author: Morrison, J.,

text:
    Eshleman v. Rankin, Appellant.
    December 14, 1906:

      Deeds — Descriptions—Boundaries—Survey.
    Where no monuments or marks on the ground are called for in a deed, the calls in the deed must control • unless it be proved by sufficient evidence that the parties agreed upon a fixed line on the ground.
    Where a fence is not called for in a deed, and there is no evidence that the fence was adopted by the parties as a division line between their properties, evidence as to the situation of the fence is inadmissible to determine the division line; but if a nick was put in the fence by a surveyor as a line mark, the location of the nick may be shown as a mark or monument on the ground.
    Argued Nov. 13, 1906.
    Appeal, No. 25, Oct. T., 1906, by defendant, from judgment of C. P. Lancaster Co., Dec. T., 1903, No. 5, on verdict for plaintiff in case of Martin M. Eshleman v. Joseph G. Rankin.
    Before Rice, P. J., P.orter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages to land. 'Before Hassler, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $125. Defendant appealed.

      Errors assigned were (1-9) admission of various offers of testimony relating to the location of the old fence; (10-12) in disallowing offers of testimony relating to the situation of the nick or mark in the fence; (13, 14) in disallowing offers of testimony relating to the situation of the cherry tree stump; (15) portion of the charge quoted in the opinion of the Superior Court.

      D. McMullen and B. E. Davis, for appellant,
    cited: Burkholder v. Markley, 98 Pa. 37; Morse v. Rollins, 121 Pa. 537 ; Rook v. Greenewald, 22 Pa. Superior Ct. 641.
    ' W. U. Hansel with him I. 0. Arnold, for appellee.
   Opinion by

Morrison, J.,

This is an action of trespass brought by Martin M. Eshleman against Joseph G. Rankin for alleged damages to the plaintiff’s property. Both parties are owners of adjoining farms in Mar-tic township, Lancaster county. These farms belonged to Eli Eshleman in his lifetime, and after his death they were sold at orphans’ court sale, the defendant purchasing the one lying on the east and the plaintiff the one lying on the west. The dispute between the parties is caused by the location of the line dividing the farms. It appears that prior to the sale a surveyor was employed to locate a division line between these farms. He started his line at Pequea creek, being the north line of the two farms, and ran south to a line of land owned by one Harnish. The parties agree that the terminal points of the line at the north and the south are correct. The original draft made by the surveyor, the petition to the orphans’ court, and the decree authorizing the sale are not printed, but we understand the parties to agree that the line mentioned in all of these papers is precisely the same as found in the deeds to the plaintiff and defendant for their respective farms. The division line described in the deeds is precisely the same. It begins at the northern end at a point on Pequea creek, thence south 4f, degrees, west 110^- perches to a point at the beginning of Farm road; thence north TO degrees, east 11^ perches, thence south 8 degrees, east 121^- perches. The dispute as to the location of this line is confined to the last of the three courses. As we understand the evidence, the surveyors employed by the respective parties to locate this line on the ground do not agree, the lines established by them varying from about l-fW feet 2^ feet as shown by the testimony. It will be noticed that the division line between these farms as stated in the deeds does not call for the fence, or for any old located monuments on the ground. The plaintiff contends that an old fence, which was probably at one time a division line between the farms, is the true line, and that the survey must be made accordingly. There is no testimony in the record that the parties agreed upon this fence as the division line of the farms. The line was established by a surveyor running from the point on the north definite courses and distances till he reached the other terminal of the line at the south. This line not being marked on the ground it became of course necessary to have it located or traced by surveyors. The fence not being called for in the deeds and there being no testimony that it was agreed upon as the line, we cannot see how it was competent to attempt to vary or change the line as described in the deeds by evidence as to the location of this fence. There is some testimony of Jacob Eshleman and Elmer Heperly, chain carriers when the first survey was made, that the line ran along the fence, but no witnesses testified that the line of the fence was actually surveyed as the line of the division agreed upon before the orphans’ court sale. The testimony of these witnesses is too indefinite to require a variation of the line as called for in the deeds. Their statement that the line was run along the old fence is not equivalent to saying that the old fence was adopted as the division line.' In a case like this where the difference in the two lines is only about two feet in width, the testimony that the surveyor ran the line along the old fence is too indefinite and uncertain. .The chain carriers might have been several feet from the old fence, and still say truthfully that they ran the line along the old fence. The first nine assignments of error raise the question of the competency of the testimony of a large number of witnesses in reference to the line of this old fence. In the opinion refusing a new trial, the learned court cites and relies on Blasdell v. Bissell, 6 Pa. 258, but we do not think that case has any application to the facts in the present one. The syllabus of that case is as follows : “ A. made a parole contract for the sale of land, and boundaries were marked. Subsequently he made a deed for the same land to the alienee of his vendee ; the courses and distances in which slightly varied from the marked boundary. The lines marked on the land are to govern.” In that case Chief Justice Gibson said: “ The calls of a survey and not its courses and distances are to govern; and where there are actual lines of demarcation the compass and chain are no more than instruments to point them out. Where they are not to be found, the results obtained by actual survey are the next best evidence of their location.” In the present case there are no actual lines of demarcation fixed on the ground, and therefore the line must be ascertained and located by surveying the courses and distances called for in the deed. The principle established by a long line of cases from Blasdell v. Bissell to Marcy v. Brock, 207 Pa. 95, is that “ the courses and distances in a deed always give way to the boundaries found upon the ground or supplied by proof of their former existence, when the marks or monuments are gone.” But the authorities all hold that where no monuments or marks on the ground are called for in the deed the calls of the deed must control unless it be proved by sufficient evidence that the parties agreed upon a fixed line on the ground, and in cases where the calls in the deed and the actual line marked upon the ground by the agreement of the parties do not agree, the line marked upon the ground must control: Burkholder v. Markley, 98 Pa. 37. In that case Trunket, J., said: “ It may frequently occur that the location of a line which was agreed upon cannot be determined for want of evidence. In such case the location is settled by the deed. The line produced by the calls, courses and distances in the deed, are taken as correct unless there be proof' of a different line on the ground which the grantor and grantee fixed as the true one.” In the present case we have seen that there is no sufficient proof of a different line on the ground than the lines produced by the calls, courses and distances in the deed, and therefore the latter must control. We find nothing in Marcy v. Brock, 207 Pa. 95, cited by the court below, to justify the admission of evidence in regard to the old fence line for the purpose of changing the lihe fixed by calls, courses and distances in the deeds, because there was no evidence of any other line, than the one described in the deeds, either fixed upon the ground or agreed to by the parties and authorized by the decree of the orphans’ court directing sale. The learned court also cites our own case of Rook v. Greenewald, 22 Pa. Superior Ct. 641, but that was a case where the parties agreed upon a line dividing their land as indicated by an old fence, and the surveyor actually ran the division line coinciding with the line of that fence, but in making his draft for the scrivener who drew the deed he made a mistake and described the line as lying north a certain distance from the fence. What we decided in that case was that the fence on the ground having been adopted as the dividing line, and the deed not agreeing therewith, the fence line must control. But in the present case there is no evidence that the old fence was adopted as the division line between the farms. It seems clear from the evidence that the parties agreed upon the location of both ends of the line, and the surveyor ran it by courses and distances from the northern terminus to the southern, and there being no evidence to establish any other line actually located on the ground, the problem is simply to trace the line on the ground as called for in the deeds. This view of the matter requires us to sustain the first nine assignments of error.

We must sustain the tenth, eleventh and twelfth assignments of error in so far as they raise the question of the exclusion of the evidence of the “ nick ” in the fence. As we understand the evidence this nick in the fence was put there by surveyor Hiller when he ran the division line, now in dispute, before the orphans' court sale, under which the parties to this suit claim title. Now it is clear that if the nick was put there as a line-mark by Hiller, and it remained there at the time referred to by the offers giving rise to said assignments, and the feuce had not been moved or changed at all, then the nick was an important piece of evidence bearing on the question of the location of the Hiller line. The thirteenth and fourteenth assignments must be sustained. The plaintiff offered evidence of the location of an old cherry stump as affecting the disputed line or its location. Therefore, we think the defendant’s offers contained in his thirteenth and fourteenth assignments were competent as some evidence tending to show that said stump was not regarded by former owners of the land in question as a line or corner monument. The fifteenth assignment of error is from the charge of the court as follows : “ The plaintiff has shown by witnesses that the new fence erected by the defendant is some little distance, a foot or eighteen inches — you will recollect the testimony as to the distance — over on his land from where the old fence was formerly located, and that it is over on his land, he claims that distance. If you find this to be the fact, the plaintiff is entitled to recover damages for this alleged injury.” This assignment of error must be sustained for the reason that we have found that the old fence was not the controlling monument in fixing the disputed line, and it is probable that the jury understood the court that if the defendant’s new fence was a foot or eighteen inches from the old fence, then the plaintiff was entitled to recover. This was not the true question. What the jur}^ should have determined was whether in fact the defendant’s new fence was on the line between the parties, or was it over on the plaintiff’s land. The fifteenth assignment is sustained.

The judgment is reversed with a v. f. d. n.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Moore, Appellant, v. Eyre.

      Affidavit of defense — Judgment for part appearing to be due — Appeals —Practice, C. P.

