text:
    Cloyd, Appellant, v. Reynolds.

      Statute of limitations — Principal and agent — Fraud of agent — Concealment.

    1. Mere silence or concealment by a debtor may not, without affirmative misrepresentation, toll the running of the statute of limitations. Where, however, a debtor by actual fraud keeps his creditor in ignorance of the cause of action, the statute of limitations does not begin to run until the creditor had knowledge, or was put upon inquiry with means of knowledge that such cause of action had accrued.
    2. When property is delivered to an agent for sale upon commission at a distant point, while it is the duty of the creditor to make inquiry about his claim, it is likewise the duty of the agent to give him full and proper information in regard thereto when inquiry is made, and should the creditor be misled by the information thus given, within the time of the running of the statute of limitations, the statute will only begin to run against the creditor from the time he acquired knowledge of the receipt of the money by the agent.
    3. When a wrongdoer adds to his original fraud affirmative efforts to divert or mislead or prevent discovery, then he gives to his original act a continuing character by virtue of which he deprives it of the protection of the statute until discovery.
    4. Where a person consigns a horse to another to sell for a sum stated or more, with no liability on the part of the consignee, if the horse dies before a sale is effected, and the consignee sells the horse, and not only conceals the fact of the sale from the consignor, but also attempts to make the consignor believe that the horse had died, the statute of limitations does not run in favor of the consignee from the date of the sale of the horse, but only from the discovery of the fraud.
    Submitted Oct. 29, 1909.
    Appeal, No. 225, Oct. T., 1909, by plaintiff, from order of C. P. Huntingdon Co., May T., 1909, No. 23, refusing to take off nonsuit in case of D. M. Cloyd v. H. P. Reynolds.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit for money had and received from the sale of a horse. Before Woods, P. J.
    The facts are stated in the opinion of the Superior Court.
    At the trial the court refused to admit under objection and exception certain letters written by the defendant to the plaintiff, offered for the purpose of showing that the defendant had represented to the plaintiff that the horse in question had been killed on a railroad.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Errors assigned were various rulings on evidence and order refusing to take off nonsuit.

      II. II. Waite and Howard L. Henderson, for appellant.—
    Defendant was not entitled to the benefit of the statute of limitations: Kalin v. Wehrle, 36 Pa. Superior Ct. 305; Smith v. Blachley, 188 Pa. 550; Sankey v. McElevey, 104? Pa. 265.

      Chas. C. Brewster and Thos. F. Bailey, for appellee.—
    Where more than six years have elapsed from the date of the collection, the onus probandi to take such a case out of the statute, is on the plaintiff: Campbell v. Boggs, 48 Pa. 524.
    October 10, 1910:
    Mere silence or concealment by the debtor without affirmative misrepresentation will not toll the running of the statute of limitations: Sankey v. McElevey, 104 Pa. 265.
    In Fleming v. Culbert, 46 Pa. 498, it is held that constructive fraud simply is not sufficient to toll the running of the statute: Scranton Gas & Water Co. v. Iron & Coal Co., 167 Pa. 136; Ritchey’s Est., 8 Pa. Superior Ct. 527; Hostetter v. Hollinger, 117 Pa. 606.
   Opinion by

Porter, J.,

The plaintiff, in January, 1902, at Dublin, Virginia, delivered to the defendant a stallion to be sold by the latter upon commission. The horse was to be taken by the defendant to his place of business in Huntingdon county, Pa., and there sold if a satisfactory price could be obtained. Reynolds, under the provisions of the written agreement, was to sell the horse “at a price that he deems fit so that the colt shall pay to D. M. Cloyd the full sum of five hundred dollars and whatever part of the profits over that amount is mutually satisfactory.” “In case of the death of the colt the said Reynolds shall not be held responsible for the $500, and the said D. M. Cloyd shall not be held responsible for any expense incurred on the colt.” The oral evidence established that Reynolds took the horse to Huntingdon county, Pa., and there, on February 4, 1902, sold him to Trexler Bros, for the sum of $700 and received the purchase money for him. The plaintiff brought this action to recover the price of the horse on April 9, 1908. The court below upon the trial held that the statute of limitations was a bar to plaintiff’s claim and entered a judgment of compulsory nonsuit which it subsequently refused to take off.

The plaintiff testified at the trial that the defendant had never informed him that the horse had been sold. He also offered certain letters of the defendant to him which contained actual misrepresentations of the facts and were manifestly intended to lead the plaintiff to believe that the horse had been killed, while still the property of the plaintiff, while in process of transportation to the state of West Virginia, where the defendant represented that he had shipped him for the purpose of making a sale. The court below excluded these letters, which ruling is the subject of several of the specifications of error. When the defendant sold the horse he became the debtor of the plaintiff, and while that relation is not ordinarily one of trust or confidence so as to make it the duty of the debtor to disclose to the creditor the fact or amount of his indebtedness, this defendant was not privileged to misrepresent the facts when his creditor made inquiry. Mere silence or concealment by a debtor may not, without affirmative misrepresentation, toll the running of the statute of limitations. Where, however, a debtor by actual fraud keeps his creditor in ignorance of the cause of action, the statute of limitations does not begin to run until the creditor had knowledge, or was put upon inquiry with means of knowledge that such cause of action had accrued. When property is delivered to an agent for sale upon commission at a distant point, while it is the duty of the creditor to make inquiry about his claim, it is likewise the duty of the agent to give him full and proper information in regard thereto when inquiry is made, and should the creditor be misled by the information thus given, within the time of the running of the statute of limitations, the statute will only begin to run against the creditor from the time he acquired knowledge of the receipt of the money by the agent. When a wrongdoer adds to his original fraud affirmative efforts to divert or mislead or prevent discovery, then he gives to his original act a continuing character by virtue of which he deprives it of the protection of the statute until discovery: Wickersham v. Lee, 83 Pa. 416; Sankey v. McElevey, 104 Pa. 265; Smith v. Blachley, 198 Pa. 173. The letters which the court below rejected as evidence clearly indicated the purpose of the defendant to mislead the plaintiff; he intended and only could have intended to have the plaintiff believe that the horse had not been sold, that he had been killed and that under the very terms of the written agreement the plaintiff had no right of action. The defendant intended the plaintiff to believe that he, the defendant, had brought an action against the railroad company to recover the value of the horse and that the plaintiff would only become entitled to be paid in case the defendant recovered from the railroad company. Yet when these letters were written the defendant had the money of the plaintiff in his pocket. The letters disclosed actual, persistent and willful fraudulent misrepresentation. If the defendant wrote these letters the bar of the statute of limitations cannot be made effective to permit him to retain the money of the plaintiff. The letters, being properly proved, ought to have been admitted in evidence. All the assignments of error are sustained.

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


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    Weidman, Appellant, v. Rieker.

      Landlord and tenant — Distress—Leased furniture — Hotel—Subletting.
    1. Furniture leased by the owner thereof to the keeper of a boarding house or hotel, who uses it for the purposes of his business, is subject to be distrained for rent due the owner of the building during the term of the tenant and while on the demised premises; and it is immaterial that at the time of the distress a subtenant, and not the tenant, was in possession.
    2. The goods of a subtenant, or assignee of the tenant, who has not been recognized as such by a landlord, are, while upon the demised premises, liable for distress for rent due under the terms of the lease.
    Argued Nov. 9, 1909.
    Appeal, No. 21, Oct. T., 1909, by plaintiff, from judgment of C. P. Lancaster Co., March T., 1908, No. 11, for defendant non obstante veredicto in case of P. W. Weidman v. Frank J. Rieker, Manager, and M. T. Zeigler, Sheriff.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Replevin for furniture of a hotel. Before Hassler, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      B. F. Davis, for appellant.
    The tenant or owner, may issue the writ of replevin for goods distrained upon: Walsh v. Phila. Bourse, 32 Pa. Superior Ct. 348; Esterly Machine Co. v. Spencer, 147 Pa. 466.
    The property of a tenant holding by a renewed lease, is not subject to be distrained by the landlord for the payment of the arrears of rent for the previous year, if a third person has acquired an interest in the property: Beltzhoover v. Waltman, 1 W. & S. 416; Clifford v. Beems, 3 Watts, 246.
    The lease between Weidman and Minnich, the first tenant, was a bailment. It was annulled: Wetherill v. Gallagher, 217 Pa. 635.

      John E. Malone, for appellee.
    As a general rule, to which there are some exceptions in’ the interests of trade, etc., the goods of a stranger, on the demised premises, are liable to distress for rent: Kessler v. McConachy, 1 Rawle, 435; Price v. McCallister, 3 Grant, 248; Beltzhoover v. Waltman, 1 W. & S. 416; Karns v. McKinney, 74 Pa. 387; Whiting v. Lake, 91 Pa. 349. This includes furniture leased to a tenant, Myers v. Esery, 134 Pa. 177.
    This being an action of replevin, appellant, before he was entitled to recover, was bound to show not only property in himself, but also a right of possession: Lester v. McDowell, 18 Pa. 91; Lee v. Gould, 47 Pa. 398; Morris on Replevin, 76; Harlan v. Harlan, 15 Pa. 507.

