text:
    Weidner’s Estate.

      Executors and administrators — Grant of letters — Renunciation.
    1. An oral renunciation of a right to administer, when acted upon may so far estop him who makes it that at his instance, letters granted in pursuance thereof will not be revoked except as a matter of discretion.
    2. A son of an intestate has no standing to demand that letters of administration granted to his sister shall be revoked, where it appears that he knew of his sister’s application for letters, and that although she proposed to him that notwithstanding her pending application, he should take out letters, yet he not only declared to her that he would not do so, but expressed to her his assent to her going on with her application and taking out letters under it, and thereafter made no objection thereto until after letters were granted to her, and her bond was approved, although he had ample opportunity in the meantime to do so. In such a case the renunciation may be inferred from the mere oral declarations of the son.
    Argued Nov. 16, 1908.
    Appeal, No. 15, Oct. T., 1907, by George A. Weidner, from decree of O. C. Chester Co., dismissing appeal from Register of Wills in Estate of Joseph Weidner, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver; JJ.
    Affirmed.
    Appeal from register of wills.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in dismissing the appeal.

      Frederick A. Sobernheimer, with him Walter S. Talbot and
      Jeremiah K. Grant, for appellant. —
    April 12, 1909:
    -The granting of the letters to the sister, H. Etta Lahr, the appellee, was improvident. It was the duty of the register of wills to have before him, in writing, the fact that the plaintiff had renounced, and such renunciation filed of record: Muirhead v. Muirhead, 3 Smedes & Marshall, 451; Arnold v. Sabin, 55 Mass. 525; Heron v. Hoffner, 3 Rawle, 393.
    It has always been the custom and law in Pennsylvania that the register of wills will not grant letters to a person out of the class designated and authorized by the act of 1832, without first giving notice to the person first entitled thereto, or having filed of record a renunciation by such person: Williams’s App., 7 Pa. 259; Bieber’s App., 11 Pa. 157; McClellan’s App., 16 Pa. 110; McCaffrey’s Est., 38 Pa. 331; Jones’s App., 10 W. N. C. 249; Levan’s App., 17 W. N. C. 289; Mintzer’s App., 111 Pa. 524; Ross’s Est., 1 Pa Dist. Rep. 744; Kelly’s Est., 15 Pa. Dist. Rep. 427; Ellmaker’s Est., 4 Watts, 34; Job’s Est., 23 Pa. Superior Ct. 611.

      A. Lewis Smith, with him I. Newton Wynn and William M. Hayes, for appellee,
    cited: Wilkey’s App., 108 Pa. 567.
   Opinion by

Rice, P. J.,

The decedent died on January 20, 1905, intestate. His wife died before him, and his surviving children were two sons, George and Harvey, and two married daughters, Elizabeth Bachman and H. Etta Lahr. George, the appellant, was the oldest son. On March 17, 1906, letters of administration were granted by the register of wills to Mrs. Lahr upon her petition filed with his predecessor in office on February 13, 1905, and on the same day that letters were granted her bond, dated February 13, 1905, was approved.

On March 30, 1906, George presented his petition to the register of wills praying for a rule on Mrs. Lahr to show cause why the letters should not be vacated and revoked, and letters be granted to him. Upon the hearing of this petition all the parties interested, except Harvey Weidner, appeared before the register, and, according to the written findings of fact filed by the register with his decision, adduced testimony relative to the qualifications of the petitioner and his alleged renunciation. So far as now appears, he had as full opportunity to be heard as if the register had pursued the regular course of issuing a formal citation to him before granting the letters to the appellee. The register’s decision was as follows: “And now, May 10, 1906, the register of wills after carefully reviewing the testimony submitted before him, and having heard argument for and against the application for the granting of said letters, is of the opinion that he had made the proper selection from the class entitled to letters, and the one to whom letters have been granted, is the proper person who will best administer the estate, and refuses to revoke the same.” From this decision George took an appeal to the orphans’ court, ■ which, having been put at issue by petition and answer and heard de novo before both judges, resulted in the decree, now before us for review, dismissing the appeal and sustaining the action of the register.

The learned judges below based their decision upon two grounds, one of law and the. other of fact, which we state substantially in their words: 1. “That an oral renunciation, acted upon, would so far estop him who makes it, that at his instance, letters granted in pursuance thereof, would not be revoked, except as matter of discretion;” 2. “that the proof, in character and extent, so preponderates -in favor of the alleged renunciation, that it must be found as a fact.” The court then sets forth the form and terms of the oral renunciation and the time and circumstances under which it was made, by referring to, and quoting in part, the testimony of Mr. Wynn, as being a substantially accurate statement of the transaction. In order to bring clearly into view the precise question for decision we quote this part of the court’s findings and opinion: “ In May of 1905, Mr. Wynn was in Philadelphia with the parties to the controversy. He testifies in part: 'We went across the street to the corner of Fifteenth and Penn square. There were present in the group, John Lahr, his wife, Harvey Weidner and myself. George said: “I could have settled this estate and administered to it.” I said: “George, it is not too late yet. Mrs. Lahr has only filed an application to save her the trouble of coming down, and if you want to administer you go up and administer to the estate and settle it.” He said: “No, I will not administer to the estate.” He said: “Et.,” meaning his sister, “ and you have started this and you can go on and take out letters and finish settling up this estate, and whenever you want me, I will give you my address,” and he gave it to me.' The administratrix corroborated Mr. Wynn, as, to a substantial extent, did her husband.”