    On an appeal by plaintiff from an order discharging a rule for judgment for want of a sufficient affidavit of defense, where the record shows that the plaintiff took simply a rule for judgment for want of a sufficient affidavit of defense, and does not show that he specifically pointed out any part of the claim as to which he deeriied the affidavit to be insufficient, the. court cannot be convicted of error in not making an order permitting the plaintiff to take judgment for part of his claim; but the appellate court in dismissing the appeal may do so without prejudice to the plaintiff’s right to trial by jury, or to his right to move the court below for permission to take judgment for that part of his claim as to which he deemed the affidavit of defense insufficient, as provided in the Act of July 15, 1897, P. L. 276, and to any right of appeal from the refusal of such order which he would have had if the specific motion therefor had been made in the first instance.
    Argued Oct. 17, 1906.
    Appeal, No. 86, Oct. T., 1906, by plaintiff, from order of C. P. No. 5, Pbila. Co., Dec. T., 1905, No. 1,889, making absolute rule for judgment for want of a sufficient affidavit of defense in case of J. Hampton Moore, receiver of the City Trust, Safe Deposit & Surety Company of Philadelphia, v. Lincoln L. Eyre.
    Before Nice, P. J., Porter, Henderson, Morrison, Orlady, Head and. Beaver, JJ.
    Affirmed.
    Assumpsit for rent.
    From the record it appeared that the claim was for $460 for rent, part of which fell due before plaintiff’s appointment as receiver, and the rest thereafter, under a lease executed before the receivership.
    The defendant filed an affidavit of defense in which he set up that there was due to him from the City Trust, Safe Deposit & Surety Company $1,601.99 on two deposit accounts, and also the sum of $200 for professional services. He therefore claimed a certificate in his favor for $1,841.99. The plaintiff took a rule for judgment for want of a sufficient affidavit of defense. The court discharged this rule.

      Error assigned was the order of the court.

      H. B. Patton, of StaaJce cf Patton, with him Murdock Kendrick and John Kent Kane, for appellant.
    — It is a general rule of law that after the appointment of a receiver, leases, whether the insolvent has been landlord or tenant, determine, and any continuation of the relation is with the receiver, and under a new contract with him : Com. v. Franklin Insurance Co., 115 Mass. 278 ; Hunt v. Wolf, 2 Daly (N. Y.), 298; McDonnell v. White, 11 H. L. Cas. 570 ; Corrigan v. Trenton Delaware Falls Co., 7 N. J. Eq. 489; Hollier v. Hedges, 2 Ir. Ch. N. S. 370; McLoughlin v. Longan, 4 Ir. Eq. 325; Beechey v. Smith, 11 L. R. Ir. 88.
    A receiver may elect whether or not he will perform the ex-ecutory contracts entered into by the insolvent whom he represents prior to the receivership : Lumber, etc., Co. v. Land & Water Co., 120 Cal. 521 (52 Pac. Repr. 995); Spencer v. World’s Columbian Exposition, 163 Ill. 117 (45 N. E. Repr. 250).
    The rule which the appellant urges in this case is, more particularly, that no pre-existing contracts are binding on the receiver unless they are adopted by him: Central Trust Co. v. Land Co., 79 Fed. Repr. 19; General Electric Co. v. Whitney, 74 Fed. Repr., 664; Southern Express Company v. Western North Carolina R. R. Co., 99 U. S. 191; Kansas Pac. Ry. Co. v. Bayles, 19 Colorado, 348 (35 Pac. Repr. 744).
    A creditor can only set off a claim which was liquidated at the time of the receivership: Berry v. Brett, 19 N. Y. Superior Ct. 627 ; Smith v. Mosby, 9 Heisk. (Tenn.) 501; Van Dyck v. McQuade, 85 N. Y. 616; Behr v. Menendez, 8 Misc. 84 (28 N. Y. Supp. 525).

      Francis J. Maneely, for appellee.
    — The character of defendant’s set-off is not disputed, possessing all of the elements of a perfect one and is conceded to be good against that part of plaintiff’s claim which is for rent accruing before his said appointment as receiver. Plaintiff’s contention is that it is unavailing as to the rent accruing thereafter: Jack v. Klepser, 196 Pa. 187; Light v. Leininger, 8 Pa. 403 ; Yardley v. Clothier, 51 Fed. Repr. 506 ; Scott v. Armstrong, 146 U. S. 499 (13 Sup. Ct. Repr. 148); Skiles v. Houston, 110 Pa. 254; Van Wagoner v. Paterson Gas Light Co. N. J. L. 283.
    December 14, 1906:
   Opinion by

Rice, P. J.,

This action of assumpsit was brought by the receiver for rent, part of which fell due before his appointment, and the residue thereafter, under a lease executed before his appointment. In his affidavit of defense the defendant admitted the correctness of the plaintiff’s claim so far as the amount was concerned, but averred that at the date of the appointment of the receiver, as well as at the prior date when the trust company closed its doors, the company was indebted to him in a considerably larger amount than the rent claimed, which, he asserted, should be set off against the plaintiff’s claim to the extent thereof. It is now conceded that as to the rent which fell due before the appointment of the receiver, the set-off is proper, but if the same concession was made in the court below, the record does not show it. The rule taken was simply for judgment for want of a sufficient affidavit of defense, the exception was a general one to the discharge of this rule, the single assignment of error is to the same effect, and there is nothing in the opinion filed by the learned judge below to indicate that the plaintiff demanded judgment for less than his whole claim, or asked the court to consider the question as to his right to judgment for part thereof. “ When a plaintiff moves for judgment for part of his demand under the Act of July 15, 1897, P. L. 276, it would be good practice to require him to specify the part as to which he claims the'affidavit of defense to be insufficient, and to set this forth in the rule to show cause. If that be done the defendant will know with certainty the issue he is called upon to meet, the record will show what the court was called upon to decide, and the hearing on appeal from the discharge of the rule will be confined, as it ought always to be, to a review of the decision upon the point raised in the court below:” Shea v. Wells, 8 Pa. Superior Ct. 511. Following this decision we held in Smucker v. Grinberg, 27 Pa. Superior Ct. 531, that where a statement of claim embraces two distinct items, and a rule is taken for judgment for want of a sufficient affidavit of defense for the amount of one of the items, fully specifying it, the court may give all judgment by the simple entry, rule absolute, without filing any opinion designating the item for which judgment is given. We do not say that in disposing of a general rule for judgment for the'whole claim for want of a sufficient affidavit of defense, the court may not adjudge a portion or portions of the affidavit of defense insufficient, specifying them in the mode suggested in Pierson v. Krause, 208 Pa. 115, and make an order permitting the plaintiff to take judgment and issue execution for the portion or portions of the claim as to which the affidavit is adjudged insufficient, and to proceed with the action for the recovery of the balance. But the better practice is to require the plaintiff, in the first instance, to point out specifically the part of the claim as to which he deems the affidavit to be insufficient, and we think it quite clear that the court ought not to be convicted of error in not making an order permitting the plaintiff to take judgment for part of his claim, and to proceed with his action for the recovery of the balance, where neither in the application for the rule, nor in the rule itself, nor in any other manner, so far as the record shows, was the court asked to exercise the power conferred by the act of 1897.

The appeal is dismissed at the costs of the plaintiff, but without prejudice to his right to trial by jury, and a second appeal after final judgment; also without prejudice to his right to move the court below for permission to take judgment for that part of his claim as to which he deems the affidavit.of defense insufficient, as provided in the Act of July 15, 1897, P. L. 276, and to any right of appeal from the refusal of such order which he would have had if the specific motion therefor had been made in the first instance.


text:
    McMellen, Appellant, v. Williamson.
    December 14, 1906 :

      Equity — Equity rules — Appeals—“Brief statement of error.”

    The equity rule which provides that “the appellant shall file in the court below, with his notice of appeal, a brief statement of the errors he alleges to have been made by the order or decree appealed from,” is not a mere formality, and want of compliance with it cannot be cured at a subsequent time upon mere motion without any excuse offered.
    Rule 17 requiring a concise statement of the question involved to be printed in the appellant’s paper-book, is mandatory, and is violated by printing a statement a page in length.
    Argued Nov. 16, 1906.
    Appeal, No. 194, Oct. T., 1906, by plaintiff!, from decree of C. P. Lancaster Co., Equity Docket No. 4, p. 261, dismissing bill in equity in case of Ellias McMellen v. H. S. Williamson.
    Before Rice, P. J., Pouter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Appeal quashed.
    Motion to quash appeal.
    The motion to quash the appeal was based on the ground that the appellant had not complied with Rule 92 of the equity rules, requiring the appellant to file in the court below a brief statement of error alleged to have been made by the decree appealed from.
    The appellant’s book under the title of “ questions involved ” showed six numbered paragraphs containing in the aggregate twenty-eight lines, and covering a whole printed page.

