text:
    Eisenhower v. Shank.

      Judgment — Attorney’s commissions — Execution.
    A prior execution creditor cannot object to an attorney’s commissions on a confessed judgment held by a senior execution creditor where it appears that the attorney for the senior creditor performed substantial duties in the protection of his client’s interest, and this is so even if no execution was issued upon the senior creditor’s judgment.
    Argued March 13, 1906.
    Appeal, No. 10, March T., 1905, by J. O. Clepper, from order of C. P. Cumberland Co., Sept. T., 1901, No. 142, sustaining exceptions to distribution of proceeds of sheriff’s sale.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Reversed.
    Exceptions to distribution of proceeds of sheriff’s sale.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      E. M. Biddle, Jr., for appellant.
    — It is respectfully submitted that the court below erred in holding, in effect, that the collection fee now generally provided for in judgment notes, cannot be recovered where the sale of the defendant’s land was had on an execution based on another judgment, even if the creditor had in good faith employed an attorney to make the collection, whose efforts contributed to that collection : Imler v. Imler, 94 Pa. 372; Iron Co. v. Morton, 148 Pa. 72 ; Hogan’s Assigned Estate, 182 Pa. 500; Zentmyer’s App., 3 Penny. 224 ; Lewis v. Germania Savings Bank, 96 Pa. 86 ; Bank v. Thomas, 10 Am. Bankcy. Rep. 299; Zug v. Searight, 150 Pa. 506.
    No appearance nor paper-book for appellee.
    April 23, 1906:
   Opinion by

Morrison, J.,

This is an appeal by James O. Clepper, a judgment lien creditor of John C. Shank, from the decree of the court of common pleas sustaining exceptions, filed by the Mt. Holly Milling and Lumber Company, appellee, a subsequent lien creditor, to the sheriff’s appropriation of the proceeds of the sale of the real estate of the said John C. Shank, on a fi. fa. issued on the judgment of another lien creditor.

The appellant had a judgment lien against the real estate of John C. Shank for $400 with 5% collection fees, etc., due and payable on April 1, 1902. This judgment was a first lien against the real estate of the defendant therein. It was entered on July 16, 1901, on a promissory note, with warrant of attorney confessing judgment, which contained the following: “ And with 5f0 collection fees, if not paid at maturity.”

The appellee’s judgment upon which the defendant’s real estate was sold by the sheriff was not entered till March 16, 1905, and a fi. fa. was issued thereon to No. 12, May Term, 1905, and the defendant’s real estate sold thereon for the sum óf $635, which the sheriff appropriated as follows :

Costs on writ and appropriation......$ 35.03

Clepper judgment, including costs and $20.00

collection fee............ 323.85

School and borough taxes 1902-3-4 ..... 18.42

L. S. Eisenhower judgment, with costs and

collection fees........... 246.98

Mt. Holly Milling Co. costs and acc’t. judgment. 10.72

Total ” $635.00

On May 15, 1905, the Mt. Holly Milling and Lumber Co. filed exceptions to the allowance of §18.42 taxes and §20.00 collection fee on Clepper judgment as not proper claims upon the funds. May 19, 1905, counsel for the appellant and appellee agreed upon the following facts, to be filed of record as if agreed upon in a case stated:

“ The judgment entered to No. 142, September Term, 1901, for use of J. O. Clepper v. John C. Shank, was the first lien against the real estate sold. The note on which said judgment was entered contained a stipulation for a “5 per cent collection fees if not paid at maturity,” and the judgment index gave notice from the time of entry of said judgment that it contained such stipulation for an attorney’s fee of §20.00. No execution was ever issued on said judgment. After the issuance of the fi. fa. on the Eisenhower judgment, but prior to the sale of the real estate thereunder, J. O. Clepper employed counsel to guard his interests under his -said judgment, said counsel being the attorney who entered his judgment, and whose name appeared of record as his attorney. That said Clepper was advised by counsel, after an examination of the record, that his judgment would be divested by a sale on the Eisenhower execution, and that it would be entitled to be first paid out of the proceeds after payment of costs of sale. That in pursuance of his employment Clepper’s counsel attended the sheriff’s sale, and, having first ascertained the probable costs from the deputy sheriff, bid the property up to a figure sufficient to pay the costs of sale and the amount due on the Clepper judgment, including the attorney’s fee claimed, of §20.00. That after the sale he claimed from the sheriff the amount due on the Clepper judgment, including said attorney’s fee, and costs, having notified the deputy sheriff who conducted the sale, prior thereto, of his intention to make such claim.”

May 26, 1905, judgment of the court sustaining exception to allowance of fee for collection of Clepper judgment and distribution ordered in accordance therewith. From this decision of the court, J. O. Clepper appealed.

To sustain the disallowance of the attorney’s commission the learned court found as a fact that, “No attempt was made to collect this judgment from the defendant by the attorney for the use plaintiff, nor even any demand for the payment thereof.” The court’s second conclusion of law is : “ The attorney’s commissions are not payable out of the fund for distribution, taxed on judgment No. 142, September Term, 1901.” ' We are all of the opinion that the learned court erred in the finding of fact above quoted and in the second conclusion of law, also quoted. It is a fact, appearing of record, that the Clepper judgment was long past due and that only the sum of $100 and interest had been paid thereon. It is not alleged that the defendant in that judgment ever paid or offered to pay the balance due thereon. It is an agreed fact that after the fi. fa. issued on the Eisenhower judgment, and the real estate of Shank was about to be sold by the sheriff, Clepper employed counsel to guard his interests under his judgment; that said counsel’s name appeared of record as Clepper’s attorney; that Clepper was advised by the counsel, after an examination of the record, that his judgment would be divested by a sale of .the Eisenhower execution, and that it would be entitled to be first paid out of the proceeds, after the payment of the costs of sale ; that in pursuance of his employment, the attorney attended the sheriff’s sale and, having first ascertained the probable costs from the deputy sheriff, bid the property up to a figure sufficient to pay the costs of sale and the amount due on the Clepper judgment, including the attorney’s fee of $20,00.

In view of the fact that the defendant was permitting his real estate to be sold by the sheriff, it became necessary for Clepper to have his rights guarded by having the property sold for a sufficient sum to pay the costs of sale and his judgment, and also the taxes, if they were a lien ahead of his judgment. To accomplish this would require either the personal attention of Clepper and the responsibility of bidding up the property, or else the attention of an attorney, and it cannot be contended, successfully, that Clepper was not entitled to the services of an attorney to attend the sale and take such action as would secure his money. Upon these conceded facts we think the learned court erred in finding that no attempt was made to collect the Clepper judgment. It is true that no execution was issued on that judgment, but this inured to the benefit of the defendant and to all of the subsequent lien creditors, as it saved costs, and there was no justifiable reason for issuing an execution on that judgment. We are unable to see why the attorney for Clepper did not use sound judgment and discretion in his efforts to protect his client’s interests. ' While the allowance of attorney’s commissions and the amount thereof, is always subject to the equitable control ‘of the court, there is no rule of law prohibiting the allowance of reasonable commissions on a judgment, under the circumstances in this case, because no execution was issued, and because it does not appear that any person demanded payment of the defendant. Where a judgment is long past due and the defendant is being sold out by subsequent judgment creditors, and he makes no offer to pay the prior judgment, it is not the law that no collection fee can be allowed because of the want of a demand made upon the defendant for payment after his property is in the hands of the sheriff.

The learned court below cites a number of cases in support of his disallowance of the collection fee, to wit: Johnson v. Marsh, 21 W. N. C. 570 ; Daly v. Maitland, 88 Pa. 384; Imler v. Imler, 94 Pa. 372; Moore’s Appeal, 110 Pa. 433; Lindley v. Ross, 137 Pa. 629; Steigerwald v. Brewing Co., 21 Pa. Superior Ct. 540, and National Saving Fund & Bldg. Assn. v. Waters, 141 Pa. 498. We have examined these cases with some care and, under the circumstances of the present case, we do not consider that they sustain the conclusion reached by the court'below. Johnson v. Marsh is authority only that a demand for payment is a prerequisite to the entry of judgment and collection of attorney’s commission, on the peculiar facts in that case. It was there found by the court below that the plaintiff agreed that he wanted the judgments simply for security, and that executions should not issue for their collection until the happening of a contingency contemplated by the parties. Upon this state of facts it is of course apparent that it would be unjust and inequitable to permit the collection of large attorney’s commission, without a demand for payment. We find nothing in any of the other cases cited by the court, not in harmony with the allowance of reasonable attorney’s commission in the present case.

The doctrine of Imler v. Imler, as we understand it, sustains the position of the appellant. In that case Mr. Justice Paxson said: “ Where, however, an attorney has been employed in good faith by reason of the neglect or refusal of a defendant to pay, the fact that the money has been paid, to the attorney without execution, does not relieve the defendant from his agreement to pay reasonable attorney’s commissions, for the reason that the creditor’s liability to the attorney has attached. The contract is one of indemnity, and if the defendant, by his neglect or refusal to pay, has subjected his creditor to the necessity of employing counsel, why should he not pay ? The attorney deducts his commissions even where no execution or other legal process is issued, and if the defendant cannot be made to pay, the creditor has no indemnity, and the clause means nothing.”

In Warwick Iron Co. v. Morton, 148 Pa. 72, it is held as stated in the syllabus: “ A preliminary demand for payment is not necessary to entitle the plaintiff in a sci. fa. sur mortgage to recover the attorney’s fee for collection provided in the mortgage, nor is it any defense to the payment of such commissions that the amount of the debt was paid to the attorney without his' proceeding to execution.” See also Lewis v. Germania Savings Bank, 96 Pa. 86. We might refer to many other cases, but it is unnecessary to lengthen this opinion with additional citations.

