author: Orlady, J., Morrison, J.,

text:
    Gandy v. Weckerly, Appellant.

      Promissory notes — Evidence—Parol agreement — Contradiction of written instrument.

    In an action upon a promissory note for $1,250 it appeared that the plaintiff, the payee of the note, was the president of a corporation of which the defendant, the maker of the note, was treasurer. The corporation being in want of funds, the defendant was requested by plaintiff to give financial aid in the emergency. The defendant in an affidavit of defense averred that the plaintiff “proposed to me that if I would loan to said company the sum of $1,250, taking its note therefor at one year, before which time he said it would be easily able to pay it, he would sell to me 200 shares of its stock for the sum of $1,250 and take my note therefor, which note I would not be called upon to pay except out of and from the money to be repaid to me by said company in payment of its note held by me as aforesaid. He said he would make the note to him payable at the expiration of one year, because within that time the note of the company held by me would be paid, but that if from any cause whatever the amount of the note was not paid to me, I would not be called upon by him to pay the note to be given by me to him in payment of said stock. Relying upon his agreement that I would not be called upon to pay said note until the note given to me was paid, and without which agreement on his part I would not have purchased said stock or given my note therefor, I accepted his terms as above, loaned the company the sum of $1,250, taking its note therefor, purchased said stock, and gave to the plaintiff my note, being the note in suit.” The defendant further averred the refusal of the company to pay its note to him, and that he was and had been at-all times ready to surrender that note, and his stock for the note in suit, or to pay to plaintiff as soon as he himself was paid by the company, or to return the shares of stock for the note in suit. There was no averment that the alleged parol agreement was omitted through fraud, accident or mistake, or that the defendant prior to the making 'of the affidavit had returned or offered to return the shares of stock. Held, that the affidavit of defense was insufficient.
    Argued Dec. 18, 1906.
    Appeal, No. 116, Oct. T., 1906, by defendant, from order of C. P. No. 5, Phila. Co., Dec. T., 1905, No. 1,261, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George S. Gandy v. Frank Weckerly.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a promissory note.
    The averments of the affidavit of defense are set forth in the opinion of the Superior Court.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Alex. Simpson, Jr., for appellant.
    While parol evidence to alter, vary or contradict the terms of a writing is to be closely scanned, it is now too well settled to be questioned, that it may be interposed for that purpose, if it was contemporaneous with the writing, and on the faith of it the writing was executed. It is so decided at least as late as Fidelity & Casualty Co. v. Harder, 212 Pa. 96.
    The cases which hold that the principle above quoted has no applicability to commercial paper will be found to be cases where the paper has passed into third parties’ hands, or where the defense does not attack the consideration for the note. But a defense can be interposed which goes to the consideration itself, where, as here, the note is sued upon by the party making the agreement, and as to whom it would be a fraud to permit him to use the note in direct violation of the agreement, by which he obtained it: Corr v. Kelly, 1 W. N. C. 387 ; Souder v. Bancroft, 1 W. N. C. 576; Flood v. Park, 2 W. N. C. 569; Edwards v. Bass, 2 North Co. Rep. 266; Hubbard v. French, 1 Pa. Superior Ct. 218; Fischer v. Dalmas, 173 Pa. 296.
    October 7, 1907:

      W. P. Rambo, with him Ormond Rambo, for appellee,
    cited: Phillips v. Meily, 106 Pa. 536; Fuller v. Law, 207 Pa. 101; Hill v. Gaw, 4 Pa. 493; Lee v. Longbottom, 173 Pa. 408; Patton v. Fox, 22 Pa. Superior Ct., 416; Homewood People’s Bank v. Heckert, 207 Pa. 231; Com. Title, etc., Co. v. Folz, 19 Pa. Superior Ct. 28; Appleby v. Barrett, 28 Pa. Superior Ct. 349; Ogden v. Philadelphia, etc., Traction Co., 202 Pa. 480; McCambridge v. O’Callaghan, 27 Pa. Superior Ct. 199; American Home Savings Bank Co. v. Guardian Trust Co., 210 Pa. 320; Plunkett v. Roehm, 12 Pa. Superior Ct. 83; Butler v. Keller, 19 Pa. Superior Ct. 472; Keyser v. Kolb, 1 W. N. C. 266 ; Merryman v. Barrett, 1 W. N. C. 268; Loper v. Bennett, 1 W. N. C. 186; Gassler v. Rush, 2 W. N. C. 66; Bank v. Myers, 3 W. N. C. 290; DaCosta v. O’Rourke, 12 Phila. 223; Bank v. Henninger, 105 Pa. 496; Canfield v. Ditman, 2 Mona. 42.
   Opinion by

Orlady, J.,

As disclosed by this record, the plaintiff was the president of the Emigrant Gulch Consolidated Placer Mines Company, and the owner of the majority of the shares of its capital stock. The defendant-was its treasurer, and on November 21, 1904, the company being threatened with financial disaster for want of funds, the defendant was requested by the plaintiff to give financial aid in this emergency, and, as stated by him in his affidavit of defense, the plaintiff, “ proposed to me that if I would loan to said company the sum of $1,250, taking its note therefor at one year, before which time he said it would be easily able to pay it, he would sell to me 200 shares of its stock for the sum of $1,250 and take my note therefor, which note I would not be called upon to pay except out of and from the money to be repaid to me by said company in payment of its note held by me as aforesaid. He said he would make the note to him payable at the expiration of one year, because within that time the note of the company held by me would be paid, but that if from any cause whatever the amount of the note was not paid to me, I would not be called upon by him to pay the note to be given by me to him in payment of said stock. Relying upon his agreement that I would not be called upon to pay said note until the note given to me was paid, and without which agreement on his part I would not have purchased said stock or given my note therefor, I accepted his terms as above, loaned the company the sum of $1,250, taking its note therefor, purchased said stock, and gave to the plaintiff my note, being the note in suit.” The defendant further avers the refusal of the company to pay its note to him, and that he is and has been at all times ready to surrender that note, and his stock in question for the one in suit, or to pay to Gandy as soon as he is paid by the company, or to return the shares of stock in question for the note in suit. The defense to the payment of the note is based on this contemporaneous parol agreement. The court made absolute a rule for judgment for want of a sufficient affidavit of defense, and the defendant brings this appeal.

It was said in Fuller v. Law, 207 Pa. 101, “There is much apparent and some real conflict in the numerous cases involving the question as to when parol evidence is admissible in contradiction of written instruments. Since the legislation, however, allowing the parties to such instruments to testify in their own behalf, we have endeavored to save whatever is left of the rule, ‘ that parol evidence is inadmissible to vary or contradict written instruments’ by somewhat more rigid rulings 'tending to exclude parol evidence. We concede, success in that direction lias not as yet been what we hoped for. We started with Building & Loan Association v. Hetzel, 103 Pa. 507, and there held that the defense set up at an action at law on a written instrument was an equitable defense supported alone by the oath of one of the parties to the instrument, and that this was not sufficient, saying: ‘Now that parties are competent witnesses each may oppose his oath to the others, and certainly when written contracts or obligations are to be impeached by defenses purely equitable, the reason is stronger than formerly for enforcing the rules of evidence applicable to cases in equity.’ This was followed by other cases, the most pointed one, that of Phillips v. Meily, 106 Pa. 536, in which the same equity rule of evidence, that to set aside or vary a written instrument, there must be two witnesses or one witness and corroborating circumstances, which was applied in an action on a promissory note.”