      B. F. Davis and F. M. Gilbert, for appellant.

      John A. Coyle, with him William H. Keller, for appellee.
   Opinion by

Rice, P. J.,

It was decided in Barlott v. Forney, 187 Pa. 301, that the Act of May 19, 1897, P. L. 67, relating to appeals, did not abrogate the equity rule which provides that “ the appellant shall file in the court below, with his notice of appeal, a brief statement of the errors he alleges to have been made by the order or decree appealed from,” etc. But it was said in the same case, and our ruling in Swoope v. Wakefield, 10 Pa. Superior Ct. 342 was to the same effect: “ This default, however, is not necessarily fatal to the appeal, and in case of mere oversight of counsel, and where no special hardship would be imposed on the other party, we should be disposed to permit the filing of the statement nunc pro tunc.” We think it important to notice that this was said at a time in which it was thought by some to be a debatable question whether the rule was in force. But in the later case of Wilson v. Keller, 195 Pa. 98, which was decided after opportunity had been afforded the profession to be informed as to the full purpose and scope of the rule, and the effect of the act of 1897, the court said: Compliance with this rule is not a mere formality, the want of which can be cured at any subsequent time. It is true we have allowed the statement to be filed nunc pro tunc after the case is reached on our argument list (see Barlott v. Forney, 187 Pa. 301) but only in exceptional cases, and not then as a matter of right. The rule was intended for enforcement, and some of the advantages of it are pointed out by the appellee, especially in the timely notice it gives him of opportunity of obtaining grounds of the appeal he will be required to make on the argument here.” Again in Hinnershitz v. United Traction Company, 206 Pa. 91, the present Chief Justice, speaking generally of the equity rules, said: “ They are the rules of all the courts, to be enforced as of course in all of them, and not relaxed or disregarded as matter of mere indulgence or convenience. But on the other hand they are like all other rules of practice, subject to the judicial discretion of the chancellor as to their strict enforcement under circumstances productive of injustice or exceptional hardship.” See also Green v. Metallic Paint Company, 25 Pa. Superior Ct. 415. In North v. Pantall, 197 Pa. 303, the appeal was quashed because the rule now under consideration was not complied with. It is seen from this review of some of the cases that while the appellate court has discretionary power to relieve from such default in exceptional cases, a motion made when the case is called for argument for permission to file the statement in the court below is not to be granted as a matter of course; and it is scarcely necessary to say that at that time the matter is beyond the control of the court below. In the present case the omission to comply with the rule is not attempted to be defended or excused upon the ground that the appellant or his counsel were misled, or that they supposed that the rule had been abrogated by the act of 1897, as was the case in Barlott v. Forney, or that there was any doubt as to the application of the rule to the decree appealed from. Indeed in the motion filed for leave to file the statement nunc pro tunc no excuse whatever is assigned for the noncompliance with the rule. It is a case in whiph such compliance would have been distinctly advantageous to the appellee, and after a careful examination of the paper books in the light of the oral argument we are not convinced that the enforcement of the rule will be productive of substantial injustice or exceptional hardship. It is to be borne in mind that the rule has with us the force of a statute, and cannot be suspended by us, nor can we adopt others either formally or in practice inconsistent with it: Shamokin, etc., Light and Power Company v. John, 18 Pa. Superior Ct. 498. To refuse the appellee’s motion to quash would be unwarranted unless we hold generally, which we are unwilling to do, that compliance with this rule is a mere formality, the want of which can be cured at any subsequent time upon mere motion.

In disposing of the appeal upon the ground above stated we are not to be understood as implying that the plain and substantial violation of rule 17 in the statement of the questions involved is a matter of slight importance. We call attention to the mandatory terms of the rule, and some of the cases in which it has been declared that it is to be strictly adhered to: Van Sciver Company v. McPherson, 199 Pa. 331; H. v. T., 208 Pa. 233; Creachen v. Bromley Brothers Carpet Company, 214 Pa. 15 ; Fifth Ward Building & Loan Association v. Boylan, 198 Pa. 250; Bousquet’s Estate, 206 Pa. 534; Oakland Boro. v. Boyden, 22 Pa. Superior Ct. 278; Roush’s Estate, 23 Pa. Superior Ct. 652; Rabinowitz v. Kenah, 31 Pa. Superior Ct. 334.

The appellant’s motion for leave to file in the court below a statement of the errors alleged to have been made by the decree nunc pro tunc is denied, and upon the appellee’s motion the appeal is quashed, the costs to be paid by the appellant.


author: Portee,, J.,

text:
    Williams v. Berkes, Appellant.

      Affidavit of defense — Denial of liability — Practice, C. P.

    In an action of assumpsit the plaintiff averred that on a day stated the defendant was indebted to her hi the sum of $100 for money loaned to him by plaintiff at his request, and which he promised to repay plaintiff, and that defendant on the day stated gave to plaintiff a paper signed by him and in his handwriting as follows: “Received of (plaintiff) one hundred dollars to be paid on time payments.” Defendant filed an affidavit of defense in which he denied that he was indebted to plaintiff on the day stated, or at any other time, in any way whatever, and that the paper in question was merely written and signed by him for the purpose of showing his wife that he knew how to draw up a note, and that the wife who was the daughter of the plaintiff, took possession of the note, and refused to return it to the defendant, who never authorized her to deliver the note to any other person. Held, that the affidavit of defense was sufficient to prevent judgment.
    Argued Oct. 16, 1906.
    Appeal, No. 67, Óct. T., 1906, by defendant, from order of C. P. No. 2, Pbila. Co., June T., 1903, No. 3,176, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Margaret Williams v. William K. G. Berkes.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit for money loaned.
    The averments of plaintiff’s statement of claim and of the affidavit and supplemental affidavit of defense are fully set forth in the opinion of the Superior Court.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      J. E. Ilarlman, with him H. H. Dalbey and Louis Bregy, for appellant.

      D. Webster Dougherty, for appellee.

      December 10, 1906 :
   Opinion by

Portee,, J.,

The amended, statement filed by the plaintiff averred that, “ on or about the 18th day of October A. D. 1902, the defendant was indebted to -her in the sum of one hundred dollars for money loaned to him by plaintiff at his request and which he promised to repay the plaintiff. And thereupon the defendant gave to the plaintiff a paper in his handwriting, of which the following is a copy:

“ Oct. 18, 1902.
“Received of Mrs. Margaret Williams ($100.) One Hundred Dollars to be paid on time payments.
“ William K. G. Berkes.”

The statement further averred a demand made upon the defendant and a refusal upon his part to pay.

The affidavit of defense contained the following allegations: “ That the defendant was not on or about the 18th day of October 1902, indebted to the plaintiff in the sum of one hundred dollars for money loaned to him at his request; and further that the defendant ivas never at any time indebted to the plaintiff in the sum of one hundred dollars for money loaned to him by the plaintiff; and further that the defendant is not in anyway, manner or form indebted to the plaintiff in any sum or amount whatsoever.” “ That the defendant did not give to the plaintiff on the 18th day of October 1902, or at any other time, any such paper, a copy of which is set forth in the plaintiff’s statement as follows; (here follows a copy of the paper set forth in plaintiff’s statement) nor did he ever at anytime give to the plaintiff any such paper, or anj^ paper in any way corresponding thereto, or in any way indicating that he, the said defendant, was in any wise indebted to the plaintiff in any sum whatever.” The supplemental affidavit of defense explained in detail the -circumstances under which the defendant wrote and signed the paper in question, to wit: “ At the time of the writing of the said paper the defendant’s wife had said to him that he did not know the proper form to draw up a note. He thereupon wrote the paper solely and entirely for the purpose of showing his wife that he knew as he believed, the proper form of a note. That his wife then took possession of the note and refused to return it to the defendant. That he gave his wife no authority or direction whatever to use the said paper in any way.”

The averment of the plaintiff’s statement that the defendant was indebted to her in the sum of $100 for money loaned to him at his request, is indefinite as to the time when and circumstances under which the loan was made. The allegations of the affidavits of defense that the defendant was not on October 18, 1902, nor at any other time, indebted to the plaintiff in the sum of $100 for money loaned to him by the plaintiff, and that the defendant is not in any way, manner or form indebted to the plaintiff in any sum whatsoever, are certainly as broad and clear as the averment of the statement of the plaintiff’s claim. They constitute a specific denial of the averments of the statement, as to the consideration for the alleged promise to pay; the plaintiff did not aver that at a certain time she loaned the defendant money, but was content to aver that on or about a certain time the defendant was indebted to her for money loaned; this the affidavit of defense specifically denied, alleging that the defendant was not at the time mentioned in plaintiff’s statement, nor at any other time, so indebted. This was a sufficient denial of the averment as to the original indebtedness and the consideration for the alleged promise to pay.

The averment of the statement that: “ The defendant gave to the plaintiff ” the written promise to pay, a copy of which is set forth, is specifically denied in the affidavit of defense, which alleges that the defendant never gave that paper to the plaintiff, or any paper in any way corresponding thereto. We must for the purposes of this case assume the averments of the supplemental affidavit of defense to be true, and that the defendant merely wrote and signed the paper for the purpose of showing his wife that he knew how to draw up a note, and that the wife, who was the daughter of the plaintiff, took possession of the note and refused to return it to the defendant, who never authorized her to deliver the note to any other person. We are of opinion that the affidavits of defense sufficiently deny the averments of the statement as to the original indebtedness for money loaned, and set forth facts which constitute a complete defense to the alleged written promise to pay.

The judgment is reversed and a procedendo awarded.


author: Henderson, J.,

text:
    Horlacher, Appellant, v. Bear.