      October 10, 1910:
   Opinion by

Porter, J.,

Rieker, the appellee, leased to I. B. Minnich a hotel, for the term of eight months, beginning August 1, 1907, and ending April 1, 1908. The liquor license for the hotel was in the name of Minnich, who on February 8, 1908, joined in procuring an order of the court transferring the license to H. E. Romig. Minnich had failed to pay the rent due his landlord under the lease and Rieker, on February 8, 1908, the same day on which Minnich had procured the license to be transferred, placed in the hands of the sheriff a landlord’s warrant, with direction to proceed to collect the rent by distress. The sheriff, on February 10, 1908, under the warrant, distrained the furniture of the hotel found upon the leased premises. The claim of the landlord was made out against Minnich, and the warrant issued against him. The plaintiff, Weidman, replevied a part of the furniture and now asserts that it was not legally liable to distress for rent. The plaintiff in support of his claim to the property in question produced testimony tending to establish the following facts: He had leased the furniture to Minnich under a written agreement which required the latter to pay a certain monthly rental and provided that after a certain amount of rent was paid the bailee might demand a bill of sale for the property. Minnich used the furniture in the hotel business for several months, and on February 7 told the plaintiff that he was going to leave the hotel and would leave the furniture in the rooms in which it had been during the time he used it. Minnich left the hotel on the evening of February 8, the day the license was transferred. Romig, the transferee of the license, went into possession of the hotel on the morning of Monday, February 10, and at an early hour that morning the plaintiff went to the hotel and entered into a new written agreement with Romig, leasing the furniture in question to the latter, at a given rental per month and providing that when a certain amount of rent had been paid Weidman should execute a bill of sale for the property to Romig. There was a question, under the evidence, whether this agreement with Romig had been entered into prior to the time of the levy of the distress by the sheriff. The court below submitted that question to the jury, which found that the agreement leasing the furniture to Romig had' been executed prior to the distress under the landlord’s warrant. The defendants having submitted a point requesting binding instructions in their favor, which was refused by the court, subsequently moved for judgment non obstante veredicto, and after consideration the court below so ordered. The plaintiff appeals.

There can be no profit in considering whether the agreements entered into by the plaintiff with Minnich and with Romig, respectively, constituted a bailment or a sale of the furniture. If the plaintiff sold the furniture he would not be entitled to recover it in this action of replevin. Let it be assumed that the contracts involved only a bailment of the furniture. Furniture leased by the owner thereof to the keeper of a boarding house or hotel, who uses it for the purposes of his business, is subject to be distrained for rent due the owner of the building, during the term of the tenant and while on the demised premises: Myers v. Esery, 134 Pa. 177; Wetherill v. Gallagher, 217 Pa. 635. The learned counsel for appellant admits -this to be the general rule, but he argues that the furniture in this case was not liable to distress, for the reason that Minnich, the bailee, had agreed that plaintiff might retake the furniture; that Minnich having left the hotel it must be assumed that his term as tenant of the building was at an end; that Romig must be regarded as a new tenant for a new term; that plaintiff had made a new bailment of the furniture to the new tenant, and that, therefore, the furniture was not legally liable to distraint for the rent which was owing by Minnich at the time he left the hotel. If the facts upon which the argument is founded had been established they might have given rise to questions which this case does not present. We can only consider the evidence which was produced in the court below and has been printed in the paper-book. The written lease under which Minnich held called for a term which did not expire until April 1, 1908, and the distress was levied under the landlord’s warrant almost two months prior to that date; the term of Minnich, under his written lease,, had not expired. There was no evidence admitted in the court below from which a jury should have been permitted to infer that Rieker, the landlord and appellee, had, at the date the distress was levied, consented to release Minnich or done anything to shorten the term of the lease. He had done nothing from which a jury should have been permitted to find that he had, at that time, recognized Romig as his tenant or entered into any contract relation with him. We have no exception to any ruling of the court rejecting an offer of testimony which established or tended to establish that anything of this kind had occurred. The order of the court, made upon the petition of Minnich and with the acquiescence of Romig, transferring the liquor license from the former to the latter, did not cancel the lease under which Rieker had demised his real estate, nor did it make Romig his tenant. So far as the evidence discloses Romig went into possession under Minnich and the goods were distrained for rent which had accrued during the then current term. The goods of a subtenant, or assignee of the tenant, who has not been recognized as such by the landlord, are, while upon the demised premises, liable to distress for rent due under the terms of the lease: Rosenberger v. Hallowell, 35 Pa. 369; Whiting v. Lake, 91 Pa. 349. The goods of a stranger would share the same fate in like circumstances. Rieker, the landlord, may have subsequently entered into some new arrangement with Romig, with regard to the occupancy of the property and the payment of rent, after he had made use of the means available for the recovery of the rent due from Minnich, but what those subsequent arrangements may have been we are not at liberty to infer. The evidence in this case cannot be said to establish more than that Minnich walked out of the hotel and Romig took possession, whether with or without the consent of the landlord does not appear. The rent was due, the distress was regular, the furniture was seized upon the property, and it was there under circumstances which rendered it legally hable for the rent.

The judgment is affirmed.


text:
    Sherts v. Kimmig, Appellant.

      Contracts — Sale—Delivery—Evidence.
    In an action to recover damages for the breach of a contract to purchase plaintiff’s crop of tobacco at a certain price and of a designated quality, where it appears that the plaintiff failed to deliver or offer to deliver the tobacco at the warehouse of the defendant as provided by the contract, the jury should not be permitted to find that the plaintiff was excused from delivering or offering to deliver the tobacco at the warehouse, where the evidence shows that after some dispute about the quality of the tobacco and some talk on the part of the defendant as to rescinding the contract, the plaintiff in a letter demanded to know whether the defendant would receive the crop, to which the defendants answered that they would accept all the tobacco provided it was in accordance with the contract at the time of delivery.
    Argued Nov. 10, 1909.
    Appeal, No. 32, Oct. T., 1909, by defendants, from judgment of C. P. Lancaster Co., April T., 1907, No. 61, on verdict for plaintiff in case of W. B. Sherts v. L. P. Kimmig and W. E. Gheeh, trading as Kimmig & Company.
    Before Rice, P. J., Hendebson, Mobbison, Oblady, Head, Beaveb and Pobteb, JJ.
    Reversed.
    Assumpsit for breach of a contract to purchase a crop of tobacco. Before Hassleb, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $566.58. Defendant appealed.

      Error assigned amongst others was in refusing motion for judgment for defendant non obstante veredicto.

      October 10, 1910:

      W. U. Hensel, for appellant.
    In offering delivery the vendor is bound to give the buyer an opportunity of examining the goods, so that the latter may satisfy himself whether they are in accordance with the contract: Croninger v. Crocker, 62 N. Y. 151.
    Where performance by one party depends on something to be previously done by the other, an action will not lie for nonperformance if default has been made in the precedent act: McSherry v. Askew, 1 Yeates, 79; Neave v. Jenkins, 2 Yeates, 107; Morrow v. Waltz, 18 Pa. 118; Benninger v. Hankee, 61 Pa. 343; Funk v. Frankenfield, 71 Pa. 205; Quigley v. DeHaas, 82 Pa. 267; Garard v. Monongahela College, 114 Pa. 337.
    A contract to sell and deliver goods at a certain place gives no cause of action unless there be a delivery at the place agreed on: Millard v. Morse, 32 Pa. 506.

      John E. Malone, with him H. Edgar Sherts, for appellee.
   Opinion by

Porter, J.,

The plaintiff seeks to recover of the defendants damages for an alleged breach of contract. The contract was in writing and bears date November 10, 1906. Under its terms the defendants agreed to buy plaintiff’s crop of tobacco, at the price of fifteen cents per pound for wrappers and fifteen cents per pound for fillers, “sized and clean.” The covenant of the contract material to be considered is in the following words, viz.: “The wrappers to be well assorted, free from burnt, white veins, flea-bitten, frosted, pole sweat, hail cut or any other damage and all to be delivered in good merchantable order at our warehouse, No. 118 North Christian Street.” The plaintiff averred in his statement that the defendant Kimmig, with his agent William Affalbach, on .January 18, 1907, came to the residence of plaintiff and after a careful examination of the tobacco- stated that they would not accept the same. The learned judge of the court below properly held that the written contract required the plaintiff to deliver the tobacco at the warehouse of the defendants and that the plaintiff could not recover in this action as it was admitted that he had not delivered the tobacco according to the contract, unless he established by evidence facts which excused him from making the delivery which the contract required. The plaintiff testified that, on January 18, 1907, Kimmig and the agent Affalbach came to his residence, examined a part of the crop of tobacco and that Kimmig then said he would not receive the tobacco and. demanded the return of the written contract, which plaintiff declined to surrender. About one-third of the tobacco had at that time been stripped and a part had been assorted, the remaining third was in the leaf unstripped. The plaintiff called witnesses who to a certain extent corroborated his testimony with regard to the occurrence of January 18, 1907, but the majority of his own witnesses failed to corroborate his statement that Kimmig had then absolutely and unconditionally refused to accept the tobacco; the testimony of these witnesses was to the effect that Kimmig complained of the manner in which the tobacco was being assorted and said that unless it was assorted in a different manner he would not receive it. Kimmig, the defendant, testified as to the conversation of January 18, at the residence of plaintiff, that an armful of the tobacco which had been stripped was brought to the bench, in the tobacco house, for his examination and that when he looked at it he saw quite a number of holes in the tobacco and called the attention of the plaintiff to its condition saying, “Look here, that isn’t right.” That the plaintiff said, “I know that ought not to be in, my men did some of that”; and that Kimmig then said, “If you want to present it in that kind of condition it would not pass, we would not accept it.” He denied absolutely that he had refused to comply with his contract according to its terms. The court below submitted to the jury the question whether Kimmig, the defendant, on January 18, unconditionally refused to take the tobacco, or merely said that he would not take it in the condition in which it then was. The court instructed the jury that if Kimmig had then absolutely refused to accept the tobacco, the plaintiff was excused from making delivery at the warehouse and they should under the evidence find a verdict for the plaintiff in the amount of the damage which he had sustained. If the rights of the parties to this controversy-depended entirely on what occurred on January 18, 1907, the question whether Kimmig had absolutely and unconditionally refused to accept the tobacco must have been submitted to the jury, for the plaintiff had so testified, although the weight of the testimony even of his own witnesses was against him upon that point, the question would have been for the jury. The rights of the parties are to be determined, however, in the light of all the testimony in the case. The defendants submitted a prayer for binding-instructions in their favor, to wit: “Under the law and the evidence there can be no recovery in this case, and the verdict must be for the defendant.” This point the court below reserved, the verdict was in favor of the plaintiff, the defendants subsequently moved for judgment non obstante veredicto, which motion the court below overruled and judgment was entered on the verdict. The question presented is, Ought a jury to have been permitted to find, under the evidence, that the plaintiff was excused from delivering or offering to deliver the tobacco at the warehouse of the defendants?

