text:
    Estate of Hannah J. Heagy. Appeal of John Weigle, Martin Berkheimer and Peter Snyder.

      Wills — A legacy needs no consideration.

    A legacy needs no consideration to support it; it comes to its recipient through the mere grace of the giver.

      Will — Legacy—Invalid agreement may identify legatees.

    A married woman directed by her will that her property be sold and that the creditors of her husband as indicated by an invalid contract of suretyship executed by her in her lifetime be paid. Held, that the indicated creditors were entitled to participation in the distribution of her estate as beneficiaries under her will and that the invalid contract is only to be regarded as a means of identifying the objects of the testator’s bounty and the extent thereof.
    Argued March 11, 1897.
    Appeal, No. 29, March Term, 1897, by John Weigle, Martin Berkheimer, and Peter Snyder, from decree of O. C. Cumberland Co., sustaining exceptions to auditor’s report in decreeing distribution.
    Before Rice, P. J., Wtllakd,. Wickham, Beavek, Reedek, Oklady and Smith, JJ.
    Reversed.

      Exceptions to auditor’s report. Before E. W. Biddle, P. J.
    It appeared from the evidence that Hannah J. Heagy died March 8, 1898, testate. Shortly prior to the year 1892, John Weigle became surety for testatrix’s husband on a number of notes aggregating $900. Testatrix held a judgment against her husband for $1,162 upon which she issued execution. On the same day she assigned $900 of her judgment to John Weigle. Subsequently she entered into an agreement of suretyship with the said John Weigle relative to the above debts of her husband. Upon this agreement suit was brought against her executor as .appears by the case of Weigle et al. v. Mercer, 1 Pa. Superior Ct. 490, where the agreement of suretyship is set out in full on page 493; also other facts connected with the history of the case. In that case it was held that the contract or agreement was in effect one of suretyship and that equity will not lend its aid to an effort to mate such an agreement fruitful.
    In the present case the creditors of the husband claim as legatees under the provisions of the will of the said Hannah J. Heagy, as set out in the opinion of the Superior Court.
    The auditor allowed these claims to share in the distribution. Exceptions were filed to this report on the part of H. H. Mercer, executor, and by E. G. Heagy, the husband. These exceptions were sustained by the court. Claimants appealed.

      Error assigned was in sustaining the exceptions of the appellee to the report of the auditor.

      S. M. Leidieh, with him H. S. Stuart and J. W. Wetzel, for appellants.
    — There .is a distinction between a devise to pay a debt as per an agreement extrinsic from the testamentary paper, and a direct bequest by the testamentary paper to pay in accordance with an agreement extrinsic and referred to in the testamentary paper.
    In the latter case, to wit: when there is a direct bequest by a testamentary paper, whether the paper exists or not, or whether or not the testator is legally bound by the paper itself, yet, nevertheless the intention, as expressed by the will, being by implication a bequest in itself, always stands as the intention of the testator: 2 Jarman on Wills (5th Am. ed.), 104; Hunt v. Evans, 134 Ill. 496; Marsh v. Hague, 1 Ed. Ch. (N. Y.) 174. And we are now considering the will under litigation apart from parol testimony, which is always admissible to support or rebut a legal implication or rebuttable legal presumption of this character.
    It is apparent from the whole will that it was not the intention of the testatrix to engraft upon this plain gift, as was done by the court below in this case, the implication that a gift was intended only if there was a liability on the part of the testatrix by reason of her having entered into the agreement with Weigle.
    Implication only arises when the expression used raises so strong a probability of the intention of the testator that an intention to the contrary cannot be supported: Matter v. Vowers, 113 N. Y. 569; Hunt v. Evans, 134 Ill. 496; Grout v. Hapgood, 30 Mass. 159.
    While evidence cannot be resorted to, either to control or modify the intention of the testator, it may aid in ascertaining what the testator did intend: Gilmor’s Est., 154 Pa. 523.
    Necessary implication in constructing a will means so strong a probability of intention, that an intention contrary to that imputed cannot be supposed: 16 Am. & Eng. Ency. of Law, 373; Wilkinson v. Adam, 1 Ves. & B. 422, 466: Luce v. Harris, 79 Pa. 432; Bender v. Dietrick, 7 W. & S. 284.
    Parol evidence is not admissiblé of the testator’s intention in writing his will, but extrinsic evidence will be received of the circumstances attending its execution; Hawthorne’s Estate, 11 Lan. 52; Vernor v. Henry, 3 Watts, 385; Brownfield v. Brownfield, 12 Pa. 136; s. c., 20 Pa. 55; Coleman v. Eberly, 76 Pa. 197.

      F. E. Eeltzhoover, for appellee.
    — A recital that a person is entitled under another instrument when he is not in fact entitled does not in general amount to a gift by the instrument which contains the recital: Harris v. Harris, 11 Ch. D. 663; Circuitt v. Perry, 23 B. 275.
    A mere recital in a codicil of a supposed gift by will, will not amount to a gift: Arnold’s Estate, 33 B. 163, 171.
    An untrue recital in a will that testator has deeded certain property does not pass the title to such property: Streeter v. Evans, 134 Ill. 496. A very recent case holds that “where the testator gives his son all his personal property and recites that he has also deeded him a farm, does not create an estate by implication in the farm where the deed is invalid: ” Zimmerman v. Hafer (Md.), 32 Atl. Rep. 316.
    April 19, 1897:
    A legacy cannot be properly implied in the present case in favor of persons to whom the testatrix was in no wise liable: Weigle v. Mercer, 1 Pa. Superior Ct. 490.
    By the rule laid down in Wampole’ Est., 3 Pa. Superior Ct. 414, the appellants’ contention cannot be sustained.
   Opinion by

Wickham, J.,

The clauses of Hannah J. Heagy’s will, which are necessary to be considered in this case, are as follows :

“ First, I direct that all my just debts and funeral expenses be paid by my executor hereinafter named as soon after my decease as conveniently can be done.
“Second, I direct that all my personal property shall be sold excepting household furniture and goods to be selected by my husband, should he survive me, to furnish a house for himself and children unmarried, one horse, one buggy, and one spring wagon, and the proceeds of said sale after the payment of the debts of my husband as agreed upon between myself and John Weigle, shall be invested by my Executor in real estate for a home for my husband and children.”

The agreement to pay the husband’s debts, referred to in the testamentary instrument is in writing and bears date July 25, 1892. A copy thereof will be found printed in the reported statement of facts of this ease. The will is dated October 8, 1892, and the testatrix died March 8, 1893. The purpose of the agreement was to save harmless John Weigle, who was surety for the^husband of the testatrix on notes held Toy Martin Berkheimer and Peter Snyder, the other appellants. The facts, as to the identity of the agreement and the parties entitled thereunder, are undisputed, nor is there any question as to the amounts of the debts. It only remains, therefore, to ascertain from the will the intention of the testatrix when she directed by the clearest implication, that these debts should be paid. Did she mean what she said or something else ?

As to the agreement between Weigle and Mrs. Heagy, this court passed upon it in Weigle et al. v. Mercer, 1 Pa. Superior Ct. 490, and held that it being in effect a contract of suretyship, it never bound her. It is clear, from the evidence in the present case, although the fact is not material, that she was aware of the invalidity of the agreement from the beginning. She used the property referred to therein as her own absolutely. The language of her will, explained by the surrounding circumstances, show that she intended this property to be sold for testamentary purposes, bj*- her executor, after her death, and it is only fair to presume, that while she refused to abide by the terms of the written contract, she chose ex gratia, to make safe, after her death, her husband’s creditors, to whom Weigle was bound; thus paying them and relieving him, and the husband.