      Principal and agent — Broker—Set-off—Evidence.
    In an action against a broker to recover balances alleged to be due on transactions in wheat, it appeared that the plaintiff lived in another town than the defendant, and that the defendant received the orders from a broker living in plaintiff’s town. After the orders were executed, defendant addressed a notice to the plaintiff advising him of what had been done. These notices were not sent to the plaintiff .dhectly, but to the broker from whom the orders came. Defendant in his affidavit of defense averred that all his dealings had been with the broker as principal, that he had never executed any orders for plaintiff, or knew him in the business, and that the notices had been sent to the broker at the latter’s request, and for his convenience and accommodation, and were not intended for the plaintiff, nor was the broker warranted in delivering them to him; that defendant had settled his accounts with the broker, and did not owe anything either to the broker or the plaintiff. Held, that the affidavit of defense was sufficient to prevent judgment.
    Argued Oct. 19, 1906.
    Appeal, No. 171, Oct. T., 1906, by plaintiff, from order of C. P. No. 4, Phila. Co., June T., 1905, No. 2,426, discharging rule for judgment for want of a sufficient affidavit of defense in case of George Horlacher, trading as George Howard, v. William L. Bear, trading as William L. Bear & Co.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Assumpsit for balance alleged to be due on purchases of wheat.
    Plaintiff in his statement averred that the defendant was indebted to him in the sum of $459.54, a balance alleged to be due on certain purchases and sales of wheat. Attached to the plaintiff’s statement of claim were certain exhibits marked A, B and C. Exhibit “ A ” was as follows:
    “ Wm. L. Bear and Company,
    “Bankers and Brokers,
    “ Chestnut and Fifteenth Sts.,
    “ Philadelphia, March 23, 1905.
    “ Geo. Howard, Esq.,
    “We have this day Bo.t for your account and risk:
    “ Per Taylor

      Amount. Description. Price. Time. Name,
    x 5 M July wheat 90 Jjj- R Chgo.
    5 M “ “ 90-| “ “
    “ (Duplicate)
    . “Yours respectfully,
    “ Wu. L. Beak akd Co.
    “ Per G. C. K
    Defendant filed an affidavit of defense in which he averred that the transactions in question were made for one W. H. Taylor’, a broker in Allentown, as principal.
    The affidavit of defense continued as follows :
    “ The said defendant company denies that the said W. H. Taylor ever acted in any transactions with the plaintiff or with anybody else as the agent of the defendant company. The said W. H. Taylor was an independent broker, doing an independent business at Allentown, Penna., and had no connection whatever with the defendant company, except as a customer purchasing and selling through the defendant company. The defendant company neither bought nor sold any of the merchandise mentioned in the plaintiff’s statement of claim for or on behalf of the plaintiff, either directly or through the said W. H. Taylor as the defendant company’s agent.
    “ The course of business dealing between the said Taylor and the defendant was as follows: The said Taylor would order and direct the defendant to make certain purchases or sales of stocks, bonds or merchandise for and on account of him, the said Taylor, and the said Taylor would deposit the amount due to defendant by reason of said purchase or sale to the credit of the said defendant, and the said defendant would purchase or sell as directed by Taylor, and confirm by letter to the said Taylor the said sales or purchases so made. As an accommodation to the said Taylor, the defendant would also make out duplicate confirmations of the sales or purchases made on account of the said Taylor,'in the name or names of the parties to whom the said Taylor desired to have tbmsaid purchases or sales accredited, which said duplicate confirmations were also forwarded to the said Taylor. Tins was exactly what was done in this case with reference to exhibits A, B and 0, attached to the plaintiff’s statement of claim. All these purchases were for and on behalf of Taylor as a principal, and the duplicate confirmations, copies of which are inserted as exhibits A, B and C, of the plaintiff’s statement, of claim, were sent to Taylor, and the defendant company does not know what Taylor did with them. The defendant company presumes, although not able to state of its own knowledge, that the said Taylor wanted to show to his customers that he actually did purchase the commodities that he was to purchase for them, but all of these duplicate confirmations, including exhibits A, B and C, attached to the plaintiff’s statement of claim, were made between the defendant company as principal and the said W. H. Taylor as principal, and there Avas no relation of agency of any Mud Avhatever betAveen the said defendant company and the said W. H. Taylor in connection Avith any of the purchases mentioned by the plaintiff in his statement of claim, and the papers of Avliich exhibits A, B and C, are copies, were simply made by the defendant company for the convenience and accommodation of the said W. H. Taylor, and were delivered to the said W. H. Taylor and Avere not intended by the defendant company, nor had the said W. H. Taylor any Avarrant for delivering the same to any customer of his, the said W. H. Taylor, including the said plaintiff. The original confirmation orders of which exhibits A, B and C Avere duplicates, Avere made out in the name of W. H. Taylor as principal, and the plaintiff’s name did not appear on this paper, and the plaintiff was well aware at the time and now Iuioavs that the defendant company did not purchase the merchandise mentioned in the plaintiff’s statement of claim for or on behalf of the said plaintiff.
    “ The said defendant company and the said W. H. Taylor adjusted and settled up the accounts between them as principals on or about July 5, 1905, by the payment to the said W. II. Taylor by the defendant company of the sum of twelve hundred and two and 92-100 dollars. The defendant- company does not owe the said W. H. Taylor or the said plaintiff any money Avhatever.”
    The court discharged the rule for judgment for want of a sufficient affidavit of defense;

      Error asdyned was the order of the court.

      December 14, 1906 :

      Preston K. JErdman, for appellant.
    — The affidavit of defense was insufficient: Evans v. Waln, 71 Pa. 69; Ryman v. Gerlach, 153 Pa. 197; Cosgrave v. Hammill, 173 Pa. 207; McBrier v. Marshall, 126 Pa. 390; McKenna v. Lyle, 155 Pa. 599; Seibel v. Ins. Co., 24 Pa. Superior Ct. 154; Dougherty v. Shimer, 1 Luz. L. Reg. 44.

      J. O. Gilpin, with him George S. Graham, for appellee,
    cited: Lippincott v. Whitman, 83 Pa. 244; Chapin v. Cambria Iron Co., 145 Pa. 478 ; Shoemaker v. Stiles, 102 Pa. 549; Wolf v. Phila., 105 Pa. 25.
   Opinion by

Henderson, J.,

If the facts were, as alleged by the plaintiff, that the defendant in executing the orders of Taylor knew that the latter was acting as the agent of the plaintiff and that the business was done on the plaintiff’s behalf, the defense set up could not prevail. If authorities are necessary on so clear a proposition, Evans v. Waln’s Executors, 71 Pa. 69, and Ryman v. Gerlach, 153 Pa. 197, show that a broker who received securities from an intermediate broker, with knowledge of their actual ownership, cannot apply their proceeds on a claim ag’ainst such intermediate broker. The defendant alleges, however, that all his.transactions were with Taylor as principal; that he had frequent transactions with him, and that settlements were made from day to day as the business progressed, but that he did not execute any orders from or for the plaintiff and never knew him in the business. It is said, however, that the documents, exhibits A, B and C, as set forth in the plaintiff ’s statement of claim are unequivocal admissions that the defendant knew the purchases of wheat were made for the plaintiff. That they are evidence to that effect is undoubtedly true, but they are not conclusive. They were issued after the orders to which they refer had been executed and are in form notices to the plaintiff advising him of what had been theretofore done on his account by the defendant. The defendant alleges in the affidavit of defense, however, that they were sent to Taylor at his request, for his convenience and accommodation and were not intended for the plaintiff, nor was Taylor warranted in delivering them to him. If the exhibits referred to are considered memorandums showing that the defendant had purchased for account of the plaintiff the wheat therein specified, it is nevertheless competent, in view of the averment that the defendant did not transact the business with the plaintiff but with and for Taylor, and that the memorandums were delivered by him to Taylor at his request and for his accommodation, to show that they came into existence and into Taylor’s possession under such circumstances.

The affidavit meets the plaintiff’s case, as set forth in the statement of claim, and is sufficient to prevent judgment. The judgment is, therefore, affirmed.


author: Head, J.,

text:
    Tallman v. Edwards, Appellant.

      Lease — Option to sell — Evidence—Province of jury — Contract.
    An owner of a lease gave to another person a written option to purchase the same for an amount stated, the option to terminate at a certain hour on a day mentioned. In addition to the price stipulated the purchaser was to pay for certain professional services in connection with the transfer of the lease. There was no provision requiring a formal acceptance of the option. There was evidence that there was a subsequent parol agreement by which the price for the lease was reduced. Thereafter a second agreement in writing was executed which recited that the owner of the lease had assigned and transferred the 'same to the purchaser. This paper further recited that if the purchaser should obtain a new lease from the owner satisfactory to him, the seller of the lease would deliver possession on or before a day stated. There was no evidence of any actual formal assignment. The reduced purchase price was paid, possession was delivered, but the purchaser refused to pay for the professional services. The seller of the lease was compelled to pay for these services. Held, that the case was for the jury to determine whether the subsequent parol and written agreements were not mere modifications of the original option, and whether the purchaser was not bound for the professional services as stipulated in the option.
    Argued Oct. 9, 1906.
    Appeal, No. 92, Oct. T., 1906, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1903, No. 2,844, on verdict for plaintiff in case of Jackson M. Tallman v. Charles B. Edwards, trading as Charles B. Edwards & Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Oblady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover for fees which plaintiff was compelled to pay. Before Carr, J.
    The court charged as follows :
    Gentlemen of the jury: This suit is founded, in the first place, upon the provisions of the lease by the owners of premises 919 Market street to Tallman, and one of the provisions was that no assignment or transfer of the leasehold interest of Tallman should be made without the assent of the owners. Upon January 12, 1903, Tallman had a four years’ leasehold interest, and he agreed to sell it to Edwards, and gave an option to Edwards under that date that Edwards should buy the leasehold interest upon certain terms, and one of the terms or provisions of the exercise of the option was that Edwards should secure the assent and approval of the owners, Large and Mifflin, to an assignment or transfer from Tallman to Edwards, and the consideration of the assignment or transfer was $2,500.
    There was also a provision that a payment of the fees for the negotiations charged by the real estate agents, Gummey & Sons, should be paid by Edwards. Now what happened? Pursuant to his contract and arrangement Edwards went to the owners, but found that he could not secure from them an approval or assent of the transfer or assignment under the terms of the lease unless he paid something additional to the rent then being charged Tallman. So Edwards returned to Tallman and said: “ I cannot pay you $2,500. I can only pay you $2,000, for the reason that the owners are going to ask me more rent than they asked you.” Here is the question of fact for you to decide, did the agreement or option of January 12, 1903, then become absolutely null and void? If you believe that as a matter of fact that agreement did become absolutely null and void, then the defendant in this case is not responsible, and your verdict should be for him. If, on the other hand, you believe in what happened after that, the vitality of the agreement of January 12 remained in force and the parties were still actjng and operating under its terms, and that they subsequently made the agreement of January 21 merely to modify and change the amount of $2,500 to $2,000, and the stipulation as to the payment of Gummey & Sons still remained in force, then your verdict should be for the plaintiff. Consider, then, what happened as bearing upon the point of the abandonment of the agreement of January 12. You will find that in the paper signed on January 21, the statement is made that Tallman has transferred and assigned all his right, title and interest in the leasehold interest that he held. When did he assign it ? [There was no other assignment made except that of January 12, 1908, which was an option to purchase, and which subsequently, if you believe the evidence here, was exercised by Edwards, so that that became an effective assignment in the law of his interest.] [2] On the other hand, the defendant contends that the language as there used does not mean to indicate or say that the terms or provisions of the agreement or option of January 12 were still in force. If you believe that contention, of course your verdict should be for the defendant. On the other hand [if you believe the language used in the agreement of January 21 indicates or shows that the terms and provisions of the option of January 12 were in force and that meant that the defendant was to pay the Gummey charges, then you should find for the plaintiff]. [1]
    December 10, 1906 :
    I am requested by the defendant to charge you as follows :
    1. Under all the evidence in this case your verdict should be for the defendant.
    That point is refused. [3]
    Verdict and judgment for plaintiff for $170.25. Defendant appealed.