The learned judge of the court below, in his .charge, confined the attention of the jury to the transaction of January 18, 1907, and the conflicting testimony of the parties as to what then occurred. The witnesses who testified as to what occurred on that particular day were simply giving their recollection as to what was said orally. That recollection may not have been clear and accurate. The plaintiff was himself uncertain as to the conclusion arrived at, he did not know what the defendants intended to do, and in order to clear up that uncertainty he on January 24 caused his agent and attorney to address a written communication to the defendants for the purpose of ascertaining their intention and determining his own future course of action. That letter and the written reply thereto were as follows:

"Lancaster, Pa., January 24th, 1907. "Messrs. L. P. Kimmig & Co.,
"American House,
“Lancaster, Pa.
“Gentlemen:—
“W. B. Sherts of West Lampeter Township has informed me that an agent of your company was at his place last week and stated that you would not receive the crop of tobacco that you purchased on November 10th, 1906, and I hereby give you notice that, unless I hear from you before Saturday of this week, that I will instruct him to re-sell this tobacco and, if he suffers any loss thereby, to hold your company for the difference.
“Very truly yours.
“H. Edgar Sherts.”
To this letter the defendants sent the following reply on January 25, 1907, which was received by the agent of plaintiff the same day:
“January 25th, 1907.
“H. Edgar Sherts, Esq.,
“Dear Sir:—
“Replying to your favor of the 24th inst., I beg to state that we will accept all the tobacco for which we have contracted, provided the tobacco is as per contract at time of delivery. The tobacco of each contract will be thoroughly examined by ourselves with the assistance of our men, and if found as per contract will accept, if otherwise will reject.
“Yours truly,
“L. P. Kimmig & Co.”

The plaintiff admitted, at the trial, that his agent and attorney had by his authority and direction sent to the defendants the letter of January 24 and that the reply of the defendants, dated January 25, was received by his agent on the same day it was written, which was before the Saturday indicated by the letter of the agent of the plaintiff as the time within which the information sought must be furnished. There was no attempt made to explain away these letters by oral testimony, they were written the week after the occurrences of January 18, and were the last words between the parties upon the subject. The plaintiff in opening his correspondence sought for information as to whether the defendants intended to comply with their contract and he very promptly received the information which he desired. There may have been an honest doubt as to the effect of what was said orally on January 18, but there was no- ambiguity in the letter which the plaintiff received on January 25. That letter was a plain and explicit notice to the plaintiff that the defendants would perform their part of the contract of November 10, 1906, and that they would require the plaintiff to perform his covenants according to their terms. What had occurred on January 18 thus became immaterial; the plaintiff had invited the written declaration made by the defendants on January 25 and thus opened for them the opportunity to withdraw from any position which they had taken on the former occasion. The letter of January 25 was express notice to the plaintiff that he would be required to perform his written contract according to its terms. This being the case the only thing for the plaintiff to do was to deliver or offer to deliver the tobacco at the warehouse of the defendants. The plaintiff failed to deliver or tender the tobacco according to the terms of the contract; he held no further communication with the defendants, he made no attempt to explain away these letters by oral testimony, and he sold the tobacco to another party without notice to the defendants. He had failed to perform his contract and he was not entitled to recover.

The judgment is reversed and judgment is now entered in favor of the defendants non obstante veredicto.


text:
    Bethel Township Road.

      Road law — Appeals—Final decree — Time within which to take appeal —Termini.

    1. The time within which an appeal may be taken in a road case must be computed from the date of the final order of the court directing that the road be opened, and not from the time when the court below refuses a petition to have such order vacated.
    2. Where the record in a road case shows no jurisdictional defect, and the final order is one which can be executed, an appeal from the order taken more than six months after its date is taken too late to permit the appellate court to review mere irregularities in the proceeding not apparent in the record.
    • 3. Whether the terminus of a proposed road is a public place is a question of fact, and where there is nothing in the record to indicate that it is not such, the court below will be presumed to have arrived at a correct conclusion, upon that point, when it decrees that the road be opened.
    Argued Oct. 29, 1909.
    Appeal, No. 131, Oct. T., 1909, by Jacob Zeller, from order of Q. S. Lebanon Co., June T., 1908, No. 1, dismissing a petition to rescind an order in road proceedings in Bethel township.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Petition to rescind an order in a road proceeding.
    Ehrgood, J., filed the following opinion:
    In the petition presented, we are asked to rescind the order of court, confirming the report of viewers absolutely and for leave to file exceptions nunc pro tunc. If this petition were based upon the want of notice or actual knowledge of the meeting of the viewers by the land owners through whose land the road passes, we might hold that the prayer of the petitioners ought to be granted, but they do not so state in their petition, nor is it a fact according to the report of the viewers in which they state as follows: “Due proof was made to the viewers before they viewed said premises that proper notices were given of the intended view as required by law, as shown by the annexed copies of notices, with proof of, or acceptance of service.” It is admitted by counsel for the petitioners, and is a fact as disclosed by the records in these proceedings, that the report of the viewers was not only confirmed absolutely, but said road was ordered to be opened and was actually opened for public travel, and the land damages paid as assessed by the viewers. Under these circumstances, we are of the opinion that a petition to vacate the road laid out and opened and to open the road vacated is the proper proceeding, rather than the petition presented.
    October 10, 1910:
    And now, January 28, 1909, the prayer of the petitioners is refused and the petition dismissed.

      Error assigned was the order of the court.

      Fred W. Nicolls, with him William Rick and E. W. Miller, for appellant.
    The appeal was not too late: O’Hara Twp. Road, 152 Pa. 319; Bean’s Road, 35 Pa. 280; Frankstown Twp. Road, 26 Pa. 472; Dunbar Twp., 12 Pa. Superior Ct. 491; Crescent Twp. Road, 18 Pa. Superior Ct. 160; Hickey v. Conley, 24 Pa. Superior Ct. 388.

      Eugene D. Siegrust, with him Walter C. Graeff, for appellees.
   Opinion by

Porter, J.,

The final order of the court below confirming the report of viewers absolutely and ordering the road to be opened and the part of the road the place of which it supplied to be vacated was made on September 22, 1908, and upon the same day an order was issued to the supervisors of the township to open the new road and vacate the part of the old road the place of which it supplied. The supervisors, on October 23, 1908, filed of record their return to the said order showing that the new road had been opened and the old vacated. The appellant, on November 23, 1908, more than one month after the final decree of the court had been executed, presented a petition praying the court to rescind the order confirming the report of viewers and asking leave to file exceptions nunc pro tunc. The appellant had averred in his petition that he had received no notice of the proceedings, but this averment was contradicted by the report of viewers and counsel for the appellant now candidly admit that their client did actually have due notice of the proceeding. The court below refused to vacate its order confirming the report of viewers and declined to permit the appellant to file exceptions nunc pro tunc. The appellant took this appeal on May 28, 1909, more than eight months after the court had entered its final decree that the new road be opened and the old vacated, and more than six months after this appellant had formally appeared in the court below and sought to have that final order vacated. There can be no question that this appellant had notice of the final order of the court below at a time which afforded him ample opportunity to appeal from that order within the six months allowed him by the statute. The time within which the appellant was by the statute required to enter his appeal, if he desired to have the proceeding reviewed, must be computed from the date of the final order of the court that the road be opened and not from the time when the court below refused the petition of the defendant to have that order vacated: Old Tacony Road, 32 Pa. Superior Ct. 444.

