued by plaintiff’s counsel that even if the act be constitutional, there is enough in the will to show that an indefinite failure of issue was meant. We are unable to see anything in the will which indicates one way or the other which kind of failure was meant, except the words “ in default of issue,” and these, if we are right, are the very words which, standing alone, the legislature has directed shall mean a definite failure of issue. Being of the opinion, therefore, that the plaintiff is not the owner in fee simple of the land in question, it is ordered that judgment be entered for the defendant with costs.

      Error assigned was in entering judgment on the case stated in favor of the defendant.

      Thomas Patterson, of Patterson, Sterrett & Acheson, for appellant.
    The act of 1891 is unconstitutional: DeChastellux v. Fairchild, 15 Pa. 18; Titusville Iron Works v. Keystone Oil Co., 122 Pa. 627; Com. v. Warwick, 172 Pa. 140; Greenway v. Greenway, 1 Giff. 131.
    Under the English cases on this act, which will be found collected under case of Dawson v. Small, 10 Eng. Rul. Cases, 817, it is held that the rule of construction introduced by the act as to words importing an indefinite failure of issue is only applicable where the expression importing a failure of issue is ambiguous.

      John S. Wendt, with him Johns McCleave, for appellee.
    The act of 1897 is a valid exercise of the legislative power: Sharp v. Thompson, 1 Wharton, 139; Heffner v. Knepper, 6 Watts, 18; Potts’s Appeal, 30 Pa. 168; Linn v. Alexander, 59 Pa. 43; Keating v. McAdoo, 180 Pa. 5; Eichelberger v. Barnitz, 9 Watts, 447; Pettit v. Fretz’s Executor, 33 Pa. 118.
    The legislature has power to give greater effect to evidence than it possesses at common law, and in both civil and criminal proceedings it may declare what shall be prima facie evidence: State v. Cunningham, 25 Conn. 195; Fong Yue Ting v. United States, 149 U. S. 698; Banks v. The State, 124 Ga. 15; State v. Barrett, 138 N. C. 630; Com. v. Williams, 72 Mass. 1; Banks v. The State, 124 Ga. 15; Postmaster General v. Early, 25 U. S. 136; Singer Mfg. Co. v. McCollock, 24 Fed. Repr. 667; Kern v. Legion of Honor, 167 Mo. 471.
    The legislature has, from time to time, passed similar statutes prescribing rules for the interpretation of wills: Garman v. Glass, 197 Pa. 101; Price v. Taylor, 28 Pa. 95; Karchner v. Hoy, 151 Pa. 383; Reinhart v. Lantz, 37 Pa. 488; Gross’s Est., 10 Pa. 360; Lisle’s Est., 22 Pa. Superior Ct. 262; Shirley v. Postlethwaite, 72 Pa. 39; Schuldt v. Herbine, 3 Pa. Superior Ct. 65; Crosky v. Dodds, 87 Pa. 359; Dilworth v. Gusky, 131 Pa. 343.
    We submit that under the plain terms of our act of 1897, the phrase “ in default of issue ” must be construed to mean a definite failure of issue and, therefore, the testator’s daughter only took a life estate: Taylor v. Taylor, 63 Pa. 481; In re O’Bierne, 1 Jones & LaTouche, 352.
    January 6, 1908:
   Per Curiam,

Judgment affirmed on the opinion of the court below.


text:
    Stilley v. McNeal, Appellant.

