text:
    Smith, Appellant, v. Summerhill.

      Receipt — Payment—Ambiguity—Construction of instrument — Evidence.
    Where a receipt for a payment on a judgment is so indefinite and uncertain on its face as to the amount of the payment that the court cannot construe it, it is not evidence either one way or the other on an issue to determine the unpaid amount of the judgment, except as to the fact that a payment applicable to the judgment was made on the day that the receipt was given.

      Evidence — Competency of witness — Party dead — Act of June 11, 1891, P. L. 287.
    Where on an issue to determine the amount of an unpaid balance due on a judgment, it appears that the plaintiff is dead, and two witnesses have testified on behalf of the executors as to occurrences in the lifetime of the deceased, the defendant is qualified also to testify as to such occurrences.
    Argued Jan. 11, 1906.
    Appeal, No. 3, Jan. T., 1906, by plaintiff, from judgment of C. P. Lackawanna Co., May T., 1902, No. 525, on verdict for defendant in case of George P. Smith and Curtis Smith, Executors of Elias A. Smith, v. Henry Summerhill.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Appeal from award of arbitrators. Before Dunham, P. J., specially presiding.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows :
    [But this receipt reads like this: “ Newton, No. 818. March 8, 1900. Judgment received interest $18. Elias A. Smith.” And then at the left in figures, with a dollar mark at the left, $300. Ordinarily, gentlemen, a written instrument is for the court to interpret, and if there were no ambiguity about this receipt we should interpret it to you and tell you what in our opinion it meant. But it all depends upon how you construe this receipt as to whether it is a receipt for the judgment, or whether it is a receipt for $18.00 ; and we leave that entirely to you under the evidence in the case that we have already commented upon. Now, if when that was given he meant to say: “No. 818 judgment, received interest $18, Elias A. Smith,” then it would be a receipt for $18.00, and the fact that the figures 300 with a dollar mark at the left are there, would not in any way change the written evidence, if the written evidence is plain and clear. On the other hand, if he meant to say “ Judgment received, interest $18, $300, Elias A. Smith,” then it is a receipt for the judgment and interest. That is entirety a question for you to construe, and understand as to what that was.] [2]
    Plaintiff presented this point-:
    2. I instruct you that the receipt offered in evidence dated March 8, 1900, must be construed under the law, as a receipt for $18.00 interest on judgment. Answer : That, gentlemen, we do not affirm, and do not say that it is not a receipt for $18.00; but-we leave it to you entirety under the evidence that has been given; and we say to you it is entirely from the standpoint that you view that receipt, and you will do it from the evidence in the case, from the receipt itself, as to what it means. ■ As I said before, if it means, “ judgment received,” then it means that the judgment was paid ; if it means “ No. 818 judgment received interest $18,” then it is a receipt for $18.00. That is entirety for you. [3]
    Verdict and judgment for defendant. Plaintiffs appealed.

      Errors assigned were (2, 3) above instructions, quoting them; (4) in permitting the defendant to testify as to occurrences in the lifetime of Elias A. Smith.

      A. A. Vosburg, with him Charles W. Dawson, for appellant.
    — The construction of a writing is exclusively for the court: Welsh v. Dusar, 3 Binn. 328 ; Reany v. Culbertson, 21 Pa. 507; Esser v. Linderman, 71 Pa. 76.

      The learned court below erred in admitting the testimony of Henry Summerhill, to show what took place between him and the decedent: Spott’s Est., 156 Pa. 281; Van Horne v. Clark, 126 Pa. 411.
    We have examined the authorities interpreting the act of 1891, and it is worthy of note that it has only been applied in cases where only one living “ person ” had been called as a witness against the surviving party: Proper v. Campbell, 15 Pa. Superior Ct. 153; Rudy v. Myton, 19 Pa. Superior Ct. 312; Roth’s Est., 150 Pa. 261; Krumrine v. Grenoble, 165 Pa. 98 ; Brumbach v. McLean, 187 Pa. 602; Robbins v. Farwell, 193 Pa. 37.

      Jones JR. Jones, with him W. Gaylord Thomas, for appellee.
    —It is impossible to imagine how the court could have charged the jury in a fairer and more impartial manner. That the learned judge was correct in permitting the jury to construe the ambiguous receipt in the light of the extrinsic evidence, we cite the following authorities : Ford v. Buchanan, 111 Pa. 31; Home B. & L. Association v. Kilpatrick, 140 Pa. 405; McGee v. Northumberland Bank, 5 Watts, 32; Denison v. Wertz, 7 S. & R. 372; Sidwell v. Evans, 1 P. & W. 383.
    The deciphering of illegible figures or letters in a receipt is for the jury : Armstrong v. Burrows, 6 Watts, 266 ; Grier v. Huston, 8 S. & R. 402; Clements v. Bolster, 6 Pa. Superior Ct. 411; Brown v. Brooks, 25 Pa. 210; McDonough v. Jolly, 165 Pa. 542.
    We believe the calling of the living and competent witnesses by the parties representing the right of the deceased, who had testified adversely to the defendant, undoubtedly restored the competency of Henry Summerhill to testify strictly in rebuttal, according to the provisions of the act of June 11, 1891. There are present all the elements requisite to bring the case within the operation of the act: Roth’s Estate, 150 Pa. 261; Gold v. Scott, 5 Pa. Superior Ct. 262; Dumback v. Bishop, 183 Pa. 602; Robbins v. Farewell, 193 Pa. 37 ; Proper v. Campbell, 15 Pa. Superior Ct. 153 ; Rudy v. Myton, 19 Ibid. 512; Shroyer v. Smith, 204 Pa. 310; Thomas v. Miller, 165 Pa. 216 ; Gold v. Scott, 5 Pa. Superior Ct. 262; Dumback v. Bishop, 183 Pa. 602 ; Brumbach v. McLean, 187 Pa. 602; Sunday v. Dietrick, 16 Pa. Superior Ct. 640 ; Thomas v. Miller, 165 Pa. 216; Rudy v. Myton, 19 Pa. Superior Ct. 312; Shannon v. Castner, 21 Pa. Superior Ct. 294; Cox v. Cox, 15 Lanc. 45; Bowers v. Overfield, 3 Northam, 81; Steele v. Nicholas, 3 Pa. Dist. Rep. 517.
    June 30, 1906 :
   Opinion by

Rice, P. J.,

It is an undisputed fact that on March 8, 1900, the unpaid amount of the judgment in suit was $300, and the interest then due was $18.00. The defense to the soi. fa. was payment, and the matter in dispute was the amount paid on that day, the defendant claiming that it was $318, and the plaintiffs that it was only $18.00. Aside from the receipt, which was offered by the defendant and admitted without objection, evidence both direct and circumstantial was adduced on both sides to support the respective contentions of the parties. The receipt is in this form as nearly as we can reproduce it:

“ Newton

No. 8.18 March 8, 1900

Jugment rescive

Intres Eighteen Dollars

$300 Elias A. Smith

Being the written acknowledgment of the plaintiff in this judgment of payment of money, and “No. 8.18” at the upper left-hand corner being the number of the judgment, it was some evidence of a payment on that date applicable to the judgment in question, and to that extent supported the defendant’s contention. It was, therefore, properly in evidence and to be considered by the jury for the purpose just stated. But was it an acknowledgment of payment of principal and interest, as the defendant contends, or of interest only, as the plaintiffs contend? The learned trial judge, while conceding that ordinarily the interpretation of written instruments is for the court, held that it was not so in this case, because the question above stated could not be determined by an inspection of the instrument itself; in other words, there was a patent ambiguity. In discharging the rule for new trial he said upon this subject: “ The receipt itself could as easily be read to be a receipt for the payment of the judgment as for the payment of the $18.00 interest. It was ambiguous and by reason of this ambiguity must be interpreted largely by the parol evidence given as to payment of money at that time and was therefore for the jury.” Later in his opinion he said: “ Had a contract as indefinite as this receipt been introduced in a caso, the court would be compelled probably to say to the jury it should be disregarded and could not be considered, as it was so uncertain as to its meaning that it could not be of any use.” But assuming, as we think he was right in doing, that the receipt is so indefinite and uncertain on its face as to the amount of the payment that the court could not construe it, it was not evidence, either one way or the other, upon the issue before the jury, except as to the fact that a payment applicable to the judgment was made on that day. In saying this we are not to be understood as questioning the general rule that parol evidence is admissible to explain a receipt. But no evidence was introduced for that purpose. All the evidence related directly to the issue before the jury, and manifestly it would not aid them in deciding it to instruct them that if they found the defendant paid $318 on that day, they would be justified in construing the paper as a receipt for principal and interest, but if they found that he only paid $18.00, it was to be construed as a receipt for interest only. It was of the highest importance that the jury should be instructed as to the evidential value of the paper in the determination of that question. In the absence of explanatory evidence this was a question of law for the court; it certainly was not a question of fact for the jury, as, perhaps, it might have been if the difficulty in determining what the paper means were occasioned by the illegibility of the letters or figures. Speaking of the province of the court in a case of the latter kind, Chief Justice Gibson said : “ It doubtless belongs to it to interpret the meaning of written words; but this extends not to the letters, for to interpret and to decipher are different things. A writing is read before it is expounded, and the ascertainment of the words is finished before the business of exposition begins. If the reading of a judge were not matter of fact, witnesses would not be heard in contradiction of it; and though he is supposed to have peculiar skill in the meaning and construction of language, neither his business nor learning is supposed to give him a superior knowledge of figures or letters. His right to interpret a paper written in Coptic characters, would be the same that it is to interpret an English writing; yet the words would be approached only through a translation: ” Armstrong v. Burrows, 6 W. 266. But here there is no difficulty in determining what the words are or what their meaning is as separate words. The difficulty is that they are so jumbled as to make it impossible for the court to determine their intended relation to each other and from that the amount of the payment intended to be acknowledged. Therefore, while it would have been proper to instruct the jury that the receipt is as reconcilable with the contention of one party as with that of the other as to the amount of the payment, this should have been accompanied by the explicit instruction that it was to be given no effect in the determination of that question. The instructions quoted in the second assignment, and the answer to the plaintiff’s point, which is the subject of the third assignment, do not come up fully to this requirement. Indeed, one expression in the answer, though perhaps not so intended, might naturally be taken by the jury to mean that they were to determine the meaning of the receipt as to the amount intended to be acknowledged from the paper itself. But apart from this, the instructions to which we have referred, taken as a whole, do not express as clearly as we think should have been expressed the thought that the receipt by reason of its indefiniteness and uncertainty of meaning as to the amount of payment was of no value upon that question and should be disregarded. Therefore, these assignments are sustained.