As in Fuller v. Law, 207 Pa. 101, the proposed evidence amounted to nothing more than an offer to prove an independent parol contract that the note was to be paid in another method than that expressed on its face. It is straining both legal and moral definitions to call the mere failure to perform an oral promise to accept payment in a particular form, a fraud; dishonest it may be, but it is no more a legal fraud than the immediate collection of a jjast due debt on which the creditor has orally promised the debtor indulgence. As there was no fraud in the creation of the instrument, nor in not waiting until the dividends on the stock paid it, it comes under the rulings in Hill v. Gaw, 4 Pa. 493, Hacker v. Refining Co., 73 Pa. 93, and the other authorities, holding that evidence of fraud, accident or mistake can alone successfully contradict or set aside the writing.” The company’s note to the order of Weckerly is signed by the company name in full by “F. Weckerly, treasurer.” This note fell due on November 21, 1905, and not being paid at maturity the defendant brought a suit thereon December Term, 1905, which at the hearing of this appeal was still pending. There is no averment in the affidavit of defense that the company is insolvent or that for any other cause the debt is not recoverable by process of law. The note in suit fell due on the same date as the company’s notes, and suit not brought thereon until December 19, 1905, which was after the defendant had brought suit on the company’s note to him. There is no averment that in the period that intervened between November 21 and December 19, the defendant returned or offered to return the shares of stock and demanded back his notes. So far as now appears, no offer of that kind was made until it was made in the affidavit of defense, which was filed on April 10th following, and there in the alternative. Nor is it averred that at the time the notes fell due or at any time before or since, the share of stock were not worth the price for which the defendant's note was given. It does not present a case of .failure of consideration or a case where the note was to be paid out of a particular fund, but is within the principle applied in Fuller v. Law, 207 Pa. 101, and Bank v. Heckert, 207 Pa. 281. The same rule is announced in Krueger v. Nicola, 205 Pa. 38, viz: “ To contradict or vary the terms of a written contract by an oral contemporaneous agreement between the parties, there must be allegation as well as proof not only of it, but of its omission through fraud, accident or mistake from the writing.” To relax the rule further would be to destroy all of its efficacy. If the case is a hard one it is made so through the parties not putting their whole contract in writing, and for this the defendant, and not the law, is responsible. The contention is, not only that the date for payment which the defendant wrote into his note should be stricken out, but as well, that no definite date should be substituted therefor, nor any time of payment fixed “ until after the plaintiff, as president of the company, should have himself, or his said company itself should have paid to the defendant the promissory note which said company executed and delivered to defendant for such loan by defendant to said company.” The alleged parol agreement is utterly at variance with the note. It not only changes its effect, but contradicts its very terms.. They cannot possibly stand together; one or the otlier must fall, as in Martin v. Berens, 67 Pa. 459, which is an affidavit of defense case, and in which the exceptions to the general rule are exhaustively stated. In Homewood People’s Bank v. Heckert, 207 Pa. 231, the 'Supreme Court, in affirming a judgment, making absolute a rule for judgment for want of a sufficient affidavit of defense, says, “ admit all the facts set out in the affidavit, they only amount to proof of an oral agreement flatly contradicting the written instrument. Fraud, accident or mistake could not be averred on such an agreement, in the face of the absolute written agreement to pay a fixed sum on a day certain. At the very most it amounts only to a parol promise of further time indulgence by the debtor to the creditor.” As said by Sharswood, J., in Heist v. Hart, 73 Pa. 286, “Such parol agreement though made at the time is inadmissible in evidence to vaiy the effect of a written contract.” The treasurer of the corporation would be as fully advised of the then present condition and future prospects of the company, when he signed the note, as the president when he accepted the note in exchange for 200 shares of its capital stock. Though not a stockholder at that time he was the treasurer of the company. Further, the state of the company’s affairs upon which he relied related to circumstances which might exist one year thereafter. This unanticipated condition cannot be made to relate back to the time of signing the note; at the very best it was a condition over which neither of the parties had control; the probability of its happening was as well known by one as the other, and should have been provided for in writing.

It is urged that the Supreme Court has, in Marquis v. McKay, 216 Pa. 307, and in Keller v. Cohen, 217 Pa. 522, modified the rule in reference to affidavit of defense cases. We do not interpret these cases as indicating any intention on the part of the Supreme Court to relax the rule laid down in Fuller v. Law, Kreuger v. Nicola, Homewood People’s Bank v. Heckert, and kindred cases, which by the act creating this court “shall be received and followed as of binding authority.”

The judgment is affirmed.

Morrison, J.,

dissenting:

I would reverse this judgment first of all because I think the utmost that can be said, in favor of the plaintiff’s right to have such a judgment, is that it is doubtful. It was not the purpose of the statute, which gives to a plaintiff a summary judgment and denies to a defendant the right to have his defense passed upon by a jury, that its provisions should apply to one whose claim is doubtful. In such case the doubt should be resolved in favor of /the defendant and the cause sent to a jury for trial.

But unless we are justified in closing our eyes to a number of authoritative utterances by the appellate courts of this state on this subject, I cannot see how it can be successfully argued that the present plaintiff has even a doubtful right to the summary judgment he has obtained.

I am quite willing to concede that it is difficult, perhaps impossible, to reconcile all of the many cases that have been decided, on the broad question of the admissibility of evidence of a contemporaneous parol agreement to modify, changa or contradict a written contract. I may even go further and agree that, since we now have, practically, courts of chancery armed with full equity powers, and since parties have been made competent witnesses, the time has come when the liberality with which our courts have heretofore viewed defenses, purely equitable in character, to common-law actions founded on written obligations, should be modified and restricted. But, unless we are to add to the confusion which may now exist on this question, this can be properly done only by overruling and expunging from the body of the law a number of decisions which at this moment must be regarded as authoritative. It is not our privilege nor is it within our power to do this.

When, therefore, a defendant, making the affidavit required by the statute, plants his defense on lines heretofore distinctly recognized in the utterances of the appellate courts of the state, it is difficult to see wherein there is any just ground for the application of the sudden and summary remedy provided to protect a plaintiff against “the law’s delay” in a case where no meritorious defense, in fact or law, is exhibited.

In the present case the affidavit, quoted in the majority opinion, distinctly declares that the parol agreement set up was the sole and only inducing cause that procured the defendant’s signature to the note in suit. It declares that under the terms of that agreement the debt, evidenced by the note, was to be paid only out of a particular fund — “ which note I would not be called upon to pay except out of and from the money to be repaid to me by said company in payment of its note held by me as aforesaid.” Such an averment seems to be sufficient to prevent judgment under the principle of Hill v. Ely, 5 S. & R. 363, Cake v. Pottsville Bank, 116 Pa. 264, and kindred cases.

It is true there is no averment in the affidavit that the terms of the parol inducing agreement set up wTere omitted from this writing by fraud, accident or mistake. There need not be. Such an agreement, if made, was never intended to be incorporated in the writing. It had fully served its only purpose when it procured the defendant’s signature to the writing. The use the plaintiff is now making of that writing is in flat violation of the parol promise which alone procured it, and such use has been repeatedly held to amount to a fraud on the defendant.

Following the doctrine declared in Greenawalt v. Kohne, 85 Pa. 369 ; Coal & Iron Co. v. Willing, 180 Pa. 165 ; Fidelity Co. v. Harder, 212 Pa. 96 : Wheately v. Niedich, 24 Pa. Superior Ct. 198 ; American Harrow Co. v. Swoope, 16 Pa. Superior Ct. 451; Miller v. Henderson, 10 S. & R. 290; Building Association v. Hetzel, 103 Pa. 507, and many other cases, I am constrained to think the defendant’s affidavit was sufficient to entitle him to have his cause tried before a jury according to the usual course of the law.

Head and Beaver, JJ., join in this dissent.


source: Caselaw Access Project

author:
Orlady, J.,
      Morrison, J.,

license: Public Domain

text:
    Gandy v. Pinkerton, Appellant.
    October 7, 1907:
    Argued Dec. 13, 1906.
    Appeal, No. 33, Oct. T., 1906, hy defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1905, No. 860, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George S. Gandy v. William W. Pinkerton.
    Before Rice, P. J., Porter, Henderson, Morrison, Orladv, Head and Beaver, JJ.
    Affirmed.

      Samuel P. Tull, for appellant.

      W. P. Rambo, with him Ormond Rambo, for appellee.
   Opinion by

Orlady, J.,

In an opinion filed tiiis day in Gandy v. Weckerly, ante, p. 79, the question involved in this case is disposed of, and inasmuch as the affidavit in that case is more adequate in its statement of the defense, it is not necessary to repeat what is therein said.

The judgment is affirmed.

Morrison, J.,

dissenting:'

This case does not materially differ from Gandy v. Weckerly, ante, p. 79, in which I have this day filed a dissenting opinion, and for the reasons there stated, I would reverse the judgment in this case with procedendo.

Head and Beaver, JJ., concur in this dissent.


author: Orlady, J.,

text:
    Penny, Appellant, v. Penny.

      Divorce — Personal service of subpoena — Incompetency of wife to testify— Nonresident husband.

    Where a husband and wife marry in Pennsylvania, leave this state and acquire a domicile in another state, where the husband deserts the wife, and the wife after re-acquiring a domicile in Pennsylvania files a libel for divorce, the wife is incompetent to prove the fact of desertion where there was no personal service of a subpcena upon the husband who resided in another state, and the only notice given to him was that contained in a registered letter, which he in fact received.
    Argued Feb. 26, 1907.
    Appeal, No. 44, Jan. T., 1907, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1905, No. 43, discharging rule for divorce in case of Cory L. Penny v. Walter T. Penny.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Libel for divorce. Before Halsey, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order discharging the rule for divorce.