The words “ as agreed upon between John Weigle and myself,” contained in the will, at first glance might indicate that the testatrix meant that the written agreement should be carried out strictly, according to its letter. This, however, would he obviously impossible, since she directs the property, consti-' tuting the subject-matter of the agreement, to be sold, and, moreover, the contract was of such a character that its provisions could not he literally complied with save during Mrs. Heagy’s lifetime. Looking at the will, and the admissible facts necessary to a proper understanding of it, the conclusion is inevitable, that she intended her husband’s creditors to he paid, in due course of the administration of her estate, out of the proceeds of the personal property directed to be sold, including that mentioned in the repudiated contract.

It is immaterial whether the agreement with Weigle was enforceable or not. The beneficiaries do not, in any sense, take under it, but under the will. The agreement is only looked to as a means of identifying the objects of the testatrix’s bounty, and the extent thereof. If one, by his will, says “ I direct that A shall receive my watch which I heretofore agreed with B I would present to A,” the beneficiary claims and takes by virtue of the testamentary direction, and not under the unexecuted contract, which, being without consideration, would have no binding force. The fact that the testator in his lifetime, may have refused to be bound by the promise, as such, can have no effect in avoiding the disposition made by the will, which speaks as of the time of his death. A legacy needs no consideration to support it. It usually comes to its recipient through the mere grace of the giver.

Although Mrs. Heagy was not- legally liable on her agreement, nevertheless she chose to recognize it as binding on her conscience. She knew, both before and after the making of the 'will, that the contract could not be enforced. If she intended that the persons to be benefited should receive nothing, unless they could comply with the impossible condition of establishing the validity of .tbe agreement, we may safely assume that she would bave said so. As it is, we have no right to add a condition to ber gift, and are therefore compelled to decide that Berkheimer and SnjMer are respectively entitled to their proper pro rata shares of the fund for distribution, as was held tbe learned auditor. We may add here, that the husband of-the testatrix, wbo is contesting the-rights of these legatees, claims under the will and not against it.

The decree is reversed, and the record remitted to the court below, with directions to tjaake distribution in conformity with tbe views herein expressed; tbe costs of tbe appeal to be paid out of tbe fund for distribution.


source: Caselaw Access Project

author: Wickham, J.,

license: Public Domain

text:
    Thomas Darling, Executor, v. J. H. Edson and B. D. Carey, Appellants.

      Will — Construction—Exercise of power.

      A power was given to widow of testator “ to divide all my real and personal estate among my children as she shall see proper, giving to each such share as her judgment shall dictate.” Held, that a devise of a farm in fee to two of the children referred to in the husband’s will, and the charging of such land with pecuniary legacies in favor of the other children and a daughter of a deceased child, is a valid execution of the power.
    The sums directed to be paid by the two sons, were undoubtedly charges on the farm, the realty and personalty being blended by the will, and it being expressly stated that these sons took what was devised and bequeathed to them on the condition that they should pay said sums of money, it follows that these sums are to be discharged by a sheriff’s sale of the farm, and are payable, before subsequent liens, out of the proceeds.

      Will — Exercise of power — Limitation to a class — Trust estate not contemplated.

    Where an estate was limited by the will of the first testator to a class, the donee of a power is without power to appoint a trust estate to one of that class, and such appointee will take an absolute estate especially when an absolute appointment is made to said appointee as an alternative in the event of the limited appointment being in conflict with the will of the first testator.
    Argued Jan. 11, 1897.
    Appeal No. 45, Jan. T., 1897, by defendants, from order of C. P. Luzerne Co., Oct. T., 1895, No. 890, dismissing exceptions to auditor’s report and confirming a distribution thereunder.
    Before Rice, P. J., Willard, Wick-ham, Beayer, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Exceptions to auditor’s report. Before Woodward, P. J.
    The question arose on distribution of proceeds of sheriff’s sale of real estate of J. H. Edson, one of the defendants. The real estate sold was formerly owned by the father pf defendant Eliphalet Edson, who died in September, 1864. By his will he devised and bequeathed his estate to his wife, Elizabeth Edson, with power of appointment among his children. This power of appointment was duly exercised by the widow among the children and prior to the sheriff’s sale, J. H. Edson, one of the children, by virtue of certain quitclaim deeds had acquired the interests and claims of the other legatees of Eliphalet Edson and Elizabeth Edson upon the real estate sold excepting the interest of his brother, George K. Edson, who was one of the appointees under the will of Elizabeth Edson.
    At the audit D. M. Osborne and B. D. Carey, contested the right of George K. Edson to come in on the fund and claimed that it should be distributed, first, to the Darling mortgage and, second, pro rata to judgments in full of D. M. Osborne & Co. against J. H. Edson and B. D. Carey who was surety for Edson.
    The property was finally sold on a judgment bond with confession of judgment given by J. H. Edson, and the auditor to whom the fund was awarded for distribution, awarded to George K. Edson thfe amount of the bequest originally charged upon the land under the will of Elizabeth Edson and the balance to the execution plaintiffs.
    The provisions of the will and other facts more fully appear in the opinion of the court.

      Errors assigned were (1) In dismissing the exceptions of D. M. Osborne & Company and B. D. Carey to the findings and report of the auditor, which exceptions are as follows: “1. The learned auditor erred in finding ‘Your auditor therefore concludes generally that the legacy to George K. Edson ’ (in the will of Elizabeth Edson) ‘ was a valid charge upon the lands sold by the sheriff; was a lien upon it at date of sale; that the lien was discharged by the sale; and that the amount due on the legacy at the time should, by reason of priority of lien, be first paid out of the proceeds thereof.’ 2. In not reporting the point of law and request for finding thereon, viz : ‘ That under the will of Eliphalet Edson, George K. Edson took an estate in fee in his father’s estate, the said Eliphalet Edson.’ 3. In not reporting as requested by D. M. Osborne & Co., and B. D. Carey, ‘And in execution of the powers conferred by the will of Eliphalet Edson, Elizabeth Edson, the widow and donee, could not reduce the fee simple estate of George K. Edson into a less estate; could not convert the real estate into a pecuniary legacy.’ 4. In not finding and reporting as requested by D. M. Osborne & Co. and B. D. Carey, ‘ That in the execution of the power Elizabeth Edson was confined to the apportionment of the fee simple estate among the children.’ 5. In not distributing the fund in manner as follows: A. To costs. B. To the Darling mortgage. C. To the Osborne & Company judgments. 6. In distributing $572.60 to George K. Edson. 7. General exceptions.” (2) In confirming the auditor’s report.