In the present case the $20.00 commission was a part of the judgment and we think the plaintiff was fully warranted in employing an attorney to protect his interests, and that he is entitled to a reasonable amount of the commission to indemnify him against the expenses to which he was necessarily subjected in .securing the amount due upon his judgment. We note that $100 was voluntarily paid by the defendant on the judgment and it was accepted by the plaintiff probably before the services of the attorney were rendered in securing the balance of the judgment. But in view of the circumstances of this case, and the fact that the appellant has been compelled to come to this court in order to receive any allowance for his expenses in employing the attorney, we are not disposed to hold that the allowance of the $20.00 commission in question is inequitable.

The order of the court disallowing the attorney’s commission to the plaintiff is reversed, and it is now ordered that distribution be made by- allowing to Clepper, appellant, $20.00 attorney’s commission, in addition to the debt, interest and costs awarded to him by the order of the court below, and that distribution to the other creditors be modified accordingly. And it is further ordered that the Mt. Holly Milling and Lumber Company, appellee, pay the costs of. this appeal.


source: Caselaw Access Project

author: Pontee, J.,

license: Public Domain

text:
    Smith, Appellant, v. West Branch Mutual Fire Insurance Company.

      Insurance — Fire insurance — Additional insurance — Notice—Waiver.
    A provision in a policy of fire insurance that additional insurance will void the policy unless assented to by the company by indorsement on the policy, is not waived by evidence, that the insured several months after the policy had been delivered to him procured additional insurance, and thereafter informed the local agent of the company of this fact in a casual conversation on the street, but made no effort to secure an indorsement on the policy either from the company or the local agent, although the latter had power to make the indorsement.
    Argued March 8, 1906.
    Appeal, No. 2, March T., 1906, by plaintiff, from judgment of C. P. Lycoming Co., June T., 1904, No. 35, on verdict for defendant non obstante veredicto in case of Luke O. Smith v. The West Branch Mutual Fire Insurance Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Hart, P. J.
    The opinion of the Superior Court states the-facts.

      Error assigned was in entering judgment for defendant non obstante veredicto.
    W. E. Ritter, for appellant.
    — The company had sufficient notice of the additional insurance: Brumbaugh v. Ins. Co., 20 Pa. Superior Ct. 144; Kalmutz v. Ins. Co., 186 Pa. 571; Bowman v. Mut. Fire Ins. Co., 203 Pa. 150; Mentz v. Ins. Co., 79 Pa. 475.
    The policy permits the agent to waive its provision as to additional insurance. Michael was the agent named on the policy by the secretary, and the policy only provides for one class of agents : Wachter v. Assurance Co., 132 Pa. 428; Mentz v. Ins. Co., 79 Pa. 475; Light v. Fire Ins. Co., 169 Pa. 310; Highlands v. Ins. Co., 177 Pa. 566; Fees v. Shadel, 20 Pa. Superior Ct. 193; Phila. v. Lockhardt, 73 Pa. 217; Imperial Fire Ins. Co. v. Dunham, 117 Pa. 460; Minnock v. Fire & Marine Ins. Co., 51 N. W. Repr. 367; Phœnix Ins. Co. v. Copeland, 90 Ala. 386 (8 So. Repr. 48) ; Gristock v. Royal Ins. Co., 84 Mich. 161 (47 N. W. Repr. 549); Gristock v. Royal Ins. Co., 87 Mich. 428 (49 N. W. Repr. 634).
    There' was a waiver of the forfeiture: Brumbaugh v. Fire Ins. Co., 20 Pa. Superoir Ct. 144; Kalmutz v. Ins. Co., 186 Pa. 571; Mentz v. Ins. Co., 79 Pa. 475; Sitler v. Fire Ins. Co., 18 Pa. Superior Ct. 148; Wilson v. Ins. Co., 174 Pa. 554.

      Frank P. Qummings, with him O. 6r. Voris, for appellee,
    cited: Mitchell v. Lycoming Mut. Fire Ins. Co., 51 Pa. 402.
    An agent of an insurance company whose duty it is to take surveys, receive applications for insurance, examine the circumstances of the loss, approve assignments and receive assessments is not authorized to accept notice of overinsurance or waive its consequences: Mitchell v. Lycoming Mut. Fire Ins. Co., 51 Pa. 402; Susquehanna Mut. Fire Ins. Co. v. Swank, 102 Pa. 17; Hook v. Mut. Ins. Co., 160 Pa. 229; Commonwealth Mut. Fire Ins. Co., v. Huntzinger, 98 Pa. 42; Marshall v. Ins. Co. of North America, 10 Pa. C. C. Rep. 87; O’Neil v. Ins. Co., 3 Pa. Dist. Rep. 778.
    The alleged conversations between the plaintiff and the agent Michael, in which the plaintiff claims to have given him notice of other insurance, occurred at a chance meeting on the streets of Hughesville, Pa., when Michael was not performing any duties as agent of the defendant company, or with respect to the policy held by Smith. The plaintiff therefore in giving .the alleged notice, in this manner, made Michael his agent to communicate the same to the defendant company, who could then receive and act upon the notice. If Michael failed in performing this duty for the plaintiff the company could not be bound: Monk v. Penn Twp. Mut. Fire Ins. Assn., 27 Pa. Superior Ct. 449; Sitler v. Spring Garden Mut. Fire Ins. Co., 18 Pa. Superior Ct. 139; Kalmutz v. Ins. Co., 186 Pa. 571; Mentz v. Fire Ins. Co., 79 Pa. 475; McFarland v. Ins. Co., 134 Pa. 590.
    April 23, 1906:
   Opinion by

Pontee, J.,

The plaintiff applied for insurance upon his dwelling house, pump-house, household furniture and wearing apparel, situated upon his farm in Penn township, Lycoming county, to E. W. Michael,‘agent of the defendant company residing at Hughesville, who made an examination of the premises, received the application, premium and premium note, and forwarded the same to the home office of the defendant company. The company executed a policy dated May 4,1903, insuring the dwelling house in the sum of $800, the pump house in the sum of $50.00, the household furniture in the sum of $200, and the wearing apparel in the sum of $50.00. The defendant company mailed this policy directly to the plaintiff, who received and has since retained it. The policy contained the following covenant:' “ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.” ' There was, at the time the policy issued, no other insurance upon the property, and the contract was valid at the time it was executed. The plaintiff on October 8,1903, procured three additional policies of insurance on the same property, one in the Citizens’ Insurance Company, another in the German Fire Insurance Company and the third in the Lumberman’s & Merchants’ Insurance Company, aggregating $1,600 on the dwelling house, $400 on furniture and wearing apparel, and $75.00 on the pump house, through the agency of a Mr. Kuester, at Williamsport. No agreement relating to this additional insurance was indorsed upon or added to the policy of the defendant company, as required by the covenant above recited. The property insured was totally destroyed by fire on November 16,1903. The plaintiff brought this action upon the policy and there was a verdict in his favor for $793.45, the court reserving the question of law, “ whether there is any evidence in this case on which the plaintiff is entitled to recover.” The court entered judgment in favor of the defendant non obstante veredicto and the plaintiff appeals.

It was conceded upon the trial in the court below that the taking out of the additional insurance by the plaintiff, five months after the execution of the policy of the defendant company, rendered this policy void, unless the company had waived the provisions of the covenant above recited, or was, by facts established by the evidence, estopped to assert that covenant. The question, therefore, is “Was there any evidence that the company had waived the provisions of the policy, or of facts which would estop the company from asserting its covenants ?

It was a fundamental condition of the contract that the taking out of additional insurance rendered the policy void, but incorporated in the terms of this condition was the provision that by an agreement indorsed upon the policyit might be confirmed and continued, concurrently with the insurance after-wards obtained. This regulation was a reasonable and proper one, for otherwise the company would be obliged to insure parties without any knowledge of the amount of insurance carried upon the property. The failure of the plaintiff to have the additional insurance noted upon the policy was not a mere formal defect, but a breach of a substantial condition of the insurance,, and must be fatal to his claim unless there is something else in the case to avert such a result. The appellant attempted to show that the defendant company had waived this condition of the policy, or was estopped to assert it. The plaintiff testified that upon his return from Williamsport, upon the day he took out the additional insurance, he met E. W. Michael, who as agent of the defendant company had taken his application for this policy and transmitted it the company, upon the street in Hughesville, and thus narrates what then occurred: “ I walked up street with him and I told him I had taken out additional insurance with another man in Williamsport to-day. He slapped me on the shoulder and he says, ‘ I am glad of it.’ He says, ‘ Mr. Smith, if you happen to meet with a loss you will see which one has the most red tape in settling. I know our company is all right, mostly farmers.’ He seemed to be well pleased that I had taken out the additional insurance.” This was the only evidence which afforded any suggestion of a foundation for the allegation of the plaintiff that the defendant company had waived the provisions of the contract or was es-topped to assert them,. The plaintiff did testify that he had had a former conversation with Michael, the agent, in which the plaintiff expressed a desire to have the amount of insurance increased by the defendant company, but there is not a scintilla of evidence that he had notified either Michael or the company of his intention to procure insurance in another company.