      JSrrors assigned were (1-3) above instructions, quoting them.

      Bernard Gilpin, with him Atrhur Sellers, for appellant,
    cited: Gould v. Ins. Co., 134 Pa. 570; McMillan v. Phila. Company, 159 Pa. 142.

      H. B. Patton, of Staake ¿J* Patton, for appellee.
   Opinion by

Head, J.,

In January, 1903, at the inception of the negotiations out of which this case arises, Jackson Tallman, the plaintiff, was • the owner of an estate for years in certain premises on Market street in the city of Philadelphia. This estate he had acquired by a lease from the owner, the unexpired term of which at the time aforesaid, was about four years. The annual rent reserved in said lease was $6,000. By a provision in the lease the tenant was forbidden to sublet or assign his lease without the consent of the owner. Charles B. Edwards, the defendant, being anxious to secure this estate of the plaintiff, obtained from him a written option in which it was agreed that the defendant might purchase all the right, etc., of the plaintiff in the existing lease, “ the said option to terminate at three o’clock on the afternoon of Monday, January 19th, 1908.” The consideration for the assignment of said lease was to be payment of $2,500 in cash to the plaintiff, and the further payment by the defendant of “ any charge for professional services made by J. M. Gummey & Sons (the agents of the owners) in ' connection with the transfer of said lease.” It is important to observe that this agreement contains no provision requiring a formal acceptance of the option by the defendant, and is therefore silent as to the manner or form in which the fact of acceptance should be indicated. Under such circumstances the defendant could formally accept in writing or verbally, or such acceptance could be as certainly, although informally, indicated by a course of conduct by the parties which would naturally and rationally lead to the conclusion that they mutually understood and dealt with the situation as one in which the fact of acceptance was conceded by both. Manifestly, therefore, when a dispute arose between them as to whether there had been an acceptance at all of this option, whether the terms of it had been subsequently modified by parol, and whether after being so modified it had been accepted, all these questions became questions of fact to be found by a jury under all the evidence.

Armed with this option the defendant then sought, with the aid of Gummey & Sons, to secure the consent of the owner to the proposed transfer. After some time expended in this effort he learned that he could not obtain the necessary consent unless he would agree to pay to the owner, in addition to the rent reserved in the plaintiff’s lease, certain municipal taxes. He then met the plaintiff and, according to the testimony of the latter, informed him of this fact and also that the bill of Gummey & Sons would be $150. By reason of these additional burdens which his tenancy must carry, he declared his unwillingness to pay to the plaintiff as much as $2,500, but offered to pay him $2,000. The plaintiff agreed to accept it. Just when this parol agreement was made the evidence does not disclose. It may have been made on or before January 19 ; between that date and January 21, or on the last named day.

The agreement of January 12, contained a simple stipulation that if the deal went through the plaintiff would deliver possession of the premises to the defendant on or before May 1, 1903, without any provision to summarily enforce such a covenant. On January 21 a second agreement in writing was executed. This agreement first recites in due form that “ the party of the first part (the plaintiff) for and in consideration of the sum of two thousand dollars, has assigned, transferred and set over to the said party of the second part (the defendant), all his right, title, etc.,” in the premises, and then goes on “ Now therefore it is agreed^ etc.,” that if the defendant should obtain a new lease from the owner satisfactory to him the plaintiff would deliver possession on or before May 1, and concludes with a warrant of attorney authorizing the entry of an amicable action of ejectment for the premises, the confession of a judgment therein without stay of execution, and a waiver of the right of appeal.

This paper considered by itself contains no words of a present assignment or transfer, no covenant on the part of the plaintiff to do any such thing in the future, and no promise on the part of the defendant to pay any money at any time. It recites both the assignment and the payment of the money as things already done. Its sole covenant is but an amplification of the previous one on the part of the plaintiff to deliver possession, to which is added a summary remedy for its enforcement. We think, therefore the learned trial court was right in holding that it should be construed as supplemental to rather than as a substitute for the agreement of January 12.

The plaintiff, therefore, contends that he undertook to transfer and convey to the defendant his estate for years in consideration of the payment by the latter of $2,500 in cash and the bill of Gummey & Sons, which it is agreed was $150. That some time later the defendant sought and was granted a reduction in the first item, but that he neither asked for nor received any release of his promise as to the second item. That the option as thus modified was accepted; that he has fully performed his covenants both a's to the transfer of his estate and the delivery of possession, but the defendant, although he has paid the plaintiff the f 2,000 in cash due him, has refused to pay the bill of Gummey & Sons which the plaintiff, therefore, was required to pay. The defendant contends that the option of January 12 was never either modified or accepted but became entirely dead and without force at the time named in it. That the subsequent parol arrangement reducing the price to $2,000 and the written contract of January 21, were wholly independent of and without any relation to the earlier contract and represent the entire and only agreement of the parties.

Had the option provided for its own extinguishment on January 19, unless then converted into an agreement by a written notice of acceptance; or even if the undisputed evidence showed that the parol agreement which both admit was made after the expiration of the option, this position might be tenable. But under all the evidence, as it appears in the record we cannot but conclude that the learned trial court was right in submitting to the jury the question whether ór not the original option was modified by parol and, as thus modified, was accepted. The manner of the submission left nothing for the defendant to complain of.

The argument of the learned counsel for the appellant that the lease of the plaintiff never was actually assigned is without merit. True, there never was a formal written assignment. It was not demanded and apparently not deemed important. The lease itself was in fact handed over to the defendant, the plaintiff received the money therefor, except the small item herein sued for, vacated the premises and installed the defendant in possession. These things were regarded by the parties as a satisfactory performance of his covenant to assign. They leave the defendant in the quiet and secure enjoyment of the estate he bought and would render wholly futile any attempt of the plaintiff to dislodge him.

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


text:
    Frech v. Lewis, Appellant.

      Sale — Contract—Sale on condition — Sale for cash — Waiver—Replevin.
    A contract for the sale of chattels for cash is a sale on condition. Where, in case of such a sale, delivery is made by the vendor upon the understanding that the condition will be performed at once, and he then, with reasonable promptness, demands the performance of the condition, the vendee does not acquire title in case of refusal, and the vendor may recover his property in an action. Whether the title has become absolute or not depends upon the question of waiver by the vendor. Waiver is a voluntary relinquishment of a right or advantage to which the relinquisher is entitled and may be shown by express declarations or by acts of evidencing an intention not to insist upon a right; or it may appear from such a course of conduct or failure to act as would justify the conclusion that it was the vendor’s intention to waive the right. The evidence must be such as to warrant the inference of a voluntary choice. The question of waiver is one of fact for a jury to be solved by the interpretation put upon the acts and declarations of the vendor or his omission to claim or act.
    Where delivery is made without a performance of the condition on the part of the vendor to insist with reasonable promptness upon performance, and on failure by the vendee so to do, the vendor may recover the property. What is a reasonable time depends upon the > circumstances, and the conduct of the vendee may materially affect the question whether there has been unreasonable delay in claiming redress.
    In an action of replevin to recover carriages sold and delivered to defendant, it appeared that the sale was for cash. There was evidence that when the property was delivered the defendant promised to see the plaintiff and pay him or send him a check in a day or two; that the defendant procrastinated, promised to pay, put the plaintiff off, and at one time delivered to him his note which the plaintiff accepted, as he claimed, upon condition that it could be negotiated at a bank. The bank, however, refused to take the note for the reason that it was worthless, and the plaintiff returned it to the defendant. It further appeared that the plaintiff wrote several letters to the defendant-insisting upon payment according to the terms of the contract, and that he made numerous demands on him personally for the money. According to the plaintiff’s own statement he “kept going to him and writing to him day by day.” He also employed an attorney to demand the money or the goods. Finally after these efforts to secure payment, continuing for more than two months, the action of replevin was brought. Held, that the case was for the jury and that a verdict and judgment for' plaintiff should be sustained.

      December 10, 1906:

      Trial — Improper action of counsel — Discretion of court.

    It is the duty of the trial judge to see that the trial is conducted in a legal manner, and the exercise of his authority is discretionary. Unless this discretion is abused the action of the court is not the subject of an appeal.
    Argued Oct. 4, 1906.
    Appeal, No. 5, Oct. T., 1906, by defendant, from judgment of C. P. No. 6, Phila. Go., Sept. T., 1908, No. on verdict for plaintiff in case of Henry Freeh v. Gr. Lambert Lewis.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Replevin for two carriages. Before Martin, P. J.
    The opinion of the Superior Court states the case.

      Error assigned amongst others was in refusing binding instructions for defendant, and in refusing to withdraw a juror.