      Edmund Gf. Butler and J. Q. Oreveling, for appellants.—
    Elizabeth Edson had no authority to dispose of the estate of her deceased husband in the manner directed by her will. Her power to divide this property was limited to a division among Eliphalet Edson’s children as remaindermen. She had no power to create an estate or to add as beneficiaries the children of a living child nor could she exceed her powers in any manner : Horwitz v. Norris, 49 Pa. 213; Wickersham v. Savage, 58 Pa. 365.
    The auditor and the court below substantially concluded that the above proposition is correct and without any apparent reason therefor found that Mrs. Edson made a valid testamentary execution of tlie power in question, by directing John H. Edsori and Elisha B. Edson to pay George K. Edson $600, and that such disposition created a charge on the land sold and she does not appoint to George K. Edson any estate in the land, but divests his estate.
    April 19, 1897:
    The widow was made the mere instrument for partition of the estate by her will among his children, and could not give the whole to two and divest the estate of the others therein, or create a charge on the land: Schwartz’s Est., 168 Pa. 204.
    A sheriff’s sale divests liens, but not estates. Only the interest of the debtor, J. H. Edson, was sold. George K. Edson’s estate is in the land, and by partition he can have his quantum. ascertained: Railroad Co. v. Johnston, 59 Pa. 290; Schall’s Appeal, 40 Pa. 170; Vandever v. Baker, 13 Pa. 121.

      Thomas Darling, for appellee.
    — -The lien of a legacy charged upon land is discharged by a judicial sale of the land, though the legacy is payable in instalments, some of which are not due at the time of the sale: Dexter’s Appeal, 81 Pa. 403; Lobach’s Case, 6 Watts, 167; Hellman v. Hellman, 4 Rawle, 440.
    It is therefore contended that the first money paid by the sheriff from the proceeds of the sheriff’s sale must be on account of the legacy to divest its lien from the land, and next on account of the mortgage. In no event can after creditors partake of the fund until the legacy has been divested: Hellman v. Hellman, 4 Rawle, 440; Drake’s Appeal, 68 Pa. 223.
   Opinion by

Wickham, J.,

Eliphalet Edson, by his last will and testament, .devised and bequeathed his estate as follows: “ As to such real and personal estate as God has pleased to entrust me with I dispose of the same as follows, viz : I give and bequeath to my beloved wife, Elizabeth Edson, the full control of all real and personal estate as long as she shall remain my widow (except what is hereafter mentioned) and I also empower my said wife, on condition that she remain my widow, full power by will to divide all my real and personal estate among my children as she shall see proper, giving to each such a share as her judgment shall dictate. But should my wife see proper to get married, then my will is that she accept and receive of my property what the provisions made by the laws of Pennsylvania make for widows, and then my will is, my property, both real and personal, shall be equally divided among my children.” There is a further bequest, but as it does not enter into the present controversy it is needless to quote the language of the will as to it.

Elizabeth Edson did not remarry, and by her last will and testament undertook to exercise the limited power of appointment vested in her by her husband’s will. The clauses of her will necessary to be considered in deciding the present controversy, are the following: “To my two sons John H. and Elisha B. I give, bequeath and devise all my estate, real, personal and mixed, upon the following conditions, to wit: that they will as soon after my decease as they conveniently can, pay debts and expenses and place a suitable stone at my grave as above mentioned, next, that they, within one year after my decease, pay to the heirs of Matilda Snyder, deceased, $50.00, and to my son, E. Aden Edson alike sum of $50.00', next to my son Arva J. $600, and to the use of my son George K. Edson, while he lives and to his children after his death, a like sum of $600.

“ These last two bequeaths to be paid in three equal payments, one third (two hundred dollars to each) in one year from the date of my decease, another third in two years, and the balance in three years after my death, with interest after the time of the first payment.

“ Now should my bequest to the use of my son George K., and to his children after his decease, exceed my right or be in conflict with my late husband’s will, then and in that case I give the said sum of six hundred dollars directly to my son George K., and direct my sons John H. and Elisha B. to pay the same to him in manner as before directed.”

Eliphalet Edson, at the time of his decease, was seized in fee simple of the farm, the distribution of the proceeds of the sale whereof gave rise to the present dispute. What personal property he left does not appear. The auditor finds that the widow was possessed of no personal property at the time of her death, and it seems to be conceded that she had no real estate of her own on which her will could operate. At any rate the will clearly evinces an intent on her part to execute the power vested in her, and the appellants, in their printed argument, admit that such was her purpose. We need, therefore, spend no time on this branch of the case.

The only question argued and requiring discussion is, whether the deviseof the farm in fee, to two of the children referred to in Eliphalet Edson’s will, and the charging of such land with pecuniary legacies, in favor of the other children and a daughter of a deceased child, is a valid execution of the power.

Every will must be construed in the light afforded by its own words and the surrounding circumstances, and decisions on other wills, unless the cases are in all respects parallel, which rarely happens, may aid but not control the interpretation. In the present case, while the power conferred on the life tenant is special or limited as contradistinguished from what is known as a general power, it is nevertheless more extensive in its scope than the powers considered in a class of cases cited for the appellants, and moreover its exercise is free from the wide transgression of the limits prescribed for the donee, in another class, to which our attention has been called. The truth is there is an absence of controlling parallelism between any case cited and., the one in hand.

It will be observed that Mrs. Edson was empowered to divide by will, all the real and personal estate of her husband, among his children “ as she shall see proper, giving to each such a share as her judgment shall dictate.” She was not directed to divide the realty and personalty separately. The power conferred was not to partition the land and divide the personal estate, but to divide the property as a whole. The testator viewed his estate, real and personal, as an integral thing, for the purpose of the division. Thus there was a blending of the two kinds of property, and the donee of the power might, wholly or partially, convert the realty, in order to give to each child such a share of the entire estate as she might see proper to award. We see no reason why she could not devise the land to two or more of the children, requiring them to pay to the others certain oums of money, and charging the same on the land as quasi purchase money. In an equitable sense they are considered as part of the land, as is remarked by Duncan, J., in Gause v. Wiley, 4 S. & R. 508. She might, for that matter, have directed a sale of the farm, and of the personalty, if any of the latter remained, and ordered a division of the combined proceeds.

The sums directed to be paid, by the two sons, were undoubtedly charges on the farm, the realty and personalty being blended by tbe will, and it being expressly stated that these sons took what was devised and bequeathed to them on the condition that they should pay the said sums of money: Cook et al. v. Petty et al., 108 Pa. 138; 2 Redfield on Wills, (2d ed.) 209. And the liens would remain, notwithstanding the existence of sufficient personal estate to pay them but which was not so applied: Cook et al. v. Petty et al., supra. They were discharged by the sheriff’s sale of the farm and are payable, before the other liens, out of the proceeds: Hellman v. Hellman et al., 4 R. 440; Strauss’ App., 49 Pa. 353; Lancaster Co. Nat. Bank’s App., 127 Pa. 214.

As Mrs. Edson had no power to award to George K. Edson less than an absolute estate in what she allotted him, the learned auditor rightly gave effect to her alternative request giving the 1600 absolutely: Horwitz v. Norris, 49 Pa. 213; Wiekersham v. Savage, 58 Pa. 365; Smith’s Est., 4 W. N. C, 265; Pepper’s App., 120 Pa. 235.

Regarding the legacy to the heirs of Matilda Snyder, deceased, even if it be deemed invalid, the exercise of the power is only avoided to that extent, and the legacy falls into the residuary estate. The rule is thus stated in 2 Sugden on Powers, (3d Am. ed.) 14. “ So where legacies are given by will under a limited

power, to persons not objects of it, and the residue is given to proper objects, although expressly ‘ after payments of the above legacies,’ the particular legacies, by analogy to the rule as to lapsed legacies, will fall into the residue, and no part of the fund will be considered as unappointed.”