      William 8. McLean, with him William 8. McLean, Jr., for appellant,
    cited : Lyon v. Lyon, 13 Pa. Dist. Rep. 623 ; Hull v. Hull, 8 Pa. Dist. Rep. 420; Raymond v. Raymond, 14 Pa. Dist. Rep. 309.
    No appearance nor printed brief for appellee.

      October 7, 1907 :
   Opinion by

Orlady, J.,

From the record it appears that the libelant and respondent were married September 19, 1891, in New York city, and on November 15 of the same year remarried in Wilkes-Barre, Pa., which city had been the domicile of each for at least two years prior to their marriage, and they continued to reside there for about three years subsequently. In 1897, they removed to New York city, and continuously resided thereuntil June, 1903, when the husband notified the wife “ that he was going to Wilmington, North Carolina, and would not come back.” According to her testimony, on the same day she returned to her father’s home in Wilkes-Barre where she has since remained. This libel was filed by the wife on June 9, 1905, in the court of common pleas of Luzerne county, the cause of her complaint being “that in June, 1903, while the said parties were living together in New York city the respondent willfully and maliciously deserted the libelant, and absented himself from her habitation without reasonable cause, and has continued in such desertion until the present time.” A subpoena and an alias subpoena were issued and returned without a service, and publication was made. A master was appointed to take testimony. The respondent was never served, and did not appear or defend. After the filing of the master's report, a rule was taken on the respondent to show cause why a divorce should not be granted, which rule was published for two consecutive weeks in each of two newspapers, and copies thereof being sent to the respondent’s address in Wilmington, North Carolina, by registered letter, and proof was made of his having received the same by his proven signature to the receipt given to the post office authorities.

The case stands simply, as that of residents who were married in Pennsylvania and removed to another jurisdiction where they became domiciled, and where the cause of divorce arose. After the separation the wife returned to her former domicile in Pennsylvania and instituted her proceeding for divorce. Our courts have jurisdiction of such a case by virtue of the Act of April 26, 1850, P. L. 590. But, it is not enough to allege willful and malicious desertion; the libelant must, in order to to be entitled to a divorce, exhibit facts from which the court may lawfully infer the breach of obligation, “ one cannot withhold the facts and prove the inference : ” Bishop v. Bishop, 30 Pa. 412. See also Reed v. Reed, 30 Pa. Superior Ct. 229. All the recent decisions of our appellate courts require full proof of a sufficient cause for divorce, and a careful examination by the courts of all the testimony. This duty is as imperative on the courts of last resort as it is in the common pleas: Rishel v. Rishel, 24 Pa. Superior Ct. 303. The attempt to make effective, as an equivalent or substituted personal service of a summons, a notice contained in a registered letter to the respondent while in a foreign jurisdiction, under a rule of court to show cause tvhy a divorce should not be granted, after there had been a failure to make an actual personal service on a nonresident, cannot avail.

The Act of May 23,1887, P. L. 158, section 5, provides: “ Nor shall husband and wife be competent or permitted to testify against each other, excepting those proceedings for divorce in which personal service of the subpoena, or of a rule to take depositions has been made upon the opposite party, or in which the opposite party appears and defends, in which case either may testify fully against the other, except also that in proceedings for divorce either party may be called merely to prove the fact of marriage.”

In Gilbert’s Appeal, 15 W. N. C. 466, the facts were quite similar to those presented by this record, and the opinion of the Supreme Court was as follows: “There was no personal service of the writ on the appellee. The wife was not a competent witness against her husband; without such evidence the case is barren of proof necessary to justify a decree of divorce.” As the only proof of desertion in New York is to be found in the testimony of the wife, who was not a competent witness under the facts, her case must fail for lack of proof. The testimony of her father is merely a restatement of the facts as narrated by her to him after her return to his home, and cannot be of any greater value than her own evidence. No modification applicable to the present case of the rule as to the competency of the wife has been made by the act of 1887, and the decree entered by the court below must be affirmed.


author: Rice, P. J.,

text:
    Canavan, Appellant, v. Paye.

      Equity — Findings of fact — Review—Appeals.
    In general, and particularly in cases where the correctness of a judge’s findings of fact in an equity case depends upon the view to be taken of the direct testimony of witnesses which is in conflict, such findings will not be disturbed, except for error which clearly appears; and an apparent preponderance of testimony against them is not sufficient to lead to a reversal, if there is testimony which, if believed, will warrant them.

      Equity — Granting of an issue — Discretion.
    In an equity suit the granting of an issue is a matter of discretion with the chancellor. This course is only adopted to inform his conscience, and if he is not satisfied with the finding of the jury he may disregard it. Being solely for the benefit of the chancellor, if he can to his own satisfaction pass upon the evidence without the assistance of a jury trial, he may do so; for the right of trial by jury, considered as an absolute right, does not extend to cases of equity jurisdiction.

      Equity — Assignment of legacy — Collateral security — Finding of indebtedness — Jurisdiction of orphans’ court.

    Where a bill in equity is filed for the cancellation of a note, a dee'd, and an assignment of a legacy, and the court upholds the note and the deed, and it is admitted that the assignment of the legacy was as collateral only, and was made absolute in form at the plaintiff’s request, the court of equity in which the bill was filed may leave to the orphans’ court the task of ascertaining the indebtedness for which the legacy was assigned, and a refusal to ascertain the indebtedness is not ground for reversal.
    Argued Feb. 28, 1907.
    Appeal, No. 1, Jan. T., 1907, by plaintiff, from decree of C. P. Susquehanna Co., Jan. T., 1905, No. 152, on bill in equity in case o£ Mary J. Canavan v. James E. Paye, City National Bank of Susquehanna and C. W. Deakin.
    Before Rick, P. J., Porter, Henderson, Orlad y, Head and Beaver, JJ.
    Affirmed.
    Bill in equity to cancel certain papers.
    Terry, P. J., specialty presiding, filed an opinion containing findings of fact and conclusions of law as follows:
    From the bill, answers and testimony taken in the case we find the following facts :

      1. The plaintiff, Mrs. Mary J. Canavan, is a resident of New York city. The defendants, James E. Paye and C. W. Deakin, are residents of the borough of Susquehanna Depot, Susquehanna county, Pa. The other defendant is a national bank doing business in said borough.
    2. On December 15, 1903, the plaintiff borrowed the sum of $750 from James E. Pajm, for which she gave him her notes, among them one for $500. The next day Paye went with her to the defendant bank and there became surety for her on her note, given to the bank, for $288, on which she then received that amount of money from the bank.
    3. On the morning of February 11, 1904, the plaintiff and Paye went to the said bank and it then discounted another note of the plaintiff for $500, dated January 8, 1904, which was indorsed and guaranteed by Paye, for which the plaintiff received from the bank her said note for $288 and the balance in cash. Said note for $500 (dated January 8, 1904), was subsequently entered to No. 154, April Term, 1904, in the court of common pleas of Susquehanna county, as a judgment in favor of James E. Paye, to the use of City National Bank of Susquehanna v. Mary J. Canavan. Later an exemplification thereof was entered in the court of common pleas of Lackawanna county, to No. 250, May Term, 1904. The bank, since the institution of this suit, assigned this debt to Paye, but it does not appear that such assignment was meant to prejudice the plaintiff or has had such effect. The debt is unpaid.
    4. On or about February 10, 1904, the plaintiff gave to Mr. Paye a note for $560, it being a renewal of the aforesaid note for $500, dated December 15, 1903, with the interest thereon. Apparently the renewal note embraces some usury. It was entered by the defendant in the court of common pleas of Susquehanna county, to No. 59, April Term, 1904, and afterwards an exemplification of said judgment was entered in the court of common pleas of Lackawanna county, to No. 249, May Term, 1904. This debt remains unpaid.
    5. On February 11, 1904, one or two hours after the discounting of the note dated January 8, 1904 (mentioned in finding of fact No. 3), the plaintiff, with full knowledge of what she was doing, executed and delivered to Paye an absolute conveyance of the standing timber and bark upon her land, described in the bill, for the consideration of $500 which Paye then paid her by his check for that amount. Said check was used by the plaintiff to purchase a New York draft, on which she afterwards received the money.
    6. Paye did not thereafter make any declarations to the plaintiff inconsistent with the nature of said deed as it purported to be, viz.: an absolute conveyance.
    7. On February 18, 1904, Paye assigned his interest in said timber to the defendant Deakin for the sum of $675, who thereafter proceeded to cut and remove it, without any connivance with Paye. Said assignment was written upon the deed, and they were recorded together in the office of the recorder of deeds of Susquehanna county on April 29, 1904.
    8. On March 23, 1904, the plaintiff also assigned to Paye her interest in a legacy bequeathed her by Bridget Canavan, late of Susquehanna county, Pa., deceased. Said assignment by its terms is absolute, but it was in fact made as collateral security for plaintiff’s indebtedness to Paye, and he has never claimed it to be otherwise. • At the time it was drawn the plaintiff requested that it should not set forth the indebtedness it was intended to secure. It has been duly recorded in Susquehanna and Lackawanna counties.
    9. It does not appear that Paye instituted proceedings to collect said legacy. Some records of the orphans’ court of Susquehanna county pertaining thereto were offered in evidence, but they were not produced and have not been shown to us. The testimony indicates that some such steps were taken, but not by Paye.
    10. The record and files in Nos. 59 and 154, April Term, 1904, in the court of common pleas of Susquehanna county, were offered in evidence, but with the exception of the petition of the plaintiff here, defendant in said judgments, were not produced. By that petition and indorsement it appears that an execution issued on No. 59, April Term, 1904 (by virtue of which plaintiff’s real estate was levied upon) was stayed by the court pending the disposition of this case.
    11. The evidence discloses no fraud perpetrated or intended by any of the defendants, as alleged in the bill, or which will justify the granting of the prayers of said bill.