The court below had not in this case made a final order which could not be executed, an order which was in itself erroneous, as was the case in Bean’s Road, 35 Pa. 280, and Road in Dunbar Township, 12 Pa. Superior Ct. 491. There was no jurisdictional defect apparent upon the face of the record, which could be availed of to attack the order at any time before its final execution, such as was found in O’Hara Township Road, 152 Pa. 319, and Crescent Township Road, 18 Pa. Superior Ct. 160. The exceptions which the appellant sought to file in the court below tended to raise questions of fact or alleged irregularities in the proceeding which did not appear in the record. • The petition for the road designated the termini with reasonable certainty and the report of viewers, taken in connection with the accompanying plan, located the entire road with accuracy. Whether the terminus of a proposed road is a public place is a question of fact and where there is nothing in the record to indicate that it is not such, the court below will be presumed to have arrived at a correct conclusion, upon that point, when it decrees that the road be opened: Jefferson & Rush Townships Road, 2 W. N. C. 138; Bellevernon Borough Road, 15 W. N. C. 232. This appeal was not taken in time to permit us to review mere irregularities in the proceeding and we find no jurisdictional defects in the record.

The order of the court below is affirmed and the appeal dismissed at costs of the appellant.


text:
    Anspach, Appellant, v. Christman.

      Appeals — Assignments of error — Evidence.
    1. An assignment of error to the admission of evidence, which does not quote the evidence, nor refer to the page of the paper-book where it may be found, will not be considered.

      Promissory notes — Payment—Evidence.
    2. In an action upon a promissory note by an administrator the case is for the jury, and a judgment and verdict for defendant will be sustained where the evidence is conflicting as to whether or not the decedent had delivered the note to the defendant in her lifetime, and there is also evidence tending to show that the defendant had furnished the decedent supplies to a considerable value and had paid money out for her, and that it was the intention of the parties that these matters should be regarded as payment upon the note.
    Argued Nov. 12, 1909.
    Appeal, No. 217, Oct. T., 1909, by plaintiff, from judgment of C, P. Berks Co., Sept. T., 1909, No. 31, on verdict for defendant, in case of Wallace M. Anspach, administrator c. t. a. of Elmina Schlaseman, deceased, v. Charles J. Christman.
    October 10, 1910:
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit on a promissory note. Before Stevens, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1, 3) rulings on evidence without quoting the evidence admitted; (2) refusal of binding instructions for plaintiff; (4) portion of charge referred to in the opinion of the Superior Court.

      John M. Frame, with him D. N. Schaeffer and Charles K. Derr, for appellant.

      W. B. Bechtel, with him Wilson S. Rothermel, for appellee.
   Opinion by

Porter, J.,

The first and third specifications of error, respectively, seem to be founded upon exceptions to the admission of certain oral evidence. These specifications violate rule XV of this court in that they do not quote the “testimony or evidence admitted,” nor do they “refer to the page of the paper-book where the matter may be found in its regular order in the printed evidence;” they do not even give the names of the witnesses the admission of whose testimony is the subj ect of complaint. The specifications must, therefore, be disregarded.

The plaintiff was seeking to recover upon a note which in his statement he averred had been made by the defendant, bearing date April 1, 1888, for $600, payable in one year from date thereof, with interest. The statement averred that the defendant had paid the interest on this note yearly up to April 1, 1903. The statement further averred that the defendant had illegally and fraudulently obtained possession of the note, at the house of the decedent, after her death, without paying the said sum of $600, and had destroyed the note. When the case came to trial the plaintiff did not have the note and could not offer it in evidence, thus making out a prima facie case. He was compelled by oral evidence to establish that the note had been in existence and that the defendant had obtained possession of it under circumstances which did not involve an inference that the debt had been paid, or the claim canceled by the decedent in her lifetime. The evidence at the trial so developed that the right of the plaintiff to recover depended entirely upon the veracity of a single witness, Frank Lightner, who testified that the note in question had not been delivered by the decedent in her lifetime to the defendant, but that he, Lightner, had given the note to the defendant after the death of Elmina Schlaseman. There was a conflict of evidence as to whether a certain visit made by the defendant to the house of Mrs. Schlaseman had occurred before or immediately after her death. Two witnesses testified on behalf of the plaintiff that, upon the day in question, the defendant did not arrive at the house of Mrs. Schlaseman until after she was dead. One witness, who seemed to be disinterested, testified that after the defendant had completed his visit to the house and left, he, the witness, entered the house and there talked to Mrs. Schlaseman, whose intellect at that time seemed to be clear. There was evidence in the case which tended to establish that the defendant had during the lifetime of the deceased yearly furnished her with supplies to a considerable value and on one occasion paid out money for her. This was accompanied by evidence tending to show that it was the intention of the parties that these matters should be regarded as payments upon the note. In view of the evidence contradicting the statement of the witness Lightner that the visit of the defendant to the house of the deceased had been after her death, it would have been error for the court to give binding instructions in favor of the plaintiff, and the second specification of error is overruled.

The parties, both plaintiff and defendant, tried the case in the court below upon the theory that the right of the plaintiff to recover depended entirely upon whether the note had been surrendered to the defendant by Mrs. Schlaseman in her lifetime, or had been delivered to him by Lightner after her death. The learned judge of the court below, in that part of the charge which is the subject of the fourth specification of error, fairly submitted that question of fact to the jury. There was in this case no contest between the conflicting claims of creditors, and nothing to indicate that Mrs. Schlaseman, in her lifetime, did not have the legal right to make a valid gift of and actually deliver to defendant the note which she held. The effect of what the learned judge said was to impose on the defendant the burden of showing that the note was delivered to him in the lifetime of Mrs. Schlaseman, by her or under her direction. The appellant certainly has no cause to complain of this instruction.

The judgment is affirmed.


author: Head, J.,

text:
    Puterbaugh’s Estate.

      Trusts and trustees — Accounting—Findings of fact.

    A finding of fact by an orphans’ court judge auditing an account himself without reference to an auditor, which results in a surcharge of a trustee, will not be reversed by the appellate court where the record discloses sufficient evidence tending to support the finding, and there is nothing to show palpable or manifest error on the part of the judge.
    Argued Dec. 6, 1909.
    Appeal, No. 199, Oct. T., 1909, by George E. Stauffer, trustee, from order of O. C. Monroe Co., dismissing exceptions to adjudication in Estate of Isaac T. Puterbaugh.
    October 10, 1910:
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Exceptions to adjudication. Before Sando, P. J., specially presiding.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in dismissing exceptions to adjudication.

      F. B. Holmes, for appellant.
   Opinion by

Head, J.,

A patient examination of the complicated and somewhat confusing mass of figures, of which this record is almost entirely composed, fails to reveal any principle of law or rule of evidence involved in the contention of the parties. It seems to be conceded that the question about which they differ is one of fact, or “a matter of figures only.”

By the will of Isaac T. Puterbaugh the bulk of his estate was devised and bequeathed to the executor therein named as a testamentary trustee, in such manner that the net income thereof should be paid to his son Harrison S. Puterbaugh during his natural life. In the event of his death without issue there was a devise over to other parties with whom we have no concern. The testator died in 1889, and the trustee began the active discharge of the duties of his trust.

The record further shows that Samuel H. Puterbaugh, some time later, died in Luzerne county, and upon a settlement of his estate there was distributed by the orphans’ court of the last-named county, to the said Harrison, a sum in excess of $6,000. A dispute arose between the latter and the other legatees mentioned in the will of Isaac T. Puterbaugh as to whether the corpus of this sum was to go to Harrison S. Puterbaugh absolutely, or whether it was to be added to the trust fund in the hands of his trustee so that the income thereof only would be available to the cestui que trust. Whilst an appeal to the Supreme Court to finally determine this question was pending the parties reached an amicable settlement by agreeing to divide the fund between them. George E. Stauffer, the appellant and the testamentary trustee, already referred to, had also become the administrator of the estate of Samuel H. Puterbaugh. By virtue of the arrangement last referred to he was required to pay over to Harrison S. Puterbaugh absolutely the sum of $3,289.45. It further appears that previous to this time Stauffer, as testamentary trustee for Harrison S. Puterbaugh, had made two loans to him. On these the latter of course paid no interest, as he was the beneficiary under the trust, and the income thereof belonged to him. One of these notes was for $1,500, the other for $1,039.11.

Now when Stauffer, as the administrator of the estate of Samuel H. Puterbaugh, came to pay over to Harrison S. Puterbaugh, his cestui que trust in the other estate, he did it, as he himself declares, in the following manner, to wit:

"Cash............................. $1,500.00
His own note for money borrowed from estate of Isaac T. Puterbaugh 1,039.11 And credit on his own note for $1,500, money borrowed from same estate. . 750.34
$3,289.45”

From this it would seem to follow that none of the securities which were in the hands of Stauffer, either as administrator of the one estate or as trustee of the other, passed into the hands of Harrison S. Puterbaugh on account of this payment.