We see no error in the distribution ordered by the court below.

The decree is affirmed, the costs of the appeal to be paid by the appellants.


author: Rice, P. J.,

text:
    Gettysburg National Bank, Appellant, v. C. M. Gage.

      Negotiable instruments — Alterations—Evidence—Burden of proof.

    Where the defense to a suit on a negotiable promissory note is that it was altered in a material part after it was signed and delivered by the maker, and the alteration is not so far apparent on an inspection of the paper as to raise a suspicion of its purity, the burden of proof rests on the defendant. If, however, there is an apparent alteration, the burden of proving that it was lawfully made or that the paper is in the same condition as when it was issued rests on the party offering it; -and the court will refuse to receive it in evidence until some explanation of the apparent alteration has been made. The quantity and character of proof required to carry the question to the jury must depend .upon the circumstances of each particular case.

      Stare decisis — Weight of precedent — Dependent upon facts.

    In determining whether a conclusion of law in any adjudicated case Is a precedent in a subsequent one, the value of the first, usually, is measured by its similarity or dissimilarity to the second in its controlling facts. And even if the court, announcing the conclusion, misapprehends or mistakes the facts, the conclusion to be of. any value as a precedent must be taken as applicable to the facts as assumed by the court: they, as concerns the judgment, are the facts, and whether existing or nonexisting, either prompt or compel the conclusion of law that determines the judgment.
    Argued March 16, 1897.
    Appeal, No. 27, March T., 1897, by plaintiff, from judgment of C. P. Huntingdon Co., Feb. T., 1895, No. 28, on verdict for defendant.
    Before Bice, P. J., Willard, Wickham, Reeder and Smith, JJ.
    Reversed.
    Assumpsit on promissory notes. Before Bell, P. J., specially presiding.
    Suit was brought on two promissory notes, each dated March 26, 1892, one at one year for $66.66, and the other at two years for $66.67. The notes contained the written words “ with interest at Qf0” The allegation of the defense was that this was an alteration.
    Other facts appear in the opinion of the court.
    The trial judge directed a verdict for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned, among others, were, (1) In its rulings or instructions to the jury, which ruling or instruction is as follows: “ The alteration in question is the interlineation ‘ with interest at 6 per cent.’ A similar alteration in a similar note has been passed upon by the Supreme Court in Gettysburg National Bank v. Chisolm, 169 Pa. 564, and in that case the Supreme Court decided that before the note was admissible, it was incumbent upon the plaintiff to show that such alteration was made either with the consent of the maker, or prior to his signature.” (4) In overruling the offer of the plaintiff to read the two notes signed by C. M. Gage to the jury, namely, one thereof dated March 26,1892, to the order of E. Bennett & Son, and by them indorsed, payable one year after date at the First National Bank of Huntingdon, Pa., for the sum of $66.66, interest at 6 per cent, without defalcation, value received, indorsed E. Bennett & Son, signed by C. M. Gage. Also, like note to the order of E. Bennett & Son, bearing date March 26, 1892, payable two years after date at the First National Bank at Huntingdon, Pa., for the sum of $66.67, with interest at 6 per cent, indorsed ‘E. Bennett & Son,’ signed ‘C. M. Gage,’ which offer, in connection.with the production of the notes, was as follows: ‘ The plaintiffs having offered the two notes signed by C. M. Gage, and having called the preliminary proof (erroneously stated by the reporter that is contained in the said notes) the plaintiff now offers to read the notes to the jury.”
    By defendant’s counsel Waite: Defendant renews its objection to the admission of the notes, for the reason that the interlineation has not been sufficiently and affirmatively proven.
    S. T. Brown for defendant: We rest this case on the fact that there was an interlineation made which has not been explained, and I don’t think it makes a particle of difference about the handwriting or what is said about the handwriting. Gettysburg Bank v. Chisolm rules this case and it rules on the interlineation and not on the handwriting.
    Ruling of the court thereon is as follows : The alteration in question is the interlineation “ with interest at 6 per cent.” A similar alteration in a similar note has been passed upon by the Supreme Court in Gettysburg National Bank v. Chisolm, 169 Pa. 564, and in that case the Supreme Court decided that Before the note was admissible, it was incumbent upon the plaintiff to show that such alteration was made either with the consent of the maker or prior to his signature. We feel that this case of Gettysburg National Bank v. Chisolm rules the present controversy, inasmuch as the opinion of Mr. Justice Green deciding that case is not based upon the idea that the fact that the alteration is not in the same handwriting as the writing in the body of the note is the material question, and an examination of his opinion in the Gettysburg National Bank v. Chisolm fails to convince us that be attached any importance to the fact that the note then in question, or the alteration in the note then in question was in a somewhat different handwriting from the writing in the body of the note. The plaintiffs have attempted to account for the alteration, but in this, we think they have failed. In the case of C. M. Gage, defendant, they have shown at most only that he will not swear that it was not in, but he does swear that he thinks that the alteration or interlineation was not in the note when he signed it. In the case against Dr. Barnhart, defendant, they have not shown even this — furthermore, the plaintiffs have called their assistant cashier, and have purged themselves of any connection with the alteration; but we think that Kennedy v. The Bank, 18 Pa. 347, is an authority squarely to the effect that such testimony on the part of the plaintiff is insufficient to warrant the admission of the note, and a careful examination of the case of Winters v. Mowrer, 1 Pa. Superior Ct. 47 — has failed to convince us that our present ruling is in conflict with the opinion of the Superior Court in the case of Winters v. Mowrer. True, the present ruling may seem to be in conflict with some expressions of Judge McCarthy in the opinion of Winters v. Mowrer, but we think that case really turned upon the point that plaintiffs had called a witness or possibly two witnesses, who testified that when the note was signed, they thought it was in the same condition it was when produced at the trial; but.in the present case, the most that plaintiffs show is, the witness called by the plaintiff, to wit: the defendant on cross-examination swears that he thinks it was not in this condition; or he swears that he thinks the words ‘ with interest from date ’ were not in the note when he signed it. Taking this view of the law we overrule the offer; and seal a bill for the plaintiff. Verdict accordingly.” (5) In directing a verdict for defendant.

      A. O. Furst and John D. Dorris, for appellant.
    — The court below fell into error in ruling this case not only on the law but on the facts of Bank v. Chisolm, 169 Pa. 564.
    April 19, 1897:
    In view of the facts presented by the two cases, Bank v. Chisolm does not rule this case; on the contrary the dissent of Mr. Justice Mitchell in the Chisolm case applies with greater force to the present case, and the question of when the alleged alteration was made was one clearly to go to the jury: Clark v. Eckstein, 22 Pa. 507; Winters v. Mowrer, 1 Pa. Superior Ct. 47.
    The alleged alteration not being apparent on the face of the instrument, the burden of proof was on the party alleging it: U. S. v. Linn, 1 Howard, 104.
    If it be doubtful whether the note has been altered, the preliminary question Avhether it has been altered is for the jury to determine: Clark v. Eckstein, 22 Pa. 507; Heffner v. Wenrich, 32 Pa. 423.