The remaining question is as to the competency of the defendant to testify as to the occurrences of March 8, 1900, between the original plaintiff in the judgment and him, the former having died in the meantime, and two witnesses having been called on behalf of his executors and having testified against the defendant as to those occurrences. The cases cited and reviewed in the brief of the appellee’s counsel show quite clearly that this question was properly answered in the affirmative, unless, as argued by the appellants’ counsel, the Act of June 11, 1891, P. L. 287, “ only applies where there is one witness living who testifies against the surviving party, and has no application to a case where several living witnesses to the transaction have been called,” A construction, under which the defendant would be competent after the first of these witnesses testified and incompetent after the second had testified to the same facts, would imply a restriction which the words of the act would not justify, especially when considered in the light of its remedial purpose. The fourth assignment is overruled.

Judgment reversed and venire facias de novo awarded.


source: Caselaw Access Project

author: Orlady, J.,

license: Public Domain

text:
    McDonald v. Sundstrom, Appellant.

      Contract — Evidence—Witnesses—Opinion.
    In an action to recover the price of a quantity of crushed limestone, witnesses were called who showed that they had had actual experience in the use of concrete materials, although they were not familiar with the theory of combination by percentages. They testified as to their actual experience and the result secured by combining crushed stone with cement mixtures to fill voids. Held, that the testimony of these witnesses were properly admitted.
    Argued March 7, 1906.
    Appeal, No. 13, March T., 1906, by defendant, from judgment of C. P. Clinton Co., Sept. T., 1902, No. 147, on verdict for plaintiff in-case of G-. W. A. McDonald, T. W. Runion, John B. and Edward L. Myers, trading as the Mineral Point Limestone Company, v. Charles Sundstrom and Franklin Stratton.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered. Before Mayer, P. J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $660.75. Defendant appealed.

      Errors assigned were various rulings on evidence and instructions.

      J. M. Reilley, with him R. B. Mo Qormich, for appellant.

      O. S. Mo Qormich, for appellee.

      June 30, 1906:
   Opihion by

Orlady, J.,

The plaintiff was engaged in quarrying limestone and preparing it for trade purposes by running it through a crusher, so as to produce different grades and sizes. The defendants were contractors for a railroad company, and were engaged in building bridges, arches and other improvements of like character, in which they were obliged to use concrete work composed of crushed stone, sand and cement, in proportions which were determined by their contract with the railroad company.

The only controversy in this case is one of fact, and relates to the quantity of crushed limestone delivered by the plaintiff. The original contract was somewhat modified, so as to determine by measurement instead of weight the amount of limestone furnished. Both parties called a number of witnesses to support their respective theories as to how much limestone was contained in the finished work of the contractors, under certain rules that govern the proportion of mixed cement and sand that should be used in order to properly fill the interstices or voids between the stones, so as to make the completed mass a uniform and solid body.

The disputed facts were fully and carefully investigated through the examination of witnesses, and were fairly and clearly submitted to the jury. The second, third and fourth assignments of error relate to the admission of testimony of witnesses who were offered as experts. Each of these was a practical man, who had had actual experience in the use of concrete materials, and while they were not familiar with the theory of combination by.percentages, they had made actual demonstrations, which enabled them to testify intelligently as to the result of their work. They were subjected to rigid cross-examination, and their credibility was fairly submitted to the jury. They were not giving their opinion, or suggesting any theory in regard to the controversy, but testified as to their actual experience and the results secured by combining crushed stone with cement mixtures to. fill the voids.

The other assignments of error relate to the charge of the court and the answer to the points. While the evidence includes numerous theoretical discussions, the investigation was narrowed down to the proposition finally submitted by the court, as follows: “Take this case and, dispose of it fairly under the evidence on both sides — both the testimony on the part of the plaintiff and the testimony on the part of the defendants, and determine how many cubic yards of crushed stone entered into the various structures for which the plaintiff is entitled to be paid.” This, we think, was clearly understood by the jury, and the whole case was submitted in a manner which fully protected the defendants. The assignments of error are overruled.

The judgment is affirmed.


text:
    Stambaugh’s License.

      Liquor law — Wholesale license — Bottler’s license — Act of July 30, 1897, P. L. 464.
    The holder of a license under the Act of July 30, 1897, P. L. 464, as a wholesale dealer in vinous, spirituous, malt or brewed liquors has no right under such license to purchase beer in barrels and kegs, and transfer the beer thus purchased into bottles, and sell the same at wholesale.
    Argued March 13, 1906.
    Appeal, No. 14, March T., 1906, by C. P. Stambaugh, from order of Q. S. Cumberland Co., making absolute rule to revoke a liquor license In re License of C. P. Stambaugh.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to revoke liquor license. Before Sadler, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      Herman Berg, Jr., for appellant,
    cited : Kiehl & Kieffer’s License, 15 Lanc. L. R. 311; Ferch’s License, 27 Pa. Superior Ct. 92.

      F. E. Beltzhoover, with him Rupley §• Brinton, for appellee,
    cited: U. S. v. Stowell, 133 U. S. 1; Pollard’s Petition, 127 Pa. 507.

      June 30, 1906:
   Opinion by

Orlady, J.,

The appellant made application to the court of quarter sessions of Cumberland county for a license “ to sell and deal in spirituous, vinous and malt liquors or any admixture thereof, in quantities not less than one quart, agreeably to the act of assembly in such cases made and provided.” His petition was indorsed, “ Petition and bond of C. P. Stambaugh for wholesale license,” and was granted by the court under the provisions of the Act of July 30, 1897, P. L. 464, the license fee being $200. Soon thereafter, lie engaged in the bottling of malt and brewed liquors, and sold them in bottled form. One of the sureties on his bond presented a petition to the court of quarter sessions, alleging these facts, and averring that he became surety on the bond upon the understanding, belief and representation that Stambaugh would engage in the sale of vinous, spirituous liquors only as a wholesaler.

A rule was granted to show cause why the license should not be revoked, and after an answer was filed, in which it was admitted that he was engaged in the business of bottling beer, but contended that he was not violating the law in so doing, the court made the rule absolute. This appeal was taken and the question involved, as stated by the appellant, is “ Whether the holder of the license under the act of 1897 as a wholesale dealer in vinous, spirituous, malt or brewed liquors, has the right under the license to purchase beer in barrels and kegs and transfer the beer thus purchased into bottles and sell the same by wholesale.”

The act of 1897, under which this license was granted, is entitled, “ An act to provide revenue and regulate the sale of malt, brewed, vinous and spirituous liquors, or any admixture thereof,” and was approved by the governor for the sole reason that it was a revenue measure. It classifies brewers, who manufacture beer, into eighteen different grades; the amount of the license fee to be paid being regulated by the annual production of the preceding year; and distillers, into eleven different grades, under similar regulations, as to the annual license fee to be exacted. A wholesale dealer in vinous, spirituous, malt or brewed liquors, or any admixture thereof is required to pay “In cities of first and second class, the sum of $1,000; in cities of third class, and all other cities the sum of $500 ; in boroughs the sum of $200 and in townships the sum of $100.” Rectifiers, compounders, storekeepers or agents, not included in the classification for license purposes are required to pay-an annual fee which is regulated by the location of their store, office, or place of business, whether in cities, boroughs or townships.

By a separate paragraph it is provided, “ Each bottler or bottling establishment shall pay for the use of the commonwealth, an annual license fee as follows: In cities of the first and second class the sum of $500 ; in cities of the third class and other cities, the sum of $350; in boroughs the sum of $250, and in townships the sum of $125. The contention of the appellant means that, after receiving a wholesale license in the borough of Carlisle, for which he paid a license fee of $200, he is entitled in addition thereto to carry on the business of bottling in the same borough, the license fee for which is $250.