      OPINION.
    The request for an issue is refused. There is nothing in the nature of the case demanding a trial by jury and as a verdict would be only advisory we are of opinion that such procedure is not warranted by anything made to appear before us.
    The plaintiff’s requests for findings of fact and of law are answered by us in immediate connection therewith and are appended hereto.
    The disposition of this case depends upon the determination of the facts in dispute. Having found them in favor of the defendants, it follows that the plaintiff is not entitled to the relief prayed for in her bill.
    It is evident that the Act of June 8, 1881, P. L. 84, would preclude her from showing the deed for the timber to be a mortgage, unless she could make it clearly appear that it was surreptitiously substituted, when executed by her, for one in which was set forth its collateral or defeasible nature. In this, as we have found, she failed, and consequent!}'the deed in evidence must be given its legal effect.
    We have also found that the two judgments, Nos. 59 and 154, April Term, 1904, are valid, subsisting obligations.
    These conclusions are based upon the decided weight of the evidence, which should not and cannot be ignored ; and this preponderance of testimony completely refutes her contentions. The burden of the complaint of the plaintiff is that the defendant Paye conceived and was carrying out a general scheme to defraud her. We have been unable, from the evidence before us, to detect such intent. The testimony discloses aseries of transactions between the plaintiff and Paye, resulting in her indebtedness to him. It is manifest to us tiiat. the judgments mentioned .represent money obtained from him, or by his-assistance, and which is now justly owing to him by her. It may be that he was prudent to a remarkable degree in insisting upon and receiving the security furnished, but that does not convict him of fraud. If the plaintiff had, as we have found she did, legal consideration for said obligations, it is not a ground of complaint in a court of equity, or elsewhere, that he induced her to amply secure him.
    It was stated by plaintiff’s counsel, on the argument of the case, that if it should be determined that the judgments and deed for the timber were valid the prayer for an account — to ascertain the amount, if any, due the defendant Paye for indebtedness in addition to the judgments — would not be pressed. This would involve an ascertainment of such indebtedness, for which Paye claims the legacy was assigned, in part, as collateral. It seems to us that this is a matter cognizable in the orphans’ court when distribution of the estate of Bridget Canavan is made. Doubtless this was the view entertained by plaintiff’s counsel when the statement just attended to was made.
    We have found that the assignment of the legacy was made as collateral security for plaintiff’s indebtedness to Paye. It must stand as such until the indebtedness is determined and paid. We think, however, in view of the fact that said assignment is absolute in terms, although coneededly meant to be collateral, that Paye should so designate it. The plaintiff is entitled to have it appear on the record in accordance with the truth of the matter. It may be a question whether it could not be transferred by Paye to an innocent assignee, to the prejudice of the plaintiff. Therefore we will require him to put upon the record of said assignment, in the proper offices in Susquehanna and Lackawanna counties, a declaration that he holds said assignment as, and only as, collateral security for an existing indebtedness of the plaintiff to him. This will afford ample protection to her, without injury to him.
    Another matter remains for comment. In the fourth finding of fact we have stated that apparently the $560 note, entered to No. 59, April Term, 1901, embraced some usury. This is not specifically alleged in the bill and, in our opinion, relief on that ground should not be granted in this proceeding. The plaintiff has her remedy, however, in the court in which such judgment is entered and the disposition of this case is not meant to be an adjudication of that matter. If the defendant Paye does not voluntarily reduce the judgment by receipting the amount of the usury included in it, the decree entered here will be without prejudice to her right to make defense against the judgment to the extent of the usury it embraces.
    CONCLUSION ON LAW.
    The preliminary injunction should be dissolved and the plaintiff’s bill dismissed upon the placing of record by the defendant Paye of his declaration that he holds the assignment of the legacy mentioned in the bill as collateral security for indebtedness of the plaintiff to him — as indicated in the foregoing opinion.
    October 7, 1907:
    Upon Paye’s compliance with the foregoing condition we will make a decree to be drawn and submitted by counsel, dissolving the injunction and dismissing the bill at the costs of the plaintiff.

      Errors assigned among others were as to certain findings of fact, refusal of an issue, and refusal to grant a reargument.

      A. B. Smith, of McCollum Smith, with him T. A. Doherty, for appellant.

      Wm. D. B. Ainey, with him J. D. Miller, for appellees.
   Opinion by

Rice, P. J.,

The learned trial judge has accurately and concisely epitomized the averments of the pleadings and the conflicting evidence in support of them and set forth his findings of fact and conclusions of law with clearness and precision. No useful purpose would be served by a restatement of the transactions out of which the controversy between the parties arose, and we shall not attempt it. Equity rule 67 provides that upon appeal in such a case as this such matters only shall be assignable for error as have been excepted to aud finally passed upon by the court as prescribed in the preceding rules governing the trial of cases in equity. Therefore, our discussion of the assignments of eri’or will be confined to the seven exceptions to the judge’s findings of fact, the exception to the refusal of the plaintiff’s application for an issue, and the exception to the refusal to grant a reargument.