      J. Eoward Morrison, with him Theodore J. Gfrayson and Wm. McGreorge, Jr., for appellant.
    — If, on a sale for cash, the vendee takes away the goods without payment, the vendor should immediately retake them, and may do so, when necessary, even by force. By lying by and making no complaint in a reasonable time, he consents to the absolute transfer of the property and is consequently complete against all the world: Bowen v. Burk, 13 Pa. 146; Backentoss v. Speicher, 31 Pa. 324.

      J. Eithian Tatem, with him James S. Williams, for appellee.
    —A delivery with the expectation of receiving immediate payment is not an absolute delivery, and in the absence of evidence of waiver no title passes: Refining & Storage Co. v. Miller, 7 Phila. 97; Wabash Elevator Co. v. Batik, 23 Ohio, 311.
    The mere delay of two months in asserting plaintiff’s right to reclaim the carriages is not conclusive evidence against him.
   Opinion by

Henderson, J.,

It does not seem to be denied that the plaintiff’s evidence supported the conclusion of the jury that the agreement with the defendant was for payment in cash on the delivery of' the carriages. The argument of the appellant proceeds upon the assumption that the sale was conditioned upon the payment of the price at the time of delivery, and that the plaintiff might, within a reasonable time, recover the property if the defendant did not pay. The defense has its basis in the contention that the condition upon which the contract was made was waived and the title vested absolutely in the defendant, because of the plaintiff’s delay in making reclamation. The question presented at the trial, therefore, was whether the plaintiff had waived the condition of a cash payment. Delivery was necessary to vest a title in the defendant. Without it the property remained in the plaintiff. A contract for the sale of chattels for cash is a sale on condition. Where, in case of such a sale, delivery is made by the vendor upon the understanding that the condition will be performed at once, and he then, with reasonable promptness, demands the performance of the condition, the vendee does not acquire title in case of refusal, and the vendor may recover his property in an action. Whether the title has become absolute or not depends upon the question of waiver by the vendor. Waiver is a voluntary relinquishment of a right or advantage to which the relinquisher is entitled and may be shown by express declarations or by acts evidencing an intention not to insist upon a right; or it may appear from such a course of conduct or failure to act as would justify the conclusion that it was the vendor’s intention to waive the right. The evidence must be such as to warrant the inference of a voluntary choice. The question of waiver is one of fact for a jury to be solved by the interpretation put upon the acts and declarations of the vendor or his omission to claim or act. The question is : Did the vendor voluntarily relinquish the advantage growing out of the condition in the contract?

Where delivery is made without a performance of the condition on the part of the vendee, it is the duty of the vendor to insist with reasonable promptness upon performance, and on failure by the vendee so to do the vendor may recover the property. What is a reasonable time depends upon tbe circumstances, and the conduct of the vendee may materially affect the question whether there has been unreasonable delay in claiming redress. In the case under consideration, the evidence of the plaintiff shows that when the property was delivered the defendant promised to see the plaintiff and pay him or send him a cheek in a day or two ; that the defendant procrastinated, promised to pay, put the plaintiff off, and at one time delivered to him his note which the plaintiff accepted, as he claims, upon condition that it could be negotiated at a bank. The bank, however, refused to take the note for the reason that it was worthless, and the plaintiff returned it to the defendant. It further appears that the plaintiff wrote several letters to the defendant insisting upon payment according to the terms of the contract, and that he made numerous demands on him personally for the money. According to the plaintiff’s own statement he “ kept going to him and writing to him day by day.” He also employed an attorney to demand the money or the goods. Finally after these efforts to secure payment, continuing for more than two months, this action was brought. The court submitted the question to the jury whether there was a waiver by the plaintiff of his right to demand cash on delivery of the property, and this we consider the very question at issue. It cannot be said as^a matter of law that the plaintiff’s conduct amounted to a waiver of his right. In view of the repeated promises of the defendant the plaintiff might well have been misled and induced to postpone proceedings for the recovery of his property. His delay is evidence, perhaps strong evidence, of a waiver, but it is not conclusive in view of the conduct of the defendant. A delay might be so great that, unexplained, it would be the duty of the court to declare it to have been unreasonable, but here the plaintiff acted with promptness, was duly diligent in demanding performance of the condition and insisted importunately upon the same up to the time' the action was brought. No question of the rights of a third person arises in the case as in Bowen v. Burk, 18 Pa. 146, where the vendor allowed the property to remain for ten months in the possession of the vendee without attempting to collect the price or recover the goods. In Backentoss v. Speicher, 31 Pa. 324, the vendor was an assignee for the benefit of creditors and sold the property to the wife of the assignor. The purchase money was not paid, but the assignee accounted to the creditors for the price. In an action nine months after the sale it was held, that after such a lapse of time, and in view of the fact that the plaintiff had accounted for the purchase money as trustee, an absolute transfer of the property should be assumed. A controlling fact in the case was that the vendor had accounted for the price, which amounted to an affirmation of the sale. The second and third assignments could not have been affirmed without taking from the jury the question of the conduct of the plaintiff as explained by himself.

We are not convinced that the action of the court on the motion to withdraw a juror and continue the case was unwarranted. It is the duty of the trial judge to see that the trial is conducted in a legal manner and the exercise of his authority is discretionary. Unless this discretion is abused the action of the court is not the subject of an appeal. We find nothing in the record indicating that the court below had any ground for concluding that the offer of testimony objected to was not made in good faith, and the learned trial judge acted clearly within the limits of judicial discretion in refusing the motion of the defendant’s attorney, as set forth in the first assignment of error.

The assignments are overruled and the judgment affirmed.

Rice, P. J., Poster and Head, JJ., dissent.


author: Beaver, J.,

text:
    Bricker v. Conemaugh Stone Company, Appellant.

      Waters — Mill dam — Lower riparian owner — Quarry—Sediment in mill-dam — Damages.
    In an action by the owner of a milldam, against the owner of a quarry on a stream above the milldam, to recover for injuries to the latter by reason of the residuum of the defendant’s stone quarrying operations settling in the milldam, the case is for the jury where there is voluminous testimony to the effect that the sediment found in the milldam was the same as the residuum of the quarry, and that the settling of such sediment required at times the entire stoppage of the mill.
    In such a case it is error for the court to charge generally that the measure of damages was the loss of profits where there is evidence of the gross receipts for previous years, but no evidence whatever of the cost of repairs, insurance, taxes and other expenses incidental to the operation of the mill.

      The damages are twofold: First, the cost of removing the deposits occasioned by the acts of the defendant from the dam and race of the plaintiffs; and, second, the compensation for the total or partial loss of the úse and enjoyment of the premises in the meantime, or in other words, the difference in rental value of the property, as affected by the injury complained of.
    Argued May 14, 1906.
    Appeal, No. 71, April T., 1906, by defendant, from judgment of C. P. Armstrong Co., June T., 1904, No. 167, on verdict for plaintiff in case of H. A. Bricker, T. M. Bricker and D. J. Beckett, trading as Bricker & Beckett Bros., v. Conemaugh Stone Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for injuries to a milldam. Before Patton, P. J.
    The court charged in part as follows:
    [I will explain the law of the case to you and will endeavor to make it as clear as I can. The law is, that the Conemaugh Stone Company has a right to wash its sand on its own premises. But the law requires it to keep its refuse upon its own land, so that it will not wash down into this stream, unless it should be carried away by an extraordinary flood. If the Conemaugh Stone Company allows this sand and refuse to be washed into Todd’s run, and from there into Buffalo creek and by ordinary floods it is carried down the creek and does damage to the plaintiff’s gristmill, then it is liable for damages to an amount which we will hereafter explain. But if this stone company deposits this refuse upon its own land, and it is carried away by extraordinary floods, or by what is known in legal parlance as an act of God, then it would not be liable. But, as I said before, if it allowed this refuse to find its way into Buffalo creek, where it could be carried away by ordinary floods, and this sand and refuse afterwards did damage to, what is known in the law, as the lower riparian owners, then the defendant would be liable for damages to the amount which we will explain to you.] [8]
    [The measure of damages would be the cost of cleaning out the plaintiff’s dam and mill race, and of keeping them cleaned of the sand and refuse from the defendant’s sand plant, from the spring of 1902, until March 3, 1904, to the extent that the water power of the plaintiffs would not be diminished; to which should be added the loss of custom sustained by the plaintiffs, while their mill was shut down during the removal of this sand and sediment, if the jury find that there was any loss of custom. If, however, the jury should find that the keeping of the dam and the race in repair, as we have explained, exceeds the loss of profits, then the loss of profits is the true measure of the damages. And, if the jury should find that from December, 1903, to March 3, 1904, sand from the defendant’s plant came into the plaintiff’s mill race, so often that it could not be removed, and compelled the plaintiffs to close down their mill between these two dates, the measure of damages would be the loss of the profits.
    Gentlemen of the jury, I will try to make that plain to you. The plaintiffs, if they are entitled to damages, in the first place, would be entitled to what it would cost them to keep this mill race in repair, so that their waterpower would not be diminished. A number of witnesses have been called in regard to that. Mr. Bricker testifies that he cleaned this out at least fifty times. That his son cleaned it out and Mr. Hawley helped, and that the wages he paid were $2.00 per day, and that Thorne worked two or three different days. Mr. Thorne testifies that all told, he got paid for a day and a half at $2.00 a day, which would be $3.00. Harry Bricker testifies that he cleaned it out at least from twenty-five to fifty times. Thomas Hawley testifies that he worked one and one-half or two hours shoveling out the wheel.
    Now, gentlemen, if you find that this race could have been kept in repair, by men working there and keeping this sand out, then that would be the true measure of damages. As we have said to you, Mr. Bricker testifies that he cleaned it out some fifty times; Thorne testifies that he got $3.00 for what he did. Harry Bricker, a son of Mr. Bricker, a plaintiff, was a young man and he said he did not get any particular pay, that he was working for his father, but-he would be entitled to what his labor was reasonably worth. Holly says he worked one and a half or two hours. Now if the jury believe that that race could have been kept in repair, that would be the measure of damages, to which should be added the loss o£ custom while they were engaged in cleaning out this mill race.
    The testimony seems to be, that some farmers came there with their grist, whatever it was, and could not get it ground on account of this race being cleaned out. Squire W. A. Jack testifies that he came there with sixty bushels of corn and could not get it ground on account of the mill being shut down and he had to go away. Levi Wilson testifies that he went there with 300 bushels of corn. William Morrison went there with forty-four bushels of corn. J. D. Drake, but the amount is not given, and I think two other parties went there, and could not get their corn ground.
    The testimony shows that corn, at that time, was worth fifty-six cents a bushel, and I believe the testimony shows that the miller got one-third toll for grinding. That testimony would enable the jury to arrive at something like just compensation, but of course, in this matter, we cannot reach anything like mathematical certainty. The best you can do is to reach the question and the amount as near as you can.
    The testimony also seems to show that during a certain time, if you believe the testimony on the part of the plaintiffs, this refuse and sand got so bad that they could not keep it out. I think one witness says that he cleaned it out in the afternoon and the next morning it was as bad as ever, and they were shut down. Now that was in December, 1903, and they were kept closed down until March, 1904, so that if you believe that this sand compelled the plaintiffs to close down their mill entirely, then they would be entitled to recover for the loss of profits. In arriving at that, one of the plaintiffs testified to certain amounts, which at first I understood to be Ms net profits, but I take it now, that that was the gross profits; however, that is a question I submit to the jury to determine. He testified, if I understand it now, but that is for the jury, that in November, and in December, 1896, these gross profits amounted in all to $115. In 1897, $1,143.93. In 1898, $614.44. In 1899, $671.01. In 1900, $713.02. In 1901, $238.11. In 1902, $210.59. In 1903, $77.91, and in 1904, nothing. Now, then, the jury will notice from these figures, that in 1897, there must have been a prosperous year. For some reason they appear to have taken in in the neighborhood of $1,200. In other years, including 1900, they appear to have taken in about $600, or nearly $700 a year. From 1901 to 1902, their profits fell off. In 1901, they were $288. As I recollect the testimony, there was no complaint of this sand mill in 1901. In 1902 their income was $201.
    Now, gentlemen of the jury, that gives you some data from which to figure what would be the loss of their profits. If those figures show gross profits, then from that should be taken what went to the miller, and the cost of repairs, and insurance and taxes and anything else in the nature of expense, so that you could arrive at what the net profits would be, because it would be only the loss of the net profits, that the plaintiffs would be entitled to recover.] [9]
    Verdict and judgment for plaintiff for $209.25. Defendant appealed.