The classification of dealers by distinct trade and commercial titles has been observed since the earliest legislation on the subject. In all of the earlier enactments, the sole purpose appears to have been to raise revenue to meet the demands of the treasury and to provide for the gradual and certain ex-tinguishment of the debt of the commonwealth. The vendors of distilled liquors, and wines, importers of foreign liquors, distillers, brewers, wholesalers, rectifiers, compounders and bottlers, were recognized as classes requiring special legislation to determine the amount of the annual license fee required of them.

By section 8 of the Act of April 14, 1851, P. L. 569, it was provided that no bottler of cider, perry (pear cider) or malt liquors who does not follow the business of tavern keeper, shall be hereafter required to take out a license as tavern keeper. The present system of exacting an annual license fee of the liquor traffic has its foundation in the Act of March 31, 1856, P. L. 200, “ To regulate the sale of intoxicating liquors.” By section 32, it is provided, that no persons pursuing exclusively the business of bottling of cider, perry, ale, porter or beer, and not at the same time following or engaging in any way in the business of keeping a hotel, inn or tavern, restaurant, oyster-house, or cellar, or place of entertainment, amusement or refreshment, shall be required to take out a license, under the provisions of that law; but it is provided that such persons should not sell or deliver their product in less quantities than a dozen bottles at one time, or permit any of said liquor to be drunk upon the premises occupied in said business.

The third section of the act requires brewers and distillers, in any part of the state, to be returned, classed, assessed and licensed agreeably to the provisions of the act of 1849, and assessed and required to pay for their license “ Double the rate or rates assessed agreeably to said act.” Provided as follows : “ That the same shall not in any case be less than #50.00 ; nor shall such license authorize sales by them of less than five gallons, excepting malt and brewed liquors which may be bottled and delivered in quantities not less than one dozen bottles.”

By section 8 of the act of April 20, 1858, bottlers of cider, perry, ale, porter or beer, not engaged in the sale of intoxicants, or in keeping any tavern, were allowed to sell the same by bottle, without taking out license, provided that such liquor was not drunk upon the premises, or at any place provided by the seller for that purpose.

By the Act of May 13, 1887, P. L. 108, an act regulating and restraining the sale of liquors by retailers in quantities not exceeding one quart, the procedure for procuring a license was declared at length ; and by the Act of May 24,1887, P. L. 194, entitled “ An act providing for licensing of wholesale dealers in intoxicating liquors, brewers, distillers, rectifers, compounders, storekeepers and agents, having stores or offices within this commonwealth ” were required to pay an annual license, regulated by their location in a city, borough or township.

That bottlers were intended to be a separate and distinct class, is shown by the third section as follows: “ That all bottlers within the commonwealth shall be required to procure license from the court of quarter sessions of the respective counties in which they were located, in the manner provided for in the second section of the act, for which they shall pay the sum of #200 in cities of the first, second and third class, #100 in all other cities, boroughs, and townships. Provided, That no bottler shall be permitted to sell spirituous, vinous, malt or brewed liquors to be drunk upon the premises where sold, nor at any place provided by sucb seller for that purpose.” And again, by the act of June 9,1891, in the proviso of the second section, it is stipulated that it is not lawful for any rectifier, compounder, distiller or manufacturer to sell spirituous liquors in less quantities than a gallon, or wholesale dealers or storekeepers to sell spirituous, or vinous liquors in less quantities than a quart, and brewed or malt liquors in less quantities than twelve pint bottles, nor shall any brewer or bottler sell less than twelve pint bottles of brewed or malt liquors, nor allow any liquors so sold to be drunk upon the premises where sold, nor at any place provided by sucb seller for that purpose.

The license granted to Stambaugh, by its very terms authorized him to sell spiritous and vinous liquors in quantities not less than one quart, and malt and brewed liquors in quantities not less than twelve pint bottles at his store in the borough of Carlisle. To secure this privilege he paid the sum exacted by the commonwealth from a wholesale dealer. The business of a bottler is entirely separate from that of a wholesale dealer, and the manifest intention of the legislature was to exact a distinctive license fee from the bottler or bottling establishment, as provided by the act of 1897, and different from that exacted from distillers, brewers and wholesale dealers. We are not called upon to explain or justify the reasoning for this enactment, but simply to interpret and enforce its declarations.

For a number of years past in Cumberland county the granting of a wholesale license has been interpreted by the court not to confer the right to eng'age in the business of bottling, and the interpretation, by this applicant, of the law, if announced at the time his petition was under consideration by the court, would have resulted in the refusal of his license. We held in Ferch’s License, 27 Pa. Superior Ct. 92, that it was not an abuse of discretion to refuse an application for wholesale license, where, in addition to the ordinary business of a wholesaler of vinous, spirituous and brewed liquors the applicant intended to set up, or conduct under cover of the same license, an establishment in which the business of bottling- in all its branches, was to be carried on. We take one step in advance of that decision, and now hold that the granting of a license to a wholesaler, under the act of 1897, for which he pays the license fee exacted of that class of dealers, does not entitle him to conduct the business of a bottler or bottling establishment under cover of this wholesale license.

The business of bottling, under guise of his wholesale license was such an evasion of the law by Stambaugh, that it justified the court in revoking his license.

The decree is affirmed.


author: Oblady, J.,

text:
    McCune v. McCune, Appellant.

      Divorce — ■Practice, C. P. — Appointment of master — Irregularity—Adultery.
    An order irregularly appointing a master in divorce prior to the return of an order of publication, cannot be taken advantage of on appeal by the respondent, where it appears that after the return of the order of publication the respondent had personal notice of the appointment .of the master, appeared before him by counsel, testified in her own behalf and called a number of witnesses, and that no exception was taken before the master or the court to the want of jurisdiction of the master.
    A divorce will be granted to a husband on the ground of adultery of his wife, where the inferences of the respondent’s guilt are fairly deducible from the testimony, although there is no direct evidence to establish it.
    Argued March 13,1906.
    Appeal, No. 15, March T., 1906, by defendant, from order of C. P. Cumberland Co., Eeb. T., 1904, No. 65, granting a divorce in case of John T. McCune v. Mattie M. McCune.
    Before Rice, P. J., Postee, Henderson, Moeeison, Oelady, Head and Beavee, JJ.
    Affirmed.
    Libel for divorce.
    From the record it appeared that the libel was filed on December 8,1903. The respondent was not served personally with the subpoena, but it was returned “ non est inventus ” by the sheriff on January 16, 1904. The same return was made by the sheriff to the alias subpoena on April 23, 1904. On April 20, 1904, Chester C. Bashore, Esq., entered appearance for the respondent. On July 12,1904, .an order of publication was procured, which was duly returned, on September 12,1904, by the sheriff, indorsing thereon that notice to respondent was given by publication in the American Volunteer, a newspaper published in Carlisle, Penna., for four successive weeks.

      Jasper Alexander, Esq., was appointed master on September 8, 1904. The master reported in favor of the libelant.
    Exceptions to the master’s report were dismissed by the court in an opinion by Shull, P. J., specially presiding, which was as follows:
    The plaintiff filed his libel in divorce, alleging adultery of the wife. The master upon various findings recommended that the prayer be granted, to which respondent excepts. The fifth finding of fact is that no direct evidence is adduced to establish the illicit relations between her and the co-respondent, but that the inferences are fairly deducible from the testimony that she is guilty of criminal intercourse with the co-respondent. It was disclosed at the argument that libelant was approaching his three score and ten while respondent had attained but little more than half that age.
    The co-respondent, Throne, was for some time a frequenter at the home of the MeCunes, which occasioned strained relations between libelant and respondent, at the same time discord was breeding in the home of Throne, who had a wife and childen in the same town. The house at which he called was being marked as if visited by a plague and at one time was stoned. The sensibilities of the people in the neighborhood were incensed and outraged at the familiarity and indiscretion of these parties. The husband, incapable of longer enduring the unpleasantness of his environment, and fearing personal injury, fled from his home. Hardly had his shadow passed from the door when Throne was enthroned as lord of the manor. In the language of the Supreme Court in Graham v. Graham: “ Practically he was crowded out of his home.” Throne found it convenient to have her pack his bucket, wash and cook for him, and then later to find repose at night for his weary, burdened body and mind upon the pillows within the portals of her attractive home, when he says he “feared to go home ” because his “ wife made threats.” She is then advised by Throne to “get out of the damned place,” and quickly they both get out, she to Harrisburg keeping a very restricted boarding house, and Throne not as a common lodger, but as one who pays the rent and furnishes the fuel. These are facts, together with a letter adduced in evidence, referred to by the master as a basis for his finding. True, it is all circumstantial evidence, but they are no trifles light as air but confirmations strong as proofs of holy writ, and necessarily lead to the conclusion of the adulterous practices. They are not mere groundless suspicions emanating from an injured husband’s brain but are basic principles from which illicit intercourse may properly be arrived at by fair and necessary inferences.
    It is held in a number of common pleas court decisions that imprudent acts, improper decorum, unseemly attitudes, flippant bearing, etc., are not in themselves sufficient to show criminal conduct which would justify a rupture of the marital bond on the ground of adultery: Ginther v. Ginther, 15 Pa. C. C. 180; Garr v. Garr, 19 Pa. C. C. 502. But in the case at bar we have all these supplemented by things more grave and serious. True, the co-respondent denies the liaisons, but he admits about everything else, and his testimony must be viewed in the light of his interest. Vide fourth specification of error: Cornelius v. Hambay, 150 Pa. 359. The respondent also asserts her innocence but the story of her denial was told of many centuries ago in these words: “ Such is the way of an adulterous woman; she eateth, and wipeth her mouth, and saith, I have done no wickedness : ” Prov. 20.
    We are of the opinion that the recommendation of the master is free from error, and that respondent is entitled to no costs.
    And now, July 5, 1905, the exceptions to report of the master are overruled, and it is ordered, adjudged and decreed that said Mattie M. McCune be divorced and separated from the society, fellowship and company of the libelant in all times to come, and him, the said John T. McCune, from the marriage bond contracted and entered into with respondent as if they had never been married or as if she, the said Mattie M. McCune, were naturally dead.