When Stauffer, trustee, filed his account in 1907, after the trust had been in active existence for many years, he very properly undertook to set forth both a principal and an income account, the two together constituting his account. In this account there appeared, among other items of credit, the following:

“August 28, 1897, By amount of interest from Ace & Decker carried to principal fund in exchange of securities as per supplementary account filed this day and auditor’s report thereon......... $203.27”

This item was specifically made the subject of the seventh of a number of exceptions filed to the account. It seems to us reasonably apparent that it was not on its face self-sustaining, and the burden therefore was on the accountant to produce such evidence as would justify the allowance of the credit claimed. In the first adjudication the learned judge of the orphans’ court thus disposed of that exception: “The seventh exception is to a credit for a payment alleged to have been made on August 28, 1907, 'by amount of interest from Ace & Decker &c.’ We agree with the counsel'for the trustee that it is a matter of figures. After due consideration of the calculations, figures and facts, there does not appear to be any satisfactory explanation of the item, the subject-matter of the exception. The seventh exception is therefore sustained.” It may here be remarked that outside of the various accounts, principal and supplementary, the account book of the trustee from which they were made up and the various calculations drawn from an examination of these, the testimony before the learned court below was extremely scant, consisting of the oral testimony of the trustee and the cestui que trust only. Both examinations were very brief, and neither of them throws much light, if any, on the exact subject-matter of the controversy.

The accountant applied for and obtained a reargument as to the seventh exception referred to. Upon a reconsideration of the account the learned judge below affirmed his previous adjudication and pointed out that the shortage of the accountant, if any there might be, arose from an error made by him years before in the distribution of the estate of Samuel H. Puterbaugh and not in the estate of Isaac T. Puterbaugh, then before the court for adjudication. This error, as the court proceeds to point out, arose from the fact that the administrator in the Samuel H. Puterbaugh estate, in maldng up his account showing the amount in his hands for distribution, charged himself with interest calculated on the securities in his hands down to a certain date, all of which interest, however, was not then actually in his hands. While he thus had potentially the entire balance shown by his account, he would not actually have it in money until this accrued interest would be subsequently paid in by the respective debtors. When the two contestants for this fund suddenly settled their controversy in the manner previously mentioned, the administrator promptly divided between them the fund shown by his account to be in his hands. The difference between the cash actually in hand and the interest with which he had charged himself, thus producing the balance to be divided, was just about the same amount covered by the item now in controversy. Before leaving this subject it is well to observe that if the administrator in the estate of Samuel H. Puterbaugh, by mistake, distributed to the parties entitled more than was actually in his hands, Harrison S. Puterbaugh, the cestui que trust in the estate now before us, was not the sole beneficiary of that error, as he received but one-half the fund. It may also be noted that the administrator at that time took refunding bonds from each of the distributees, and as to this we may quote what was said by the learned judge below, to wit: “What remedy under existing circumstances the accountant has for the error he made years ago, even under the conditions of the indemnifying bond, we cannot say.”

The able counsel for the appellant here earnestly challenges the correctness of the statement of fact of the learned judge below as to the origin of the error which made necessary the insertion of the item in the present account which gives rise to this controversy. In his printed brief, commenting on these facts, he says: “At this stage it is true an error was committed by the administrator by paying over to Harrison S. Puterbaugh, the present exceptant, all of the interest without deducting the $205.50.” He argues, however, that this error had nothing to do with the item of credit in the present account complained of, but maintains that the latter had its origin in an entirely different source. He undertakes to show that Harrison S. Puterbaugh, the cestui que trust under the will of his father, became indebted to his trustee in four different amounts loaned to him, which loans were evidenced by notes given to the trustee. These notes include those for $1,500 and $1,039.11, already referred to, and two small notes, all aggregating the sum of $3,081.60. Of this indebtedness to the trust estate it is contended that the cestui que trust repaid only the sum of $2,878.33, leaving him still indebted to the extent of $203.27, which the trustee undertook to repay to himself by the credit in his account which is complained of.

As tending to show the correctness of this contention, the trustee, through his counsel, presents the following statement of the partial payments made by his cestui que trust on account of the indebtedness aforesaid. As the dates and items of this schedule are significant we quote it in full from the paper-book.

DATE PAYMENT IN AMOUNT
“4-15-90 Cash..................... $ 2.25
8-25-99 Isaac Stauffer Note. ....... 598.00
“ “ “ “ “ “ ........ 425.00
“ “ “ “ “ “ ........ 261.38
“ “ “ Price Bros. Note.......... 299.55
5-6-00 Cash..................... 300.00
11-24-01 “ 992.15
$2,878.33”

As indicative of some of the difficulties confronting the accountant in supporting this theory we may note the following:

(1) There is no evidence whatever that on April 15, 1890, Harrison S. Puterbaugh paid to the accountant the sum of $2.25 in cash on any account, much less on account of a considerable indebtedness evidenced by notes. What is said to be a copy of the cash account of the trustee, included in what is called by his counsel a trial balance or supplement to appellant’s paper-book, shows that on the day named the trustee charged himself with $2.25 cash as having been received “from estate.” No further explanation of this item is given. On the remaining dates mentioned in the schedule of partial payments above as the dates on which Harrison S. Puterbaugh paid the sums of $300 and $992.15 respectively, the cash account shows no entries of such amounts having been received from anyone.

(2) We have already seen, from another statement of the accountant, intended to exhibit the manner in which he paid over to Harrison S. Puterbaugh the money that came to him from the estate of Samuel H. Puterbaugh, that the note of Harrison for $1,039.11 was, in that transaction, taken up and paid in full, while his note for $1,500 was in the same manner paid to the extent of $750.34. If this be true it is difficult to see how the same notes could have been paid in the manner disclosed by the last schedule more immediately under our consideration.

(3) It is further claimed that Harrison S. Puterbaugh extinguished, pro tanto, his indebtedness evidenced by his notes on August 25, 1899, by turning over to his trustee three notes of Isaac Stauffer in the sums of $598, $425 and $261.38 respectively. It is not shown by any evidence that Harrison S. Puterbaugh ever had any such notes of Isaac Stauffer; that he had ever made any loans to him, or that he had ever received such notes from his trustee in any transaction that occurred previous to the last-mentioned date. On the contrary, it appears from one of the accounts, filed by the trustee himself, that some time prior to January 24, 1899, the trustee held notes of Isaac Stauffer amounting to $1,500, $598 and $425 respectively; that on the date last mentioned, to wit, January 24, 1899, the trustee surrendered the three notes last mentioned to Isaac Stauffer, the debtor, taking therefor a new note of the same debtor in the sum of $2,784.38, and at the same time giving to him, to make up the difference in amounts, the trustee’s check for $261.38. So again it becomes difficult to see how the cestui que trust on August 25, 1899, turned into his trustee certain notes of Isaac Stauffer which the trustee himself had surrendered to the debtor many months before.

But it is needless to pursue this inquiry further in detail. It is not our province to determine that the inferences of fact to be justly drawn from the evidence conclusively show that the learned court below was right or that the theory of the appellant is untenable. That there is evidence tending to support the finding of the auditing judge and to controvert that urged on us by the appellant, cannot, we think, be denied. The record therefore discloses no such palpable or manifest error as to warrant us in rejecting the finding of fact adopted by the learned court below and accepting that advanced by appellant.

Decree affirmed and the appeal dismissed at the costs of the appellant.


author: Orlady, J.,

text:
    Commonwealth, Appellant, v. Cosick.

      Constitutional law — Ownership of weapons — Unnaturalized foreign-born resident — Act of May 8,1909, P. L. 1¡66.

    The Act of May 8,1909, P. L. 466, forbidding unnaturalized foreign-born residents from owning certain weapons is constitutional.
    Argued March 1, 1910.
    Appeal, No. 140, April T., 1910, by plaintiff, from judgment of Q. S. Indiana Co., June Sessions, 1909, No. 14, allowing motion in arrest of judgment in case of Commonwealth v. George Cosick.
    October 10, 1910:
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Appeal from a summary conviction of an unnaturalized citizen of Austria-Hungary, for having in his possession a shotgun.
    The facts are similar to those in Commonwealth v. Papsone, post, p. 128.

      Error assigned was the judgment of the court in arresting judgment.

      W. H. Lemon, with him W. F. Elkin and W. K. Shiras, for appellant.

      E. Walker Smith and W. N. Liggett, for appellee,
   Opinion by

Orlady, J.,

This case was heard at the same time as that of Com. v. Joseph Papsone, in which an opinion is filed herewith, post, p. 128.

The question involved is the same in each, and is considered at length in the Papsone case. For the reasons therein given the judgment in this case is reversed, and it is ordered that the defendant appear in the court below at such time as he may be there called, that unless further and additional cause be then shown that the judgment of the magistrate be then affirmed and that a sentence be imposed on the defendant according to law.


text:
    Commonwealth v. Nolde, Appellant.

      Corporations — Foreign corporations — Registration—Failure to register —Conviction of officers — Act of April SS, 1874, P- P-108.

    The officers of a foreign realty corporation may be convicted of violating the Act of April 22, 1874, P. L. 108, relating to the registration of foreign corporations, by evidence which shows that they established and maintained a branch office in Pennsylvania at which they displayed a sign marked with the name of the company; that they placed an agent in this office who employed subagents; that the agent distributed circulars and advertisements, sold lots for the company, and received money for them at the branch office, and executed deeds and agreements for the conveyance and sale of lots, in the branch office.
    Argued Nov. 11, 1909.
    Appeal, No. 164, Oct. T., 1909, by defendants, from judgment of Q. S. Berks Co., Sept. T., 1908, No. 77, on verdict of guilty in case of Commonwealth v. Jacob Nolde, Palmer Kershner and Charles A. Dustin.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Indictment for violating the act of April 22, 1874. Before Trexler, P. J., specially presiding.
    The facts are stated in the opinion of the Superior Court.
    Verdict of guilty, upon which the defendants were fined jointly and severally the sum of $10.00. Defendants appealed.