There was testimony in conflict with the foregoing, but, it must be remembered, the hearing was before both judges of the court, who had better opportunity to judge of the credibility of the witnesses who testified in their presence, than we have; hence, according to well-settled and familiar principles, their findings of fact based upon competent testimony, must be accepted by us, there being no manifest error. We have then a case wherein it appears that a son of an intestate, who though entitled, prima facie, to be preferred over his sister in the granting of letters, yet with express notice of the pendency of her application before the register of wills to have letters granted to her, and although she proposed to him that notwithstanding her pending application he should take out letters, not only declared to her that he would not do so, but expressed to her his assent to her going on with her application and taking out letters under it, and thereafter made no objection thereto until after letters were granted to her and her bond was approved, although he had ample opportunity in the meantime to do so. Was the appellant in position to demand as matter of right that the action of the register be annulled and letters be granted to him? It is to be noticed that letters were not granted to a stranger but to a member of the class to which the appellant belonged. This distinguishes the case from many of the cases cited by his counsel. But, as in selecting from next of kin, males are preferred by the statute over females, it is clear that if the appellant was competent and ready to act, the register could not go' by him and appoint the appellee unless he waived his preference. This he could have done by a written renunciation or waiver filed with the register, but that was not the only. way. If, for example, he had been cited to appear before the register to show cause why the appellee’s application should not be granted and had failed to appear, or having appeared, had orally declined to take out letters himself, or had orally assented to letters being granted to her, it would be competent for her, upon the hearing of his subsequent petition to revoke the letters granted to her, to prove the circumstances under which they were granted. Doubtless, in such a case, it would be the better practice for the register to make a record of the action of the appellant, but that it is absolutely essential to the validity of the appointment, we cannot admit. If there is any Pennsylvania case holding the contrary it has not come to our notice. Heron v. Hoffner, 3 Rawle, 393-398, is not such a case. That related to the probate of a will and the issuing of letters testamentary to two of the persons named therein as executors without notice to the third person, and without her appearing before the register or sending to him any renunciation, either written or oral. A perusal of the opinion will show that it was governed by principles which are not controlling here. Moreover, in Ralston’s Estate, 158 Pa. 645, the present chief justice, speaking of implied acceptance or refusal of executorship or trusteeship, said: “Delay and inaction so far from raising a presumption of acceptance, are generally treated as evidence of refusal, 7 Am. & Eng. Ency. of Law, 200, and though there are in this state many expressions that the refusal must be in writing and of record, Com. to use v. Mateer, 16 S. & R. 416; Heron v. Hoffner, 3 Rawle, 393; Miller v. Meetch, 8 Pa. 417; Bowman’s Appeal, 62 Pa. 166; yet that point was not probably meant to be decided as broadly as the expressions, apart from the circumstances of the particular cases, would seem to imply.” The cases there referred to are certainly not authority for the proposition that waiver by males of their statutory preference in the granting of letters of administration must necessarily be in writing and of record. But it is insisted that the mere oral declaration of the appellant to the appellee, that he would not act, and that she could do so, although proved to the satisfaction of the register, was not sufficient to authorize the register to appoint the appellee. How the case would be if this were the only fact tending to show waiver it is unnecessary to decide. It is not the only fact. Coupled with it are the facts that at the time he made these declarations he was notified and seemingly knew it before, that the appellee’s petition was pending before the register, the fact that ten months elapsed between the date of these declarations and this notification and the date when letters were issued, and the further fact that during all of this time he remained inactive. From the facts taken as a connected whole we are all of opinion that there arose a waiver of the preference claimed by the appellant, which, not being retracted until after the appellee acting on the faith thereof had taken out letters and given bond, estopped him to demand as matter of right that he be substituted for her.

We have considered the case entirely from the standpoint of the opinion of the learned judge below. There was evidence before the court which, if credited by the judges, would have warranted them in holding that upon other grounds letters could properly have been refused to the appellant. But, as the conflicting testimony upon those subjects has not been passed upon by the court below, we deem it proper for us to omit considering it.

The decree is affirmed at the costs of the appellant.


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Commonwealth ex rel., Appellant, v. Butler
    (No. 1).

      Justice of the peace — Suit for penalty — Filling up ditch — Act of June 13,1836, P. L. 551 — Certiorari—Quashing appeal.

    1. A judgment of the court of common pleas reversing a judgment of a justice of the peace in a Suit brought in the name of the commonwealth to recover the penalty provided by sec. 67 of the Act of June 13, 1836, P. L. 551, for wrongfully filling up a ditch or drain is not conclusive, and an appeal lies therefrom to the Superior Court. Such a suit is not a civil action within the meaning of secs. 22 and 24 of the Act of March 20, 1810, 5 Sm. L. 161.
    2. The penalty provided by sec. 67 of the Act of June 13, 1836, P. L. 551, for filling up or injuring a drain or ditch, made by a supervisor, for draining water from a public road, does not apply to such a ditch within the -limits of a borough which had been created out of territory which was formerly part of a township. If a justice of the peace wrongfully enforces such a penalty, his judgment may be reversed on certiorari, although the writ of certiorari issued more than twenty days after the entry of the judgment by the justice; and this is the case because the record showed that the justice had no jurisdiction, and also because the proceeding is not a civil action to which alone the twenty day rule applies.
    3. Where a motion is made in the common pleas to quash a writ of certiorari to a justice of the peace, for certain grounds stated, and such a motion is overruled, such action of the court will be construed as an order allowing the writ nunc pro tunc, no previous allowance of the writ having been made by the court.
    Argued Oct. 26, 1908.
    Appeal, No. 211, Oct. T., 1907, by plaintiff, from order of C. P. Centre Co., May T., 1907, No. 28, reversing judgment of justice of the peace in case of Commonwealth ex rel. Reuben Lucas v. Burdine Butler.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Certiorari to justice of the peace. Before Orvis, P. J.