Ought the question of the liability of the defendant to have been submitted to the jury upon the evidence presented ? This policy had been in force several months at the time the additional insurance was taken, and the case is altogether different from those in which an insurance company, or its agent duly authorized to accept risks, issues a policy and accepts payment of a premium with notice and knowledge that the building is already covered by other insurance. The question presented is entirely different from that of an alleged waiver by the president, secretary or other executive officer of an insurance company, notice to whom is notice to the company itself : Wilson v. Insurance Company, 174 Pa. 554; Bowman v. Mutual Fire Insurance Company, 203 Pa. 150; Brumbaugh v. Fire Insurance Company, 20 Pa. Superior Ct. 144. When an insurance company is, under the provisions of the policy, discharged from liability, responsibility for the loss will not reattach by waiver without proof of authority in the party whose act of waiver is relied upon : Mentz v. Lancaster Fire Insurance Company, 79 Pa. 475; Imperial Fire Insurance Company v. Dunham, 117 Pa. 460; Gould v. Insurance Company, 134 Pa. 570; McFarland v. Insurance Company, 134 Pa. 590. The policy in question was issued by a mutual company in the mutual form, and by the express covenants of the agreement the plaintiff became a member of the company and was bound to inform himself of its rules and regulations: Mitchell v. Lycoming Mutual Fire Insurance Company, 51 Pa. 402. Among the bylaws of the company indorsed on the policy was one defining the powers of agents of the company, and limiting such powers to the taking of applications, receiving membership fees, and collecting assessments. This by-law, however, is to be construed in connection with the last clause of the policy, the eL feet of which is to give to agents the power to write upon, or attach to the policy an agreement providing for additional insurance. The power of the agent Michael, as to this particular.. clause of the contract, was the same as that possessed by the general agent of an insurance company. The power to enter into the written agreement indorsed upon the policy did not, however, clothe the agent with power to waive an express condition of the policy : Mentz v. Lancaster Fire Insurance Company, 79 Pa. 475; Worcester Bank v. Hartford Fire Insurance Co., 65 Mass. 265. Had the agent, Michael, while the policy was in his possession, represented to the appellant that the indorsement of the additional insurance had been entered upon the policy as required by the contract of insurance, such a declaration wpuld operate as an estoppel: Mentz v. Fire Insurance Company, 79 Pa. 475; Gould v. Insurance Company, 134 Pa. 570; Wachter v. Assurance Co., 132 Pa. 428; Light v. Mutual Fire Insurance Company, 169 Pa. 310 ; Highlands v. Fire Insurance Company, 177 Pa. 566. There was in this case no evidence that the local agent had made any representation to the insured that anything had been done with regard to the policy, or that he had made any declaration which could have led the appellant to believe that the covenant of the contract had been complied with. The policy had been in possession of the plaintiff for months at the time he took out the additional insurance, and it has ever since remained in his possession. He is presumed to have known the covenants of his contract and that under those covenants he was required to have the consent of the company to the additional insurance. He might have applied directly to the company and obtained the consent of its executive officers, or he might under the provisions of his policy have presented that policy to Michael, the local agent, for the purpose of having the consent of the company indorsed upon the policy as provided for in the contract. Had he so presented the policy to either the company or the local agent, it would have then been incumbent upon .them to either approve of the additional insurance or refuse to do so. The appellant never even notified the company of the additional insurance, nor did he ever give the local agent an opportunity to approve of such additional insurance in the only way in which, under the provisions of his contract, that agent had power to act for his principal. The power of the local agent to indorse the additional insurancó ' upon the policy was not exclusive, and there was upon him no duty to instruct the appellant as to the covenants of the policy which was then in the possession of the latter. The plaintiff had no right to assume that the chance conversation, upon the street with the local agent was equivalent to the deliberate consent of the defendant company to remain bound, as contemplated by the policy : Monk v. Penn Township Mutual Fire Insurance Association, 27 Pa. Superior Ct. 449. There was no evidence that the company had waived this provision of the contract, nor of any act or declaration upon the part of anyone authorized to bind the company which could have so misled the appellant as to constitute an estoppel.

The judgment is affirmed.


author: Hendekson, J.,

text:
    Diffenbacher’s Estate.

      Promissory notes — Collateral seeurity — Pledge.
    The liability of the obligors on a judgment note is not changed by tíre fact that personal property is subsequently pledged to secure the payment of the note. The payee may prosecute his claim for the recovery of his debt and at the same time maintain his lien on the pledge.
    Where one subscribes his name in the proper place at the bottom of a note his rights and liabilities are determined by the position in which his name appears on the instrument. Knowledge by the holder for value that the defendant is an accommodation maker does not give the latter the rights of a surety or change his liability from what it would be as a maker for value.
    Argued March 13, 1906.
    Appeal, No. 22, March T., 1906, by American Tract Society, from decree of O. C. Cumberland Co., sustaining exceptions to report of auditor in estate of Calvin O. Diffenbacher, deceased.
    Before Rice, P. J.,.Pouter, Henderson, Morrison, Ordady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of Géorge M. Hays, Esq., auditor.
    Sadder,- P. J., filed the following opinion:
    Charles W. Minnich purchased an engine in the year 1903 from the J. J. Case Company for the sum of $1,125. A judgment note was given for the same by the said parties, which matured September 1, 1903, and which, with interest to that date, amounted to $1,135.13. This sum was paid to the First National Bank of Mechanicsburg on September 21, 1903 — Air. Reeser paying his half of the note, apparently with his own funds, while the share of Charles W. Alinnich was provided for by the latter making a loan of $562.50 from his father, and to secure the same, a promissory note was given for that amount payable to the order of Emanuel B. Alinnich, and signed by Charles W. Alinnich and Calvin O. Diffenbacher, and payable one day after date. The following being a copy of the said note:
    “$562.50 September 21, 1903.
    “ One day after date Charles W. Minnich promise to pay to the order of Emanuel B. Alinnich, five hundred sixty-two and fifty one hundredth dollars, without defalcation, value received, with interest at four per cent per annum. •
    “ And further we do hereby empower any attorney of any court of record to appear for we and with or without declaration filed, confess judgment against we for the above sum, with costs of suit, release of errors and without stay of execution, and with five per cent added as part of the judgment for attorney’s fees for collection said fees to be liquidated damages, and become due and payable immediately after maturity of the note without demand of the debt proper, which is hereby waived. And we hereby waive the right of inquisition and extension, and agree to the condemnation of any real estate levied on by virtue of any writ of execution issued hereon, and agree to the sale of said real estate on fi. fa., and we hereby waive the benefit of the exemption laws of the commonwealth on any levy on real or personal property made by virtue of any execution hereon, and no benefit of exemption or stay law shall be claimed.
    “ Witness, Chas. W. Mlinnich [Seal].
    “ L. G. Firestine. Calvin O. Dieeenbacher [Seal].”
    It will be observed that Calvin O. Diffenbacher executed the note as one of the makers. “ His rights and liabilities were fixed by the position in which his name appeared on the note,” given to secure the loan made from Emanuel B. Alinnich: Delaware County Trust, etc., Co. v. Haser, 199 Pa. 17.