      Error assigned was in refusing binding instructions for defendant.

      Isaac Hiester, with him C. H. Ruhl and Snyder & Zieber, for appellant.
    We submit that no authority can be found for the proposition that the mere signing of a preliminary contract for the transaction of business which is to be entirely done and performed in another state concerning property located there can be regarded as the doing of business in the state where the contract is signed. The authorities to the contrary are numerous: Hogan v. St. Louis, 75 S. W. Repr. 604; Delaware River Quarry, etc., Co. v. Bethlehem, etc., Pass. Ry. Co., 204 Pa. 22; Cooper Mfg. Co. v. Ferguson, 113 U. S. 727 (5 Sup. Ct. Repr. 739); Hart v. Livermore Foundry, etc., Co., 17 So. Repr. 769; Green v. Chicago, etc., Ry. Co., 205 U. S. 530 (27 Sup. Ct. Repr. 595); Goepfert v. Compagnie Generale Transatlantique, 156 Fed. Repr. 196; Kilgore v. Smith, 122 Pa. 48; People’s B. & L. Assn. v. Berlin, 201 Pa. 1; Pavilion Co. v. Hamilton, 15 Pa. Superior Ct. 389; Stephenson v. Dodson, 15 Pa. Dist. Rep. 771; Galena Mining, etc., Co. v. Frazier, 20 Pa. Superior Ct. 394.
    October 10, 1910:
    The evidence does not show that the Berks-Nassau Real Estate Company was doing business in this commonwealth: Com. v. Standard Oil Co., 101 Pa. 119; Kilgore v. Smith, 122 Pa. 48; Mearshon v. Lumber Co., 187 Pa. 12; Hovey’s Est., 198 Pa. 385; Cooper Mfg. Co. v. Ferguson, 113 U. S. 727; Brown v. Guarantee Savings, etc., Co., 102 S. W. Repr. 138; Poole v. Peoria Cordage Co., 97 S. W. Repr. 1015; Lutes Co. v. Wysong, 110 N. W. Repr. 367; Delaware River Quarry, etc., Co. v. Bethlehem, etc., Pass. Ry. Co., 204 Pa. 22.

      Cyrus G. Derr, with him Harry D. Schaeffer, district attorney, and D. Nicholas Schaeffer, for appellee.
    When; the officers of a corporation, organized for the purpose of' buying and selling land, open an office in Pennsylvania, to which by advertisement they induce people to come, and there negotiate sales of and sell land to the people so induced to come there, the officers must be regarded as doing business for the corporation in Pennsylvania: Smith v. Anderson, L. R. 15 Chancery Div. 247; Montello Brick Works, 20 Am. Bank. Repr. 859; Pavilion Co. v. Hamilton, 15 Pa. Superior Ct. 389.
   Opinion by

Orlady, J.,

The sole question in this case is whether the defendants, the officers of a foreign realty corporation, were rightly convicted of transacting business within this commonwealth without complying with the provisions of the Act of April 22, 1874, P. L. 108.. The crime charged is set put substantially in the language of the act which prohibits it and is deemed and adjudged sufficient under the provisions of sec. 11 of the Act of March 31, 1860, P. L. 427.

Their company was duly incorporated in New York, and by its charter authorized “to purchase, lease, or otherwise acquire, own, lay-out, maintain and improve real estate and chattels in any and every county in the state of New York, and in any and all other states of the United States of America, and to sell, convey, let or otherwise dispose of the same or any part thereof.”

The appellants, who are the principal officers of the realty company, established and maintained a branch or suboffice in Reading, Pennsylvania; and gave notice to the world by a sign marked “Berks-Nassau Realty Company,” that they were there to transact business. They placed a representative in the office, who employed subagents and distributed circulars and advertisements by mail which gave the general character, scope and system of the business they were transacting. This is not a case of an isolated transaction, but the general business of the company was openly and continuously conducted for a number of months. As stated by their agent: “I sold lots for the company to various people. I received pay at various times for the sales that I made. The deeds and agreements for the conveyance and sale of the real estate in New York were executed and delivered in the city of Reading, Penna. The purchasers paid their money to the defendants at their offices, 530 Court street, Reading, Penna.”

That the company was satisfied that it was necessary to register in Pennsylvania so as to authorize the doing or transacting of business here, is conclusively shown by its act in the registration on September 10, 1907.

If additional authorities are needed to sustain the conclusion of the learned trial judge, they may be found in Fertilizer Co. v. Kelly, 10 Pa. Superior Ct. 565; West Jersey Ice Mfg. Co. v. Armour & Company, 12 Pa. Superior Ct. 443; De La Vergne Co. v. Kolischer, 214 Pa. 400; Stephenson v. Dodson, 36 Pa. Superior Ct. 343, and Stoner v. Phillipi, 41 Pa. Superior Ct. 118.

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


text:
    Estes v. Kauffman, Appellant.

      Contract — Sale—Rescission—Return of goods — Condition—Sale by auction.

    Where a purchaser of goods finds after their delivery to him that they are not of the quality for which he contracted, he may rescind the contract and return the goods, but he cannot impose as a condition for the return of the goods by him, that the seller shall reimburse him for freight charges and cartage which he had expended for their transportation; nor can the purchaser in such a case, after the seller has declined to pay the charges, sell the goods at auction for the freight, cartage and storage charges.
    Argued Nov. 11, 1909.
    Appeal, No. 168, Oct. T., 1909, by defendant, from order of C. P. Lancaster Co., April T., 1909, No. 38, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Herbert Estes v. John A. Kauffman, trading as The Conestoga Paper Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for goods. Before Landis, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order entering judgment for plaintiff.

      October 10, 1910:

      W. U. Hensel, for appellant.
    The contract was executory, and the 'ownership of property was not changed by it. The title to the latter remained in the plaintiff, subject to the defendant’s inspection and acceptance of it: Jones v. Jennings Bros., 168 Pa. 493; Whitehill v. Wilson, 3 P. & W. 405; Gilchrist v. Rogers, 6 W. & S. 488; Bisbing v. Third National Bank, 93 Pa. 79; Clark v. Wright, 5 Phila. 439; Rothschilds Co. v. McLaughlin, 6 Pa. Superior Ct. 347.
    The vendor may recover the expenses incident to the proper care and keeping of goods after a breach by the vendee and prior to a resale thereof: Coffman v. Hampton, 2 W. & S. 377; Kerr v. Shrader, 1 W. N. C. 33; Moore v. Ry. Co., 4 Phila. 261; Youghiogheny Iron & Coal Co. v. Smith, 66 Pa. 340.

      H. Edgar Sherts, for appellee,
    cited: Studer v. Bleistein, 115 N. Y. 316 (22 N. E. Repr. 243).
   Opinion by

Porter, J.,

The plaintiff brought this action of assumpsit to recover the contract price for eighteen tons of wrapping paper, under a contract evidenced exclusively by written correspondence. The contract stipulated for a delivery of the paper, by the plaintiff to the defendant, free on board the cars at Ausable Chasm, N. Y., at a specified price. The plaintiff did deliver a lot of paper, to the quantity required by the contract, free on board the cars of a common carrier, at the point designated, consigned to the defendant. With regard to the facts thus far stated there is no controversy between the parties. The affidavit of defense avers that the paper was not of the quality specified for in the written correspondence. We must for the purposes of this appeal assume the allegations of the affidavit of defense to be true. The affidavit of defense admits that the paper arrived at Lancaster, but avers that the paper could not be examined, for the purpose of ascertaining whether it complied with the contract, until after it had been taken from the cars, and that it was so taken only for the purpose of an inspection and an examination. “It was found not to be in conformity with the contract, and it was, as defendant advised plaintiff on September 19th, 1908, instead of being ninety pound stock, very lacking in quality and in uniformity.” The contract required the paper to be made up in rolls, of different weights, and the affidavit averred, that, “In addition to the deficiency in the quality thereof it did not consist of rolls of the weights stipulated in the contract. No more than forty per cent of the rolls ran up to twenty-six.” The defendant upon receiving the car had paid to the carrier the sum of $114 as freight upon the same, and the affidavit averred that he had paid charges for cartage from the freight station to his warehouse amounting to $15.00. The defendant notified the plaintiff by letter, on September 19, 1908, that he declined to accept the paper and that he placed the same at the disposition of plaintiff and would ship it “wherever you may designate, upon payment of the freight charges paid of $114 and cartage charges of $15.00.” Defendant also notified the plaintiff that unless the latter provided for the removal of the paper “on or before October 9th, 1908,” the defendant would expose the paper to public sale to the highest bidder on Saturday, October 10, 1908, and sell it for the freight and storage charges accrued thereon, “for the benefit of whom it may concern.” The plaintiff declined to pay the defendant the amount which the latter had paid for freight upon the paper and for the storage charges, and the defendant thereupon, on October 9, 1908, sold the paper at public auction for $700. The affidavit avers that the plaintiff paid for advertising this sale $12.58, for auctioneer’s charges $10.00, and he makes a charge of $25.00 for storage, which added to the $114 freight which he had paid aggregated the sum of $161.58, leaving a balance out of the fund realized from the sale at auction of $538.42, which sum the defendant averred he had paid to a third party, as a trustee, who holds the same subject to any claim which, the plaintiff may have. The court below held the affidavit of defense to be insufficient and directed that judgment be entered for the plaintiff. The defendant appeals.