      Errors assigned were in the following form:
    1. The learned court erred in overruling the motion to quash the writ of certiorari, which motion and reasons are as follows:
    Now, May 20, 1907, the defendant in error by his counsel moves that the writ of certiorari in the above-stated case be quashed for the following reasons:
    First. Because the record shows that the defendant was present at the hearing before the justice and judgment was entered against him for the penalty sued for, October 18,1906, of which he had due notice, almost five months before he sued out this writ, and there was no warrant or authority in law for issuing the same.
    Second. Because the defendant below, plaintiff in error on November 30, 1906, obtained a rule from this court to show cause why he should not be permitted to enter appeals in said two cases, nunc pro tunc, which rule was discharged by the court on February 25, 1907, Which rule was to No. 5, February Term, 1907, and having resorted to an appeal he cannot sue out a certiorari after the twenty days have expired from the rendition of the judgment by the justice, the defendant appearing and having due notice of the same.
    The defendant in error therefore prays the court to quash said writ at the costs of the plaintiff in error.
    2. The learned court erred in not quashing the writ of certiorari because the same was taken out without a special allowance by the court.
    3. The learned court erred in reversing the judgment of the justice on the record thereof.

      John G. Love, for appellant. —
    A certiorari taken out more than twenty days after the entry of judgment is too late, and will be quashed or discharged, and the judgment affirmed, unless the justice was without jurisdiction or the judgment obtained fraudulently: Galley v. Davenport, 1 Ashmead, 149; Bristol Mfg. Co. v. Smith Bros. & Turner, 6 Pa. Dist. Rep. 332; Commonwealth v. Fiegle, 2 Phila. 215; Young v. Trunkley et al., 22 Pa. C. C. Rep. 127.
    A special allowance from the court of common pleas must be had, for a writ of certiorari to a justice of the peace in a summary conviction: Com. v. Antone, 22 Pa. Superior Ct. 412; Com. v. Mattern, 24 Pa. C. C. Rep. 655.
    The act does not in any sense require a conviction, or provide for any imprisonment in default of paying the judgment recovered. It is therefore a civil action and is governed by the rules that would govern an action of trespass or actions de son tort: Garman v. Gamble, 10 Watts, 382; Ott v. Jordan, 116 Pa. 218; Com. ex rel. v. Betts, 76 Pa. 465; Blessington v. Com., 12 Cent. Repr. 512; Com. v. Borden, 61 Pa. 272; Com. v. Davison, 11 Pa. Superior Ct. 130; Fetterman v. Robbins, 100 Pa. 282.

      C. S. McCormick, with him D. F. Fortney and D. P. Fortney, for appellee. —
    The writ should be quashed: Allegheny Loan & Trust Co. v. Gundling, 33 Pa. Superior Ct. 621; Borland v. Ealy, 43 Pa, 111; Jacobs v. Ellis, 156 Pa. 253; Deering Harvester Co. v. Zink, 33 Pa. Superior Ct. 512; Diehn v. Parkes, 1 Monaghan, 174; Adams v. Berge, 30 Pa. Superior Ct. 422; Stewart v. Lindsay, 3 Pennypacker, 85.
    April 12, 1909:
    Sections 22 and 24 of the act of 1810 do not apply: Ott v. Jordan, 116 Pa. 218; Spicer v. Rees, 5 Rawle, 119; Garman v. Gamble, 10 Watts, 382; Com. v. Evans, 13 S. & R. 426; McGinnis v. Vernon, 67 Pa. 149.
    The act of 1836 deals wholly with township roads and there is not a word in it indicating that its terms are intended to be applicable to boroughs: Com. v. Davison, 11 Pa. Superior Ct. 130; Com. v. Gelbert, 170 Pa. 426; Com. v. Nesbit, 34 Pa. 398; Reid v. Wood, 102 Pa. 312.
    The limitation of twenty days for taking a certiorari does not apply in cases in which the justice has no jurisdiction, either of the parties or the matter: Lacock v. White, 19 Pa. 495; Graver v. Fehr, 89 Pa. 460; Wenger & Bro. v. Hartman, 3 Justices’ L. R. 114; Minogue v. Ashland Boro., 4 Justices’ L. R. 36; Nalen v. Burke, 12 Pa. C. C. Rep. 490.
    In a certiorari to a justice of the peace, the twenty-day limit will not apply where the question is one of jurisdiction; it is never too late to take advantage of the want of jurisdiction: Heaney v. Faust, 20 Pa. C. C. Rep. 73; Ingham v. Sickler, 1 Leg. Chron. 151; Collins v. Collins, 37 Pa. 387, 388.
    A judgment before a justice of the peace being void for want of jurisdiction to enter it, it matters not how, or in what mode, or at what time, the objection on that ground is brought to the attention of a supervising court. Being void it has no efficiency at any time. The defendant can afford to'disregard it until an effort is made to enforce it: Corson v. Sullivan, 1 Justices’ L. R. 75; Gates v. Sawyer, 2 Justices’ L. R. 223; Pantall v. Dickey, 123 Pa. 431; Allen v. Krips, 119 Pa. 1.
    There is no constitutional requirement that the judges of the court of common pleas must allow writs of certiorari to justices of the peace: McGinnis v. Vernon, 67 Pa. 149; Edwardsville Borough v. Rice, 7 Kulp, 432.
   Opinion by

Head, J.,

The trifling sum of money involved in this appeal gives but little indication of the number and character of the questions which the industry and skill of counsel have presented in this record for our consideration.

The sixty-seventh section of the Act of June 13, 1836, P. L. 551, provides, “If any person shall stop, fill up or injure any drain or ditch made by any supervisor for the purpose of draining the water from any public road or highway, or shall divert or change the course thereof, without the authority of the supervisor for the time being, such person shall, for every such offense, forfeit and pay a sum not less than $4.00 nor more than $20.00.” By the seventy-eighth section of the same act it is provided that all fines and pecuniary penalties which may be incurred under any of the provisions of the act shall be recovered in the name of the commonwealth at the instance of any person who will sue therefor, in the same manner as debts of like amount are recoverable with costs; one moiety for the use of the person suing and the other for the township for the use of the road. It appears from the record that on October 12, 1906, a summons was issued by a magistrate of Centre county requiring the appearance of the present appellee on the day therein named “to answer an action of assumpsit for a penalty of $20.00 for the violation of the sixty-seventh section of the act of June 13, 1836.” The defendant appeared and the record of the magistrate declares that the witnesses examined on the part of the plaintiff “testified that a ditch or drain was made by the street commissioners of Howard borough to drain the water off Walnut street, a public road or highway. . . . That the defendant, Burdine Butler, did on July 00, 1906, fill up said ditch and turn the water upon said road .... without the authority of the street commissioners or any one else having any jurisdiction of said road. . . . After hearing the parties, their proofs and allegations, judgment is publicly entered in favor of the plaintiff for a penalty of $15.00 and costs.” Some months later, in March, 1907, a writ of certiorari issued out of the court of common pleas at the instance of the defendant without a previous order of allowance by the said court. A number of specifications of error were filed, some of which were sustained by the said court, and as a result “the judgment of the justice of the peace so far as the same be a judgment against Burdine Butler” was reversed. The relator then took this appeal.