The findings of fact excepted to áre not mere deductions from other facts, but are based almost wholly upon direct testimony whicli is not inherently improbable and was given by witnesses who were not more deeply interested in the result than those who testified, to the contrary. Even though the burden of proof as to some, of the matters in dispute was on the defendants, it cannot be declared from an examination and analysis of the evidence sent up with the record that it does not preponderate in their favor. It is not a case where findings are based on slight testimony which was opposed by testimony so overwhelming that the court, in the exercise of a sound discretion, would have been bound to set aside the verdict if it had been tried before a jury. By no ingenuity of argument can the conclusion be avoided that, in order to reverse the judge’s findings of fact, we must hold that he erred in not crediting the testimony of the plaintiff and her witnesses rather than that of the defendant Paye and the other1 witnesses called by the defendants. The rules that are to guide an appellate court in the determination of such a case are well settled. Prior to the amendments to the equity rules adopted by the Supreme Court in 1894, it was held that the findings of a master on questions of fact, approved by the court below, would not be set aside in the Supreme Court, except for clear error, even when the testimony was conflicting and the preponderance thereof might appear to be contrary to the master’s conclusion : Stocker v. Hutter, 134 Pa. 19 ; Brotherton v. Reynolds, 164 Pa. 134. This was where the credibility of witnesses was involved. But, as was pointed out in Phillips’s Appeal, 68 Pa. 130, the same weight was not attached to a master’s finding of fact where it was a mere deduction from other facts reported by him and was simply the result of reasoning." It would seem that the same distinction should be recognized when speaking of the review of a judge’s findings of fact in a case tried before him under the equity rules. But in general, and particularly in cases where the correctness of the findings depends upon the view to be taken of the dire'et testimony of witnesses which is in conflict, it has been uniformly held that they will not be disturbed except for error which clearly appears, and that an apparent preponderance of testimony against them is not sufficient to lead to a reversal if there is testimony which, if believed, will warrant them : Stockett v. Ryan, 176 Pa. 71; Commonwealth ex rel. v. Stevens, 178 Pa. 543; Hancock v. Melloy, 187 Pa. 371; Steinmeyer v. Siebert, 190 Pa. 471; Dilworth v. Kennedy, 201 Pa. 388 ; Lyons v. Lyons, 207 Pa. 13 ; Byers v. Byers, 208 Pa. 23 ; Mackintyre v. Jones, 9 Pa. Superior Ct. 543 ; Bannon v. Lincoln National Bank, 14 Pa. Superior Ct. 566; Hunter v. Bilheimer, 22 Pa. Superior Ct. 622; Obney v. Obney, 26 Pa. Superior Ct. 116. In the last cited decision of the Supreme Court, Mi1. Justice Mestrbzat said, that “ clear-and plain error must be pointed out. It is not sufficient that our conclusion would be different on the testimony brought up on the record. If the finding is warranted by evidence and is not clearly erroneous, we will not disturb it. Here the credibility of the witnesses is of more than usual importance in ascertaining the facts and, for obvious reasons, the trial judge was in a better position to determine it than we are.” This rule does not permit a perfunctory consideration of the evidence relative to facts in dispute and is in entire harmony with the doctrine enunciated by Justice Trunkey in Worrall’s Appeal, 110 Pa. 349 ; but it does attach great weight, and properly so, to the superior opportunity which the trial judge has to judge of the credibility of the witnesses. While he did not in this case hear all of the witnesses, yet the plaintiff, the defendant Paye, and some of the other witnesses testified before him, and, therefore, the case comes within the reason of the rule. In the foregoing remarks we are not to be understood as intimating that the testimony seems to us to preponderate against the judge’s findings. On the contrary, so far as we can judge, without having seen or heard the witnesses, it seems to us to preponderate in their favor.

■ The granting of an issue in an equity suit is a matter of discretion with the chancellor. This course is only adopted to inform his conscience, and if he is not satisfied with the finding of the jury he may disregard it: Equity Rule 72; Baker v. Williamson, 2 Pa. 116; Baker v. Williamson, 4 Pa. 456 ; Scheetz’s Appeal, 35 Pa. .88; Nicolls v. McDonald, 101 Pa. 514 ; Null v. Fries, 110 Pa. 521. Being solely for the benefit of the chancellor, if he can to his own satisfaction pass upon the evidence without the assistance of a jury trial, he may do so ; for the right of trial by jury, considered as an absolute right, does not extend to cases of equity jurisdiction: Bispham’s Equity, sec. 9. Here the application was made after the testimony was concluded. The trial judge evidently entertained a strong conviction as to the way the questions of fact ought to be decided and of his ability to decide them correctly without the aid of a jury. Under the circumstances, it cannot be declared that he did not exercise a sound discretion in accepting the responsibility which the law cast upon him instead of dividing it with a jury. The cases cited by appellant’s counsel arising from applications to open judgments, while in many respects resembling suits in equity, are not entirely governed by the same principles; and the same considerations, which in some instances have led to reversal of orders refusing to open the judgments and to submit the cases to a jury, do not control in suits in equity tried in court in accordance with the equity rules. We see no ground for overturning the action of the court in this particular and putting the parties to the expense and delay which would be incident to a trial by jury.

In the motion for reargument it was claimed that it was the duty of the court to ascertain the amount and character of indebtedness, if any, other than the two judgments, against the plaintiff, and the various items thereof, for which the assignment of legacy was held by Paye as collateral. With regard to the question raised by the exception to the judge’s disposition of this motion, it should be stated (1) that Paye explicitly admitted in his answer that the assignment'of legacy was, although apparently absolute, simply taken and held as collateral for the plaintiff’s indebtedness to him; (2) that one of the findings of fact that has been sustained is that it was so drawn at the plaintiff's request. Moreover, the learned judge says in his opinion : “It was stated by plaintiff’s counsel, on the argument of the case, that if it should be determined that the judgments and deed for the timber were valid the prayer for an account — to ascertain the amount, if any, due the defendant Paye for indebtedness in addition to the judgments — -would not be pressed. This would involve an ascertainment of sucli indebtedness, for which Paye claims the legacy was assigned, in part, as collateral. It seems to us that this is a matter cognizable in the orphans’ court when distribution of the estate of Bridget Canavan is made.” We do not find that this statement of the learned judge is controverted by the appellant’s counsel, and in view thereof, as well as of the adequate jurisdiction of the orphans’ court, we cannot say that there was error in the matter complained of.

Upon the whole case we conclude that the findings of fact were warranted by the evidence and that the conclusions of law logically follow therefrom.

All of the assignments of error are overruled, and the decree is affirmed at the costs of the appellant.


author: Head, J.,

text:
    Wruble v. Day, Appellant.

      Appeals — Quashing appeals — Sheriff’s interpleader — Revocation of prior order.

    An order made during the pendency of proceedings on a sheriff’s interpleader, revoking a prior order directing the sheriff to proceed to execution, is an interlocutory order from which no appeal lies.
    Submitted Feb. 25, 1907.
    Appeal, No. 10, Jan. T., 1907, by defendants, from order of C. P. Luzerne Co., Oct. T., 1905, No. 596, revoking prior order directing sheriff to proceed to execution in case of B. F. Wruble v. C. Day & Bro.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Appeal quashed.
    Rule for sheriff’s interpleader.
    From the record it appeared that the court made the following orders:
    Now, September 28, 1905, the rule for sheriff’s interpleader having been made absolute on September 11, 1905, and more than two weeks having elapsed since that time, and the claimant, B. F. Wruble, having failed to file his statement of title together with a bond, as required by this honorable court and by law, the sheriff is directed to proceed witli the execution.
    Now, October 4, 1905, order of court made on September 11, 1905, is hereby reconsidered and' rule reinstated and ordered to be placed on argument list for next tejan.
    Now, October 4, 1905, rule in above case, which was made absolute on September 11, 1905, having been i’einstated and ordered to be placed on argument list for next term, the order of court made on September 28, 1905, clii'ecting the sheiiff to proceed with execution, is hereby revoked and set aside.

      Errors assigned were the above orders of October 4, 1905, quoting them.

      James E. Scouton and L. A. Dymond, for appellants.

      M. H. Salsliurg, W. Alfred Valentine and Gr. E. Lazarus for appellee.
    The order was interlocutory: Cupples Wooden Ware Co. v. Howe, 164 Pa. 85 ; Mitchell on Motions and Rules, 30; Loomis v. Lane, 29 Pa. 242.
    October 7, 1907:
   Opinion by

Head, J.,

We think it manifest that the order or decree upon which the present appeal is founded was but an interlocutory order in a proceeding still pending and undetermined in the court below. When that issue shall have been tried it may result in a verdict and judgment in favor of the execution creditor, the present appellant.

Such a judgment would be a final one and furnish the basis upon which a valid appeal could be rested by the party aggrieved, who, in that event would hardly be these appellants. Should the final judgment b.e adverse to the defendants their right of appeal would then be unquestioned. They could then properly raise and be heard upon every question which they now seek to have disposed of.

Appeal quashed.


text:
    Turner v. Lehigh Valley Coal Company, Appellant.

      Lease — Coal lease— Consideration — Rental—Purchase money— Covenant — Mines and mining.

    Where an instrument in writing, designated by the parties as a lease, demises and leases all coal lying under a particular tract of land with the right to mine coal until all the merchantable coal has been mined out and exhausted, and the instrument provides for the payment of a minimum sum per year, and a royalty on tonnage over an amount designated, and also for the delivery by the lessee to the lessor at the chutes of a certain number of tons of coal each year, the amount of coal to be delivered at the chutes is as much a part of the consideration, whether the contract is a sale or lease, as the money payment, or the royalties. In such a case the lessee is not relieved from the annual delivery of the coal by the death of the lessor, nor is he relieved by the fact that the lessor accepted for years the minimum royalty, there being no mining operations, without making any demand for the coal contracted to be delivered at the chutes.
    Argued Feb. 25, 1907.
    Appeal, No. 30, Jan. T., 1907, by defendant, from judgment of O.'P. Luzerne Co., May T., 1906, No. 162, for plaintiff on case stated in case of March Turner v. Lehigh Valley Coal Company.
    October 7, 1907:
    Before Rice, P. J., Pouter, Henderson, Orlady, Head and Beaver, J J.
    Affirmed.
    Case stated to determine whether the defendant was liable to the plaintiff for the value of ninety tons of coal which the plaintiff claimed should have been delivered to him by the defendant. Before Wheaton, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in entering judgment for plaintiff.