      Error assigned was the decree of the court.

      Chester C. Bashore, for appellant.
    — The appointment of the master was without authority in law.

      S. B. Sadler, with him Paul Willis, for appellee.

      June 30, 1906 :
   Opinion by

Oblady, J.,

In divorce cases the law contemplates that the proceeding shall be continuously adverse, and to secure jurisdiction of the respondent, there must be either the actual personal service of a subpoena, or its statutory equivalent. The alleged irregularity, of which the respondent in this case complains, is not sufficent to warrant a reversal of the decree, for the reason that after the return non est inventus of the second subpoena, her counsel entered an appearance of record, which of itself would not be sufficient to bring her properly before the court, but following this, there was a regular order made for service by publication, and upon the return of this order, a formal personal notice was given to the respondent of the appointment of the master, and the date and place named when he would receive testimony. In answer thereto the respondent appeared before the master with her counsel; submitted herself to examination, in her own behalf; cross-examined the libelant’s witnesses and called a number of witnesses in support of her defense. No exception was taken to want of jurisdiction, either before the master or in the court below, and the question is raised on this appeal for the first time. Under the facts, she delayed too long in questioning the jurisdiction of the court, while she was seeking its decree in her favor. The first assignment of error is not sustained.

The other assignments are to the sufficiency of the evidence to warrant the making of the decree of divorce. We have read with care all the testimony, and agree fully with the conclusion reached by the master and the court. It is not necessary to analyze the evidence in this case. The respondent’s testimony and her letters written to her husband can have but one interpretation, and that is conclusively against her contention.

The decree is affirmed.


author: Henderson, J.,

text:
    McAndrews v. McAndrews, Appellant.

      Divorce — Desertion—Evidence.
    A husband cannot plead as a justification of his desertion of his wife, that she was neglectful of her domestic duties, that she nagged him by following him at times and observing his movements and that on a few occasions she had used intoxicating drinks, and this is especially so where it appears that the husband used liquor habitually himself, and that he was absent from home much of the time at night and his wife was interested in knowing where he was and what he was doing.

      Divorce — Alimony—Husband’s income.

    An allowance to a wife of $20.00 a month alimony where the husband’s salary is $135.40 a month, is not unreasonable.
    Argued April 11, 1906.
    Appeal, No. 30, April T., 1906, by defendant, from decree of C. P. No. 2, Allegheny Co.', Jan. T. 1904, No. 568, granting divorce in case of Annie McAndrews v. John McAndrews.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Affirmed.
    Libel for divorce. Before Young, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the decree of court.

      E. 8. Weyand, of Weyand Moorhead, with him Harry J. Nesbit, for appellant.

      M. R. Marshall, for appellee.
    June 30, 1906 :
   Opinion by

Henderson, J.,

The conclusion of the trial judge is supported by the weight of the evidence. The appellant admits that he separated from his wife and that he refused and still refuses to longer cohabit with her. His default is manifest unless he can mate it appear that his action was justified by conduct on the part of the appellee which would entitle him to a divorce. We do not find from the evidence brought up that such conduct is proved. The appellant alleges that his wife was neglectful of her domestic duties ; that she nagged him by following him at times and observing his movements and that she was addicted to the use of intoxicating drinks, but the evidence does not come up to the measure necessary to meet the requirements of the act of assembly. That part of it relating to the management of her house by the appellee is not sufficient if taken as true, and is contradicted. The wife’s conduct in following her husband does not tend to establish an intolerable condition or to render the life of her husband burdensome. It is moreover accounted for by the appellee on the ground that her husband was absent from home much of the time at night and she was interested in knowing where he was and what he was doing. The evidence of the use of intoxicating liquors by the appellee relates to a few occasions and could not be said to be a justification of the husband’s action in deserting her. It has less weight‘in view of the appellant’s admission that he used liquor habitually, himself. The learned trial judge was satisfied that the charge of cruel and intolerable treatment was established by the preponderance of the evidence and we have not reached a different conclusion after a careful examination of the testimony. The allegations of the libelant were corroborated to a considerable extent by the testimony of Mrs. Beam, Mrs. O’Brian and James McNamara and the impression which this.evidence produces is not removed by the testimony offered by the appellant.

The amount of alimony allowed is not disproportionate to the estate of the respondent. His salary is $135.40 a month and $20.00 a month is not an unreasonable proportion of that to be applied to his wife’s maintenance. The income from the property shown to belong to her is not large and probably does not afford more than would provide the appellee a comfortable living in connection with the amount awarded by the court. The decree for alimony is subject to modification, however, at any time on cause shown and the appellant is not without relief with reference thereto when the facts warrant intervention by the court in which the decree was entered. The experience and sound judgment of that tribunal is a safeguard to the appellant if conditions arise which justify a reconsideration of that subject at any time.

The decree is affirmed.


text:
    Rhome v. Morris, Appellant.

      Will — Probate—Issue devisavit vel non — Verdict of jury.

    On an appeal from the action of the register of wills admitting a will to probate, a verdict of the jury to the effect that the will in question was not the last will of the decedent, but that a will probated in another state was the last will of the decedent will be modified so as to eliminate all reference to the will probated in the other state. In such a proceeding the court has no jurisdiction to pass upon the validity of the will probated in the other state; and this is the case although the validity of such will was one of the questions submitted to the jury.
    Argued April 16, 1906.
    Appeal, No. 72, April T., 1906, by-defendant, from judgment of C. P. Greene Go., Nov. T., 1904, No. 57, on verdict for plaintiff in case of Ida M. Rhome et al v. George M. Morris et al.
    Before Rice, P. J., Porter, Henderson, Morrison and Head, JJ.
    Judgment and verdict modified.
    Appeal from Register of Wills. Before Crawford, P. J.
    The facts are stated in the opinion of the Superior Court.
    The verdict was as follows :
    “ And now, February 6, 1905, verdict in favor of the plaintiff for $10 damages and with costs of suit and also find that the paper writing dated May 23, 1894, and which the register of wills admitted to probate is not the last will and testament of Sarah Morris, deceased, but that the paper writing dated April 9, 1903, offered in evidence by plaintiffs is the true and lawful last will and testament.”
    Judgment was entered on the verdict.

      Error assigned was in entering judgment upon the verdict.

      F. W. Downey for appellant.
    — By this proceeding, verdict and judgment appellees have obtained a judicial finding that the West Virginia will is the last will and testament of Sarah Morris, and have obtained this without having any issue concerning said will properly before the court. This is error: Neal’s Will, 17 W. N. C. 191; Taylor v. Com., 103 Pa. 96; Toner v. Taggart, 5 Binney, 489; Hoopes’s Estate, 152 Pa. 105; Lappes’s Estate, 35 P. L. J. (N. S.) 157; Miller’s Est., 166 Pa. 97; Alexander’s Estate, 32 P. L. J. (N. S.) 127; Hoopes’s Estate, 185 Pa. 167 ; Coleman v. Rowland, 1 Pittsburg, 122 ; Clark v. Douglass, 62 Pa. 408; Muhlenburg v. Brock, 25 Pa. 517; Ruddach v. Reichenback, 17 W. N. C. 549; Stier’s Estate, 4 Pa. C. C. 639; Herrington v. Guernsey, 177 Pa. 175.