We are asked in the first instance to quash the appeal because under the twenty-second section of the Act of March 20, 1810, 5 Sm. L. 161, the judgment of the court of common pleas in such case is final. The question raised by this motion is not an open one. In Commonwealth v. Betts, 76 Pa. 465, a similar proceeding under the same section of the act of 1836 was under consideration and a like motion to quash was made. In delivering the opinion Chief Justice Agnew, after an elaborate review of the authorities, reaches this conclusion: “We are therefore of opinion that an action such as this, in the name of the commonwealth, to recover a penalty for a statutory offense, is not a civil action, such as is meant in the twenty-second and twenty-fourth sections of the act of 1810. It may be so in form, but in its true nature and effect, it is a proceeding for a criminal offense, the supervision of which the essential interests of the public require to belong to this court.” The distinction as pointed out in the opinion between that case and some of the earlier ones — of which Spicer v. Rees, 5 Rawle, 119, is perhaps the leading one — seems to have become the settled law of the state. In Mahanoy Boro. v. Wadlinger, 142 Pa. 308, it was held that an action brought in the name of the city to recover a penalty for the violation of an ordinance was within the provisions of the act of 1810, and as a consequence that the judgment of the common pleas on the writ of certiorari was final, but the position taken in Commonwealth v. Betts, 76 Pa. 465, was recognized as sound and remains unshaken. The motion to quash must therefore be denied.

We must next consider whether or not the court of common pleas was warranted in reversing the proceeding before the magistrate. It will be observed that the act of the defendant upon which the proceeding was based is prohibited by a section of the act of assembly known as the General Road Law. The thing prohibited is the stopping, etc., of “any drain or ditch made by any supervisor,” and such act must be done “without the authority of the supervisor,” and one-half of the penalty to be recovered is to be “for the township for the use of the road.” The section of the act of assembly quoted is penal in its character and must be strictly construed against those seeking to enforce it. As was said in another part of the opinion quoted from, “The prohibited act therefore being a public offense and the action in the name of the state herself, the action is really for a criminal charge and therefore does not fall properly within the twenty-second section or the twenty-fourth section of the act of 1810.”

It appears from the record that the ditch in question was not located in any township, but in the borough of Howard and on or alongside of a public street, Walnut street, of that borough. When the borough of Howard was created out of territory theretofore a part of the township of Howard, so much of the public roads of the township as was embraced within the limits of the incorporated borough ceased to be township roads and became borough streets. The supervisors of the township no longer could lawfully exercise any jurisdiction over them. They were free from responsibility for their maintenance. The township supervisor could no longer lawfully give his consent to the commission of any act within the borough limits affecting one of its public streets. The newly created borough became responsible to the public for the maintenance of those streets and had the -right to provide by ordinance the manner in which they should be cared for by the proper borough authorities and used by its citizens. It seems clear to us, therefore, that the section of the act of assembly under which this proceeding was begun ceased to be operative within the limits of the borough of Howard. If this were not so, then this section of the act would still be in force in every borough of the commonwealth which since 1836 had been created out of township territory, and citizens, nay even officers of such boroughs, might be proceeded against and fined because of acts done without the authority of the supervisor and the money so recovered would be applicable to the adjoining township for the use of the roads. Such a construction seems to us to be unreasonable. It is true the public roads of a township at or near where they meet the streets of a borough may be injuriously affected by some act done • either by the officers of the borough or by one of its citizens along a borough street, but it does not follow that the remedy for such an injury would be by an attempt to enforce a penal section of the act of 1836, the operation of which, by the terms of the act itself, seems to us to have been intended to be limited and confined to acts done in a township. Had the legislature intended such section to be applicable to acts done on or alongside of the streets of a borough in proximity to a township road, it would have been easy to have indicated such an intention. We are of opinion, therefore, that the record of the magistrate discloses that he was without jurisdiction to proceed against the defendant for the act complained of.

It follows, therefore, that the motion to quash the writ of certiorari, which motion was made in the court below by the relator because the writ issued more than twenty days after the judgment by the magistrate, was rightfully dismissed, and this for the additional reason, if any be necessary, that the twenty-first section of the act of March 20,1810, which provides that “no judgment shall be set aside in pursuance of a writ of certiorari unless the same be issued within twenty days after the judgment was rendered,” applies only to civil actions: Caughey v. Pittsburg, 12 S. & R. 53.

But we are confronted with the further proposition first advanced by the learned counsel for the appellant in this court that the writ of certiorari should now be quashed by us because it could not have properly issued out of the court of common pleas without a previous allowance by said court. Therefore it is argued the writ was never properly lodged in the court below and could not become the foundation of a judgment by that court reversing the proceedings before the magistrate. It is true that in Commonwealth v. Antone, 22 Pa. Superior Ct. 412, which was a case of summary conviction, the court below of its own motion quashed a writ of certiorari which had issued without a previous order of allowance and we affirmed the judgment. The case before us is an action of assumpsit to recover a penalty. There is no provision in the act of assembly which would enable any tribunal to enforce the payment of the fine imposed by the imprisonment of the debtor. Whilst, therefore, the proceeding is in some respects, as we have seen, criminal in its nature, in other respects it is akin to a civil action. It does not necessarily follow, therefore, that the same rule would prevail in such a case as in one of summary conviction. Assuming, however, that the rule should be the same, we do not think the appellant is in a position to raise that question here. Had a motion to quash on this ground been made in the court below, if it had been determined that a previous order of allowance was necessary, the court could then have quashed the writ with leave to the defendant to apply for another, and thus no injustice would have been done. By moving to quash on other grounds, the relator must have regarded the writ as having been properly issued, and the order of the court refusing to quash the writ may now fairly be considered as an order allowing the writ nunc pro tunc. Such orders have been so construed in much more important cases. For instance, where a district attorney had sent a bill before the grand jury without previous leave of the court, but where the court after-wards refused to quash the bill on that account, the Supreme Court said: “In the present instance the court of quarter sessions must be assumed to have approved the action of the district attorney:” Rowand v. Commonwealth, 82 Pa. 405.