      Chas. G-. Brown, for appellee, relied on Bank v. Chisolm, 169 Pa. 564.
    A holder ought not to accept a bill which has the least appearance of alteration: Paine v. Edsell, 19 Pa. 178; Hartley v. Corboy, 150 Pa. 23.
    The onus of proof as to the alteration is upon the party alleging that it was made lawfully: Hartley v. Corboy, 150 Pa. 23; Nagle’s Est., 134 Pa. 31; Bank v. Chisolm, 169 Pa. 564.
   Opinion by

Rice, P. J.,

The contention in the present case is that the words “ with interest at 6 per cent” were interlined after the notes were signed. They have been exhibited to us and we have had the same opportunity to inspect them that the court below had. The only evidence apparent on the face of the notes to sustain the defendant’s' contention, or to excite suspicion even, is that the words do not occupy the whole line and that they begin a little to the right of the other lines. It was said in Bank v. Chisolm, 169 Pa. 564, that this was sufficient to put the discounting bank upon inquiry, and we do not purpose to depart from that decision. But against the weak presumption arising from the single circumstance to which we have referred, it is to be observed that, (1) a printed blank was used and that there was no place for inserting the written words except in the space between the dollar line and the printed line “ without defalcation for value received; ” (2) the words could be, and were, inserted there without break or crowding the other lines or diminishing the size of the letters; (3) they appear to be in the same handwriting and to have been written with the same ink as the body of the note. All of these things are observable upon an inspection of the papers.

In addition, a witness of experience in judging handwriting testified that in his opinion the handwriting of the words “ with interest at 6 per cent ” was of the same age as that of the body of the notes. The defendant being called for cross-examination would not swear positively that the-words were not on the notes when he signed them, but testified that he was “ pretty certain that they were not there.” His testimony might very easily be explained upon the theory that he did not notice them. This is a very different case from Bank v. Chisolm in which the decision was predicated on the “ entirely undisputed fact in this case that the defendant’s obligation in suit was altered, after it left him, and without his knowledge or consent.” Considerable is said in the paper-books as to the evidence in that case, but as was said by Mr. Justice Dean in Yoders v. Amwell Twp., 172 Pa. 447: “In determining whether a conclusion of law in any adjudicated case is a precedent in a subsequent one, the value of the first, usually, is measured by its similarity or dissimilarity to the second in its controlling facts. And even if the court, announcing the conclusion, misapprehends or mistakes the facts, the conclusion to be of any value as a precedent must be taken as applicable to the facts as assumed by the court; they, as concerns the judgment, are the facts, and whether existing or non-existing, either prompt or compel the conclusion of law that determines the judgment. For that reason it would be a waste of time to notice the controversy here between counsel as to what were the facts in ” (the case cited); “ for our purpose and as a precedent in all cases after it was decided, the facts, as stated in it by this court, must be taken as correct.”

Another fact of very great significance, which bears directly on one of the notes and inferentially on the other, and which plainly distinguishes the case from Bank v. Chisolm, is this: The two notes offered in evidence together with a third were executed at the same time and were parts of one transaction. They were made payable in one, two and three years respectively. In one of the two notes offered in evidence the upper part of the first letter of the defendant’s signature appears to have been written over the lower part of the letter “ p ” in the words “ per cent.” This can be seen with the naked eye and still more plainly under a glass. The irresistible inference from the appearance of the paper is that the words “ with interest at 6 per cent” were on the paper when it was signed. We do not mean to say that this shuts out proof to the contrary, but only that this is the appearance that the paper presented when it was offered. Obviously, it is no answer to say that the attention of the trial judge was not specifically called to the fact that the defendant’s signature appeared to have been written as described ; the note was submitted to the court for inspection, and we must take the record as we find it.

Where the defense to a suit on a negotiable promissory note is that it was altered in a material part after it was signed and delivered by the maker, and the alteration is not so far apparent on an inspection of the paper as to raise a suspicion of its purity, the burden of proof rests on the defendant. If, however, there is an apparent alteration the burden of proving that it was lawfully made or that the paper is in the same condition as when it was issued, rests on the party offering it; and the court will refuse to receive it in evidence until some explanation of the apparent alteration has been made. The quantity and character of proof required to carry the question to the jury must depend upon the circumstances of each particular case.

As we have shown, one of the notes needed no explanation of the words “ with interest at 6 per cent ” to entitle it to be admitted in evidence. Conceding that the other note did, it is certainly not a case where the presumption was strong that the words were interlined after signing, or where the burden cast on the plaintiff was a heavy one: Winters v. Mowrer, 1 Pa. Superior Ct. 47; Clark v. Eckstein, 22 Pa. 507. The ultimate decision of the question as to the alteration of the notes rested with the jury, and we are of opinion upon all the facts to which we have called attention that the plaintiff was entitled to have it submitted to them, under the proper instructions.

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


text:
    Road in Cassville Borough. Appeal of Miles Saylor.

      Road law — Jurisdiction, Q. S.

    Where a road vacated and a road laid out to take its place are partly in a borough and partly in a township, the court of quarter sessions has jurisdiction.

      Road law — Essentials of report of viewers as to termini.

    The termini reported by the viewers must correspond with those designated in the petition and order. But mathematical precision is not required in describing them either in the petition or the report. It is sufficient if there be substantial conformity, and if they be described so that the road can be located with reasonable certainty.

      Appeal — Appeals to the Superior Court — Time of perfecting same.

    An appeal to the Superior Court must be taken and perfected within three calendar mouths from the day when the judgment, sentence, order or decree appealed from was entered in the court below.
    This appeal was taken more than eight months after the decree of confirmations of the report of. viewers. A motion was made, subsequent to the confirmation, for leave to file exceptions nunc pro tunc which was refused, and if it be conceded that an appeal lies from such an order, by no latitude of construction can it be held that the whole proceedings are opened for review ; at the very best all that can be assigned for error under such conditions is the refusal of permission to file the specific exceptions going to the jurisdiction of the-court.
    Argued March 16, 1897.
    Appeal, No. 36, March T., 1897, by Miles Saylor, one of the supervisors of Cass township from the decree of Q. S., Huntington Co., Feb. Sess., 1895, No. 7, confirming report of viewers.
    Before Rice, P. J., Willard, Wick-ham, Reeder and Smith, JJ.
    Affirmed.
    Confirmation of viewers’ report. Before Love, P. L, of the 49th judicial district, specially presiding.
    At the February sessions of the court of quarter sessions of Huntingdon county a petition was filed by certain inhabitants of the township of Cass and borough of Cassville for the appointment of viewers to view and lay out a public road from the north end of Water street to a point on the public road leading from Cassville to Mill creek, at or near a cucumber tree near the Stever’s bridge, and to vacate the original road leading from Cassville to Mill creek from said cucumber tree to the line of the M. E. Church lot in Cassville.-

      Viewers were appointed February 21, 1895, who made their report to the May term, 1895, laying out the road and vacating a part of another road, and accompanying their report with a dra'ft of the road laid out and the road vacated.
    June 12, 1895, a petition for reviewers was 'presented and reviewers were appointed, who made their report to September sessions, 1895, reporting against the road. No exceptions were filed to either of these reports. On March 25, 1896, the view laying out a road and vacating an old road was confirmed by the court. On June 22, 1896, a petition was presented to the court and rule granted to the petitioners for the road to show cause why exceptions should not be granted nunc pro tunc, and on October 23, 1896, the rule was discharged by the court and permission to file exceptions nunc pro tunc refused. December 7, 1896, affidavit and appeal to the Superior Court filed.