      James J. Purman, with Mm J. B. Donley and J. Pai/rieh Donley, for appellees,
    cited : Gentner v. Geiler, 4 W. N. C. 139; Long v. Shull, 7 Pa. Superior Ct. 476 ; Barclay v. Kerr, 110 Pa. 130.
    June 30, 1906 :
   Opinion by

Henderson, J.,

A paper. purporting to be the last will of Sarah Morris was presented to the register of wills and duly probated on February 11, 1904. On July 28 an appeal was taken from that action and on the same day the parties appealing presented their petition to the orphans’ court setting forth that the paper probated as the will of Sarah Morris was not her last will but that a will executed at a later date and probated in the county of Wetzel, West Virginia, was the last will of the decedent and praying for an issue to determine whether the paper admitted to probate by the register of wills of Greene county was the last will of the decedent or whether the paper admitted to probate in West Virginia was her last will. Upon this petition the court awarded an issue and directed a precept to the court of common pleas. The precept is in the usual form, reciting the facts averred in the petition and directing that an issue “ be formed upon the merits of the controversy between the said parties and tried in due course according to the practice of our said courts in actions commenced by writ.” At the trial of the issue an exemplification of the record of the probate of the West Virginia will was offered in evidence without objection, and as it appeared that this will was made several years after the will probated in Greene county a verdict was taken for the plaintiffs. The controversy here arises out of the form of the verdict, which was a finding for the plaintiffs, and that the paper writing probated in Greene county was not the last will of the decedent but that the will probated in West Virginia was her last will. The appellant objects to so much of the verdict as finds that the paper probated in West Virginia was the last will of the decedent and contends that the proceeding in the court below should be reversed and set aside for the reason that there was in fact a trial of two issues, to wit: the validity of both the Pennsylvania and West Virginia wills. It is supposed by the learned counsel for the appellant that the issue presented by the precept from the orphans’ court involved the two inquiries and that it was therefore not in conformity to the statute. We do not so interpret the writ, however. It does, indeed, set forth that the will probated in West Virginia is the last will of the decedent, but this was done to bring to the attention of the court the grounds upon which the contest of the Pennsylvania will was based. The mandate of the orphans’ court directs that the issue be formed upon the merits of the controversy between the parties. That can have reference, only, to the question which was legitimately before the court. The appeal taken was from the action of the register of wills in probating the will in Greene county. No other question came, or could come, into the orphans’ court by the appeal and the court was limited to the consideration of the validity of the document there probated as the last will of the decedent. The general language of the precept must therefore be understood as having reference to the specific question whether the writing thus probated was in fact the will of Sarah Morris. Inasmuch as it was not disputed that the will probated in West Virginia was of a later date than that probated in Pennsylvania, the plaintiffs were entitled to a verdict on their appeal. The finding of the jury went beyond the exigency of the issue, however. The validity of the will probated in West Virginia was not a subject of judicial inquiry in this proceeding. The register of wills has exclusive jurisdiction of the probate of wills and the orphans’court has no authority to try the question, except on appeal. Moreover, a competent tribunal in West Virginia, the place of the decedent’s domicile, had assumed jurisdiction of the probate of her will. The 12th section of the act of March 15, 1832, restricts the authority of a register of wills, in a case where a copy of a will proved in another state is offered for probate, to a consideration of the sufficiency of the proofs and it appears clear from the provisions of that act that the validity of a will cannot be attacked at the place of ancillary administration. So much of the verdict of the jury and the judgment of the court thereon as found that the will probated in Greene county was not the last will of the decedent is consistent with the issue formed and is supported by the evidence. That part of the verdict which passes upon the validity of the other will was in excess of the subject submitted to the jury for its consideration and must be set aside. The determination of that question is a matter for inquiry in the forum of the probate of that will. So much of the verdict and the judgment as relates to the will of the testator probated in West Virginia is set aside and the judgment in favor of the plaintiffs as thus modified is affirmed.


author: Morrison, J.,

text:
    Vernam v. Wilson, Appellant.

      Vendor and vendee — Fraud—Concealment—Prior conveyance of coal— Rescission — Contract.
    Where a person sells land by articles of agreement and conceals the fact that he had previously conveyed the coal under the land to another person by a deed of record, the purchaser on discovering the fraud may rescind the contract and recover back the poi'tion of the purchase money paid, the value of the improvements which he had placed upon the land, and damages for the loss of his bai'gain.
    Argued April 17, 1906.
    Appeal, No. 1, April T., 1906, by defendant, from judgment of G. P. Washington Co., Nov. T., 1904, No. 48, on verdict for plaintiff in case of Annie M. Vernam v..J. B. Wilson.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Assumpsit by a vendee against a vendor to recover damages after a rescission of a contract. Before Taylor, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,496.64. Defendant appealed.

      Errors assigned among others were (1, 2) the affirmance of the two points quoted in the opinion of the Superior Court.

      Edgar B. Murdoch, with him A. M. Todd, Boyd E. Warns and John H. Murdoch, for appellant.-
    — It is incumbent upon the party alleging fraud to prove the same by clear and satisfactory evidence, either by direct proof or by facts sufficient to warrant a presumption of its existence, clearly proved: Sebring v. Brickley, 7 Pa. Superior Ct. 198; Marble Co. v. Wiggins, 12 Pa. Superior Ct. 577 ; Jones v. Lewis, 148 Pa. 234; Slimmons’s Appeal, 160 Pa. 522 ; Mead v. Conroe, 113 Pa. 220 ; McNair v. Compton, 35 Pa. 23.
    Numerous cases might be cited as to the notice implied by the recorded deed for the coal and the duty of a purchaser to search for it: Maul v. Rider, 59 Pa. 167; Angier v. Schieffelin, 72 Pa. 106 ; Del. & Hudson Canal Co. v. Hughes, 183 Pa. 66; Davis v. Monroe, 187 Pa. 212; Jaques v. Weeks, 7 Watts, 261.
    The measure of damages for breach of real contracts is to be looked for, not in the value of the estate at the time of breach or eviction, but in the consideration which had passed between the contracting parties : Tyson v. Eyrick, 141 Pa. 296; Pitcher v. Livingston, 4 Johns. 1 (N. Y.) ; Bender v. Fromberger, 4 Dallas, 436 ; Brown v. Dickerson, 12 Pa. 372; McClure’s Exrs. v. Gamble, 27 Pa. 288; Cox’s Admrs. v. Henry, 32 Pa. 18; Dumars v. Miller, 34 Pa. 319; McNair v. Compton, 35 Pa. 23; Burr v. Todd, 41 Pa. 206 ; Meason v. Kaine, 67 Pa. 126 ; Sands, Herdic & Co. v. Arthur, 84 Pa. 479; Tyson v. Eyrick, 141 Pa. 296; Ballas v. Wolff, 11 Pa. Superior Ct. 150.

      B. W. Parkinson, Jr., for appellee.
    — Constructive notice cannot be invoked to charge a person with assent to a fraud practiced on him. In case of fraud, it is immaterial that other sources of information were open to the purchaser. The vendor is estopped. No man can complain that another has relied too implicitly on the truth of what he himself stated : Max Meadows Land & Imp. Co. v. Mendinhall, 4 Pa. Superior Ct. 398; Meason v. Kaine, 67 Pa. 126; Spalding v. Hedges, 2 Pa. 240.
    When a party contracts to sell lands, which he knows, at the time, he has not the power to sell and convey, he should be held to make good to the vendee the loss of his bargain: Mack v. Patchin, 42 N. Y. 167 ; Lanigan v. Kille, 97 Pa. 120 (at 126) ; Bartram v. Hering, 18 Pa. Superior Ct. 395.
    The measure of damages, even in case of no fraud, is compensation for all that plaintiff properly expended or did on the faith of the contract, including improvements made upon the land in reliance on the contract, with the knowledge of the defendant, and which the defendant gets the benefit of by taking back the land: Bender v. Bender, 37 Pa. 419 ; Rineer v. Collins, 156 Pa. 342 (353); Fry v. Flick, 10 Pa. Superior Ct. 362; Eberz v. Heisler, 12 Pa. Superior Ct. 388; McCafferty v. Griswold, 99 Pa. 270.
    June 30, 1906 :
   Opinion by

Morrison, J.,

This is an action of assumpsit brought by the plaintiff to recover damages alleged to have been sustained by the defendant entering into a written contract with her to sell and convey two certain lots of land in the borough of Washington, Pennsylvania, by good and sufficient deed for the proper conveying and assuring of the said premises, in fee simple, free from all encumbrances, and dower, or right of dower, with the usual covenants of a general warranty. Under this agreement the plaintiff bad the right to go into possession on March 4, 1903, and she went into possession and paid $300 of the purchase money, and erected a dwelling house upon the premises and graded and improved the property to the value of about $1,100, as shown by the evidence. It appears and is a conceded fact in the case that prior to the making of the agreement with the plaintiff, the defendant had sold and conveyed all of the coal underlying said premises to another party. The plaintiff did not have knowledge of this fact until after she had made the payments and improvements mentioned.

On July 8, 1904, the plaintiff notified the defendant that she was ready to close the contract for said lots and pay the balance of the purchase money, and that unless the defendant could give the plaintiff a complete title, including the coal, the contract would be rescinded on payment of the purchase money already paid, with interest, and the value of the improvements made, to the plaintiff. On the same day, the defendant tendered the plaintiff a deed for said lots which contained a reservation of all the coal, to which the plaintiff objected, and the defendant failing to convey the coal, the plaintiff gave notice of the value of the improvements, and elected to rescind the contract, and subsequently brought the present suit.

At the trial the plaintiff presented two theories for recovery which fairly appear by the following points:

1. “ If, after the article of agreement was entered into, the plaintiff discovered the defendant’s inability to convey to her the title he had agreed to, and if that inability of the defendant continued up until the expiration of a reasonable time given the defendant by the plaintiff to comply with his contract; then the plaintiff had the right to elect either to insist upon a deed for whatever interest the defendant had in the property, or to rescind the contract, and sue for the money paid under the article on the purchase money, and other moneys expended on the faith of the contract.”