Being of the opinion, therefore, for the reasons already stated, that the magistrate was entirely without jurisdiction and that the action of the court below in reversing the proceedings on the writ of certiorari was correct and proper, we are not willing now to say that the court below committed reversible error in not quashing the writ for a reason wholly outside those advanced by counsel making the motion. On the contrary, taking the record as a whole, we are inclined to hold that the action of the court below refusing to quash the writ amounted to an approval of it, or in other words an order of allowance nunc pro tunc. The assignments of error are all dismissed.

Judgment affirmed.


text:
    Commonwealth ex rel., Appellant, v. Butler
    April 12, 1909:
    (No. 2).
   Opinion by

Head, J.,

The questions involved in this case being precisely those in the case at No. 211, October Term, 1907, a stipulation was filed that the disposition of this case should be controlled by that made of the other. Accordingly, for the reasons stated in the opinion this day filed in that case, ante, p. 125, the assignments of error are overruled.

Judgment affirmed.


text:
    Cope v. Bangor & Portland Traction Company, Appellant.

      Contract — Breach of contract — Conflicting evidence — Question for jury.

    1. In an action to recover damages for the breach of a construction contract, the case is for the jury and a verdict and judgment for the plaintiff will be sustained, where the evidence for the plaintiff, although contradicted, tends to show that the plaintiff began performance of the contract in good faith, but was stopped by the defendant in its execution, and that after finding that the defendant did not intend to allow him to proceed, he availed himself of the right to declare the contract rescinded and sue for the damages occasioned by its breach. In such a case it is proper to permit an employee of the plaintiff to testify that he went upon the ground on the day fixed by the contract for the commencement of the work, and under the instruction of defendant’s engineer helped to stake off the place and to lay pipe and tile, and was thus engaged for several hours.

      Contract — Breach of contract — Measure of damages — Loss of profits.

    2. Damages, may be recovered for loss of profits caused by a breach of contract; and they are never excluded simply because they are profits. If it reasonably appear that profits would have been made had the terms of the contract been observed, and that their loss necessarily followed its breach, they may be recovered as damages if the evidence is sufficiently certain and definite to warrant the jury in estimating their extent.

      3. In an action for a breach of a construction contract the plaintiff may show the quantity of the various kinds of the material and labor that would be required to do the work; also the contracts which he had made for the purchase of material, and also the cost of excavation and removal of dirt under certain favorable arrangements which he had made. He will not be confined to proof of formally executed contracts for labor or material which would have bound him whether the work went on or not.
    Argued Dec. 8,1908.
    Appeal, No. 220, Oct. T., 1907, by defendant, from judgment of C. P. Northampton Co., April T., 1906, No. 21, on- verdict for plaintiff in case of Isaac Cope v. Bangor & Portland Traction Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for the breach of a construction contract. Before Stewart, J.
    The facts appear by the opinion of the Superior Court.
    When A. S. Hunt was on the stand the following question was asked the witness.
    Mr. Steel: “Q. After the contract for the building of the subway at Portland had been given to Mr. Isaac Cope, the plaintiff in this suit, will you state whether or not you received instructions from Mr. Cope on July 14, 1904, to go there at that point and do work? A. Yes, sir, I did. Q. In consequence of his instructions what did you do? A. Went down there with the engineer and helped stake off the place to lay the pipe in, the tiling. Q. You went down with the engineer? A. With the engineer, yes, sir. Q. Who was he? A. Herbert Dilliard. And George Rasely went down that morning. Q. Did you have any workmen with you? A. None but myself. Q. What did you do? A. Helped stake out the place for the pipe as he laid the line and helped carry the chain. Q. How long were you engaged there on that day? A. Well, perhaps three hours.”
    Objected to and move that the testimony on the subject be stricken out on the ground that the staking out of the location of the pipe was no part of the work to be done by the contractor under the contract.
    The Court: The objection is overruled; the testimony, we think, is material as showing the commencement of the work under the contract in connection with the fact that they were to put in this pipe at the place where the engineer surveyed and staked it out. Bill sealed for defendant. [8]
    Defendant presented this point:
    10. Under the law and the evidence in this case the verdict should be for the defendant. Answer: That point is refused. I submit the question to you as a matter of fact for the consideration of the jury and their determination. [9]
    The court charged in part as follows:
    [And your attention was called to the fact that a number of the witnesses for the defense were men of very large experience, and that their estimates were very much in excess of the contract price itself. These matters are all for your consideration. Admitting that they were experienced men, was their testimony weakened by the cross-examination when their attention was directed to particular items; was their estimate changed in any way; were there deductions made such as were claimed by the plaintiff which would still entitle him to a verdict at your hands, even taking the testimony of some of the witnesses for the defense.] [6]
    [If, on the other hand, you are satisfied — taking into consideration Mr. Cope’s experience as a contractor; taking into consideration what he has said with reference to the way in which he was going to build this job; the advantages which he had from his previous experience, and previous knowledge; taking into consideration the portions of the contract which have been referred to with reference to the use of the large stones: taking into consideration the deductions which have been made, as appears in the cross-examination of some of the defendant’s witnesses; taking the testimony of Mr. Hunt, who fixed the amount at some $2,600 or $2,700; taking all the testimony and looking at it from the plaintiff’s point of view, you are satisfied that it could have been built according to the plans and specifications for the sum which he fixes at $2,300 and some odd dollars, or $2,400 or $2,600 or $2,700, just as it may appear to you from all the testimony in this case, and that sum is under $3,750, then you would subtract what the evidence satisfies you it would reasonably cost from the amount which he was to get, and that would be the measure of damages.] [7]
    April 12, 1909:
    Verdict and judgment for plaintiff for $193.14. Defendant appealed.