      Errors assigned were (1) The court had no power or authority to lay out a street in the borough of Cassville. (2) The court had no authority to vacate one of the streets of the borough of Cassville! (3) The report of viewers shows that the road was not laid out between the termini mentioned in said order of court. (4) The court erred in confirming the report of viewers, as neither the petition for viewers, nor the report of viewers, nor the draft annexed to the report, show the locality of the road, nor is there any certainty in its description, nor are the termini between which the road is laid out described with sufficient precision. (5) 111 confirming the report of viewers, as neither the petition for an order of view, nor’ the order of view state in what township or borough the proposed road is to be laid out, nor do they state in what township or borough the proposed termini of said road are located. (6) In confirming the report of viewers, as neither the petition for an order of view, nor the report of viewers, nor the draft annexed to their report, state in what township or borough the road vacated is located, nor do they show whether it is a township road or a street of some borough, nor clo they show whether it is located wholly in the township or wholly in the borough. (7) In confirming the report of viewers, as one of the termini of an unoccupied street in a borough cannot be adopted as a terminus in proceedings to lay out and open a public road in an adjoining township.

      April 19, 1897:

      W. II. Woods and II H. Waite, with them J. S. Woods, for appellant.

      W. M. Williamson, for appellee.
   Opinion by

Rice, P. J.,

As the road vacated and the road laid ont to take its place are partly in a borough and partly in a township, the court of quarter sessions had jurisdiction: Somerset and Stoystown Road, 74 Pa. 61 (1873); Road in Chester, 2 Ch. Co. Rep. 438; Road in Verona, 21 W. N. C. 534; 11 Cent. Rep. 34 (1888); Parkersburg Borough Streets, 124 Pa. 511 (1889); Palo Alto Road, 160 Pa. 104 (1894). The first two assignments are, therefore, overruled.

That the termini reported by the viewers should correspond with those designated in the petition and order is clear upon reason and authority. “ They are the initials which describe the proceeding, and limit the authority delegated by the court to the viewers. When once the viewers cut loose from the order the identity of the proceeding is lost:” Road in Lower Merion, 58 Pa. 66; Boyer’s Road, 37 Pa. 257. But mathematical precision is not required in describing them either in the petition or in the report. It is sufficient if there be substantial conformity and if they be described so that’ the road can be located with reasonable certainty. “ All that the law requires is reasonable certainty in defining the points where the road shall begin and end, and that the road as laid out by the viewers shall begin and end, substantially at the points designated in the petition:” Springfield Road, 73 Pa. 127. The maxim, id cextum est quod certum reddi potest, is applicable: Kyle’s Road, 4 Y. 514: Miller’s Road, 9 S. & R. 35; Bean’s Road, 35 Pa. 280. The specific objection under consideration is, that the report shows that the road was not laid out between the termini mentioned in the order. This objection would not have been good, even if taken in time, as the opinion filed by the learned judge who presided well shows. There is substantial conformity in this particular between the petition and the report. The third assignment is overruled.

No exceptions to the report of viewers were filed, the report was confirmed absolutely on March 25, 1896, and on May 23, 1896, an affidavit was filed, setting forth that the new road was opened. In June, certain citizens petitioned the court for leave to file nunc pro tunc the three exceptions which we have considered. A rule to show cause was granted, which was discharged on October 23, 1896, and on December 7 following, an appeal was taken from the order of confirmation. An appeal to the Superior Court must be taken and perfected within three calendar months from the date when judgment, sentence, order or decree appealed from was entered in the court below: Act of June 24, 1896, P. L. 212. This appeal was taken more than eight months after the decree of confirmation. Even if it be treated as an appeal from the order refusing permission to file exceptions, and it be conceded that an appeal lies from such an order, by no latitude of construction can it be held that the whole proceedings are opened for review. At the very best all that was assignable for error was the refusal of permission to file the specifie exceptions going to the jurisdiction of the court. The remaining assignments relate wholly to purely formal and not jurisdictional defects. They were not made the subject of exception in the court below, either before or after the decree of confirmation, and the • appeal from that order was not taken within the statutory period. Therefore they are dismissed.

The decree is affirmed and the appellant is directed to pay the costs.


text:
    Estate of Samuel Seibert, deceased. Appeal of John M. McDowell, Administrator d. b. n. of Agnes W. Seibert, deceased.

      Substitution — Bight of, only applied in clear cases — Laches.
    The benefit of substitution is only applied in a olear case, appearing from the proceedings in the case, and this right, if existing, may be lost by laches.

      Appeals — Weight of findings of fact by auditor.

    When the question whether money paid by a widow, in relief of her husband’s estate, was a gift, loan, or advancement, under circumstances entitling her to subrogation to the rights of creditors whose debts were paid, is a question of fact, and where its decision depends upon the veracity and recollection of witnesses who appeared before the auditor and the value of whose testimony could be best measured by Mm, Ms finding will rarely be disturbed by the appellate court when confirmed by the court below.
    Argued March 16, 1897.
    Appeal, No. 51, March T., 1897, by John M. McDowell, administrator d. b. n. of Agnes W. Seibert, deceased, from the final decree of O. C.-, Franklin Co., dismissing exceptions to auditor’s report and confirming the same.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orladt and Smith, JJ.
    Affirmed.
    Exceptions to auditor’s report. Before Stewart, P. J.
    Samuel Seibert died April, 1874, testate. It appeared from the report of the auditor, appointed to distribute the balance shown by the final account of the executors of Samuel Seibert, deceased, that testator died in April, 1874. That shortly after his death his executors sold all his personal property and real estate except the house occupied by the wife, which had been devised to her for life, with remainder to children after her death. That Agnes W. Seibert, the widow, owned real estate in her own right. She lived in the property devised to her by the testator until her death. The fund for distribution arises on the sale of the testator’s mansion house, in which Agnes W. Seibert lived, sold under power in the will. On or about April 1, 1878, one of the executors of Samuel Seibert told the widow that there were unpaid claims against the estate of Samuel Seibert to the amount of about $1,000, and that unless she advanced the money to pay these claims against her husband’s estate the property in which she was living, which had been devised to her, would have to be sold to pay the testator’s debts. She told this executor if he could borrow the money he could secure it by a lien on her own property. One thousand dollars was borrowed which Mrs. Seibert gave to the executors of Samuel Seibert who charged themselves with $1,000 received from Agnes W. Seibert, in their first account filed in this estate.
    The administrator of Agnes W. Seibert sought to recover from the estate of Samuel Seibert the sum of $1,000 which Mrs. Seibert borrowed and gave to the executors of her husband. To this claim of the administrator the heirs of Samuel Seibert pleaded the statute of limitations. No proceedings were had in the orphans’ court by the executors in relation to the loan by Mrs. Seibert; no obligation was given her by either of the executors at the time she gave the money, nor was it shown that Mrs. Seibert ever requested any obligation or made a demand for its repayment.
    About two years after Mrs. Seibert gave the executors the money one of the executors gave her a receipt for $1,000, which purports to be in satisfaction of five years’ rent at the rate of $200 per annum. This receipt in part is as follows: “Said rent having been collected by me from her for the purpose of paying the debts of said decedent, and having been paid to me at or about the expiration of said term.”
    The auditor found as a conclusion of law that the $1,000 claimed by the estate of Mrs. Seibert had been paid to one of the executors on or about'April 1, 1878; that no proceedings had been taken in relation to the matter, no demand having been shown, no obligation given, no suit brought, nor any steps towards its recovery having been taken prior to June 4, 1894, the statute of limitations is a bar to the recovery of this claim.
    Exceptions were filed to the report of the auditor which were dismissed by the court.