2. “ The measure of damages depends on how you determine the question of whether there was a fraudulent intention or an honest mistake on the part of the defendant; if he was guilty of artifice, fraud or bad faith, in contracting with the plaintiff, then the plaintiff is not only entitled to compensatory damages, but also to damages arising from the loss of the bargain, or the money she might have derived from the completion of the contract.” The learned court affirmed both of these points, adding to the answer to the second point: “ And we have already commented on that in the general charge.”

Upon a careful examination of the testimony and a large number of decisions upon these questions, we are of the opinion that the case was correctly tried. It is vigorously contended by the appellant that there was no evidence of fraud, deceit or bad faith on his part in contracting as he did without informing the appellee that he had previously conveyed away all of the coal underlying the land. The contention is that because the deed for the coal was upon record when the appellant made the contract in question, there could be no fraud perpetrated upon tbe other party to it. We think there was sufficient evidence to warrant the court in submitting the question of fraud or bad faith to the jury.

In Pegg v. Rist, 15 W. N. C. 70, in delivering the opinion of the Supreme Court, Mr. Justice Turnkey (p. 72) said: “No money was payable to Pegg until delivery of the deed, and Wrist was not bound to accept a deed subject to encumbrances not mentioned in the agreement. Ruff’s deed was recorded at the time of making the contract, a-nd Wrist might have seen it, perhaps he did; but it does not appear that he consented to take the land subject to that encumbrance. The vendor was bound by the terms of his contract; if he failed to clear off the encumbrances, he was unable to perform his covenant, and without performance he was not entitled to the purchase money. (Withers v. Atkinson, 1 Watts, 236; Stitzel v. Kopp, 9 W. & S. 29).”

The doctrine of Withers v. Atkinson is that a failure of a vendor to acquaint the vendee with the facts as to encumbrances or defective title, of which the vendor has knowledge, is a fraud. But if it were conceded that the evidence of fraud and deceit was not sufficient to carry that question to the jury, we are not persuaded that the appellant was harmed by it, because there is plenty of clear and pointed evidence sustaining the verdict of the jury on the other ground, to wit: the amount of purchase money paid and interest thereon, and the value of the permanent improvements placed upon the land by the appellee before she elected to rescind the contract. Upon this question the learned court below said to the jury: “ We have held, as you have heard after the argument here of counsel, that if there is no fraud or no deceit, — fraud is a generic term used to cover all those practices that one may wrong another by in his property or his legal rights, — then you have nothing to do with the bargain, the value of the bargain these people may have made out of buying these lots and making this improvement; but the question of fraud or deceit in the case or not is for you, — but we do hold that the plaintiff would be entitled to recover here the purchase money paid, with the reasonable cost of the improvements that they put on the land on the strength of having entered into this original contract and entered into possession under it with the knowledge of the defendant.”

Inasmuch as the verdict and judgment is not in excess of the money paid by the appellee, and the value of the permanent improvements which she put upon the land, it is not material in the present case on which theory the jury assessed the damages. If based upon the fraud and deceit of the defendant, of which we think there is sufficient evidence, the verdict is not excessive. But there is abundance of authority sustaining a recovery for the money paid and the value of the permanent improvements: Bender’s Admr’s v. Bender, 37 Pa. 419; Meason v. Kaine, 67 Pa. 126; Rineer v. Collins, 156 Pa. 342; Fry v. Flick, 10 Pa. Superior Ct. 362; McCafferty v. Griswold, 99 Pa. 270 ; Eberz v. Heisler, 12 Pa. Superior Ct. 388.

The appellee purchased the lots for the purpose of erecting a house thereon, and the house was erected, and the ground for the rescission of the contract was entirely the fault of the appellant. Therefore, we think that when the appellant failed to convey the full title which he had agreed to convey, and the appellee elected to rescind the contract, there is no question about her right to recover the value of the permanent improvements which she put upon the land, with the consent of the defendant, and which go to the defendant with the land on the rescission of the contract: Thuemlar v. Brown, 18 Pa. Superior Ct. 117.

If the defendant had been unable, through no fault of his own, to convey the land to the plaintiff in accordance with the contract, then it must be conceded, under the general rule, that he would not be liable for the value of the improvements placed upon the land by the plaintiff: Tyson v. Eyrick, 141 Pa. 296; Bitner v. Brough, 11 Pa. 127.

But in Bender’s Administrators v. Bender, 37 Pa. 419, it is expressly held that: “ But damages may be recovered for the breach of it. What damages ? Compensation for all that the plaintiff below did in pursuance of the contract, and in satisfaction of his part thereof, and for all permanent improvements made upon the land, in reliance upon the contract, with the knowledge of the defendant, and which the defendant gets the benefit of by taking back the land, deducting the value of the rents and profits of the land during the plaintiff’s occupancy.”

In Thuemlar v. Brown, supra, we said : “ The lessor having rescinded the contract, or rendered himself unable to perform it, may not complain if the lessee; by reason of the breach, was permitted to recover for the costs of the permanent improvements and the cost of removing his machinery placed in the building during the running of his option to purchase.”

Whatever difference of opinion may exist in regard to the question of whether or not the plaintiff was entitled to recover the value of the permanent improvements put upon the land, we are clearly of the opinion that there was sufficient evidence of fraud and deceit, on the part of the defendant, under all of the evidence in this case, to sustain the verdict and judgment. There is no escape from the conclusion that the defendant well knew that he had conveyed away the coal underlying the land in question, and then he undertook to recover from the plaintiff full value for the land in fee simple, without encumbrance or reservation, without disclosing to her the fact that he had previously conveyed a valuable estate in the land. Now if this does not amount to fraud and deceit, we do not know the meaning of the terms. It is true that the deed for the coal was on record, but the plaintiff had a plain, written contract with the defendant, and she had a right to assume that he could and would comply with his contract, and she lost none of her rights by not examining the records for former conveyances by the defendant: Davis v. Monroe, 187 Pa. 212.

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


text:
    McKeefry v. United States Radiator Company, Appellant.

      Contract — Several and entire contract — Intention—Evidence.
    The entirety of a contract depends upon the intention of the parties and not upon the divisibility of the subject. The several nature of the latter may often assist in determining the intention, but -will not overcome the intention to make an entire contract when that is shown; nor will the mode of measuring the price, as by the bushel, ton or pound, change the effect of the agreement, even in entire contracts, from agreeing to partial payments, pending the full performance.
    In an action to recover the difference between the contract and market price of pig iron which defendant refused to accept, it appeared that defendant by an order in writing directed the plaintiff to forward 200 tons “at $21.00 per gross ton, Time of delivery; one ear per week, July and August.” The shipments began in August, and it appeared that they corresponded with .the orders given by the defendant company. The market price of pig iron decreased, and in December the defendant canceled its order, and the plaintiff was compelled to sell the undelivered balance aggregating seventy-two tons in the open market, at a loss. The various shipments were paid for as they were received. Held, that the court committed no error in instructing the jury that the contract was an entire contract.

      Argued April 18, 1906.
    Appeal, No. 44, April T., 1906, by defendant, from judgment of C. P. Westmoreland Co., May T., 1904, No. 228, on verdict for plaintiff in case of McKeefry & Company v. United States Radiator Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Assumpsit to recover for a breach of contract. Before McConnell, J.
    The facts appear by the opinion of the Superior Court.
    The court charged in part as follows :
    Looking at all these sources of information we believe, and therefore instruct you, that this is an entire contract and was so designed to be by the parties, and that the manner of paying will not destroy the entirety of the contract. As was said in the case already quoted from: “ there is nothing to prevent parties, even in entire contracts, from agreeing to partial payments pending the full performance.” So that the partial payments in.this case we think will not destroy the entirety of the contract as the words and actions of the parties themselves made it. Now, then, to what does this bring us ? When we have reached the conclusion that it is an entire contract, we must then understand how it becomes applicable to the issue that we have to dispose of here. If the plaintiff had an entire contract and he has performed his part of it, he is entitled to have the profits that he would have made from full performance. If the defendant in this case did not allow him to ship what would have completed this contract and he did not ship that balance, he of course would still have in his possession those goods. But they may not have been worth as much to him,— he may not have been able to dispose of them in the market for as good a price as this contract would have given him. He is entitled to have from the defendant, if his contention is correct, the profit that would have come to him under this contract. That profit in part would be measured by the price named here, and if the market price at the time he was prevented from fulfilling it was lower than that, why of course what he would have undelivered would not afford him as much money in the market as he would have got from the defendant in this case. The defendant would be required to make up the difference. The plaintiff has what the market value of these goods was; he has that in his pocket. So that he cannot claim from this defendant the full price of the undelivered tons of iron. He has part of that price in his pocket, because he was able to dispose, — presumably so, — he was able to dispose of this undelivered property. But the defendant would still owe him the difference between that market price and the price agreed upon in the contract. Whether the plaintiff has made out his contention in that regard depends on a number of considerations and you will have to solve that problem from the evidence in the case, and we now come to that part of it. [1]
    Defendant presented these points:
    1. The defendant respectfully asks the court to instruct having been based on the contract of March 13, 1903, calling for the specific delivery of iron, one car per week during July and August, and the uncontradicted testimony showing that no shipment was made or attempted to be made until after the middle of July, and the plaintiff having averred in his statement of claim that his loss was due for the iron which had been manufactured prior to June 30, and set apart for the defendant and held until December 21, 1903, and the evidence of the plaintiff having been that the iron for which damage is claimed was not manufactured until December, 1903, we instruct you that the plaintiff has failed to support his statement by the proofs in the case and your verdict must be for the defendant. Answer : From what we have already said to you in the general charge it is apparent that we cannot affirm this point and it is accordingly refused. There are too many things involved in this case for the court to summarily dispose of the case in accordance with this point. Some of these things have to be passed on by the jury. [2]
    2. That by the contract as sued upon, time is made of the essence of the contract, and the contract being a severable contract, no burden was on the defendant company to notify the plaintiff company of any cancellation of iron which was not shipped during the first three weeks in July, 1903, and that by the testimony of the plaintiff all the iron that was delivered during the month of August and for the last week of July, 1908, was accepted, and paid for by the defendant company, and therefore your verdict must be for the defendant. Answer: That we also refuse. We have fully discussed the question of whether it is or is not a severable contract as is alleged in this point, and have already said to you in the general charge that we regard it as an entire contract. The point is therefore refused. [8]
    4. Under all the evidence in the case your verdict must be for the defendant. Answer: That is refused. The question of whether your verdict should be for the defendant is one that must be submitted to the jury and we cannot dispose of it as a question of law and we refer that matter to you. You are to determine that under the direction that we have already given you. [4]
    Verdict and judgment for plaintiff for $589.45. Defendant appealed.