      Attorney and client — Purchase by attorney at sheriff’s sale — Mortgage.
    An attorney at law who appears of record in the foreclosure of a mortgage, and who subsequently bids in the property for his client, has no authority to make an agreement of sale to a third party not present nor bidding, at the sheriff’s sale, and thereby pass the title of his client to the land. The client may recover the land from such third person in ejectment, or if the land has been sold may recover the purchase money received for it.
    Argued Nov. 6, 1907.
    Appeal, No. 141, Oct. T., 1907, by defendant, from order of C. P. No. 2 Allegheny Co., April Term, 1907, No. 74, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Jennie M. Stilley, Administratrix of J. M. Stilley, deceased, v. Wm. J. McNeal.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Assumpsit for money had and received.
    Rule for judgment for want of a sufficient affidavit of defense.
    From the opinion filed by Young, J., it appeared that on December 6, 1904, Joseph R. McQuade, an attorney of law, issued a scire facias sur mortgage in the name of Jennie M. Stilley, Administratrix of J. 31. Stilley, former owner of the mortgage. It did not appear that McQuade had any express or implied authority from the administratrix to issue the writ. The foreclosure proceeding resulted in a sheriff’s sale and the property -was sold for $118.15 to McQuade who caused the same to be marked in the sheriff’s sale book as sold to the administratrix for that sum. Subsequently the defendant, William J. 3rcNeal, entered into an agreement with 3IcQuade as attorney for the administratrix to purchase the property for $3,000. By McQuade’s direction the sheriff made the deed to McNeal. All of the $3,000 was paid to McQuade as attorney for the administratrix, hut no part of the money was paid by 31c-Quade to the administratrix. Subsequently McNeal conveyed a portion of the land to the Roman Catholic Bishop of Pitts-burg for $3,800, which sum was paid to McNeal. The defendant is still the owner of five acres of the land. The administratrix knew nothing of these transactions until after McQuade had absconded, hopelessly insolvent. McNeal filed an affidavit of defense in which he alleged that McQuade had been attorney for J. M. Stilley, and for the administratrix, and that he had possession of the bond and mortgage with the consent of Stilley and his wife. The last clause of the affidavit of defense was as follows :
    “ Affiant in conclusion further saj^s he is advised and believes that by reason of the facts above set forth, said Joseph R. McQuaide, as attorney of record for plaintiff in this case, as well as in other transactions, had full power to receive and receipt for the amount of said judgment or debt with interest, which under the circumstances was the full and fair value of said property, and to direct that a Sheriff’s deed for the same should be made to affiant, and that affiant, having paid said amount of $3,000 to said Joseph R. McQuaide in good faith and received said Sheriff’s deed, is not liable to plaintiff for the amount claimed in this action, nor in any other sum whatever.”
    Young, J., filed an opinion in which, after stating the facts at length, he concluded as follows :
    The sole question, then, is, has an attorney at law who appears of record in the foreclosure of a mortgage, and who subsequently bids in the property for his client, authority to make an -agreement of sale to a third party not present nor bidding at the sheriff’s sale, and thereby pass the title of his client -to the land, and does such third person take such a title as will prevent the owner of the land from recovering the same in ejectment, or in the event of the same having been sold, to recover the purchase money received for it? We need not pass upon the question of the authority of McQuaide to appear for the plaintiff. Granted that he had authority to appear for plaintiff, to issue the scire facias and the lev. fa., to conduct ■the sheriff’s sale and to bid in the property — having once bid •in the property it became the land of his client for whom he bid it in. He could not, under his special agency as an attor.ney of record for the plaintiff, make an agreement for the sale of the land to a third party. Any person dealing with him for the purchase of the land so bought at sheriff’s sale would be put upon inquiry as to his authority. The defendant in this case admits that he knew of the sheriff’s sale, knew the land was bought at sheriff’s sale for the plaintiff; without inquiry he took the representation of the attorney that Mrs. Stilley, the plaintiff in that proceeding, only desired to secure the debt and interest; he knew when he entered into the agreement for the purchase, for it is recited in the agreement, that it was the land of the plaintiff, and that the agreement to convey was being made by McQuaide as attorney for her. With this knowledge, he chose to carry on the transaction without either inquiry as to the authority of McQuaide to make the sale or of inquiring of the plaintiff so as to ascertain the real facts in the case. There is no question that inquiry of the plaintiff would have brought to him the information that McQuaide in foreclosing the mortgage and selling the land at sheriff’s sale was acting without authority from the plaintiff, and that he had no authority to make the sale of the land which had been bought at sheriff’s sale for her. Under all the circumstances and facts of this case, judgment should be entered for the plaintiff for the amount of money received by the defendant upon the sale of the land to the Bishop of Pitts-burg.

      Error assigned was the order making absolute rule for judgment for want of a sufficient affidavit of defense.

      A. C. Johnston, for appellant.

      H. K. Siebeneck, with him Warren I. Seymour, H. H. Patterson and P. S. Chambers, for appellee.
    January 6, 1908:
   Per Curiam,

The judgment is affirmed on the opinion of the court below.


author: Mr. Justice Stewart,

text:
    Wingenroth, Appellant, v. Dellenbach.

      Equity — Jurisdiction—Remedy at law — Parol agreement to reconvey— Deed — Mortgage—Trust and trustees.

    Where a mortgagor in arrears for interest conveys the mortgaged premises to the mortgagee without any reservation in the deed, or other writing between the parties, and the mortgagee conveys the premises to a relative without consideration, and the mortgagor subsequently files a bill against the mortgagee and his grantee for a reconveyance on the; ground that when the deed was made there was a parol agreement that the mortgagee might redeem within a year on payment of principal and interest, and that she had offered to do so, the bill will be dismissed, because (1) under the Act of April 22, 1856, P. L. 532, no trust could be enforced, and (2) the plaintiff had an adequate remedy at law for the breach of the alleged parol agreement. Moran v. Munhall, 204 Pa. 242, distinguished.
    Argued Nov. 6, 1907.
    Appeal, No. 60, Oct. T., 1907, by plaintiff, from decree of C. P. No. 3, Allegheny Co., May T., 1901, No. 507, dismissing bill in equity in case of Nora E. Wingenroth v. Edward H. Dellenbach, George C. Dellenbach and Anna M. Dellenbach, wife of George C. Dellenbach.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity for a reconveyance.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      J. S. Ferguson, with him E. G. Ferguson, for appellant.
    The court had jurisdiction of the bill: Bierbower’s Appeal, 107 Pa. 14; Brush Electric Co.’s Appeal, 114 Pa. 574; Warner v. McMullin, 131 Pa. 370.