      To the offer of the note, made before the auditor to establish the claim of the holder, objection was made that it had been altered materially. The alterations complained of were the substitution of the word “ we ” for the letter “ I ” before the name Charles W. Minnich, and also in the power of attorney, attached to the note, providing for the confession of judgment. It does not appear from the testimony whether this alteration was made before Calvin O. Diffenbacher signed it or not.
    The note is a judgment note, under seal, and is therefore not a negotiable instrument, hi the strict sense of that term. The presumption, therefore, is that the change or alteration was made before delivery: Frey v. Wessner, 1 Woodward, 145.
    But was the alteration a material one ? Did it affect or change in any manner the liability or rights of Diffenbacher ? In law the obligation was a joint and several one, and this is so whether the letter “ I ” had been changed to the word “ we ” or not. That the acts of assembly of April 6, 1830, and April 11,1848, obliterated the common-law distinctions in Pennsylvania between instruments joint and those joint and several, in cases like the present, was decided long ago in Miller v. Reed, 27 Pa. 244. In that case, where the note had been signed by two persons, the words “ or either of us ” interpolated in the note after the word “we,” and Justice Woodward in delivering the opinion of the court held, “ That neither the moral nor legal effect of the instrument was changed, and that the alteration was consequently immaterial.”
    In Knisely v. Shenberger, 7 Watts, 193, the obligation sued on commenced with the words, “ I do certify that I will go security, etc.,” and it was signed by both the principal and the surety, and in sustaining a judgment recovered in the court below, in an action against the surety alone, the Supreme Court held, that, “ Such an obligation might be treated as the several obligation of each person who signed it, or the joint obligation of all.”
    Also in Leith v. Bush, et al., 61 Pa. 395, where a bond was drawn in the name of one defendant, “ I, William W. Bush, am held,” etc., signed and sealed by him and four other defendants, it was held to be the joint and several obligation of the five parties, who executed the same.
    Our Superior Court also, in Dodge v. Chessman, 10 Pa. Superior Ct. 604, held, that a promissory note, which stipulated that, “I promise to pay,” etc., but executed by more than one person, might be treated as the several obligation of each person who signed it, or as the joint obligation of all.” In this instance the suit was instituted against both drawers, and the plea was that they should have been sued separately.
    To the same effect are Gardinier v. Sisk, 3 Pa. 326 ; Robertson v. Hay, 91 Pa. 242, and Snively v. Fisher, 21 Pa. Superior Ct. 56.
    Where a note is written, “ I promise to pay,” etc., and there are many promissors, it is the several and joint promise of all: ” Parsons on Bills and Notes, 251.
    The changing of the word “ I ” to “ we ” in a joint note is not material, and recovery may be had on the altered instrument: Eddy v. Bond, 19 Maine, 461.
    The alteration of the word “ we ” to “ I ” in the phrase “ we guarantee ” is not material, and recovery can be had : Kline v. Raymond, 70 Ind. 271.
    The cases of Craighead v. McLoney, 99 Pa. 211, and Nesbitt v. Turner, 155 Pa. 429, cited by the auditor, and apparently relied upon by him as the basis of his determination, were both cases in which the alteration increased the liability of the drawer, in the one ease, and the obligor in the other, and are, therefore, not pertinent, in the present contention. In the first of" said cases the words “ at ” eight per cent interest, without the consent of one of the drawers, and in the other,, in which the action was against the surety, on a cashier’s bond, and the erasure and alteration changed the year from 1871 to 1873; the surety was a married woman in 1871 and became divorced in 1872, and the court left it to the jury to find, whether the obligee ratified or consented to the change in the date, after her discoverture. The finding being in her favor, judgment was entered on the verdict of the jury and affirmed in the Supreme Court.
    The finding by the auditor that, “ In April, 1904, CharlesW. Minnich, then living with his father at East Petersburg, made an .agreement that his interest in the machine should be held by his father as security for the payment of the $562.50 note, the note in controversy, and for any other money that he might owe his father. That Charles W. Minnich had no right to any part of the engine until he had. paid his father, for a one-half interest, which he has never done,” and his fifth conclusion of law, based thereon, to wit: “ Charles W. Minnich having put into his father, Emanuel B. Minnich’s, hands, his one-half interest in said engine as collateral security for the said note, the said Emanuel B. Minnich was bound to account to the pledgor, his son, for the profits he derived from the pledge, the engine, and for the deterioration of the same, and in absence of proof of the definite amount of the profits, and deterioration of the pledge, the pledgee, Emanuel B. Minnich, cannot recover from the pledgor, Charles W. Minnich, or from anyone else, the debt for which the pledge was given,” are not sustainable.
    This finding of fact was not warranted by any testimony which we have been able to discover in his notes, and the legal conclusion based upon the same must therefore fall.
    As before stated Emanuel B. Minnich purchased the interest of Reeser in the engine about September, 1903 ; he, therefore, was a joint owner with his son, and had the same right to the control and possession of it as the latter. When the engine was shipped, Emanuel B. Minnich resided at East Petersburg, Lancaster county, Pennsylvania, the place to where the same was consigned, and one-half of the freight bill was paid by Charles W. Minnich, the other .joint owner (see p. 7, auditor’s notes No. 2) ; the threshing business was manifestly carried on in Lancaster county, during the year 1904, by both C. W. Minnich and his father, E. B. Minnich, (see auditor’s notes No. 2, p. 7).
    The gross amount collected, from the threshing done, was from $200 to $250, and this was received by E. B. Minnich. As a matter of course from this gross income, it is reasonable that there would have to be deducted certain necessary -expenses, so that the net profits received would not exceed or even be sufficient to discharge the obligation of Charles W. Minnich for the boarding he had contracted to pay. He had agreed to pay $4.00 per week from the 1st of April to the first of the year, a period of nine months^ (see p. 9 auditor’s notes No. 2. He still owes his father about $250.
    “ Q. How much is it? A. Oh, it is about $250. Q. The machine is security for that, is it? A. Yes. Q. So that he would have that claim against anyone else who came in after you? A. Yes. Q. Was there anything in writing to that effect? A. No. Q. None? A. No. Q. Are you positive of that? A. Yes. Q. Have you not signed any agreement turning over to him your share in this machine ? A. No. Q. Think? A. No, sir. Q. You never made a statement to that effect in the presence of anyone ? A. No. Q. Was anyone present except you and your father when you made the agreement that the machine was security for what you owed him? A. No. Q. What date did you make that agreement ? A. I don’t know. Q. Think? A. Near April 1, 1904. Q. That was before you owed him the money ? A. No it was not. Q. Didn’t you say you made an agreement of $4.00 a week, when you went there last year, April 10 ? A. Yes. Q. Now you made this agreement April 1 ? A. Yes. Q. Before the debt was incurred, he was to hold that'machine as security for anything you were to owe him? A. Yes. Q. And then he collected everything that came in from the working of the machine and gave you nothing? A. Yes.”
    (See p. 10, testimony C. W. Minnich, notes of auditor No. 2.).
    This was the testimony on which the auditor’s finding must have been mainly based.
    It thus appears that not only was the auditor in error in stating that the engine was held as security for the note of $562.50, but that the only proof given, as to the purpose the machine was held, was that it was for an entirely different item of indebtedness, which the son was obligated to pay the father.
    The authorities, therefore, cited by the auditor, in support of the principle that the profits derived from a pledge, and the deterioration of the same, while in the hands of the pledgee, should be considered in the present inquiry, have no relevancy.
    Exceptions sustained.

      Error assigned was the decree of the court.

      E. M. Biddle, Jr., with him B. M. Henderson, for appellant,
    cited: Thompson v. Patrick, 4 Watts, 414; Stewart v. Bigler’s Assignees, 98 Pa. 80; Krantler v. U. S. Bank, 1 Phila. 213; McManus v. Sweatman, 22 W. N. C. 54; Simes v. Zane, 1 Phila. 501; Nat. Bank v. Baeder Glue Co., 164 Pa. 1; Forrest v. Buchanan, 203 Pa. 454.

      S. B. Sadler, with him C. S. Brinton, for appellee,
    cited: Painter v. Rowley, 1 W. N. C. 116 ; Gerlach v. Cammerer, 2 W. N. C. 67 ; Price v. Glass, 2 W. N. C. 472 ; Smith v. Bunting, 86 Pa. 116 ; Beale v. Bank, 5 Watts, 529 ; Erie Bank v. Smith, Randolph & Co., 3 Brewster, 9; Ginrich v. Hamaker, 5 W. N. C. 488; Craddock v. Armor, 10 Watts, 258; Liebig Mfg. Co. v. Hill, 9 Pa. Superior Ct. 469 ; Bowman v. Kistler, 33 Pa. 106 ; Judd’s Estate, 9 Kulp, 326; Hughes’s Estate, 13 Pa. Superior Ct. 240.
    April 23, 1906 :
   Opinion by

Hendekson, J.,

After a careful examination of the evidence we are of the opinion that the court reached a correct conclusion in regard to the evidence offered in relation to the claim of the appellee. Taking the whole testimony of Charles Minnich into consideration his evidence is to the effect that his interest in the engine was turned over to his father in April, 1904, for a board bill due or to become due. The note on which the appellee made his claim was given September 21, 1903, and the decedent was one of the makers. His solvency does not seem to have been doubted and there was no apparent reason why additional security should have been required. The auditor’s finding on this question was rather an inference than a conclusion based upon evidence and is within the rule stated in Fiscus’s Estate, 13 Pa. Superior Ct. 615; Hindman’s Appeal, 85 Pa. 466; Hawley v. Griffith, 187 Pa. 306, and kindred cases.

The case does not turn, however, upon the question whether Charles Minnich’s interest in the engine was pledged to his father for more than the claim for board or not. If there had been a pledge as security for the note that fact would not defeat the right of the payee to recover. The liability of the obligors on the note was not changed by the fact that personal property was pledged to secure its payment. The contract or pledge, if it existed, was made long’ after the note was given and was entirely distinct from the liability on the note. The existence of the pledge would not deprive the holder of the note of his right of action on the contract, tie is not bound to apply his securities in the first instance. Geddis v. Hawk, 1 Watts, 280. A pledgor cannot offset the pledge against the principal contract unless the pledgee has converted the property. The payee may prosecute his claim for the recovery of Ms debt and at the same time maintain his lien on the pledge : Lord v. Ocean Bank, 20 Pa. 384.

It is further to be observed that in the obligation which the decedent executed he was a joint maker with Charles Minnich and, therefore, primarly liable for the debt. Where one subscribes his name in the proper place at the bottom of a note his rights and liabilities are determined by the position in which his name appears on the instrument. He may be in fact an accommodation maker but he is not thereby relieved from his liability to the payee. He has bound himself directly for a lawful consideration to make the note good. “ An accommodation note is a loan of the credit of the maker to the payee which he may use as' freely and with the same effect as to the maker as he could use a note given for the full consideration.” Penn Safe Deposit & Trust Co. v. Stetson, 175 Pa. 160. Where one signs a note as maker although merely for the accommodation of the payee he thereby obligates himself as a principal and is not permitted to allege subsequently that he was a surety, merely. Knowledge by a plaintiff who is a holder for value that the defendant is an accommodation maker does not give the latter the rights of a surety or change his liability from what it would be as a maker for value : Delaware County Trust, etc., Co. v. Haser, 199 Pa. 17. Diffenbacher’s liability was that of a principal debtor and his estate is chat’geable with the amount due on the note. The rights of his legal representative against his co-obligor can be established in an appropriate proceeding. We need not discuss the question of the liability of the pledgee for depreciation in the value of the pledge. The property was a traction engine. The pledgee had a half interest in it. It was in Ms possession and he had a right to use it. There is no evidence to show that it was improperly used or subjected to any greater depreciation than was natural, taking into consideration the uses for which it was intended. If the joint owner has not accounted for the share of the business to which Charles Minnich was entitled in 1904 he may be called upon to account by the pledgor, but neither the latter nor the estate of the decedent is entitled to a stay of proceedings on the note pending an adjustment of such an account.

The assignments are overruled and the decree is affirmed.


author: Morrison, J.,

text:
    Herrold v. Union Township Poor District, Appellant.