      Errors assigned were (1-4) above instructions, quoting them.
    AT. E. Marker, with him O. B. Hollingsworth, for appellant.
    —The contract was separable: Lucesco Oil Co. v. Brewer, 66 Pa. 351; Morgan v. McKee, 77 Pa. 228; Scott v. Kittanning Coal Co., 89 Pa. 231; West Republic Mining Co. v. Jones, 108 Pa. 55 ; Fullmer v. Poust, 155 Pa. 275 ; Gill v. Johnston Lumber Co., 151 Pa. 534; Rugg v. Moore, 110 Pa. 236; Ritchie v. Atkinson, 10 East, 295.

      Edward E. Robbins, with him John E. Kunlcle, for appellees,
    cited as to the entirety of the contract: Shinn v. Bodin, 60 Pa. 182; Easton v. Jones, 193 Pa. 147; Quigley v. DeHaas, 82 Pa. 267; Shires v. O’Connor, 4 Pa. Superior Ct. 465 ; Eller v. Cambridge Springs Co., 18 Pa. Superior Ct. 44.
    June 30, 1906:
   Opinion by

Orlady, J.,

On March 13, 1903, the defendant company gave the plaintiff an order in writing, as follows : “ Please forward to us at West Newton, via B. & O. two hundred (200) tons Seneca, at $21.00 per gross ton. Time of delivery; One car per week, July and August.” This was accepted, and filled in part by the delivery of carload lots of pig iron of the designated brand. The shipments began in August, and from the correspondence between the parties, it is quite apparent that the time of delivery of the subsequent shipments corresponded with the orders given by the defendant company. The market price of that grade of pig iron decreased from the date when the order was given, until the December following when the defendant conceled its order, and later the plaintiff sold in open market, at the rate of 113.00 per ton, the balance of the undelivered iron, which aggregated seventy-two tons.

This action was brought to recover the difference between the contract and market price, and the sole defense was that the contract was severable and not entire. The rule of the law, as laid down in Shinn v. Bodine, 60 Pa. 182, and followed in many later cases, is that the entirety of the contract depends upon the intention of the parties and not on the divisibility of the subject. The several nature of the latter may often assist in determining the intention, but will not overcome the intent to make an entire contract when that is shown; nor will the mode of measuring the price, as by the bushel, ton or pound, change the effect of the agreement, even in entire contracts, from agreeing to partial payments, pending the full performance, and that is what was done in this case: Easton v. Jones, 193 Pa. 149; Poland Ice Co. v. Connor, 24 Superior Ct. 493; Barnett v. Becker, 25 Superior Ct. 22.

A member of the plaintiff company testified that they manufactured the pig iron and that it was ready for shipment during July and the following months, until the contract was canceled. The reason for the change of the date when the material was delivered and the sufficiency of that proof raised questions of fact which could only be settled by the jury a.nd they were fully and fairly left to that tribunal. The defendant’s first and second points were fully covered in the general charge, and were properly refused, and we see nothing in the record to warrant another trial.

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


text:
    Backenstoe v. Kline, Appellant.

      Insurance — Mutual insurance companies — Receiver—Appointment of receiver — Collateral attack — Act of June 23, 1885, P. L. 137.
    The appointment of a receiver of a mutual insurance company by the court of common pleas of Dauphin county under the Act of June 23, 1885, P. L. 137, cannot be attacked in a suit brought by a receiver against a policy holder to recover assessments; nor in such a case can the amount of the assessments as levied by the court be attacked by the defendant.
    A receiver of a mutual insurance company appointed by the common pleas of Dauphin county, may bring an action in his own name to recover assessments levied by the court.
    A canceled policy of a mutual insurance company is the same as an expired policy, and is liable to pay its share of losses up to the date of cancellation.
    Argued April 19, 1906.
    Appeal, No. 5, March T., 1906, by defendant, from judgment of C. P. Union Co., March T., 1903, No. 3, on verdict for plaintiff in case of C. Hershey Backenstoe, Receiver of the Susquehanna Mutual Fire Insurance Company of Harrisburg, v. Reuben Kline.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Assumpsit to recover assessments on a policy of mutual fire insurance. Before McClure, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $382.85. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      Andrew A. Leiser, with him Andrew A. Leiser, Jr., for appellant.
    — These proceedings are not according to the course of the common law. All the facts necessary to support such jurisdiction in any particular case must appear of record, otherwise the proceedings are not merely voidable but absolutely void, and maybe impeached collaterally : Camp v. Wood, 10 Watts, 118 ; Thatcher v. Powell, 6 Wheat. 119 ; Torrance v. Torrance, 53 Pa. 505-512 ; Grier’s Appeal, 101 Pa. 412 ; Smith v. Wildman, 178 Pa. 245 ; Wall v. Wall, 23 W. N. C. 237.
    The suit brought in the receiver’s name is irregular: Yeager v. Wallace, 44 Pa. 294; Wisener v. Myers, 3 Pa. Dist. Rep. 687; Singerly v. Fox, 75 Pa. 112; Schimpf v. Ins. Co., 86 Pa. 373.
    Defendant’s motion for compulsory nonsuit should have prevailed, and it was error to direct a verdict for plaintiff: Susq. Mut. F. Ins. Co. v. Gackenbach, 115 Pa. 492 ; Columbia Ins. Co. v. Masonheimer, 76 Pa. 138-141; Matten v. Lichtenwalner, 6 Pa. Superior Ct. 575-579 ; Backenstoe, Receiver, v. Morgan, 12 Pa. Dist. Rep. 267-272.
    The assessment in this case is excessive and illegal: Buckley v. Ins. Co., 83 Pa. 298 ; Ins. Co. v. Hartshorne, 90 Pa. 465; Hoffman v. Whelan, 160 Pa. 94; Susq. Mut. F. Ins. Co. v. Gackenbach, 115 Pa. 492 ; Rosenberger Light Co. v. Ins. Co., 87 Pa. 207 ; Ins. Co. v. Gackenbach, 115 Pa. 492-500; Ins. Co. v. Dryfoos, 20 W. N. C. 33-36 ; Ins. Co., Kramer, Receiver, v. Boggs, 5 Pa. Superior Ct. 394-403 ; Buckley v. Ins. Co., 92 Pa. 501-503 ; 20 Am. & Eng. Ency. Law, 121.

      Harry S. Knight, for appellee.
    — A collateral attack upon the decree of the Dauphin county court in appointing a receiver of mutual fire insurance companies, and levying an assessment, cannot be made : Schofield v. Lafferty, 17 Pa. Superior Ct. 8 ; Fire Ins. Co. v. Boggs, 172 Pa. 91.
    The suit was regularly and properly instituted in the name of “ C. Hershey Backenstoe, receiver of the Susquehanna Mutual Fire Insurance Company of Harrisburg, Pa.”
    The indorsement “ anticipated canceled ” on the policy, and the receipt “ in full settlement of all liability,” pinned fast to the application, did not constitute a complete defense, and therefore defendant’s motion for a compulsory nonsuit should not have prevailed : Snader v. Bomberger, 21 Pa. Superior Ct. 629 ; Stockley v. Schwerdfeger, 19 Pa. Superior Ct. 289 ; Matten v. Lichtenwalner, 6 Pa. Superior Ct. 575; Stockley v. Riebenack, 12 Pa. Superior Ct. 169 ; Schofield v. Leach, 15 Pa. Superior Ct. 354; Brown v. Spackman, 29 Pa. Superior Ct. 638.
    The assessment in suit was levied by the decree of the Dauphin county court, and the calculation in the plaintiff’s statement made in exact accordance with said decree, and this decree is conclusive as to validity and amount: Schofield v. Leach, 15 Pa. Superior Ct. 354 ; Stockley v. Riebenack, 12 Pa. Superior Ct. 169; Stockley v. Hartley Bros., 12 Pa. Superior Ct. 628.
    June 30, 1906 :
   Opinion by

Morrison, J.,

The Susquehanna Mutual Fire Insurance Company of Harrisburg, Pa., was chartered April 26, 1873, by a decree of the court of common pleas of Dauphin county, to have and enjoy all the rights, powers and privileges, and be subject to the limitations and restrictions prescribed by the Act of April 2,1856, P. L. 211, with its supplements, the business of said corporation to be conducted on the mutual plan.