      JSrrors assigned among others were (2) In not finding that the widow was induced by false representations to pay the said sum of $1,000 to the executors. (3) In holding that the statute of limitations, was a bar to the claim of the administrator of Agnes W. Seibert. (4) In failing to award to the administrator of Agnes W. Seibert the sum of $1,000. (6) In dismissing exceptions to the auditor’s report and confirming same absolutely.

      W. K. Sharpe, of Sharpe Sharpe, with him J. M. McDcnvell, for appellant.
    — The principle is too well settled to admit of doubt, that an executor, who advances money to pay debts, is entitled as against the heirs to be subrogated to the rights of the creditors: Wallace’s App., 5 Pa. 103; Woodward’s Appeal, 38 Pa., 322; Robb’s Appeal, 41 Pa. 45; to the same effect is Cottrells’ App., 23 Pa. 294.
    The widow in paying off these debts, did not occupy the position of a volunteer: Reed v. Reed, 9 Watts, 263.
    It has been held that where one, not a mere volunteer, pays a debt under some compulsion, made necessary for the adequate protection of his own right, he is entitled to subrogation: Mosier’s Appeal, 56 Pa. 76; Campbell v. Foster Home Association, 168 Pa. 609, 636.
    April 19, 1897:
    The question whether the appellant will be barred by the statute of limitations depends upon whether the executors themselves would have been so barred. It appears that they would not: Cobaugh’s Appeal, 24 Pa. 143; Demmy’s Appeal, 43 Pa. 155, 166.
    If there was any fraud perpetrated upon the widow, of which fraud we contend the receipt is strong evidence, the statute can have no application because it would not run until the discovery of the fraud: Ferris v. Henderson, 12 Pa. 49.

      Garnet Gehr and Thad. M. Mahon, with them Hastings G°ehr, for appellee.
    — There is but one question in this case, — Was the money claimed a gift by the widow to her Irasband’s estate, or was it a loan ? If it was a gift there can be no recovery, and if it was a loan it is, as the auditor finds, barred by the statute of limitations.
   Opinion by

Rice, P. J.,

Whether the transaction between Agnes W. Seibert and the executors of her husband’s estate was a gift, a loan, or an advancement under circumstances entitling her to subrogation to the rights of the creditors whose debts were paid was a question of fact. Its decision depended, to a very large extent, upon the veracity and recollection of witnesses. According to the testimony of the executor it was unquestionably a gift. He is the only living witness who was present when the transact tion was consummated, and his testimony is corroborated by the undisputed fact that, although Mrs. Seibert lived more than fourteen years after the transaction, and more than ten years after the executor’s account was confirmed, she never demanded repayment of the money, or asserted in any way that she had any claim therefor.

The testimony of H. C. Seibert relates to conversations had prior to the advancement of the money. It is not irreconcilable with that of the executor, and even if it were more seriously conflicting it would be entitled to less weight than that of the executor, because he does not pretend that he was present when the transaction was consummated. The contention that Mrs. Seibert paid tbe money as rent, in ignorance of ber legal rights, is wholly unsupported by any direct testimony, and there is no evidence of any kind, from which the fact can be inferred fairly. We have not overlooked the receipt of April 1, 1880, in which the money was designated as rent; but this was given sometime after the money was advanced, and cannot affect the question, for these reasons: First, there is no evidence that the person who conceived the idea of designating the payment as rent, and who prepared the paper and presented it to the executor for his signature, had any authority to act for Mrs. Seibert, and there is evidence that she denied having had anything to do with it.

In view of the executor’s explanation of the circumstances under which the paper was signed, we fail to see how it-shows that Mrs. Seibert was induced to pay the money by his fraudulent representation that she was under legal compulsion to pay rent for the mansion house. She never asserted it, and the allegation has nothing now to support it but pure surmise. But, second, the character of the original transaction is to be determined by what occurred at the time, and there is not a word of testimony that, at the time the money was paid, or before, anything was said or suggested as to her liability to pay rent for the premises. On the contrary, by all the testimony, including that of the appellant’s witness, it was paid so as to avoid the necessity of a sale of the mansion house in which she lived, and there was ample testimony to warrant the conclusion that there was no understanding or expectation on her part that it was ever to be returned to her, or that she was to derive any other advantage therefrom than the continued use and occupancy of the mansion house. Having arrived at this conclusion the court properly held that the attempt to revive and enforce this as a claim against the estate, after'her death and after a lapse of over fourteen years, must fail. “ The benefit of substitution is only to be applied in a clear case, appearing from the proceedings in the case:” Chancellor Kent, 4 Johns. 546. This is not such a case. And, even if Mrs. Seibert ever had the right to subrogation it was lost by her laches: Fink v. Mahaffy, 8 W. 384; Bank v. Potius, 10 W. 148; Rittenhouse v. Levering, 6 W. & S. 190, 198; Stout’s Admr. v. Stout’s Admr., 44 Pa. 457; Allegheny V. R. R. Co. v. Dickey, 131 Pa. 86, 97.

The decree is affirmed and the appellant is directed to pay the costs.


author: Orlady, J.,

text:
    Abraham S. Davis v. Samuel Cosel, Appellant.

      Sale — Rescission—Replevin—Fraud.
    A sale may be rescinded and the property retaken by replevin when the vendee was insolvent at the time of purchase, knew himself to be insolvent and intended to cheat and defraud the plaintiff out of his goods, and where the circumstances surrounding the transaction are such as tend to show trick, artifice and false representation.

      Practice, Superior Gourt — Review—Proper submission under proper instructions.

    Where a careful review of the testimony fully warrants the verdict rendered after a submission of the whole question in a charge which correctly disposed of the legal questions raised by the points, the appellate court will not reverse.
    Argued March 12, 1897.
    Appeal, No. 28, March T., 1897, by defendant, from judgment of C. P., Blair Co., Jan. T., 1896, No. 42, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Replevin. Before Barker, P. J., of the 47th judicial district specially presiding.
    The facts sufficiently appear in the opinion of the court.
    Verdict and judgment for plaintiff for $156 with interest from October 25,1895, and $50.00 additional as damages. Defendant appealed.