      Judgment — Township poor district — Laches—Striking off judgment.

    Where the overseers of the poor of a township borrow money and give a note therefor, and the money is used for the legitimate purposes of the district, a judgment entered on the note will neither be stricken off nor opened, where it appears that a portion of the judgment was paid, and that no steps were taken by the overseers for three years to contest its validity. Such a judgment is not void, but at the most voidable if steps are taken within a reasonable time to question it.
    Argued March 14, 1906.
    Appeal, No. 21, March T., 1906, by defendant, from order of C. P. Snyder Co., June T., 1902, No. 89, discharging rule to open judgment in case of Catherine Herrold v. The Union Township Poor District.
    Before Rice, P. J., Pobteb, Mobbison, Hendebson, Oblady, Head, and Beayeb, JJ.
    Affirmed.
    Rule to open judgment. Before McClttbe, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      Charles Eoiver, for appellant,
    cited: Wall v. Wall, 123 Pa. 545 ; Blin v. Campbell, 14 Johnson, 432.

      Charles P. Ulrich, with him A. W. Potter, for appellee,
    cited in the question of laches: Com. v. Compton, 7 Pa. C. C. Rep. 262; Sands v. McGarvey, 25 Pa. C. C. Rep. 629; Brennan v. Plymouth Twp., 31 Pa. C. C. Rep. 417; E. T. Burrowes Co. v. Cambridge Springs Co., 26 Pa. Superior Ct. 315; Harper v. Biles, 115 Pa. 594 ; O’Brien v. Sylvester, 12 Pa. Superior Ct. 408; Stebbins v. Leidy Twp., 13 Pa. Dist. Rep. 64; Lytle v. Hoover, 175 Pa. 408; Littster v. Littster, 151 Pa. 474; Cassidy v. Scott, 30 Pa. C. C. Rep. 490.
    April 23, 1906:
   Opinion by

Morrison, J.,

On March 22, 1900, J. B. Herrold and George M. Herrold, were the overseers of the poor of Union township and on that day they borrowed from Catherine Herrold, plaintiff, the sum of $600 giving her therefor a judgment note, signed by them as overseer of the poor of said district. The note was due in one year after date, with interest. The learned court below has found,-on ample evidence, that this money was actually furnished by the plaintiff and that it was used to pay pressing claims against the poor district, and that there was no fraud or collusion in the matter whatever. In our opinion it is now a fair legal presumption that the claims against the poor district so paid were valid and legal. It will not be presumed that public officers paid illegal claims, and there is no showing whatever that they were not claims which could have been recovered in legal proceedings against the poor district.

On May 12,1902, the plaintiff brought suit on this note and the summons was duly served, and no defense being interposed, judgment was granted in favor of the plaintiff on June 6,1902, for the sum of $679.40, being the debt and interest then due and unpaid. On June 26, 1902, the overseers of the district, not the ones who gave the note, paid the plaintiff on her judgment $30.90, and on February 13,1903, the same overseers paid her on the judgment $119.10, and on January 16, 1905, one of the same overseers and another, who had lately come into office, paid her on the judgment $50.00. It appears that this note, and judgment thereon, were duly reported by the township auditors, as valid claims against the district, for the years 1901 to 1905, inclusive, and during all of this time, no question was raised as to the honesty and validity of the note and judgment. On September 15, 1905, Jonathan Gamby and Jacob S. Brubaker, the then overseers of the district, petitioned the court, “to grant a rule on the plaintiff to show cause why said judgment should not be opened and the same stricken from the records, and the defendant-allowed to make a defense to the said suit or action.” On the same day rule granted on the plaintiff to show cause why the prayer of the petition should not be granted. On December 12,1905, after the taking of testimony and hearing arguments of counsel, the court discharged the rule and sealed a bill of exceptions for the defendant.

In a careful opinion the learned court reached the conclusion that the judgment was not void, and, even if illegal so that judgment would have been refused, if the defense had been made at the proper time, it should not now be disturbed on account of the laches of the defendant. This note, and the judgment thereon, had been recognized as legal and binding against the defendant for about five years before the presentation of the petition to open the judgment. It appears that during that time, eight different men had held the office of overseer of the defendant district. In our opinion, the learned court, in his opinion and citation of authorities, fully sustains his order refusing to open the judgment. We think this is a case where the rule as to laches should be applied, because there is not a particle of justice or equity in the attack on the judgment.

In Bradford v. New York and Penna. Telephone & Telegraph Co., 206 Pa. 582, the Supreme Court, Mr. Justice Brown, said: (p, 586): “ While the authorities with us are not numerous in holding that laches may be imputed to the commonwealth and municipalities in denying them equitable relief which might otherwise be granted,, the rule that it can be imputed to the public is clearly laid down in several cases.” And this is followed by the citation of several authorities.

We will not lengthen this opinion by citing other authorities, as they will be found liberally cited in the opinion of the court below.

But it is now urged, vigorously, that the note and judgment are entirely void and that laches is not ground for refusing to strike off a void judgment. It may be replied to this that the rule was to open the judgment and make defense to the action. The rule is strictly in harmony with the prayer of the petition and this is a concession that the judgment is not void Why should a court be asked to open a void judgment? If void, the motion should be to strike off.

The learned counsel for the defendant relies on Gibson v. Poor District of Plumcreek Township, 122 Pa. 557, and Good Roads Machinery Co. v. Old Lycoming Township, 25 Pa. Superior Ct. 156, to sustain his contention that the judgment is void. Those cases are authority for the position that if the defense had been interposed, and sustained at the proper time, that the plaintiff loaned her money to pay the ordinary debts of the poor district, her note would have been illegal and her right to recover would have been denied. Those and other cases probably go the extent of making it the duty of the court to open a judgment based on such consideration, provided, the application be made with reasonable promptness. But we do not agree that the judgment in question is void. The court had jurisdiction of the parties and of the subject-matter, and the judgment is regular upon its face, and, therefore, it is not void. The most that can be said is that the note may have been illegal, if the facts had been shown in defense. But if the money was borrowed in case of imperative emergency, for the relief of the poor, the overseers might have bound the district: Gibson v. Poor District of Plumcreek Twp., 122 Pa. 557. This shows that the plaintiff’s note and judgment are not void on their face. When judgment was asked, on this claim, it was for the court to say whether or not the claim was legal, and by granting judgment, this question was determined in favor of its legality.

The defendant appealed to the equitable power of the court for relief against a judgment regular upon its face, and utterly failed to show a shadow of equitable ground to warrant the court in disturbing the judgment.

We are all of the opinion that the learned court exercised a wise discretion in refusing to open and strike off the judgment and permit a defense at so late a- day, and, therefore, the appeal is dismissed at the costs of the appellant, and the order appealed from is affirmed.


author: Henderson, J.,

text:
    Weldon’s Estate.

      Judgment — Fraud—Preference—Father and son — Interest—Findings of fact by auditor.

    An auditor’s finding that a judgment promissory note given by a decedent to his son was for a bona fide indebtedness, when such finding is based upon competent evidence and is confirmed by the court below, will not be disturbed except upon the clearest proof of mistake.
    In such a case the mere fact of the relationship of the parties, or that the giving of the note created a preference, or that in a proceeding to revive the judgment on the note the son waived the interest, will not invalidate the note as fraudulent.
    Argued March. 15,1906.
    Appeal, No. 9, March T., 1906, by John D. Weldon et al., from decree of O. C. .Perry Co., dismissing exceptions to auditor’s report in Estate of John Weldon, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Oelady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of W. N. Seibert, Esq., auditor.
    The opinion of the Superior Court states the case.

      Errors assigned were in dismissing exceptions to auditor’s report.

      J. M. Barnett, of Barnett & Son, for appellants,
    cited: Bredin v. Bredin, 3 Pa. 81; Confer v. McNeal, 74 Pa. 112; Souder v. Schechterly, 91 Pa. 83; Rogers v. Hall, 4 Watts, 359; Gibbs v. Neely, 7 Watts, 305; Mackinley v. McGregor, 3 Whart. 369; Jackson v. Summerville, 13 Pa. 359; Covanhovan v. Hart, 21 Pa. 495 ; Abbey v. Dewey, 25 Pa. 413; Taylor v. Adams, 2 S. & R. 534; Wonsetler v. Wonsetler, 23 Pa. Superior Ct. 321; Lasher v. Press Co., 203 Pa. 313; Werner v. Zierfuss, 162 Pa. 360 ; Thornburn v. Thompson, 192 Pa. 298; Bentz v. Rockey, 69 Pa. 71; Meyers v. Meyers, 24 Pa. Superior Ct. 603; Poorman v. Kilgore, 26 Pa. 365.