“ A vendee who receives a thing into his possession, before he has become acquainted with its quality, has, if dissatisfied, but one of two courses to pursue; either to retain it and claim a deduction, or reject it and attempt to rescind the contract. In pursuing the latter, he has no contract to enforce. His game is to get rid of the bargain, by rejecting the vendor’s performance or part of it. To this end it is necessary that he exercise no act of ownership, or give the property no direction but what is necessary to send it in specie to the vendor. He is not at liberty to destroy it by wantonly exposing it; but on the refusal of the vendor to take it away he might leave it at his door, giving notice of the fact. But he might not send it to auction, because the necessities of the case would not require it:” Buffington v. Quantin, 17 Pa. 310. The affidavit in the present case does not aver any facts which could be held to establish that it was necessary to pursue the course with regard to the goods which the defendant elected to take; that is, sell them at public auction. There was no necessity for the sale and he had no right to so dispose of them. He placed himself in a position where it was no longer in his power to offer to return the goods and rescind the contract. The alleged offer of the defendant to ship the goods to whatever point the plaintiff might designate was accompanied by a condition which he had no right to impose. He had paid the railroad company freight to the amount of $114 and it had cost him $15.00 for cartage to remove the goods from the freight station to his warehouse, but for these expenditures he had no lien upon the goods. The contract had required him to pay the freight on the property from Ausable Chasm to Lancaster, and this he had done, but this did not subrogate him to the right of the carrier to assert a lien for the amount of the freight. His claim for the amount, if- any just claim he had, was against the plaintiff personally and not against these goods. In order to assert a rescission of the contract, he was required to place the goods at the disposition of the plaintiff absolutely, and without qualification. He could not rescind the contract and at the same time assert dominion over the goods. Having retained the goods and sold them, when there was no necessity for such sale, he cannot assert a rescission of the contract. The defendant was, therefore, legally liable to pay for the goods, at the contract price, unless the facts were such as to entitle him to a deduction for defects in the paper or a difference in quality which rendered it of less market value than what the contract called for, for there is no question that it was all right as to quantity. The affidavit cannot be held to aver a defense sufficient as to any part of the plaintiff’s claim. If the paper which defendant received was of less value than what he had contracted for the affidavit should not only have specifically averred that fact, but it should have stated how much less. This affidavit does not state whether the goods received were actually worth more or less than the goods which the contract specified.

The judgment is affirmed.


text:
    Heath, Appellant, v. Heath.

      Divorce — Indignities to the person — Evidence.
    1. A divorce will not be granted to a wife on the ground of indignities to her person where the only evidence on the subject is that given by one witness, whose testimony shows that what she said was from hearsay, and largely from statements made to her by the libelant herself.

      Divorce — Residence—Jurisdiction—Act of March IS, 1816, 6 Sm. L. m.

    2. The intention of the Act of March 13, 1815, 6 Sm. L. 286, was that the libelant must reside in the state at the time the libel was presented, and must have so resided for at least one whole year immediately before such filing.

      October 10, 1910:
    3. Where a libelant in divorce comes into this state and files her libel, averring that she is a citizen of Pennsylvania, the burden is upon her to show that her place of residence was within the commonwealth at the time she filed her libel and during the entire year immediately preceding. Proof that she had lived within the commonwealth for a period of eight years is insufficient, if it is not shown that the eight years included the year immediately preceding the filing of the libel.
    Argued Dec. 7, 1909.
    Appeal, No. 94, Oct. T., 1909, by plaintiff, from order of C. P. Montgomery Co., Dec. Term, 1907, No. 28, refusing divorce in case of Marie A. Heath v. Willis H. Heath.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Libel for divorce. Before Weand, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in dismissing the libel.

      Samuel H. High, with him John Faber Miller, for appellant,
    cited: Dorsey v. Dorsey, 7 Watts, 349; Lyons v. Lyons, 13 Pa. Dist. Rep. 623; Hull v. Hull, 8 Pa. Dist. Rep. 420.
    There was no appearance nor printed brief for appellee.
   Opinion by

Porter, J.,

The grounds for a divorce averred in the libel were willful and malicious desertion and such indignities to the person of libelant as to render her condition intolerable and life burdensome, thereby forcing her to withdraw from the house and family of respondent. The subpoena was not served upon the respondent, no rule to take depositions was served upon him, and he did not appear and defend. The court below appointed a master who returned to the court, in writing, the testimony taken before him, with his report thereon, recommending that the court grant the decree of divorce. The court below after a hearing refused to grant the divorce and dismissed the libel at cost of the libelant. The libelant appeals.

The parties were married at Newark in the state of New Jersey on April 4, 1889. The libelant had prior to that time been a citizen and resident of the state of New Jersey and the respondent a citizen and resident of the state of New York. After the marriage the parties lived together in the city of Brooklyn, New York, which thus became their common domicile. They separated after a few months of married life and, so far as revealed by the meagre evidence in this case, have not since cohabited. The appellant filed her libel in the court below, on October 30, 1907, averring that she was a citizen of Pennsylvania and had resided therein for one whole year previous to the filing of her libel. The evidence established that the respondent had never been a resident of Pennsylvania, and so far as disclosed he has never come within the limits of this commonwealth, but he is still a .citizen of and resides in the state of New York. The learned counsel representing appellant have submitted a very interesting brief of argument, in support of their contention that the courts of Pennsylvania have jurisdiction to decree a divorce for a cause which occurred outside of the state, where the party seeking the divorce has subsequently become a resident of Pennsylvania, although the respondent has never come within this state and has not been legally served with process in the proceeding. Whether the courts of Pennsylvania have jurisdiction to decree a divorce for such a cause, occurring outside of the state, when the parties were not citizens or residents of this commonwealth, when the injured party subsequently becomes a resident of Pennsylvania, but the respondent never comes within the borders of the commonwealth and is not legally served with process; may be a very interesting question, upon which the provisions of the Act of April 28, 1903, sec. 1, P. L. 326 certainly have a very direct bearing, but the evidence here presented does not warrant the consideration of that question in this case. The plaintiff called but a single witness to testify as to the marital wrongs alleged in her libel. That witness was a resident of Newark, N. J., who occasionally visited the domicile of the libelant and respondent in the city of Brooklyn, N. Y. Her testimony as to indignities offered to the person of the libelant is wholly insufficient to warrant any court in decreeing a divorce of parties over whom its jurisdiction is free from doubt. This witness saw the parties only during her brief visits to their boarding house. While the reading of certain parts of her testimony alone, might give the impression that she was testifying as to facts of which she had personal knowledge, a careful consideration of her entire testimony can lead only to the conclusion that it is founded very largely upon hearsay, and it is impossible to determine what material parts of it are founded upon personal knowledge and what upon hearsay. Near the close of her testimony we find this significant statement. “I was deeply interested in the matter because I felt, in some measure, responsible for his acquaintance, and the intimacy between Mrs. Heath and myself accounts for my visit and when I saw the way matters were I took him to task about it and obtained from him the information I have given.” Her testimony contains this significant statement, which conclusively shows that she did not from personal observation know anything about the circumstances under which the parties finally separated: “Mrs. Heath believed that her husband had deserted her because he told her in my presence that if she did not leave he would and when I saw her, after she came from Brooklyn to Newark, she told me that he had left her.” This witness was not even in the same state where the parties were domiciled at the time they finally separated. All that she knows about when they separated, where they separated and the terms upon which they separated is what this libelant told her some time after the separation had occurred. The testimony of this witness was all that was offered in support of the charge of a willful and malicious desertion of the libelant by the respondent. The courts would certainly not be justified in inferring, from testimony of this character, that a separation involved a willful and malicious desertion of one of the parties by the other, and upon such ground decreeing a dissolution of the marriage relation. The evidence failed to establish the right of the libelant to a decree of divorce upon the grounds averred in her libel, and for that reason the court below was justified in refusing to so decree.