      Errors assigned were (1-5) various rulings on evidence relating to the amount of profits, quoting the bill of exceptions; (8) refusal to strike out testimony of Hunt; (6, 7, 9) above instructions, quoting them.

      H. M. Hagerman, for appellant.

      H. J. Steele, for appellee.
   Opinion by

Head, J.,

The ninth assignment of error complains of the action of the court in refusing to direct a verdict for the defendant. This assignment cannot be sustained unless, after giving to the plaintiff the benefit of every fact testified to by him or his witnesses and every inference to be fairly deduced from such facts, it appears that no legal cause of action has been shown. It was not denied that the parties had entered into a contract in writing whereby the plaintiff agreed to furnish certain material and perform all the labor necessary to construct an underground crossing, a portion of which was to extend under the right of way and tracks of a steam railroad. The contract was an entire one, and the consideration was the bulk sum of $3,750. The parties stipulated further that the plaintiff should “commence the work required to be done on or before July 14th .... and that the whole of said work shall be fully completed and performed within sixty working days after Jufy 14, 1904.” The contract bears date of Jufy 11, 1904, and seems to have been actually executed on that date. The plaintiff testified that he immediately proceeded to engage and prepare sand, crushed stone and lumber, and to employ men, tools and teams. The plaintiff testified further that he was directed on the 16th, two days after he had begun, to stop the work because the defendant had not yet secured the right to go under the tracks of the steam railroad. He further testified that on the 18th he was approached by the secretary of the company and asked to give the company a written notice to return his papers, the bond and the contract. To this he replied that if they would pay him $50.00 cash on that day and return the papers, he would agree to the cancellation of the contract. Nothing being done, the plaintiff on the 19th gave to the company a written notice to return his papers and pay the damages. Giving to the plaintiff the benefit of the facts thus testified to by himself and the inferences to be drawn therefrom, it would appear that after he had entered into a contract and begun its performance in good faith he was stopped by the defendant company in the further execution of the contract, and finding no evidence that the company intended to allow him to proceed, he availed himself of his right to declare the contract rescinded and sue for the damages occasioned by its breach. Of course, there was a sharp conflict in the evidence on this question of fact, the defendant stoutly contending that it had not stopped or interfered with the work, and affirming that the plaintiff quit of his own motion. The court, with entire fairness to the defendant, submitted this question of fact to the jury and their finding was favorable to the plaintiff. The ninth assignment must therefore be overruled.

The eighth assignment complains of the action of the court in refusing to strike out the testimony of the plaintiff’s witness, Hunt. This witness testified that as soon as the contract was signed he was instructed by the plaintiff to begin work on July 14, the day fixed in the contract. That in consequence of these instructions he went on the ground with the defendant’s engineer and helped stake off the place, to lay pipe, tile, etc., being thus engaged for several hours. He testified that the engineer had directed him to go to work and that he wanted to do so, but was told by the president of the company that he could not go to work “because we have not the right of way.” The witness suggested that they could begin tearing down fence, cutting brush, etc., but he was not permitted to do this. This testimony was admitted in connection with the testimony of the plaintiff of the preparation he had made in the way of securing materials, teams, etc., to show that he had in good faith complied with the stipulation in the agreement requiring him to begin the work on July 14. On this point the learned court below submitted the question to the jury in a manner of which certainly the defendant cannot justly complain. The jury were instructed, “If you find as a matter of fact that he did not commence the work in the time which is stipulated, that is on the 14th, no matter what his excuse may have been, then he failed to comply with that provision of the contract, and unless you find from some of the testimony in the case which does not occur to the court that it was waived, then it again would be your duty to find a verdict in favor of the defendant because he had not commenced on the 14th, and that again would end your consideration of this case.” It was not necessary that the plaintiff with his own hands should begin actual excavation on the day named. It was sufficient if the jury under the testimony found that he had actually and in good faith begun the performance of the work at the time stipulated. There was testimony from which the jury could so find, and we think the testimony of the witness Plunt was admissible for the purpose of determining that question. The eighth assignment is overruled.