      Errors assigned among others were (2) In affirming plaintiff’s sixth point which point and answer are as follows: “6. If the jury find from the evidence that after the goods were delivered to the defendant, the plaintiff called upon him and demanded the goods or pay for them, and the defendant agreed to return the goods and in the plaintiff’s presence put the goods in a box and nailed it, shut and with a chalk or pencil wrote the plaintiff’s name on the top of the box, with his New York address, and then told the plaintiff to take the goods away, and the plaintiff accepted the goods and called a drayman to take them away, there was in law a redelivery of the goods to the plaintiff; and the refusal of the defendant afterwards to allow the plaintiff to take the goods away was an unlawful and fraudulent retention of the goods; and the plaintiff is entitled to recover. Answer: This point is affirmed, excepting that, of course, the last clause of it, in regard to the plaintiff being entitled to recover is subject to our other instructions.” (4) To a portion of the judge’s charge, as follows: “ The plaintiff says — and you may have just heard us say — -that where goods are obtained fraudulently, with the intent to cheat the vendor out of the goods or the proceeds of the goods, they cannot and ought not to be retained. Outside of any other question in the case, the plaintiff maintains that there was a fraudulent intent on the part of this defendant not to pay for these goods, to cheat and deprive the plaintiff of them; and if you believe that frojn the facts in the case, then you would be warranted in finding a verdict for the plaintiff.” (6) To a portion of the judge’s charge, as follows:. “The defendant’s counsel asks us here, in a proposition of law submitted to the court, to say to you that there are no facts in this case, in addition to the allegation of insolvency (which is denied by them) to go to the jury to show intended fraud. We listened with more than usual care to the arguments of the counsel on both sides, in order that we might determine in our mind whether there were other facts, in connection with alleged insolvency, to warrant us in submitting this case to you under the laws of Pennsjd vania, which, taken with the fact of insolvency and knowledge of insolvency, in case you find its existence, would warrant us in submitting the case to you, and we have concluded, after careful consideration, that there are such facts in the case as to warrant their submission at our hands ; and we submit the question to you.” . (7) To a portion of the judge’s charge, as follows : “All the facts surrounding this transaction have been fully argued on both sides; and you must take them into consideration. Although we direct your minds particularly to the occurrences of the 28th of October, yet you must consider all the transactions from the time the order was given down to .that day, in determining whether there was a fraudulent intent to cheat and defraud the plaintiff out of these goods or the price of them. I do not know, in reference to this feature of the case, of anything further that I can say to you that will aid you in arriving at a satisfactory conclusion on this branch of the case. I simply say to you that this is the law of the case, applicable to the transaction. In case you believe that the defendant repurchased, reacquired title to these goods on the 28th of October, if you are satisfied from the testimony in this case that he did that, at that time being insolvent and lmowing that he was insolvent, and intending to cheat and defraud the plaintiff out of his goods, then you would be warranted in finding a verdict for the plaintiff in this case; otherwise, you would find a verdict for the defendant. And what we mean when we say this is, that if there are such circumstances connected with the transaction as tend to show any trick or artifice or false representation in the transaction by which he acquired the goods, if there was anything to show that, taken in connection with the evidence of insolvency, that would be sufficient to warrant you in saying that this was a fraudulent transaction, and, therefore, finding for the plaintiff.”
    April 19, 1897:
    Stevens, Owens $ Pasooe, for appellant.
    — Even if defendant was insolvent at the time of sale and knew it, the concealment of this knowledge by mere silence, without active' misrepresentations, was not such a fraud as would avoid the sale: Shirk v. Konigmacher, 3 Pa. Superior Ct. 45; Rodman v. Thalheimer, 75 Pa. 232; Wessells v. Weiss Bros., 156 Pa. 591; Cooperage Co. v. Gaul, 170 Pa. 545.

      Hicks $ Templeton, for appellee.
    — -We submit that the learned court’s careful instruction as to the insolvency of the defendant, is the law in Pennsylvania. Smith v. Smith, 21 Pa. 367, and a long line of cases followed which are too well known to this court to require citation.
   Opinion by

Orlady, J.,

In June, 1895 the plaintiff, a New York manufacturer, received from the defendant, a clothing merchant, an order for “ seventy two pairs of men pants ” of the value of one hundred and fifty-six dollars to be delivered at Tyrone, Penn’a. in September following.

The goods were shipped from New York October 16, and received by the defendant at Tyrone three days later. •

After a request by the defendant for further time in which to make payment, the plaintiff went to Tyrone, and under the undisputed testimony, on October 28 tbe contract was rescinded, tbe goods were boxed up, and the business address of the plaintiff placed thereon by the defendant, who informed him that he would have them delivered at the freight station of the railroad company.

Subsequent to this, the defendant claimed that a new contract was made, by which he was to retain the goods and pay for them. The plaintiff denied positively that any such contract was made or talked about, but testified that when he returned to the, store with a drayman for the goods, the defendant refused to deliver them; threatened him with physical violence, and placed the clothing again on the shelves.

The plaintiff caused a writ of replevin to be issued, and when served, the defendant gave bond and retained the property.

A verdict for $214.21 was rendered in plaintiff’s favor.

While the original contract was executed in the state of New York, the rescission of it in Pennsylvania left the parties free to contract here, and the whole question in this case was one of fact, viz: Was a new contract made at Tyrone on October 28, by which the same goods were again sold to the defendant by the plaintiff ?

As it was stated by the learned trial judge to the jury, “ Here is a square, plain and simple issue of fact for you to determine. Hid the plaintiff consent that the defendant should retain the goods on the terms testified to by the defendant ? ”

The contention of plaintiff was, that the proceeding of the defendant was a scheme and trick to get possession of the goods; that he was practically insolvent at the time, and while the means employed were circuitous and novel the object of the original order was to get the goods in his store, and eventually secure them through the means practiced. Tbe defendant urged that the purchase by him October 28, was in good faith, and describes the transaction — after the original contract had been rescinded, the goods boxed up and marked with the owner’s name, and ready for delivery to the railroad for reshipment to New York, as follows; “When I came in the store I seen Davis and his drayman he had called, and as I came in his drayman left the store; I says, ‘ What’s this ? ’ He says ‘ I want to save you the money to have the goods hauled over; ’ then I says, ‘Davis, what do you take me for?’ I says, ‘You are doing a very wrong thing to me; I have treated you like a gentleman; why didn’t you leave your goods alone ? I went out on purpose to get a drayman; if I didn’t want to give you these goods back I could keep them;” and after further conversation on the propriety of plaintiff’s conduct, the defendant continued; “he talked to me and apologized over and over; I says, ‘That’s all right, but you can’t wipe out what you have done; ’ I says, T offered you to take the goods back; ’ he says, ‘ Keep the goods,’ he says, ‘Will you give me a note?’ I says, ‘You can take your goods; ’ then he got to talking around; he says, ‘ Who will you get to indorse the note?’ I says, ‘I won’t get anybody; if you wish to take my note, you can do so or take the goods; ’ he says, ‘ No, I don’t want the goods; when will you pay me ? ’ I says, ‘ I will pay you this bill for the amount of the goods maybe today and maybe tomorrow, anyhow not later than the 14th of November.’ Then he again took my hand and shook it and says, ‘Well, Cosel, good bye;’ he says, ‘When will I get that check? ’ I says, ‘ Perhaps I will send you that check in a day or two; ’ my actual intention was to send that check, as I pay all my bills.”

On the evening of that day the writ of replevin was served.

The learned trial judge refused a new trial; saying in the opinion filed: “ The case was carefully tried, the usual amount of spirit and energy was displayed between the counsel, as well as the parties. The jury saw the parties, heard their testimony, and in a case where our views are as fully in accord with theirs, as expressed in their verdict, we could not conscientiously impose upon the parties the burden of another trial.”

A careful review of the testimony fully warranted the verdict returned by the jury, and the court below submitted the whole question to them in a charge which correctly disposed of the legal questions raised by the points.

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