      Errors assigned among others were (8, 9) above instructions, quoting them.

      John E. Kimble and E. O. Grolden, with them J). B. Heiner and Edward E. Bobbins, for appellant.
    — Every man has a right to the natural use and enjoyment of his own property and if while lawful in such use, and enjoyment without malice or negligence on his part, unavoidable loss occurs to his neighbor, it is damnum absque injuria, for the rightful use of one’s own land may cause damage to another, without any legal wrong : Penna. Coal Co. v. Sanderson, 113 Pa. 126 ; Penna. R. R. Co. v. Marchant, 119 Pa. 541; Hauck v. Pipe Line Co., 153 Pa. 366 ; Collins v. Chartiers Valley Gas Co., 139 Pa. 111; Panton v. Holland, 17 Johns. 92 ; Harvey v. Coal Co., 201 Pa. 63.
    There has been no testimony to show how much of the deposit in this milldam and headrace was due to the defendant, and that cannot be left to the conjecture of the jury: Robb v. Carnegie Bros. & Co., 145 Pa. 324 ; Keiser v. Gas Co., 143 Pa. 276; Fischer v. Sanford, 12 Pa. Superior Ct. 435; Hutchinson v. Snider, 137 Pa. 1; Sedgwick on Damages, sec. 177; Duffield v. Rosenzweig, 144 Pa. 520.
    On the question of the measure of damages, we are satisfied that the court erred: McNeil & Bros. Co. v. Crucible Steel Co., 207 Pa. 493; Becker v. R. R. Co., 177 Pa. 252; Clark v. R. R. Co., 145 Pa. 438; Rogers v. Bemus, 69 Pa. 432; Fleming v. Beck, 48 Pa. 309; McConaghy v. Pemberton, 168 Pa. 121; Bachert v. Lehigh Coal, etc., Co., 208 Pa. 362.
    February 25, 1907 :

      W. J. Qlvristy with him James H. MeCain, for appellee.
    — The ground of action is not the depositing the sediment in the dam, but the wanton and reckless act above : Little Schuykill Navigation, etc., Co. v. Richards, 57 Pa. 142; Long v. Trexler, 8 Atl. Repr. 620 ; Penna. Coal Co. v. Sanderson, 113 Pa. 126; Hindson v. Markle, 171 Pa. 138; Elder v. Lykens Valley Coal Co., 157 Pa. 490.
    The true measure of damages was the cost of removing the obstruction in so far as it interfered with the power furnished plaintiffs’ mill, and the loss of the use of the mill property.
    In the case : Hoffman v. Mill Creek Coal Co., 16 Pa. Superior Ct. 631; Horton v. Hall, 1 Penny. 159.
   Opinion by

Beaver, J.,

The voluminous record which we have here, in the analysis of the numerous assignments of error made by the appellant, presents but two questions.

The first is one of fact the appellant arguing, however, that there was not sufficient evidence upon which the jury could find the essential fact which underlies, its verdict. This fact, succinctly stated, was, did the residuum of the defendant’s quarrying and stone crushing operations, cast into the stream upon which its works were situated, constitute or contribute to the sediment which settled in the mill dam of the plaintiffs lower down the stream and render their mill, which depended upon the stream for power, less valuable, requiring at times the entire stoppage of the mill, in order to remove the sediment from their race,and the dam which fed it?

There are some facts of universal human experience, founded upon natural law, which can scarcely be disputed. One is that water will run downhill; another is that substances heavier than water will sink to the bottom, and yet another, that substances cast into a stream, even although heavier than water, will be carried downstream, if the volume and velocity of the stream exceed in momentum the resisting power of the deposit.

The appellant would seem to argue against these apparently self-evident facts, in attempting to convince us that the jury ■was wrong in finding that the defendant at least contributed to the injury which was undoubtedly, suffered by the plaintiffs.

The testimony as to- the injury was practically undisputed. Whether or not the defendant contributed to it was fairly left to the jury, upon abundant evidence. • Samples of the sediment, which settled in the plaintiffs’ mill dam and race, were brought into court and the testimony of witnesses, tending to connect 'the residuum created by the operations of the defendant and this material, taken at considerable length. There was more or less qf dispute in regard to this question, depending upon the color and character of the deposit, but a consideration of the testimony leaves us in no doubt as to the necessity of submission of it to the jury. The court did this in a very plain and impartial manner. The jury could not be in doubt as to what their duty was. The testimony was impartially weighed and fairly submitted. With the verdict of the jux-y, rendered under such circumstances, we have no right to interfere, and would have no disposition to do so in this case, even if we had such a right.

The second question is one of law: Did the court propei-ly instruct the jury as to tbe measure of damages?

Under the facts, as developed in this case, the damages were evidently two-fold: First, the cost of removing the deposits occasioned by the acts of the defendant from the dam and race of the plaintiffs, and, second, the compensation for the total or partial loss of the use and enjoyment of the premises in the meantime, or in other words, the difference in rental value of the property, as affected by the injury complained of. Thei-e was no evidence, and appax-ently no claim, that the cost of the removal of the deposits and the restoration of the property' to its former condition would be greater than the injury from those' deposits if allowmd to remain. In that case, the true measure of damages would have been the difference between the market value of the land before and after the deposits were made. But, before the latter measure of damages may be invoked, it is incumbent on the pex-son injured to give evidence from which a jury may conclude with some degree of cei-tainty that the former measure will not fully compensate hiin for the injuries : Hoffman v. Mill Creek Coal Co., 16 Pa. Superior Ct. 631; Elder v. Lykens Valley Coal Co., 157 Pa. 490; Stevenson v. Ebervale Coal Co., 201 Pa. 112; 203 Pa. 316; Bachert v. Lehigh Coal & Nav. Co., 208 Pa. 362.

The instructions of the court upon this subject, as complained of by the defendant .in the ninth assignment of error, were, in general, that the measure of damages was the loss of profits of the business of the plaintiffs. If these instructions had been confined to the actual loss of custom which could have been definitely measured, such as the turning away of persons with particular loads of grain which plaintiffs were unable to grind, because of the stoppage of the mill, occasioned by the cleaning out of the dam and the race, this might have been regarded as outside the realm of speculation at least, and might have been some evidence of the loss of rental value. The court, however, goes much farther and says: “ If, however, the jury should find that the keeping of the dam and the race in repair, as we have explained, exceeds the loss of profits, then the loss- of profits is the true measure of the damages. And, if the jury should find that, from the December of 1903 to March the 3d, of 1904, sand from the defendant’s plant came into the plaintiffs’ millrace so often that it could not be removed and compelled the plaintiffs to close down their mill between these two dates, the measure of damages would be the loss of the profits.”