The foundation of the jurisdiction in divorce proceedings is, mainly, the Act of March 13, 1815, 6 Sm. L. 286. Section 11 of that statute provided that the benefit of the legislation should be denied a libelant “who is not a citizen of this state, and who has not resided therein at least one whole year previous to the filing of his or her petition or libel.” Under that statute a libelant must be both a citizen and resident of the state. Even if it be assumed that this rule has by subsequent statutes been so modified as to confer jurisdiction upon the courts to grant relief to a libelant who, while not technically a citizen of the state, has actually resided within the state one whole year previous to the filing of his or her petition or libel, the burden is still upon the libelant to prove the jurisdictional fact of residence. Section 2 of the act of March 13, 1815, requires that the libel be exhibited “to the judges of the court of common' pleas of the proper county where the injured party resides.” There can be no question as to the time when this jurisdictional fact of residence is to be determined; the party must reside within the county at the time the libel is presented, when he or she seeks to obtain a divorce from a respondent who has no residence within this commonwealth. Sections 2 and 11 of this statute, both of which deal with the fact of residence as related to jurisdiction, must be so construed as to bring them into harmony. The manifest intention of the legislature was that the libelant must reside in the state at the time the libel is presented and must have so resided for at least one whole year immediately before such filing. A mere temporary absence during the year, when the permanent bona fide residence within the state remained unchanged, would not defeat the right, but the period of such bona fide residence within the state must include the time of the filing of the libel and the whole of the previous year. When a party is technically a citizen of the state and is absent for a cause and under circumstances which do not involve a loss of such citizenship an entirely different question is presented, which in this case it is not necessary to consider. The burden was upon this libelant to show that her place of residence was within the commonwealth at the time she filed her libel and during the entire year immediately preceding. The libelant was not herself a competent witness to prove this fact, for there had been no personal service of the subpoena upon the respondent nor had he been served with a rule to take depositions, Act of May 23, 1887, P. L. 158. Her testimony upon this point must, therefore, be disregarded. The only competent evidence as to the residence of the libelant was that of Mrs. Ella Fisher, which was in these words, “I now live in Whitpain township, Montgomery county, Pennsylvania, I have lived there two years, prior to that I lived in Plymouth township. I know the libelant and she had made her home with me for the period of eight years. I never knew Mr. Heath and I never saw him.” The witness testified that the libelant had lived with her for eight years, but she does not say what eight years. The language clearly implies that the period had terminated at some time in the past, and would seem to imply that it was during the residence of the witness in Plymouth township, which had terminated two years prior to the time she testified, which was on July 21, 1908. Two years prior to that date would be July, 1906, or almost a year and a half before the libel was filed. The evidence did not satisfactorily establish the residence of the libelant.

The decree of the court below is affirmed and the appeal dismissed at cost of the appellant.


text:
    Sturts v. Ziegler, Appellant.

      Contract — Building contract — Defective wall — Evidence.
    1. In an action to recover the contract price for the erection of a building, the plaintiff is not entitled to recover the full amount, where the evidence shows that the party line walls were so negligently built out of the vertical that they overhung abutting property. The defendant is entitled to have deducted from the contract price the cost of reconstructing the walls in a proper manner, and in accordance with the contract.
    2. In such a ease the owner does not waive any right to have the walls built in a proper manner by making payments during the progress of the work and by using the building afterwards, if it appears that he never assented to the defect in the construction, nor waived his objection thereto.
    Argued Dec. 18, 1909.
    Appeal, No. 163, Oct. T., 1909, by defendant, from judgment of C. P. No. 5, Pbila. Co., June T., 1908, No. 203, on verdict for plaintiff in case of Ernest H. Sturts v. John M. Ziegler.
    Before Rice, P. J., Hendeeson, Moeeison, Oelady, Head, Beavee and Poetee, JJ.
    Reversed.
    Assumpsit on a building contract. Before Staake, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,298.50. Defendant appealed.

      Errors assigned were (1-41) various rulings on evidence and various.instructions.

      V. Gilpin Robinson, for appellant,
    cited: North Braddock Boro. v. Ry. Co., 217 Pa. 27; Miller v. Phillips, 31 Pa. 218; Bryant v. Stilwell, 24 Pa. 314; Fisher v. Mershon, 9 Pa. Superior Ct. 238; Wilkinson v. Becker, 155 Pa. 194; Gillespie Tool Co. v. Wilson, 123 Pa. 19; Gallagher v. Sharpless, 134 Pa. 134; Wade v. Haycock, 25 Pa. 382.

      October 10, 1910:

      Dwight M. Lowrey, with him Alfred R. Haig, for appellee,
    cited: Chambers v. Jaynes, 4 Pa. 39; Malone v. Phila., 12 Phila. 323; Mulligan v. Fitzpatrick, 28 W. N. C. 151.
   Opinion by

Orlady, J.,

The defendant submitted a written offer to build on a lot eighteen by eighty-eight feet a two-story brick stable of the size of the lot as per a plan furnished by the plaintiff for the sum of $3,046. After a conference between the parties and a modification of some minor matters the offer was accepted on January 9, 1908, and work thereon was promptly begun. The sum of $1,700 was paid during the progress of the work, and when the defendant took possession of the stable about April 15, 1908, he refused to make any further payment for the reason that the contract plan had been so departed from, and the work had been so defectively done, that the defendant claimed he should not be asked to pay any more than had been paid by him.

The plaintiff’s claim with interest was for $1,417.32, and the verdict returned in his favor was $1,298.50, showing that the jury did make a deduction of $118.82 to cover some of the defects shown by the defendant, and while the counterclaims present many objections to the work, the great majority of them may well be treated as having been fully considered by and rightly disposed of by the jury.

The case was tried with strenuous attention to minor as well as to important items, and resulted in a cumbersome record which beclouds rather than clears the real merits of the case. There are forty-one assignments of error which in argument are combined under the fourteen titles, and these may be epitomized into three principal questions. The substantial one grows out of the disposition made by the court of the fourth point presented by the defendant, which was as follows: “If the jury find that any of the walls erected by the plaintiff on land owned by the defendant are not vertical, and if they find that they are so erected that the top or any intermediate point of the walls overhangs land which does not belong to and is not in the sole control of the defendant, then your verdict should be for the defendant,” this the court overruled without any qualification or explanation.

The plaintiff brought his suit to recover for complete performance of his contract, but on the trial was obliged to admit that there were certain defects in construction so that he varied his proof to show a substantial compliance with his. contract with the assent of the defendant. As stated in appellee's paper-book, “When the walls were one story high, the plaintiff propped the walls to counteract the bulging and leaning. These props remained until after the building was completed. Defendant lived on adjoining premises, saw the props and made no objection.” It must be admitted that if the variances had the approval of the defendant, no damages can be claimed for them. If any had not such approval, compensation must be given: Chambers v. Jaynes, 4 Pa. 39. The evidence shows that the bulging of the walls was brought to the attention of the defendant, but it nowhere appears that he assented to them or waived his objection thereto. He was consistent in his demand that the walls should be vertical and that the other alleged defects should be remedied.

The plaintiff further admits that when the building was completed, the south wall was out of plumb, irregular, bulging and overhung the base line, from one inch at the front to three and one-quarter inches along the course of the wall, and one inch at the southeast corner. The north wall overhangs the adjoining property several inches. It was fairly shown that in order to restore them to a vertical line it will be necessary to relay more than 30,000 bricks. In addition to this, it was shown that on account of the bulge in the walls they will carry about ten per centum less weight than vertical walls, and further, that a large number of secondhand bricks were used in their construction. The testimony is reasonably clear that it would cost $700 to reconstruct these walls so as to make them plumb, — as the defendant was entitled to have them. This is what he contracted for and did not get.

The stable occupied all of the area of the lot, and when the plaintiff departed from a vertical line, he was occupying the land of an adjoining owner. Whether the overhang was due to the alternate freeze and thaw during the erection of the walls, or whether due to reckless and incompetent work is not material in this case. The defendant should not be obliged to pay for a wall he made proper objections to during its construction, merely because the efforts of the plaintiff to keep it straight were ineffectual. He should not be made to take the hazard of a law suit with a neighbor, while he has in his hands sufficient funds to protect himself, and at the same time require his builder to do just what he contracted to do. It is quite plain that the cost of reconstructing the walls was not considered by the jury, and it is reasonably clear that the answer of the court to the defendant’s fourth point warranted their elimination of these items of the defense. That they did not consider them at all is shown by the verdict. The defendant might not have been entitled to an unqualified affirmance of his point, but to answer it without any explanation quite naturally misled the jury to disregard all the evidence relating to the overhang of the walls. In this we think there was error. The rule governing such a case has but recently been clearly stated by Henderson, J., in Snedaker v. Torpey, 41 Pa. Superior Ct. 312, and in many phases that case is applicable to this one, "Whether the party acted in good faith, and whether the departures from the contract were material are generally questions for the jury.” Under the evidence the character and extent of the departure from the contract was an important fact for the consideration of the jury, and they should have been fully instructed in regard to that part of the defense: Miller v. Phillips, 31 Pa. 218; Bryant v. Stilwell, 24 Pa. 314; Gallagher v. Sharpless, 134 Pa. 134; Christy v. Price, 223 Pa. 551; Gillespie Tool Co. v. Wilson, 123 Pa. 19; Pile v. Pedrick, 167 Pa. 296.

The defendant was not obliged to allow the property to remain vacant until the stable was put in the condition required by the plans. He minimized the builder’s loss in using it. He committed no wrong, and lost no right by talcing possession of and using it as well as he could: Wilkinson v. Becker, 155 Pa. 194; Hartupee v. Pittsburg, 97 Pa. 107; Meacham v. Gardner, 27 Pa. Superior Ct. 296.

Nor did he waive any right by making payments during the progress of the work. He had a right to assume that when the building would be finally completed it would be just such a building as the contractor had agreed to furnish him: Franklin v. Shalty, 57 Pa. 103; Uhler v. Sanderson, 38 Pa. 128.

For the reasons stated the judgment is reversed, and a v. f. d. n. awarded unless the plaintiff remits from his verdict the sum of $600, an amount deemed sufficient to enable the defendant to reconstruct the walls so as to make them vertical throughout their length and height. In case the plaintiff remits the amount suggested, then the judgment as so ascertained is affirmed.