      John M. Darling, of Woodward, Darling Morris, for appellant.
    The coal to be furnished under this lease could not have come out of the demised premises, for none has been mined, but, if it could have, it would not be rent because part of the land itself and not issuing out of it.
    The covenant does not run with the land, because it does not provide for an act to be done on the land or connected with the land : Spencer’s Case, 1 Smith’s Leading Cases, *68; Keppell v. Bailey, 2 Myl. & K. 617 ; Vernon v. Smith, 4 Eng. Com. Law Rep. 3; Wade v. Merwin, 28 Mass. 280; Lazarus’s Estate, 145 Pa. 1.

      George K. Powell, with him S. J. Strauss, for appellee.
    In the coal lease on which the suit now before the court arose, the purchase money consisted of the payment of minim urns in money and an additional payment of eighteen tons of coal each year. There is nothing in the lease which requires the coal thus to be paid to come from the land covered by the lease. It will be just as good a payment if it comes from a point 100 miles distant. All that is required of the lessees is that they shall deliver to the lessor during the entire period of the lease eighteen tons of coal a year at its chutes.
   Opinion by

Head, J.,

The contract, the construction of which gives rise to this litigation, is evidenced by a written instrument, under seal, dated March 1, 1869. By its terms the first parties, then the undisputed owners in fee of the land therein fully described, “demised, leased, and to mine let,” unto the secoud party and his assigns, “all the coal lying and being in, under and upon ” the said described land; “together with the right to mine and remove the said coal through openings not located upon the surface of said land,” etc. If this instrument, rightfully construed, established between the parties the relation of lessor and lessee, then “the term” of the lease is expressed in the following language, viz.: “ To have and to hold the said coal and surface and the estates, rights and privileges hereby demised, with the appurtenances, unto, etc., Until all the merchantable coal upon the said premises available by proper, skillful and careful workings shall have been mined out and exhausted.” If on the other hand the contract is to be interpreted as effecting a sale and conveyance of the coal, then the instrument is in substance a deed and the clause quoted is the “ habendum ” “ determining what estate or interest is granted by the deed.” It was further provided that the money compensation to be paid for the fraction of a year ending January 1, 1871, should be 11,800 and that each year thereafter at least that sum should be paid, but if more than 9,000 tons of coal were mined in any one year, the excess was to be paid for at the rate of fifteen cents per ton in addition to the minimum payment already specified. There were many provisions which it does not seem now necessary to quote, except the following one out of which the question now before us arises, viz.: “Ninth. The said parties of the first part shall be furnished annually' during the continuance of this lease, with eighteen tons of prepared coal to be delivered at the chutes free of charge.” What, then, was the essential nature of this contract? Did it create an estate in fee — subject to forfeiture for a breach of condition subsequent — in all the coal in and underlying the land described; or did it but demise an estate therein for some term ” less than the estate of the first parties ? Did it constitute the relation of vendor and vendee between the parties and make the compensation to be paid by the one “purchase money ”; or did it make the one a lessor and the other a lessee and the thing of value, to be paid or delivered by the latter, rent? Were these questions directly involved they would be conclusively answered by the cases of Scranton v. Phillips, 94 Pa. 15, and Sanderson v. Scranton, 105 Pa. 469.

Whilst the paper before us is called by the parties a “lease,” and contains many provisions properly applicable only to such an instrument, jret it contains others, and they going to its very substance, that proclaim the intention of the parties to have been a sale of all the coal in place and make this contract not distinguishable from those construed by the Supreme Court in the eases' cited. In the latter of these Mr. Justice Clark'says:

“ What is termed a mineral lease is frequently found to be an actual sale of a portion of the land ; it differs from an ordinary lease in this, that although both convey an interest in land, the latter merely conveys the right to its temporary use and occupation, whilst the former conveys absolutely a portion of the land itself. It is one of the essential properties of a lease that its duration shall be for a determinate period, shorter than the duration of the estate of the lessor, hence the estate demised is called a ‘ term ’ and necessarily implies a reversion. If the entire interest of the lessor is conveyed, in the whole or a portion of his land, the conveyance cannot therefore be properly regarded as a demise, but as an assignment. • “Upon examination of this instrument we find that the lease is not of the mine, with its approaches and appliances, and the right to use, occupy and operate the same, but it is a lease of all the coal beneath the surface of the tract,’ with the right ‘to mine the coal and remove the same.’ . . . The duration of the interest is not for any determinate period of time ; it is not for years, for life, or at will; . . . . that is to say, it is a lease of the coal until no coal remains. In what respect, then, does this transaction lack the essential qualities of an actual Sale ? ”

From this it would seem to follow logically that the consideration named in the contract, the.thing of value moving from the grantee to the grantor, was, legally speaking, purchase money. And this would be true not only of that portion of the consideration which was to be paid in money, but also to the eighteen tons of coal to “ be furnished annually during the continuance of this lease.” Purchase money means money or anything that is money’s worth: 23 Am. & Eng. Ency. of Law (2nd ed.), 465. Presumably the undertaking to furnish this amount of coal annually was, pro tanto, just as valuable to the grantor as the covenant to pay money, and just as effective in inducing the execution of the contract. The obligation to furnish it was, therefore, not different in kind nor in binding force from the more important because, and only because, more valuable covenant to pay money. This obligation to furnish coal was to last and remain in force “ during the continuance of this lease,” or iu the words of the paper itself defining the duration of the estate created by it, “ until all the merchantable coal upon said premises available by proper, skillful and careful workings shall have been mined out and exhausted.” As it is agreed in the case stated “ that the defendant company (which has succeeded to the rights and obligations of the original grantee or lessee) has continued to pay the minimum royalties under said lease (payable in cash) but has never mined any coal from the premises,” it would follow that the liability to furnish the coal is still an existing one unless destroyed by the death of the original grantor on the theory we shall directly advert to.

In the recent case of Coolbaugh v. Lehigh & Wilkes-Barre Coal Co., 218 Pa. 28, it was held, construing a contract substantially like the one now before us, that, as to the coal remaining unmined at any particular time, the lessor still retained the legal title so that it would be bound by the lien of a judgment against him ; that by a judicial sale following an execution issued on such judgment such title would be divested, and thereafter the sheriff’s vendee would have the right to receive the rent or royalties reserved in the lease. Of course, if the instrument now under consideration be regarded as a lease, pure and simple, and the consideration to be paid annually, under its terms, as rent, the transfer of the title to the demised premises would carry with it the right to the receipt of the rent thereafter accruing. It matters not, therefore, whether we regard the annual furnishing of eighteen tons of coal as part of the purchase money or part of the rent] in either case the present plaintiff, having succeeded to the ownership of the undivided one-third of the estate of the original grantors or lessors, has become lawfully invested with the right to receive that proportion of the annually accruing rent or purchase money.

But, it is argued, the light to have, each year, the eighteen tons of coal provided for in the contract was personal to the original lessors, and was extinguished by their death. To this we cannot assent, because it would be an unwarranted injection into the body of the instrument of a limitation destructive of the expressed intent of the parties. Their agreement, as they wrote and executed it, bound the lessee to furnish and deliver the coal annually, not for any fixed number of years, nor during the lives of the lessors, or the survivor of them, but “ during the continuance of this lease,” to wit: “ until all the merchantable coal .... shall have been mined out and exhausted.” It is'couceded by the defendant that the lease still continues to exist, and it regularly pays, and has paid, the money part of the annual consideration therein provided for. We can discover no reason why it should not pay the remaining portion of the entire consideration stipulated for in the single contract, the continued existence and binding force of which it fully recognizes. But it is also argued that the plaintiff has lost his right to recover in this action because he did not, each recurring year, specially demand the delivery of the coal. To' this it may be answered that the case stated avers no such fact, and we are not at liberty to assume it. If the defendant intended to rely on the proposition that no demand was made, that fact, if it be á fact, should have appeared. Not being stated, for the purposes of this case it does not exist. But why was the plaintiff obliged to make a special demand for the performance of this particular portion of the contract? The obligation of the defendant was affirmative, to furnish to the lessors the coal “ to be delivered at the chutes free of charge.” The plaintiff was not required to spur the defendant to the performance of this covenant any more than to the discharge of its other obligation to pay certain moneys each year, and it would hardly be contended that the right to recover an annual payment was lost because the plaintiff made no special demand that it should be paid. We think the learned court below was right in entering judgment for the plaintiff, and the assignment of error thereto must be overruled.