This we think was erroneous. It was not only contrary to the well settled rule to which we have previously alluded, but introduced a measure of damages speculative and incapable of definite ascertainment. Compensation and not speculation is the invariable rule. Our Pennsylvania cases are those under contract, but, as stated in Sedgwick on Damages sec. 175: “ The early cases, in both the English and American courts, generally concurred-m denying profits as any part of the damages to be coihpensated, and that, whether in cases of contract or of tort.” This rule has been followed very closely in Pennsylvania: Fleming v. Beck, 48 Pa. 309; Rogers v. Bemus, 69 Pa. 432; McConaghy v. Pemberton, 168 Pa. 121, in which in the report of the master at page 132 the whole question is carefully considered : Duffield v. Rosenzweig, 144 Pa. 520.

Not only did the court lay down an erroneous rule as to the measure of. damages, but submitted to the jury a mode of ascertaining profits which was indefinite and unreliable. After reciting the figures given by one of the plaintiffs, as the gross receipts from the mill for previous years, the court said:

“Now, gentlemen of the jury, that gives you some data from which to figure what would be the loss of their profits. If those figures show gross profits, then from that should be taken what went to the miller, and the cost of repairs and insurance and taxes, and anything else in the nature of expense, so that you could arrive at what the net profits would be, because it would be only the loss of the net profits that the plaintiffs would be entitled to recover.”

There was no evidence, however, as to these several items which the court said should be deducted which would enable the jury to reach a definite conclusion. The plaintiff, who testified as to the receipts, admitted that he jvas unable to say what the taxes had been, and there does not seem to have been anything said as to the insurance and the other items concerning which the court intimated deduction should be made.

The appellant cites, and attempts to rely upon, the well-known case of Penna. Coal Co. v. Sanderson, 113 Pa. 126, as an absolute bar to recovery. This case is exceptional and rests entirely upon its own facts, and has been distinguished, bj' the court which rendered it, from cases such as this in Hindson v. Markle, 171 Pa. 138. As said in that case: “ The case of Penna. Coal Co. v. Sanderson, 113 Pa. 126, is not at all in point. That was the mere flowage of natural water which was discharged by natural and irresistible forces, necessarily developed in the act of mining, prosecuted in a perfectly lawful manner. Whije the mine water thus discharged polluted the water of the stream in which it necessarily flowed, it caused no deposit of any foreign substance on the land of the plaintiff and did not deprive her of its use.” The conditions here were similar to those in Hindson v. Markle, so that the Sanderson ease has no application.

We have not followed the assignments of error in the’ir order, nor have ive thought it necessary to deal with them separately. The real questions in the case, however, have been, we think, sufficiently covered by what has been said, and the true measure of damages indicated, so as to avoid the error complained of, in a retrial.

J udgment reversed and a new venire awarded.


text:
    Whitmore, Appellant, v. Craig.

      Justice of the peace — Fees—Charging illegal fees — Penalty—Act of March 25, 1903, P. L. 61.
    Where a justice of the peace is charged with taking an illegal fee, and there is no dispute as to the taking of the fee, or as to the amount, the question whether it was legally taken is one of law for the court, and the question of the reasonableness of the fee cannot be submitted to the jury.
    The penalty imposed by the Act of May 26, 1897, P. L. 100, on a justice of the peace for charging an illegal fee, may be incurred by exacting fees which are supposed at the time to be legally demandable; the taking is the gist of the offense and ignorance of the law will not excuse.
    In an action against a justice of the peace for taking illegal fees, if it appears that he charged and received a greater sum for a specified item of service than he was entitled to, it will not be compensated by his omission to charge as much as he was entitled to for another item of service; but if the justice makes a mistake in noting in an abbreviated form the service upon his docket, he may show that the charge which was actually made both as' to the service and the amount of the fee, was correct.
    A justice of the peace has no right to charge and demand, as part of the costs of the case fifty cents for drawing the affidavit required by the Act of March 25, 1903, P. L. 61, and administering the oath thereto. The proper charge for such service is twenty-five cents.
    Where an action has been brought against a justice of the peace to recover the penalty imposed by the Act of May 26, 1897, P. L. 100, for taking illegal fees, nothing less than the tender of the amount of the penalty provided by the act is sufficient amends, and available as a defense.
    Submitted May 7, 1906.
    Appeal, No. 117, April T., 1906, by plaintiff, from order of C. P. Clarion Co., May T., 1906, No. 207,, discharging rule for judgment for want of a sufficient affidavit of defense in case of A. IT. Whitmore v. J..O. Craig.
    Before Rice, P. J., Porter, Henderson, Morrison, Or-lad y, Head and Beaver, JJ.
    Reversed.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Superior Court.

      February 25, 1907 :

      Error assigned was order discharging the rule.

      G. G. Sloan, for appellant.
    — The fees were illegal and the penalty should have been imposed: Coates v. Wallace, 17 S. & R. 75; Gault v. Dunbar, 1 Phila. 26; Curry v. Carrol, 5 Watts, 477; Henning v. Martin, 13 Pa. Superior Ct. 540; Colwell v. Neubert, 11 Pa. Dist. Rep. 249.
    Nothing less than a tender of the penalty would be justification: McConahy v. Courtney, 7 Watts, 491; Guy v. Crist, 28 P. L. J. 211.
    No appearance contra.
   Opinion by

Rice, P. J.,

A. C. Beckon brought suit and obtained judgment against A. H. Whitmore before J. O. Craig, a justice of the peace. Whitmore appealed and paid to Craig the costs he demanded, which, according to the transcript attached to the supplemental affidavit of defense, were taxed as follows: “Summons $.25. Docket Entry .25, Ret. Sum. .25, Trial & Judg. .50, Ack. .50, Trans. T.00.” Subsequently Whitmore brought this action against Craig under the Act of May 26,1897, P. L. 100, relating “ to officers taking illegal fees and providing a penalty therefor.” The plaintiff’s complaint, as shown by his statement of claim, is that the justice demanded and took the fee of fifty cents for acknowledgment, no such service having been rendered by him. The defendant avers in his affidavit of defense that this item was for writing the affidavit prescribed by the Act of March 25, 1903, P. L. 61, administering the oath to the plaintiff and attaching his seal of office thereto ; that he “ considered this service the same as writing and attaching his seal to an acknowledgment to a deed, for which a fee of fifty cents is allowed by law; ” and that he “ so charged plaintiff and by mistake wrote ‘ acknowledgment ’ instead of ‘ affidavit ’ .in his docket.”

There being no dispute as to the taking of the fee or as to the amount, the question whether it was legally taken was one of law: McConahy v. Courtney, 7 Watts, 491. Therefore the suggestion of the learned judge below that the question whether the charge of twenty-five cents for drawing the affidavit was a reasonable one should be submitted to a jury, cannot be sustained. The justice made the charge as part of the costs of the case and under no circumstances is the question of the reasonableness of a fee charged as part of the costs a question for the jury. The decisions under earlier statutes relating to taking illegal fees are pertinent in the construction and application of the act of 1897 : Wilson v. Barrett, 24 Pa. Superior Ct. 68 ; Henning v. Martin, 13 Pa. Superior Ct. 540. The penalty imposed by the statute may be incurred by exacting fees which are supposed at the time to be legally demandable ; the taking is the gist of the offense and ignorance of the law will not excuse : Coates v. Wallace, 17 S. & R. 75. In a civil action for the penalty the officer is liable although the charge was made by mistake and under no intention to extort: Miller v. Lockwood, 17 Pa. 248. In an action against a justice of the peace for taking illegal fees, if it appears that he chaiged and received a greater sum for a specified item of service than he was entitled to, it will not be compensated by his omission to charge as much as he- was entitled to for another item of service: Curry v. Carrol, 5 Watts, 477. But a distinction is to be made between a mistake like that considered in the case last cited and a mistake of the justice in noting in abbreviated form the service upon his docket. The latter ought not to preclude him from showing that the charge actually made, both as to the service and the amount of the fee, was correct. The affidavit of defense fairly interpreted may be regarded as averring that this was what was done. Therefore the case as now presented turns upon the question whether a justice has a right to charge and demand, as part of the costs of the case, fifty cents for drawing the affidavit required by the act of 1903 and administering the oath thereto. It is true this affidavit was not required when the Act of May 23, 1893, P. L. 117, regulating and establishing the fees to be charged by justices of the peace was adopted; but that act provides that the fee for administering oaths or affidavits in criminal or civil cases shall be ten cents, and administering oaths and affirmations “ in anjease not herein provided for ” shall be twenty-five cents. By liberal interpretation the latter may be regarded as the fee for administering an oath or affirmation outside the trial of the case, as, for example, upon appeal. There is no need and no authority to resort to that clause of the statute which declares that “ the fees for services not herein specially provided for shall be the same as for similar services.” The service therein referred to is an official service aud the only official service rendered in the present particular was in administering the oath to the appellant and attaching the jurat to the affidavit. As already suggested, if the justice voluntarily wrote the affidavit he would not be entitled to recover as part of the costs of the case what a jury might think the service was reasonably worth. We are of opinion that the fee for the official service which he rendered in the particular under consideration was twenty-five cents.

Nothing less than a tender of the amount of the penalty is sufficient amends and available as a defense in an action brought against a justice who has taken illegal fees : McConahy v. Courtney, 7 Watts, 491. Therefore the averment of the affidavit of defense that the defendant by his attorneys tendered amends, “ which said amends were a sum sufficient to pay any overcharge in fees and costs and expenses of plaintiff in the same up until that time,” is not sufficient to. prevent judgment. There is nothing in the case to indicate that the justice acted dishonestly or oppressively in the matter, but as we have seen this was not necessary in order to render him liable to the penalty.

The order is reversed and the record is remitted to the court below with directions to enter judgment against the defendant for such sum as to right and justice may belong, unless other equitable or legal cause be shown to the court below why such judgment should not be so entered.