The remaining seven assignments of error, in the language of the appellant’s brief, “ can be grouped as presenting practically one question though they embrace error in admitting testimony and the charge of the court.” This question may be thus stated: The contract having been executed, as both parties agree, under which the plaintiff was to do certain work and receive therefor a bulk sum of money, and the plaintiff having begun in good faith performance upon his part, and the further execution of the contract having been prevented by the defendant’s breach, what was the correct measure of the plaintiff’s damages? This question we think has been conclusively answered by the courts of this state, and it will therefore be unnecessary to go into a detailed examination of the cases in' other jurisdictions cited by the learned counsel for the appellant. Besides, all of these cited cases have been elaborately reviewed and analyzed by Mr. Justice Mestrezat in the recent case of Wilson v. Wernwag, 217 Pa. 82. The rule deduced by him from that review as announced by the court is thus stated: “From these authorities, it is clear that damages may be recovered for loss of profits caused by a breach of contract; and that they are never excluded simply because they are profits. If it reasonably appear that profits would have been made had the terms of the contract been observed, and that their loss necessarily followed its breach, they may be recovered as damages if the evidence is sufficiently certain and definite to warrant the jury in estimating their extent.” Manifestly, therefore, if the defendant was guilty of a breach of its contract, the plaintiff would have the right to make it reasonably appear to the jury what profits would have been made had the terms of the contract been observed. By what kind of evidence could the plaintiff make plain the desired fact? The contract showed he was to receive $3,750 for doing the work. His profits, if any were made, would necessarily be the difference between that sum and the price at which he could actually complete his commission. To show this difference he testified to the jury the quantity of the various kinds of material and labor that would be required to do the work. He then proceeded to prove by a number of witnesses that he had made contracts with them for the purchase of the various kinds and quantities of material desired, as well as to show the cost of excavation and removal of dirt under certain favorable arrangements which he had made. Of course, the truth of all of these matters was for the jury, and we think the admissibility of such evidence under such circumstances is again a question that has been authoritatively disposed of. In Smith v. Kaufman, 30 Pa Superior Ct. 265, the same question arose under a state of facts almost identical with that presented by the case at bar. There the plaintiff had been awarded a contract for the construction of certain work. He was to enter upon its performance immediately. Before he had progressed far there was a breach of the contract by the defendant and the work was stopped. The plaintiff in an action for damages sought to recover not only the moneys up to that time actually expended by him but also for the profits of his contract, and the manner in which he undertook to aid the jury in ascertaming these profits was by the production of testimony that he had sublet portions of the work at certain prices and arranged for the purchase of material in the same way, etc. In delivering the opinion of this court Henderson, J., said: “The only remaining question relates to the measure of damages. That the plaintiff is entitled to recover the amount expended for materials and labor in execution of the contract, in case of a breach, will not be disputed, and we think it clear, that, under the evidence, he is entitled to the profits of the bargain. The evidence definitely discloses what that profit would have been if the contract had been carried out. Bids for subdivision of the work were tendered to the plaintiff, the cost of other parts of the work was shown and the profits from the whole made evident to the satisfaction of the court. This profit was the difference between what the labor and materials would have cost the plaintiff, as proved by him, and the contract price to be paid by the defendants. There is nothing speculative or estimated in this part of the plaintiff's case, if the evidence is credited. His loss was actual and substantial and could be readily ascertained.'' The authorities cited in that opinion fully sustain the conclusion reached and need not here be repeated.

It was not necessary, in an inquiry thus directed to ascertain what the performance of the work would have cost the plaintiff, to confine the proof to formally executed contracts for labor or material which would have bound the plaintiff whether the work went on or not. It would be a harsh rule to permit a defendant who had committed a breach of his own contract to insist that a wronged plaintiff in making out his case should be compelled to bear such a burden. If under all the testimony, as he produced it before the jury, the cost of the work to him, had the contract been carried out, could be easily and fairly ascertained, then such proof came up to every requirement of the law as declared in the cases cited. The learned judge below was therefore right in holding with the plaintiff upon the main question referred to in the remaining assignments of error and they must be overruled.

Judgment affirmed.


author: Morrison, J.,

text:
    Edsall v. Reynard, Appellant.
    April 12, 1909:

      Statute of limitations — Overpayment—Evidence as to acknowledgment of debt — Promise to pay.

    In an action to recover moneys paid in excess of an amount due upon a promissory note, where it appears that the note was paid more than six years prior to the institution of the suit, the statute of limitations is a good plea, and if the evidence shows that the defendant never unconditionally acknowledged that there had been an overpayment, but always said that if such an overpayment had been made, he would repay the amount of it, the court should say as a matter of law that the evidence is insufficient to toll the statute of limitations.
    Submitted March 1, 1909.
    Appeal, No. 66, March T., 1909, by defendant, from judgment of C. P. Wayne Co., June T., 1906, No. 152, on verdict for plaintiff in case of Joseph Edsall v. John Reynard.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover moneys alleged to have been paid in excess of an amount due on a note. Before Purdy, P. J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $163.97. Defendant appealed.

      Error assigned was in submitting the case to the jury.

      Wm. H. Lee, with him F. P. Kimble, for appellant. —
    The evidence was insufficient to submit to the jury: Palmer v. Gillespie, 95 Pa. 340; Henry v. Zurflieh, 203 Pa. 440; Simrell v. Miller, 169 Pa. 326; Burr v. Burr, 26 Pa. 284; Landis v. Roth, 109 Pa. 621; Hazlett v. Stillwagen, 23 Pa. Superior Ct. 114; Linderman v. Pomeroy, 142 Pa. 168.

      A. T. Searle, with him O. L. Rowland, for appellee.
   Opinion by

Morrison, J.,

The plaintiff was indebted to the defendant on a note, dated April 4, 1893, in the sum of $368, due six months after date. The evidence shows that the plaintiff was also indebted to the defendant on several other transactions, at least one of which was another note. It is conceded that the note first above mentioned was paid by the plaintiff many years before the commencement of this suit; the last payment thereon was made on August 15, 1898 or 1899. The theory on which the plaintiff recovered in this case was that he overpaid the defendant the amount due on said note in a sum something in excess of $100, and this suit was brought to recover for that overpayment and interest thereon for a period of nearly fifteen years.

The defendant denied having received more than was due upon the note and pleaded the statute of limitations. The learned court submitted the case to the jury, saying, among other things, in the charge: “There are two questions in this case. One is, whether the money was paid by him, as he alleges, and in excess of what was due upon the note. . . . Another question is, whether the situation is such by reason of the lapse of time, and what has taken place between the parties since that time, as to preclude a recovery in case you should find that the money was overpaid.” The learned court then instructed the jury in regard to the statute of limitations and said: “There are two questions in the case, and while the court has been somewhat puzzled as to what to do with the case we have concluded to submit these questions to you.” The jury found in favor of the plaintiff the sum of $163.97, and judgment being entered thereon, the defendant appealed.

At the trial the defendant asked for a binding instruction in his favor and subsequently moved for judgment non obstante veredicto.

In discharging the rule for judgment in favor of the defendant, the learned court said: “The jury have found that a mistake existed and while the case is probably on the border line, we do not feel justified in disturbing the verdict of the jury.”