      Charles H. Smiley, with him George B. Roddy, for appellee,
    cited: Reehling v. Byers, 94 Pa. 316; Brown’s App., 86 Pa. 524; Fritz’s Est., 160 Pa. 156; Sutch’s Est., 201 Pa. 305; Collins v. Cronin, 117 Pa. 35; Kitchen v. McCloskey, 150 Pa. 376.
    April 23, 1906:
   Opinion by

Henderson, J.,

The judgment of the appellee which the appellants contest was entered April 15, 1891, and has been twice revived. It had for its origin a judgment promissory note given by the decedent to the accountant, his son. The appellants are creditors of the decedent, who allege that the note referred to was without consideration and given to hinder, delay and defraud creditors. The auditor found in a carefully prepared report that the note was given for a bona fide indebtedness, and that there was no collusion between the maker and the payee in the transaction, which conclusion was approved by the orphans’ court. It has been repeatedly said that findings of fact by an-auditor when approved by the court must be regarded as the verdict of a jury, aud are not to be disturbed except upon the clearest proof of mistake: Fritz’s Estate, 160 Pa. 156 ; McPherran’s Estate, 212 Pa. 432. The burden rested upon the appellants to show by satisfactory evidence that the decedent and the appellee had conspired to hinder, delay or defraud the creditors of the former. It was not sufficient to show that they bore the relationship to each other of father and son, nor that a judgment was confessed, the lien of which would exclude the appellants from participation in the proceeds of the sale of the decedent’s land. If the decedent was indebted to his son, the latter had a right to take a written obligation for such indebtedness and to secure it by obtaining a judgment against the land of the debtor. Business transactions between father and son are not prima facie fraudulent. . They are to be treated as are the'dealings between other debtors and creditors. Where the honesty of a debt between father and son is impeached and fraud alleged it must be distinctly proved : Reehling v. Byers, 94 Pa. 316. Such a claim cannot be invalidated by showing that a preference was given. Unless prohibited by an insolvent law the debtor may prefer one creditor before another. To do so is neither a fraud in law or fact: Brown’s Appeal, 86 Pa. 524. A creditor is under ■ no obligation to take care of other creditors under such circumstances, nor does the motive of the debtor affect the validity of the obligation unless the creditor is a party to the unlawful design. If the debt be an actual one and the creditor’s intention honest, he cannot be affected by the defendant’s intention. The stipulation indorsed on the amicable scire facias filed April 4,1896, that the judgment was to be without interest until paid, does not amount to a reservation of the property incumbered to the defendant in the judgment. It is rather an indulgence by the plaintiff, not prejudicial to any junior creditor and not forbidden. Various considerations might induce such an agreement, and it could hardly be considered evidence of fraud that a son was willing to postpone the time when interest should become due on a debt owed to him by his father.

There was some evidence tending to support the contention of the appellants, or at least to excite suspicion in regard to the integrity of the judgment, but the auditor, exercising the functions of a jury in the premises, found that the transaction was honest and the debt valid, and there was evidence upon which such conclusion might be based. It was undisputed that the son had worked for his father about eight years after he reached his majority, and that the father declared at the time the obligation was given that it was to secure him compensation for his services. The amount charged, $100 a year, was apparently a very moderate sum, and it is not difficult to understand from the evidence why the auditor arrived at a conclusion sustaining the judgment. The appellee is not seeking to establish a parol contract for services. He not only offered proof of the work done but has the decedent’s written acknowledgment of his obligation therefor, and that in the form of a judgment. To set aside a judgment substantial proof is required, and we are not satisfied that the auditor committed an error in refusing to find that the judgment in question was fraudulent. '

The assignments are overruled and the decree affirmed.


author: Per. Curiam,

text:
    King v. Brown, Appellant.

      Road, law — Award of viewers — Interest on award.

    Interest runs against a municipal corporation on an award of viewers for damages for the grading and paving of a street from the date of the confirmation of the award.
    Argued April 9,1906.
    Appeal, No. 18, April T., 1906, by-defendant, from order of C. P. No. 3, Allegheny Co.,. May T., 1906, No. 478, sustaining demurrer to return of writ of alternative mandamus in case of Charlotte S. King y. James Brown.
    Before Rice, P. J., Porter, Henderson, Morrison and Head, JJ.
    Affirmed.
    Petition for mandamus.
    Demurrer to return.
    From the record it appears that plaintiff was awarded damages for the grading and paving of a street by a jury of view, and that the award was confirmed by the court on May 28,1904. On January 17, 1905, demand was made on defendant’s city controller for a warrant for the amount of the award and interest thereon. On the controller refusing the interest, the petition for the writ of mandamus was filed.

      Error assigned was the order sustaining the demurrer to the returns.

      Craig Smith, for appellant.
    — The rule laid down by the Supreme Court of Pennsylvania in the case of Friend v. Pittsburg, 131 Pa. 305, that a municipal corporation is not bound to seek out its creditor and tender the money due him in order to stop interest, seems so sound and reasonable, that it ought to prevail in the present case.

      C. C. Dickey, of Shiras & Dickey, for appellee..
    — Interest ran on the award: Com. v. Vanderslice, 8 S. & R. 452; Shaller v. Brand, 6 Binn. 435; Philadelphia v. Dyer, 41 Pa. 463; Miskey v. Philadelphia, 68 Pa. 48; Norris v. Philadelphia, 70 Pa. 332; Sedgeley Avenue, 88 Pa. 509; Second Avenue, 7 Pa. Superior Ct. 62.
    May 14, 1906 :
   Per. Curiam,

In Pennsylvania interest is a legal incident to a judgment for money: Commonwealth v. Vanderslice, 8 S. & R. 452; Shaller v. Brand, 6 Binney, 435 ; Wither’s Appeal, 16 Pa. 151; Act of 1700, 1 Sm. L. 7. This is the general rule, and it has not been shown to us that a judgment against a municipal corporation is an exception to it, or that proof that the corporation has provided the funds to pay it will prevent the running of interest until demand be made.

The case of Friend v. Pittsburg, 131 Pa. 305, upon which the appellant’s counsel relies, does not deal with that precise question, and cannot be said to rule it either directly or inferentially. In several cases the question of the liability of municipal corporations for interest upon viewers awards of damages to property owners has been considered, and it has been held, generally, that they bear interest from the date of confirmation absolute, the theory being that this is a judgment: Philadelphia v. Dyer, 41 Pa. 463; North Whitehall Twp. v. Keller, 100 Pa. 105 ; Second Avenue in the Boro. of Conshohocken, 7 Pa. Superior Ct. 62. See also Miskey v. Philadelphia, 68 Pa. 48; Philadelphia v. Miskey, 68 Pa. 49; Norris v. Philadelphia, 70 Pa. 332; Sedgeley Avenue, 88 Pa. 509. The case of Stewart v. County of Philadelphia, 2 Pa. 340, is plainly distinguishable and not an authority which controls in a case like the present, as was pointed out by Justice Strong in Philadelphia v. Dyer, and by Justice Sharswood in the Miskey cases. The inconvenience of seeking thé person to whom the damages have been awarded, which this rule puts the corporation to, is not greater than in the case of an ordinary judgment, and we can discover no substantial ground upon which a reasonable distinction between the two kinds of judgments can be based. We may add that it is not alleged in the present case that there were any special circumstances which made payment of the award difficult, or more inconvenient than if it had been a judgment obtained in a common-law action.

Judgment affirmed.


text:
    Kowdy, Appellant, v. Savings Fund Loan Association.

      Practice, C. P. — Affidavit of defense — Contract—Set-off,
    In an action for goods sold and delivered an affidavit of defense is sufficient which, admits the balance claimed, but avers that the plaintiff entered into an agreement with defendant to sell goods for the latter, that the latter had advanced moneys to the plaintiff on account of commissions to be earned, that only a small sum was earned, and that the advances had never been repaid, and were in excess of the balance claimed by plaintiff in his statement.
    Argued April 10, 1906.
    Appeal, No. 68, April T., 1906, by plaintiff, from order of C. P. No. 1, Allegheny Co., Sept. T., 1904, No. 151, discharging rule for judgment in case of Charles E. Kowdy for use of David Spear, for use of the American Steel Package Company v. Savings Fund Loan Association.
    Before Rice, P. J., Porter, Henderson, Morrison and Head, J J.
    Affirmed.
    Assumpsit for goods sold and delivered.
    Rule for judgment for want of a sufficient affidavit of defense.
    MacFarlane, J., filed the following opinion:
    The plaintiff’s claim is for an admitted balance of 1700 due upon a sale of certain savings banks or boxes, and the defense is a set-off that Kowdy, the plaintiff’s assignor, the original party to the contract of sale, had two written contracts with defendant by which he was to be allowed a commission on sales of stocks, and under the terms of the agreements defendant advanced him $920. That he only earned $49.70 of commissions, leaving a balance against him on that account of $870.30. No reason was suggested why such a credit is not good in law, and the averment that Kowdy agreed that the balance against him should be adjusted and balanced with his claim, does not weaken defendant’s position. Whether the defendant’s claim be called a credit, a set-off or payment does not affect the case.
    The rule should be discharged.

      Error assigned was the order of the court.

      Edward Schreiner, for appellant.

      E. L. Kearns, with him Smith & Kearns, for appellee.

      May 14, 1906:
   Per. Curiam,

Irrespective of the alleged parol agreement, we are of opinion that the learned judge below was right in holding that the affidavit of defense was sufficient to prevent judgment. We concur in the reasons suggested in the opinion filed by him in support of that conclusion. The payment to the legal plaintiff of $40.00 a week was not a guaranteed commission, as the appellant’s counsel claims, but, as the supplemental contract of January 16, 1904, expressly declares, was an “ advance, which shall be charged to his account,” and was to be so treated in the ' final adjustment of the account upon the termination of the relation between them.

Appeal dismissed at the appellant’s costs, but without prejudice as provided in section 2 of the Act of April 18,1874, P. L. 64.


text:
    Johnson, Appellant, v. Johnson.