Judgment affirmed.


text:
    Rickard v. Major, Appellant.

      Replevin — Pledge of goods — Statement of claim — Affidavit of defense— Sheriff’s return — Contradiction of sheriff’s return — Act of April 19, 1901, P. L. 88.
    A statement of claim in replevin shows a prima facie case, which sets forth that the defendant was indebted to the plaintiff, and as collateral for the debt assigned to the plaintiff certain chattels, the possession of which he was allowed to retain until the debt was paid, that the debt had never been paid, and the chattels never delivered to the plaintiff. Such a statement of claim is not overcome by an affidavit of defense averring that there had never been a delivery to the plaintiff either actually or constructively, of the property pledged and replevied. In such a case where the defendant retains possession under a claim property bond, he will not be heard to say that the chattels replevied were not the chattels pledged.
    In an action of replevin the defendant cannot in his affidavit of defense contradict the sheriff’s return. If there was a wrongful return the remedy is by an action against the sheriff.
    Argued Feb. 26, 1907.
    Appeal, No. 31, Jan. T., 1907, by defendant, from order of C. P. Luzerne Co., March T., 1906, No. 40, making absolute rule for judgment for want of a sufficient affidavit of defense in case of John B. Rickard and Edith L. Rickard v. A. L. Major.
    Before Rice, P. J., Portee, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Replevin for one team of bay horses, one set of double harness and one lumber wagon. Before Wheaton, J.
    The facts are stated in the opinion of the Superior Court.

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

      M. Hf. Me Art iff, with him P. W. McKeown, for appellant,
    cited: Snyder v. Vaux, 2 Rawle, 423; Hoffman v. Sellers, 5 Pa. Dist. Rep. 395.

      Abram Salsburg, with him W. Alfred Va7entine, for appellees,
    cited: Harlan v. Harlan, 15 Pa. 507; Miller v. Warden, 111 Pa. 300; Ferguson v. Lauterstein, 160 Pa. 427; Hoffman v. Sellers, 5 Pa. Dist. Rep. 395; Boyle v. Rankin, 22 Pa. 168; Knowles v. Lord, 4 Whart. 500; Dumn v. Rothermel, 112 Pa. 272; Turner v. Scott, 51 Pa. 126; Shafer v. Senseman, 125 Pa. 310; Fox v. Magaw, 12 Pa. Dist. Rep. 53 ; Mfg. Co. v. Killinger, 26 Pa. C. C. Rep. 539; Painter v. Snyder, 22 Pa. Superior Ct. 603.
    October 7, 1907:
   Opinion by

Head, J.,

This action of replevin was begun on January 31, 1906. By the writ issued on that day the sheriff was commanded to replevy “ one team of bay horses, one set of double harness and one lumber wagon,” of the value, etc. To this writ the sheriff returned: “ I hereby certify and return that on February 1, 1906, I replevied as within commanded and summoned the within named defendant. . . . On February 1, 1906, a claim property bond was filed, and property so replevied delivered to the defendant.”

The plaintiffs then filed their statement of claim, under the act of 1901, setting forth that on November 14,1904, they had entered into a written agreement with the defendant, by the terms of which they sold and delivered to him all of their interest in the capital stock of a certain lumber company, and that, of the consideration named therefor, there remained to be paid thereafter the sum of $159. That the defendant, in the same agreement, sold, transferred and granted unto the plaintiffs “ one team of bay horses, one set of double harness and one lumber wagon, as collateral security for the payment of the balance due on the stock,” but that it was also provided therein that the defendant “ is hereby given permission to take care of and use, at his own expense, the said team of horses, etc,, until December 20, 1904, and for such further time as the said parties of the second part shall consent in writing.” The statement then averred that defendant had refused to pay the money long since due, and also to surrender the possession of the pledged property, although the term of his lawful possession and use of it had expired, etc. The plaintiffs thus clearly set forth, at least such a qualified title to the property as would sustain their right of possession as against the defendant, and would warrant a judgment in their favor unless a sufficient defense were interposed: Ferguson v. Lauterstein, 160 Pa. 427. It then became incumbent on the defendant, under the Act of April 19,1901, P. L. 88, in order to prevent such judgment, to file an affidavit of defense “ setting up the facts, denying plaintiffs’ title and showing his own title to said goods and chattels.” This the defendant attempted to do, but the learned court below held the affidavit to be insufficient, and by reason thereof entered judgment for the plaintiffs. From that judgment this appeal is taken.

The affidavit first sets up an alleged imperfect or improper execution of the written agreement by the plaintiffs in that their names were signed by their attorney and not by themselves. Inasmuch as the agreement, so far as the plaintiffs are concerned, had been long since fully executed, and as this action, begun by them, was in affirmance of the contract, the futility of such an averment is so manifest as to render any discussion of it wholly unnecessary.

It is next averred “ that there never was a delivery to the plaintiffs, either actually or constructively,” of the property pledged and replevied, “nor. were the particular horses selected to be turned overas collateral security.” In Ferguson v. Lauterstein, 160 Pa. 427, following Harlan v. Harlan, 15 Pa. 507, it is expressly held that “ it is well settled, as a general principle in Pennsylvania, that replevin lies wherever one man claims goods in the possession of another, and this whether the claimant has ever had possession or not, and whether his property in the goods be absolute or qualified, provided he has the right of possession.” As to the latter portion of the averment quoted it would besufficient to say that the affidavit makes no allegation that either at the time of the agreement or the execution of the writ the defendant owned more than one team of bay horses, and, therefore, there was no necessity to further individuate them. But, in Ruch v. Morris, 28 Pa. 245, the plaintiff issued his writ for “ two carriages and two horses.” The sheriff returned: “ Replevied and summoned as commanded. Property bond entered and property delivered to the defendant.” To the declaration describing the property 'only in the language quoted, the defendant demurred because “ there was no description or identification of the property mentioned, •. . . . so as to distinguish them from any other property of the same kind,” etc. Judgment was entered for the plaintiff. In affirming this judgment Mr. Justice Woodward says : “But where the defendant interposes a claim property bond and keeps the goods, he has not only individuated them, but he has no reason for objecting to indefiniteness of description. Whatever may be the result of the suit it can give him no writ, to the due execution of which a more minute description would be necessary.” Clearly, therefore, this averment was insufficient to prevent judgment.

The only remaining fact set up in the affidavit is the following, viz.: “ and further that the sheriff in the above case has replevied a black horse and a bay horse, and that the black horse was acquired by defendant in July, 1905.” This amounts to a flat contradiction of the sheriff’s return, because the writ expressly commanded that officer to replevy “ one team of bay horses,” and he returns, “ I replevied as within commanded.” Upon both reason and authority the defendant is precluded from defending on such ground. Our action of replevin is for the purpose of determining, as between the parties to it, the right of possession of personal property seized by the sheriff in obedience to the mandate of his writ, not to recover damages from that officer or the plaintiff for a tortious seizure of property not mentioned in his writ, nor for making a false return as to what he actually did in execution of his writ. The sheriff is an independent executive officer, made responsible by law for his own official misconduct, and to him, and not to the plaintiff at whose instance a writ issues, must an injured party look for redress if the officer go beyond the authority conferred by his writ or be otherwise guilty of any breach of official duty. And so it lias ever been held that in the trial of a cause the truth of t.he sheriff’s return cannot be questioned by either party; as to them the return is conclusive, and the remedy for any injury arising from an alleged false return is by action directly against the officer making it. In Knowles v. Lord, 4 Whart. 500, a writ of replevin issued for “ four cases of prints, containing each fifty pieces ; one case of prints, containing forty-three pieces ; one case of furniture prints, containing sixty-five pieces.” The sheriff returned: “ Replevied, summoned and afterwards claim property bond given.” On the trial the defendant offered to prove, “ notwithstanding the sheriff’s return, that the number of pieces actually replevied, was much less than the number mentioned in the writ.” The offer was rejected, and on appeal Mr. Justice Sbaugext said:- “ We are of opinion, however, that this evidence was properly rejected. It went to contradict the sheriff’s return to the writ of replevin. . . . It is a well-settled principle, applicable to every case, that credence is to be given to the sheriff’s return, so much so that there can be no averment against it in the same action. . . . If a party be injured by a false return of the sheriff, his remedy is by action on the case against the sheriff who makes it. The evidence offered went not only to contradict the sheriff’s •return, but also the act of the defendants in conformity with it, of claiming the property in the goods mentioned in the writ of replevin, and giving bond to deliver up these goods, if the property in them should be adjudged not to be in the defendants. This was an unequivocal admission that they had the goods, and that the sheriff either had replevied or would replevy them and deliver them over to the plaintiffs but for this claim and bond.”