      W. B. Rodgers, for appellees,
    cited: De Douglas v. Traction Co., 198 Pa. 430; Johnston v. Patterson, 114 Pa. 398; Weller’s Appeal, 103 Pa. 594; Lett v. Kunkle, 178 Pa. 273.
    January 6, 1908:
   Opinion by

Mr. Justice Stewart,

The plaintiff, Nora E. Wingenroth, was the owner of certain real estate in the city of Pittsburg, on which there was a mortgage for $10,000 in favor of Edward H. Dellenbach, one of the respondents. There were arrearages of interest on the mortgage amounting to $1,886. On September 11, 1900, she conveyed the property to Dellenbach, the mortgagee, who four days thereafter conveyed it to Anna M. Dellenbach, the wife of his brother, George C., without consideration. The plaintiff sought by the bill filed in this case to have the present holder of the legal title adjudged trustee with respect to the property, and to compel a conveyance of the same to her, on the ground that she had conveyed to Edward II. Dellenbach, the holder of the mortgage, under an agreement with him, that she was to have the privilege of redeeming it at any time within a year by paying the mortgage indebtedness. The bill avers that within the year the plaintiff offered to pay to the grantee the amount of the mortgage, debt, interest and costs, and that the offer was refused, and charges that the deed from plaintiff to Edward 11. Dellenbach, and from the latter to Anna M. Dellenbach, the present holder of the legal title, were both fraudulently obtained. With respect to the original transaction the court finds that the plaintiff produced much testimony on the hearing in support of the averments in her bill, but declined to pass upon the question whether the agreement set up by the plaintiff and denied by the defendants, was actually made and entered into, on the ground that if such agreement were established, plaintiff’s remedy would be by an action at law for its breach ; that since plaintiff’s deed to Dellenbach being absolute on its face, contained no reservation of any interest in the grantor, no trust in connection therewith could be derived, because of the requirements of the Act of April 22, 1856, P. L. 532. He therefore dismissed the bill. Plaintiff on this appeal makes no contention that any enforceable trust existed between the parties, or that the alleged contract could operate as a defeasance, but insists that because of the finding by the court that the plaintiff had offered much testimony to establish the averments in her bill, to the effect that statements and representations were made to plaintiff by defendant “ constituting an agreement by them that she could redeem the property in one year from the date of the deed, and that she could have that time to sell the same and receive a surplus over and above their debt, interest and costs, and that under such agreement she had executed the deed,” etc., the court should have gone further and given the relief prajmd for, inasmuch as said relief could only be complete, convenient and adequate through equity. This raises the only question we have to consider.

The present case can readily be distinguished from the case of Moran v. Munhall, 204 Pa. 242, on its facts, but the principal distinguishing feature between the two cases lends little, or rather no, support to the contention here made, that through a common-law action this appellant could not have as complete and adequate a remedy as the plaintiff there had. In that case — an action in assumpsit— an agreement not unlike that here alleged, in connection with the conveyance from a debtor to creditor was shown; but the grantee had sold and conveyed the property for a sum in excess of the indebtedness, and it was this excess that the plaintiff was allowed to recover in the action. Here the property remains unsold, and, because of this distinction in fact, it is argued that the only remedy plaintiff could have must be through equity to recover back the property. But how does this follow ? In the case referred to the plaintiff’s right to recover was not made to rest on the fact of a sale of the property; the amount realized on the sale simply determined the measure of plaintiff’s damages, and the fact of the sale merely indicated when the right of action commenced. In the present case, taking the agreement alleged to be established, plaintiff’s right of action began with the refusal of Dellenbach to accept her offer to pay the indebtedness due on the mortgage. Her damages could be measured just as readily, if not as accurately, from the market value of the property at the time, as from a cash price actually obtained. Nothing that has been suggested would interfere to prevent full and adequate compensation for the plaintiff’s disappointment through a common-law action. There being no trust here to be enforced, whatever claim plaintiff may have sounds in damages, and for the recovery of these an action at law is the only proper proceeding.

Appeal dismissed and decree confirmed.