      Divorce — Indignities to person of husband — Act of June 25,1895, P. L. 308.
    The continuous neglect by a wife of her housekeeping duties and the proper care of her husband and children and frequent absence from home of evenings and even for several days at a time at religious meetings are not such indignities to the person of a husband as will entitle him to a divorce under the Act of June 25, 1895, P. L. 308; nor is her refusal of conjugal intercourse such an indignity within the meaning of the act.
    . Argued April 10,1906.
    Appeal, No. 118, April T., 1906, by plaintiff, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1905, No. 325, refusing divorce in case of Leslie J. Johnson v. Lizzie M. Johnson.
    Before Rice, P. J., Porter, Henderson, Morrison and Head, JJ.
    Affirmed.
    Libel for divorce.
    • The facts are stated in the opinion of the Superior Court.

      Error assigned was decree refusing the divorce.

      Charles A. O'Brien, of O'Brien Ashley, for appellant,
    cited: Elmes v. Elmes, 9 Pa. 166; May v. May, 62 Pa. 206; Mason v. Mason, 131 Pa. 161; Heilbron v. Heilbron, 158 Pa. 297.
    No appearance nor paper-book for appellee.
    May 14, 1906 :
   Opinion by

Morrison, J.,

This is an appeal of the libelant from the decree of the court below refusing to grant him a divorce from the bonds of matrimony, under the provisions of the Act of assembly of June 25, 1895, P. L. 308, to wit: “ Where a wife shall have by cruel and barbarous treatment or indignities to his person, rendered the condition of her husband intolerable, or life burdensome.”

The charge contained in the libel is as follows : “ That the said Lizzie M. Johnson, respondent above named, hath by cruel and barbarous treatment rendered the condition of libelant intolerable and his life burdensome. Petitioner further avers that the said Lizzie M. Johnson, respondent, hath offered such indignities to the person of libelant as to render his condition intolerable and life burdensome.”

The subpoena in divorce was duly served on the respondent but she did not appear and made no defense whatever. The learned counsel for the libelant does not contend that there is sufficient evidence of cruel and barbarous treatment to entitle the libelant to a decree, but rests his case on indignities to his person.

The learned counsel has presented the libelant’s case in an earnest and able argument, in which he seeks to convince us that the evidence establishes such indignities to the person of the libelant as to bring’ the case within the provision of the act of assembly in that respect. We have carefully read the testimony and given it such consideration as the gravity of the case demands, but we are not convinced that the learned court below erred in refusing a decree.

The substance of the testimony is that on account of the respondent’s religious opinions and her practice of attending the meetings of a sect known as the “ Seventh Day Adventists,” and later another sect known as the “ Holiness People,” and her absence from home frequently in the evenings, and sometimes for several days at a time, and the neglect of her housekeeping duties and the proper care of her husband and children, she has offered the indignities complained of. In addition, the testimony of the husband shows that for a period of about two years before the commencement of this suit, the respondent had neglected her household and marital duties, and that during that period she had persistently refused to have sexual intercourse with the libelant, and that such refusal was willful and without any reason but the supposed repugnance to the act itself or to the libelant.

The libelant testified on this subject: “ She always gave the same reason for refusing to cohabit with me, and that as soon as God notified her that I had been converted, that she would be the same as she always had been to me, but not until He did notify her. I asked her how she would know this, and she said she often got messages from God.”

It can hardly be doubted that the evidence tends strongly to show that this respondent has been seriously neglecting her duties as a wife and mother, and it seems that she assumes grave responsibilities in so conducting herself, that the result may be a total breaking up of the family relation and abandoning her husband and little boys to the snares and temptations of the life that they must necessarily lead without her protecting care and affection. But, notwithstanding all of this, the question confronting us is whether this conduct on the part of the wife constitutes such indignities to the person of the husband as is meant by the act of assembly above quoted.

We have not been referred to, and have failed to find, any controlling decision of the Supreme or Superior Court upon the question of indignities to the person of the husband. Prior to the act of June 25, 1895, there was no law allowing a husband a divorce on account of indignities to his person. The learned counsel for the libelant concedes this and seeks to sustain his contention that the indignities are established, by the evidence, within the meaning of the act, by a number of cases which arose under the act of March 13, 1815, 6 Sm. L. 286 Purdon’s Digest, 13th ed., p. 1232: “ or when any husband shall have, by cruel and barbarous treatment, endangered his wife’s life, or offered such indignities to her person as to render her condition intolerable, and life burdensome, and thereby force her to withdraw from his house and family,” etc.

The first case cited by counsel for libelant is Elmes v. Elmes, 9 Pa. 166. But an examination of that case does not seem to us to sustain the contention that this husband has made out such indignities to his person as entitles him to a divorce.

In Krug v. Krug, 22 Pa. Superior Ct. 572, we held: “No single act of indignity to the person is sufficient cause for divorce, there must be such a course of conduct or continued treatment as renders the wife’s condition intolerable and life burdensome. The indignities need not be such as to endanger life or health; it is sufficient if the course of treatment be of such a character as to render the condition of any woman of ordinary sensibility and delicacy of feeling intolerable and her life burdensome: Elmes v. Elmes, 9 Pa. 166; May v. May, 62 Pa. 206; Melvin v. Melvin, 130 Pa. 6; Mason v. Mason, 131 Pa. 161; Oxley v. Oxley, 191 Pa. 474.” The above cases clearly establish that the indignities which entitle a wife to a divorce must be to the person, as well as serious and continued.

May v. May, 62 Pa. 206, cited by appellant, strongly sustains the doctrine that the indignities to the person must be continued, and to such an extent as to render the wife’s condition intolerable and life burdensome.

In Mason v. Mason, 131 Pa. 161, cited by appellant’s counsel, we find-the following in the opinion of Mr. Justice Williams (p. 164) : “ Bad temper alone is not a ground for divorce, nor is mere drunkenness, or indolence, or thriftlessness, or jealousy; but when to all these is added a course of the most abusive and humiliating treatment, public and repeated charges of the crime of adultery and abortion, threats to shoot, to kill, to cut out her heart, to cut her into mince-meat, and the like, accompanied by such unmistakable evidences of the purpose to carry his threats into execution as was offered by drawing a razor, by pushing her off the porch of the house, and by breaking up her home, and throwing its contents into the streets, it seems very clear to us that the condition of this wife ivas made intolerable and her life burdensome.” That was a case of divorce on the grounds of indignities to the person of the wife and the court below dismissed the libel and refused a decree in divorce. It is true that the Supreme Court reversed this decree and granted the divorce, but an examination of the testimony shows that it goes far beyond anything proved or even alleged in the present case.

We are also referred to Heilbron v. Heilbron, 158 Pa. 297. That was a case evidently under the Act of March 9, 1855, P. L. 68, and it was practically based on cruel and barbarous treatment, although the libel was not well drawn, but on account of the strength of the testimony the Supreme Court reversed the court below, and directed an amendment of the libel and thereupon decreed a divorce. We are not able to discover anything in that case which strengthens the libelant’s position in the present one.

In Gordon v. Gordon, 48 Pa. 226, it was held that under the act of 1855 “ personal indignities offered by a wife to her husband will not justify him in turning her out of doors; he must show such cruel and barbarous treatment as renders his condition intolerable and life burdensome, or endangering his life ; such as would entitle him to a divorce.” But see Jones v. Jones, 66 Pa. 494.

In Fay v. Fay, 27 Pa. Superior Ct. 328, opinion by Rice, P. J., will be found an interesting discussion of divorce on the ground of cruel and barbarous treatment and indignities to the person, but, in that case, the issue was amended: “ At the time the libel was filed, had the respondent, by cruel and barbarous treatment, rendered the condition of her husband intolerable or his life burdensome ? ” This limited the trial to the question of cruel and barbarous treatment, and, therefore, the decision is not controlling in a case resting upon indignities to the person, but the case is instructive and thorough, and refers to many decisions of the Supreme Court bearing somewhat upon our question.

In our opinion, the evidence does not establish the indignities to the person of the husband contemplated by the act of 1895; this without considering the complaint of the denial of sexual intercourse.

We then have remaining the question of whether the latter complaint is an indignity within the meaning of the act. In our opinion it is not, and upon this question, we are not without authority. In Eshbach v. Eshbach, 23 Pa. 343, this question was before the Supreme Court. In that case there was evidence that the husband did not sleep with his wife, but the Supreme Court held, in substance that the fact that the husband lay on a separate bed was not ground for a divorce. Citing D’Aguilar v. D’Aguilar, 1 Haggard, 778. While Eshbach v. Eshbach, is not very satisfactorily reported we understand it to mean that the refusal of sexual intercourse is not ground for a divorce. The learned counsel aigues that such conclusion is grossly inconsistent because of the act of assembly which allows divorce when “ either party, at the time of the contract, was and still is naturally impotent or incapable of procreation.” But this argument loses sight of the fact that the impotency referred to in the act must exist at the time of the contract, and for such person to enter into a contract of marriage is, in its legal effect, a fraud, and fraud vitiates all contracts. We are not able to see much analogy between this ground of divorce and the refusal of a competent husband or wife to submit to sexual intercourse with the other.

All of the judges who sat at the argument of this ease agree that the libelant failed to make out a case entitling him to a divorce. We, therefore, dismiss the appeal and affirm the decree at the costs of the appellant.


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    Jackson v. Stewart, Appellant.

      Landlord and tenant — Habitable condition of premises — Dampness—Covenant for repairs — Termination of lease — Delivery of key.