On November 13, 1893, the company issued a policy to the defendant, insuring his dwelling house in the sum of $2,000, and by the provisions of the act of 1856, sec. 11, it is provided that, “ all persons insuring with, and continuing to be insured therein, shall thereby become members during the period they shall remain so insured, and no longer, and shall pay such rates as shall be determined by the board of directors, and be liable for all losses and expenses of said company, to the amount of the premiums paid, or agreed to be paid, by said members respectively.”

On October 18, 1897, the defendant having paid all assessments then due, paid an estimated assessment of $42.00 in full settlement of all liability under his policy and surrendered it to the company, and it was indorsed “ canceled,” and there is no question but the attempt was made to release the defendant from all future assessments. The present action is brought to recover from the defendant an assessment made in pursuance of a decree of the common pleas of Dauphin county, for the purpose of paying his share of the losses of the insolvent defendant company which occurred prior to October 18, 1897. The court below directed a verdict in favor of the plaintiff, and judgment Being entered thereon the defendant appealed.

We find in the record seventeen assignments of error, but the presentation of the questions involved, by the learned ■counsel for the appellant, will relieve us from discussing these assignments severally. These questions as presented by the counsel are as follows :

1. “ The jurisdiction of the Dauphin county common pleas in this proceeding as touching the validity of the receiver’s appointment.”

2. “ The authority of the receiver to sue in his own name.”

3. “ The error of the court in giving binding instructions to the jury to find for the plaintiff.”

4. “ The excessive assessment levied by the receiver and the amount for which the defendant was liable, if at all.”

The first question involves the consideration of a point which we think has been several times adjudicated. By the Act of June 23, 1885, P. L. 137, the common pleas of Dauphin county is clearly empowered to “ direct the officers of said company to assess and collect from the policy holders thereof a sum sufficient to satisfy said judgment and execution, and all other claims against said company, or to make any other order or orders in the premises as may appear to said court just and necessary.” The act further authorizes the court to decree a dissolution of the company and appoint a receiver.

It appears that the court of common pleas of Dauphin county adjudged the said company to be insolvent and appointed C. Hershey Backenstoe receiver, to take charge of the estate and effects of said company, collect the debts and property due and belonging to it, and do such other acts as he is required to do under the statute made and in such cases provided.

In Schofield v. Lafferty, 17 Pa. Superior Ct. 8, we held that an attack made upon the decree of the court of Dauphin county in a case like this one was a collateral attack, and that it cannot be permitted. See the cases cited in that opinion.

In Fire Insurance Co. v. Boggs, 172 Pa. 91, the Supreme Court held: “ The common pleas of Dauphin county, on the relation of the attorney general, had taken charge of the affairs of this company, appointed a receiver, and authorized him to make a specified assessment. The order was within the jurisdiction of that court, and was conclusive of all prior matters involved in it. It cannot be questioned in any collateral or ancillary proceeding such as the present.” In our opinion these authorities settle the question that the court of common pleas of Dauphin county had jurisdiction and power to appoint the receiver and direct him to proceed in accordance with the decree, and if it were conceded that it was irregular to appoint a receiver without a decree of dissolution of the corporation, that question cannot be raised in this suit, as it would he a collateral attack upon the decree of the Dauphin county court. If that decree is to be attacked it must be done in the court where it was made. In our opinion, the authorities cited in Schofield v. Lafferty clearly show that the appellant has not raised such a jurisdictional question as will avoid the decree of the Dauphin county court in a collateral proceeding.

The next proposition is that the receiver is without power to sue in his own name. The decree of the Dauphin county court, after levying the assessment, provides that the receiver is “ authorized and directed to collect said assessments by suit or suits at law to be instituted before an alderman, justice of the peace or court of record of this commonwealth or elsewhere, and to take all other legal steps for the recovery of the same,” etc. This suit is brought in the name of C. Hershey Backenstoe, receiver of the Susquehanna Mutual Fire Insurance Company of Harrisburg, Pa. Under the decree Backenstoe has authority to institute suits, collect assessments and take any other steps for collection of the same. It does not seem to us that he is suing in his own name, but as receiver of the Susquehanna Mutual Fire Insurance Company. We do not see how the defendant can complain upon this ground, if the form of the action and pleadings are sufficient to bar another suit against him for the same cause of action. It can hardly be seriously contended that if another suit were brought against this defendant for the same cause of action, in the name of the Susquehanna Mutual Fire Insurance Company of Harrisburg, Pa., the present suit and judgment could not be successfully pleaded in bar thereof. To sustain his contention that the suit cannot be maintained in the name of the receiver, counsel for appellant takes the position that a receiver cannot sue in his own name, unless given authority so to do by either order of court or statute, and that no such authority was given in this case. But in our opinion, a fair construction of the order of • court does authorize the receiver, as the officer of the court, to institute suits for the collection of assessments.

The learned counsel cites Yeager v. Wallace, 44 Pa. 294, but that was a case of the appointment of -a receiver of a partnership, who brought an action of trover in his own name against a person who had converted assets of the firm before his appointment. It was held that he must sue in the name of the firm in whom was the legal right of action. We do not consider that case as ruling the present question. We do not think the defendant can be harmed by sustaining the present suit as it is brought.

The next question is the alleged error of the court in giving binding instructions to the jury to find for the plaintiff. The appellant contends that he was released by the payment of his estimated share of the company’s liabilities and by the cancellation of the policy. This action is to recover the defendant’s pro rata share of the losses which occurred from the date of his policy to the date of the alleged cancellation, less what he had already paid, and there is no attempt to collect for losses occurring after the date of the alleged cancellation.

The defendant, a member of a mutual insurance company, is liable for all losses incurred prior to his withdrawal from the company, or the cancellation of his policy. If a receiver of the company is authorized by the court to make assessments, the amount of the assessments and the necessity for making them are conclusively fixed by the decree of the court: Stockley v. Schwerdfeger, 19 Pa. Superior Ct. 289.

In Snader v. Bomberger, 21 Pa. Superior Ct. 629, we held: “ The order for the assessment being within the jurisdiction of the court was conclusive both as to the necessity for and the amount of the assessment and cannot be questioned in either respect in any collateral or ancillary proceeding such as the present. It must be accepted as settled that all policies which were in force during the period of time fixed by the order of the court are to be assessed in accordance with the terms of that order.”

The defendant interposed no valid defenses which were personal to himself, such as that he was never a member of the company, or that he had paid his full share of the losses occurring while he was a member of the company to any person aufchorized to receive the same and release him from further obligation. A canceled policy is the same as an expired policy and is liable to pay its share of losses up to the date of cancellation : Stockley v. Schwerdfeger, supra; Matten v. Lichtenwalner, 6 Pa. Superior Ct. 575; Stockley v. Riebenack, 12 Pa. Superior Ct. 169; Schofield v. Leach, 15 Pa. Superior Ct. 354. See also Brown v. Spackman, 29 Pa. Superior Ct. 638.

As to the fourth and last proposition, the excessive assessment levied by the receiver and the amount for which the defendant was liable, if at all, it is disposed of by the authorities already cited and many others. “ If there is anything clearly and definitely settled by our late cases, following those of the Supreme Court, it is that assessments levied by the court, after the appointment of a receiver of a mutual insurance company, are conclusive, both as to their necessity and amount, and cannot be questioned in either respect in a collateral proceeding to recover same from a policy holder whose duty it is to pay to the company the proportionate share of losses incurred up to the time of his withdrawal: “ Savings and Trust Co. v. Kleber, 29 Pa. Superior Ct. 200.

We have examined with some care the case of Akers, Receiver, v. Hite et al., 94 Pa. 394, cited and relied on by the appellant, but that case was decided upon facts found by a special verdict and we do not consider it as in conflict with many later cases, some of which we have cited and which we think clearly control the present case.

We think it clearly appears in this case that the receiver was appointed by a court having jurisdiction of the parties and the subject-matter, and that the decree is conclusive of all prior matters involved therein; that the receiver was authorized to institute this suit; that the defendant was a member of the plaintiff company ; that he was liable for his pro rata share of the losses occurring from the date of the policy to the date of cancellation; that the amount of defendant’s liability was ascertained by decree of the court appointing the receiver, and deducting the amount previously paid by defendant, the judgment represents the balance for which he was liable ; that there was no legal and valid defense made to the plaintiff’s claim ; that there were no disputed facts resting upon oral testimony to send the case to the jury, and that the assessment was legally made by order of court in accordance with the by-laws of the company, and the calculation made by the receiver was in harmony with the decree of the court.

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