This ease we regard as decisive of the question now before us, and its application to the defendant’s affidavit stripped it of every element of a legal defense and left to the learned court below no other course but to enter the jndgmént prescribed by the act of assembly in such cases. The principle declared in the case above cited has been announced in many later decisions, among them Diller v. Roberts, 13 S. & R. 60; Mentz v. Hamman, 5 Whart. 150 ; Benwood Iron Works v. Hutchinson, 101 Pa. 359; Dixon v. Sewing Machine Co., 128 Pa. 397 ; Bennethum v. Bowers, 133 Pa. 332.

Judgment affirmed.


text:
    Hazard to use v. Exeter Machine Works, Appellant.

      Contract — Salesmen—Commissions—Affidavit of defense.

    In an action by a salesman to recover commissions on an order secured by Mm for the defendants, the statement of claim did not set out whether the actual contract of employment was in writing or in parol, nor did it state the time when, and the conditions under which plaintiff’s compensation was to become due and payable. Annexed to the statement was a letter from the defendants to the plaintiff acknowledging the order, and after referring to the price, concluding as follows: “Understand that this price includes a commission of ten per cent to you.” The defendants filed an affidavit of defense in which they averred that about six months prior to the date of the letter, plaintiff and defendants entered into a verbal contract for the employment of the former as a salesman; that by its terms he was to receive a commission of ten per cent on sales made by him, which, however, was to be added to the defendants’ price for the goods sold, and to be payable “only when the person or parties purchasing goods had made payment in full,” until which time “no commissions should be due;” that any reduction made in selling price should work a corresponding reduction in the commission, and that in the event of any loss on such sales no commission at all should, be paid; that the defendants had not yet received full payment for the order in question, and that a loss had been sustained thereon by the defendants. Held, that the affidavit of defense was sufficient to prevent judgment.
    Argued. Feb. 26, 1907.
    Appeal, No. 42, Jan. T., 1907, by-defendants, from order of C. P. Luzerne Co., Dec. T., 1905, No. 693, making absolute rule for judgment for want of a sufficient affidavit of defense in case of A. B. Hazard to use of Western Valve Company v. Exeter Machine Works, Incorporated.
    Before RrcE, P. J., Porter, Henderson, Oready, Head and Beaver, JJ.
    Reversed.
    Assumpsit for commissions.
    The averments of the statement and the affidavit of defense are set forth in the opinion of the Superior Court.

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

      Henry W. Dunning, with him Anthony L. Williams, for appellant.
    It is elementary law that the material averments of fact in an affidavit of defense are taken to he true and capable, of proof, and their full legal effect is to be given to them: Knerr v. Bradley, 105 Pa. 190; Allegheny City v. McCaffrey, 131 Pa. 137 ; Brooks v. Keller, 173 Pa. 615 ; Warren National Bank v. Seneca Oil Works, 175 Pa. 580.

      John H. Bigelow, with him William M. Reynolds, Jr., for appellee'.
    Where parties, without any fraud or mistake, have-deliberately put their engagements in writing the law declares the writing to be not only the best, but the only evidence of their agreement, and we are not disposed to relax the rule: Martin v. Berens, 67 Pa. 459; Baugh v. White, 161 Pa. 632 ; Hand v. Russel, 1 Pa. Superior Ct. 165; King v. Publishing Company, 3 Pa. Superior Ct. 329.
    October 7, 1907:
   Opinion by

Head, J.,

The learned court below made absolute a rule for judgment for want of a sufficient affidavit of defense and the defendant took this appeal.

As no opinion was filed we are left in the dark as to the reasons that led the court to the conclusion reached, except in so far as we may assume them to be those advanced in the argument of counsel for the appellee in support of the judgment. The substance of that argument may be thus summarized. The plaintiff was employed by the defendant as a salesman to solicit orders. His contract of employment was in writing and fixed his compensation at ten per cent of the amount of each order he sent in. He sent an order for machinery to be furnished to the Citizens Electric Light and Power Company of St. Louis amounting to $2,350, which was accepted by defendant company; that the order was filled and the defendant fully paid the contract price, whereupon it became indebted to the plaintiff in the sum of $235, the amount of his commission. Inasmuch as the contract of employment set up by the affidavit 'of defense is in parol and antedates the alleged written contract, it is argued that evidence to support such an averment would be inadmissible, because tending to contradict the written agreement, and, therefore, the affidavit disclosed no legal defense.

A careful examination of the plaintiff’s statement, and of exhibits “A” and “B” attached thereto, in which the appellee declares “the relations of legal plaintiff and defendant are defined,” reveals no such contract in writing as would support the argument above indicated. The sole averment of the statement on the subject of the contract of employment, its date, terms and conditions is the following: “On or about February 18, 1902, A. B. Hazard was employed by the defendant as a salesman, and as such salesman he sent them a contract, the total of which amounted to $2,350, which work was to be furnished by the defendant to the Citizens Electric Light & Power Co. of St. Louis, Mo., on which the said A. B. Hazard was to receive a commission of ten per cent, or $235, as per letter, a copy of which is attached hereto marked exhibit ‘ A.’ ” The statement itself is thus significantly silent as to the important fact whether the actual contract of employment was in writing or in parol, the nature and extent of the services to be rendered by the plaintiff and the time when and the conditions under which his compensation was to become due and payable. We next turn to exhibits “ A ” and “ B,” which are made parts of the statement, to see if they disclose the written contract which is the foundation upon which the entire structure of the appellee’s argument is built. Exhibit “ A ” is a letter from defendant to Hazard, dated February 18, 1902. Its material parts are as follows : “We are duly in receipt of your recent favor and note what you say. We mailed our proposition to the citizens company, and hand you herewith copy of the same. Understand that this price includes a commission of ten per cent to you.” We think this letter, so far from creating a new contractual relation between parties theretofore strangers, clearly assumes and is based upon an existing arrangement so well understood that no reference to it was deemed necessary. Else how did the plaintiff, livinginSt. Louis, become acquainted with the defendant doing business in Pittston, Pennsylvania? Why should he busy himself in securing an order for machinery for the benefit of a total stranger, not knowing if such service was desired or would be paid for by the defendant? Exhibit “ B ” is but a detailed specification of the material proposed to be furnished by the defendant to the power company and the price thereof. It is addressed to the power company and signed by the defendant, no mention being therein made of the plaintiff or of his contract of employment. Had the statement contained a copy of the “ recent favor ” from plaintiff to defendant, referred to in and replied to by exhibit “A,” some valuable light might be shed on the question.

In reply to the plaintiff’s statement, the vagueness of which on the all important questions of the nature, terms and conditions of the contract of employment, we have briefly pointed out, the defendant averred the following facts which, we must assume, could be established by competent proof on the trial of the cause: That about six months before the date of the sale to the power company the plaintiff and defendant entered into a verbal contract for the employment of the former as a salesman; that by its terms he was to receive a commission of ten per cent on sales made by him, which, however, was to be added to the defendant’s price for the goods sold, and to be payable “ only when the person or parties purchasing goods had made payment in full; ” until which time “ no commission should be due said Hazard.” That any reduction made in selling price should work a corresponding reduction in the commission and that in the event of any loss on such sales no commission at all should be paid. The defendant had not yet received full payment for the power company order and that a loss thereon had been sustained by the defendant. IE these facts were fully established to the satisfaction of a jury, we are unable to perceive any good, reason why they would not constitute a complete defense to the plaintiff’s claim. Their proof would contradict no written contract disclosed by the statement and accompanying exhibits, would contravene no rule of public policy. It is not for us now to undertake to determine whether or not the contract set up was one the plaintiff would have likely assented to, nor to declare the evidential value of the remaining exhibits attached to the statement. How far, if at all, they tend to discredit the averments of the affidavit, only a jury may properly decide. We conclude, therefore, that the learned court below should have discharged the rule and given the defendant an opportunity to be heard before a jury.

Judgment reversed and a procedendo awarded.