    A tenant who has covenanted to make repairs cannot avoid the obligation of his lease by reason of the uninhabitable condition of the house by reason of dampness, where it appears that he inspected the house and its location before leasing it, and that the dampness was due either to the flow of water into the house during a heavy rain, or to the fact that a retaining wall became dilapidated during the tenancy.
    The delivery of the key of demised premises to the landlord’s agent, will not terminate the tenancy, where there is no proof that the landlord accepted the key.
    Argued April 23,1905.
    Appeal, No. 123, April T., 1906, by defendant, from order of C. P. No. 1, Allegheny Co., Dec. T., 1905, No. 54, discharging rule to open judgment in case of M. L. Jackson v. Clara Stewart and Daniel Edwards.
    Before Rice, P. J., Orlady, Smith, Porter, Morrison, and Henderson, JJ.
    Affirmed.
    Rule to open a judgment entered on a lease.
    The opinion of the Superior Court states the case.

      Error assigned was the order discharging the rule.

      W. A. Hudson, for appellant,
    cited: Wolfe v. Arrott, 109 Pa. 478.

      J, W. Hague, with him B. C. Christy, for appellee,
    cited : Eberle v. Girard Life Ins., etc., Co., 4 Atl. Repr. 808; Johnson v. Mathues, 4 Del. Co. Rep. 365; Huber v. Baum, 152 Pa. 626; Trickett on Landlord & Tenant, p. 318; Harvey v. Gunzburg, 148 Pa. 294; Reeves v. McComeskey, 168 Pa. 571; Kline v. Jacobs, 68 Pa. 57 ; Wheeler v. Crawford, 86 Pa. 327; S. C. 4 W. N. C. 369; Lukens v. Hedley, 1 W. N. C. 266.
    May 14, 1906 :
   Opinion by

Henderson, J.,

The defendants seek to avoid the obligation of their lease on the allegation that the demised building was not habitable. The defect complained of was dampness. The lessees examined the premises before executing the lease. The dampness was attributed by the witnesses in part to the location of the house; in part to water flowing into the first floor during a heavy rain in the summer after the lessees took possession. A retaining wall became dilapidated during the defendants’ occupancy and the testimony suggests the inference that the condition of the wall may have contributed to the flow of water into the house at the time referred to. The condition of the wall is not a legal ground for relief, however, as the lessees covenanted to make all necessary repairs at their own expense. After having bad an opportunity to inspect the premises the appellants are not in a situation to complain that the location of the house was such as to create dampness; nor does the statement of the agent that he thought the dampness discovered by one of the defendants was owing to the fact that the house had been closed relieve the defendants from the responsibility imposed upon them by the examination made. There being no provision in the lease for repairs by the lessor a tenant cannot defend against the payment of rent on the ground that the premises are not in a tenantable condition : Kline v. Jacobs, 68 Pa. 57 ; Huber v. Baum, 152 Pa. 626; Reeves v. McComeskey, 168 Pa. 571. If the dampness was due, as alleged by one of the defendants’ witnesses, to “ a very heavy rain in the summer and the water settled at the front of the house and at the back of the house ” the condition was one for which the landlord was apparently not responsible and one which the defendants might as easily anticipate as the owner. The defendants leased with their eyes open as to the location of the house and it does not appear from the evidence that its- condition changed after the execution of the lease except as it may have been affected by the heavy rain referred to.

The defendants did not relieve themselves from their covenant by leaving the key of the house at the office of the plaintiff’s agent. If the landlord had accepted the key such act would have amounted to a dissolution of the tenancy unless he informed the tenants that he would hold them for the rent. There is no evidence, however, that the key was accepted or that the landlord by any act released the tenants. The defense set up is insufficient in law and the rule to open the judgment was properly discharged.

The decree is affirmed.


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    Goff-Kirby Coal Company v. Marine Coal Company, Appellant.

      Contract — Sale—Continuing contract — Custom—Course of dealing — Notice —Rescission.

    Where under a contract for the delivery of coal the deliveries and payments indicated no intention on the part of the seller to hold the purchaser to a literal compliance with the terms of the contract, the seller cannot rescind without fair notice of an intention to insist upon a literal compliance with, the terms of the contract in the future.

      Argued April 23, 1905.
    Appeal, No. 133, April T., 1906, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1904, No. 189, on verdict in case of Goff-Kirby Coal Company v. Marine Coal Company.
    Before Rice, P. J., Or-lady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    . Assumpsit for breach of contract to deliver coal. Before Kennedy, P. J.
    At the trial it appeared that the contract between the parties was as follows:
    “ Marine Coal Company.
    “ Room 307 Westinghouse Building,
    “ Pittsburg, Pa., Oct. 13th, 1902.
    “ The Goee-Kirby Coal Co.,
    “ Cleveland, Ohio.
    “ Gentlemen :
    “ We hereby agree to ship 50 cars of f coal on your orders from our Marine Mines at 12.00 per net ton on cars. Shipments to be made on jmur order at the rate of 2 or 3 cars per day based on the car supply. In case of car shortage Ave agree to give you your proportionate supply.
    “ Very truly yours,
    “ Marine Coal Co.
    (Signed) “ A. H. Stolzenbach.
    “ Accepted by
    “ The Goee-Kirby Coal Co.
    (Signed) “ I. C. Goee, Pres.”

    Other facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff for 11,223.35.

      Error assigned Avas refusal of binding instructions for defendant.

      David A. Reed, with him Reed, Smith, Shaw & Beal, for appellant.
    — Where one has the right to terminate a contract for any cause, such termination Avill not be unlawful because a wrong reason was assigned for it: Allentown Iron Co. v. McLaughlin, 1 Mona. 726; Beriac v. Berlitz, 26 W. N. C. 495.

      And an estoppel arises only in favor of one who has been permitted or induced to expend something or to change his situation for the worse, as in Baranowski v. Mutual Aid Society, 3 Pa. Superior Ct. 367. To bind as an estoppel, acts or declarations must have been acted upon : Waters v. Wolf, 2 Pa. Superior Ct. 200.
    Lyon, McKee & Mitchell, for appellee.
    — One party to a contract may not by a continued consistent course of dealing under the contract, lead the other party to believe that strict compliance with details of performance, especially as to payment, is waived and will not be required, and after a while without warning, when it is to his advantage so to do, insist that such violations, though waived and cured, are sufficient to relieve him from the “sacred obligations of this contract” : Portland Ice Co. v. Connor, 24 Pa. Superior Ct. 493 ; Price v. Beach, 20 Pa. Superior Ct. 291; Forsyth v. North American Oil Co., 53 Pa. 168; Hazleton Coal Co. v. Buck Mt. Coal Co., 57 Pa. 301; Cogley v. Browne, 11 W. N. C. 224.
    May 14, 1906:
   Opinion by

Henderson, J.,

The course of dealing of the parties shows clearly that they did not interpret their contract of October 13, 1902, to impose on the plaintiff the obligation to send orders for coal daily and to make payment for coal delivered on the twentieth of each month in compliance with an alleged custom. The quantity contracted for was fifty cars. Between October 13, and the 1st of the following December, twenty-four cars were ordered at various times and shipped. On the latter date the defendant wrote to the plaintiff that all orders received had been shipped, that twenty-six cars were yet to be forwarded and requesting shipping instructions. At the same time the plaintiff was asked to remit 1510.60 to apply on the account. The next day the defendant notified the plaintiff that C. Jutte & Co. had purchased the defendant’s mines and the plaintiff was referred to that company “ in reference to any orders or shipments.” There is no suggestion in the evidence that the defendant was at any time dissatisfied with the plaintiff’s performance of the contract, or considered that any of its terms had been violated by the letter.' The only excuse given for not delivering the remainder of the coal was that the defendant had sold its mines. W-hen the plaintiff applied to Jutte & Co. it was informed that the latter company did not purchase the orders on the books of the Marine Coal Co.; that they simply took over their plant and coal acreage. There was no offer on the part of Jutte & Co. to complete the delivery of the coal for the defendant. On the contrary, they refused to deliver any of it except five cars, and that on condition that that should close all the business of the plaintiff with the Marine Coal Co.

If it were conceded, however, that the plaintiff was bound to give orders daily for coal and to pay according to a custom of the trade the conduct of the parties exhibits a mode of performance of the contract not in accordance with its .literal terms. If they understood the agreement to be as now contended for by the appellant they relaxed the strictness of its terms. No intention was manifested to hold the plaintiff to literal performance. Under such circumstances it is well established that a party cannot rescind without fair- notice of an intention to insist upon a literal compliance in the future. Having adopted a method of executing the agreement, apparently acceptable to the defendant, which put the plaintiff off his guard,, it would be manifestly unjust to permit the defendant to rescind the contract without warning the plaintiff of the necessity for strict performance. The acceptance by the defendant of the plaintiff’s orders as they were delivered and a request for further orders upon the same contract might easily induce the plaintiff to believe that daily orders and payment on the twentieth of the month were not considered essential by the defendant. A very short time, elapsed between the date when the defendant alleges the first payment should have been made on account of coal delivered and the time when the plaintiff was notified that the defendant had gone out of business. No other request for payment was made than that contained in the defendant’s letter of December 1st, and there is no intimation there that the amount was overdue or that the plaintiff had been remiss in making payment. Under such circumstances the defendant should not be permitted to declare a rescission of the contract. Forsyth v. North American Oil Co., 53 Pa. 168; Hazleton Coal Co. v. Buck Mt. Coal Co., 57 Pa. 301; Price v. Beach, 20 Pa. Superior Ct. 291; Portland Ice Co. v. Connor, 24 Pa. Superior Ct. 493 are authorities supporting the views herein expressed. The facts were not in dispute and it was the duty of the court to instruct the jury that after the indulgence allowed the defendant could not suddenly rescind without warning of its intention to require strict performance. The action of the learned trial judge is well supported by the facts and the law applicable thereto.

The judgment is affirmed.