A careful examination of the evidence convinces us that it was sufficient to warrant the jury in finding that the plaintiff paid more money to the defendant than was due upon the note. But we are not able to agree with the learned court below that there was sufficient evidence to toll the statute of limitations. We are unable to find from the evidence that the defendant at any time within six years of the bringing of the suit, admitted to the plaintiff, or to anyone authorized to act for him, without condition or qualification, that he had in his hands any sum of money due and owing to the plaintiff, or that any debt or obligation existed on his part to the plaintiff. The whole difficulty that arises out of the evidence is that all of the alleged promises and undertakings on the part of the defendant were conditional. Take the plaintiff’s own testimony: “I told him, as soon as I got my recollections around a little bit, that the note was overpaid. I said you must have made a mistake and then he seemed to be in such a wonderful hurry, . . . . ; he said when I came over again he would get it (referring to papers), and after a while I went over again. Q. What did he say about overpayment? A. Why, he said he didn’t really think it was. He said there was back interest on it and partial payments, and he said he thought probably it was not overpaid; and then he commenced to make promises that if it was he would make it right. Q. What did he say about making it right? A. Why, he said whatever was overpaid he would rectify and make it right; he said we had always got along good and I had always paid him, and he would make it right.” Further along the plaintiff testified in substance that defendant said he would pay it. He said he would do all right about it. He said he would pay it back to me. But in this there is no identification of any definite claim, sum or demand, and it leaves the matter too uncertain to toll the statute of limitations. The plaintiff’s testimony clearly shows that he was indebted to the defendant in a considerable amount on other claims.

The learned counsel for plaintiff relies on the testimony of several other witnesses. First, that of Joseph Baldwin, referring to a conversation between plaintiff and defendant in 1903 in the presence of Baldwin, Thomas Edsall and Joseph Hogencamp. Mr. Baldwin said: “ They came walking down from the house, Mr. Edsall and Mr. Reynard — from Mr. Edsall’s house— and walked out into the public highway, and I was on the opposite side, and Mr. Reynard said: ‘Now, we are all straight at this present time, ain’t we, in our business?’ And, ‘Yes,’ Mr. Edsall said, ‘all but this note,’ and he said, T think I have overpaid you on this note, and I want it,’ and Mr. Reynard said, ‘No, I think you ain’t,’ and Mr. Edsall said, T think I have, and I want my note,’ and Mr. Reynard said, ‘Well, I will look this note up, and if there is anything wrong with the note I will make it right,’ that is all I know about it.”

Joseph Hogencamp testified as to the same conversation: “Mr. Reynard and Mr. Edsall were talking and came down from the house and talked quite a few minutes, and Mr. Reynard said to Mr. Edsall, ‘we are all square now?’ And Mr. Edsall said, ‘except that note,’ and he said, T think I overpaid you on that note,’ and Mr. Reynard said, ‘If there is anything wrong about it, I will make it right,’ and that is all I know about it.”

Bruce Hogencamp testified: “Why, they were talking the note over, and I just stopped and listened, and he said he thought he overpaid him on the note and it was not right, and Mr. Reynard said, ‘Well, if it ain’t right, I will make it right,’ and that is all I know about it.” The witness fixes the conversation in 1902 or 1903.

Thomas Edsall testified as to the same conversation: “Mr. Reynard said to Mr. Edsall — he said, ‘Everything is all square between I and you; we have always done business all right,’ and Mr. Edsall said, ‘Everything is all right except that note,’ and then Mr. Edsall asked him for the note and told him he thought he had overpaid it, and he said, ‘If you have overpaid me for the note I will make it right.’ ” The testimony of James Edsall, another son of the plaintiff, is in substance the same as that of his brother. In this connection we note the testimony of the defendant that there was another note which he held against the plaintiff and he testified that much of his talk referred to the latter note and had nothing to do with the note on which the plaintiff claims he made the overpayment.

In our opinion, the foregoing testimony falls short of a clear, distinct and unequivocal acknowledgment of a debt due from the defendant to the plaintiff. The testimony shows that in every instance the alleged promise relied on by plaintiff was coupled with a condition. In Palmer v. Gillespie, 95 Pa. 340, Mr. Justice Mercur, in delivering the opinion of the court, said: “A clear, distinct and unequivocal acknowledgment of a debt is sufficient to take a case out of the operation of the statute. It must be an admission consistent with a promise to pay. If so, the law will imply the promise, without it having been actually or expressly made. There must not be uncertainty as to the particular debt to which the admission applies. It must be so distinct and unambiguous as to remove hesitation in regard to the debtor’s meaning.” In the present case there would not be much uncertainty as to the debt, if the defendant had admitted an overpayment upon the note and that he owed the same to the plaintiff. If he had made such admission, it may be conceded that the jury could have found that it related to an overpayment on the note of April 4, 1893, but we fail to find any sufficient evidence of an admission of any debt due from the defendant to the plaintiff.

Hazlett v. Stillwagen, 23 Pa. Superior Ct. 114, is a well considered case which seems to contain all the law that is necessary to dispose of the present controversy. There a debtor, in answer to an attorney’s letter requesting payment of a debt represented by a note made five years previously, answered as follows: “' I delayed answering yours of October 25th, in the hope that I might be able to send you a substantial payment upon the S. Hazlett account, but find it impossible at this time to do so.- There are some unfinished matters from which I hope to realize considerable money within the next ninety days, but this of course will not meet your present demands. In the event of your client being willing to wait until that time, however, I feel justified in saying that I will be able to at least reduce the claim. More than this, I cannot promise from anything in sight.’ Held, that the letter was insufficient to stop the running of the statute of limitations, or to give a new starting point for the running of the statute.” The above is taken from the syllabus of the case. In the well considered opinion of Rice, P. J., we find the following: “The authorities show, and the plaintiff’s counsel concede, that the acknowledgment must be unaccompanied by any conditions or qualifications inconsistent with an absolute promise to pay generally or on demand.”

The evidence in the present case fails to bring it within the doctrine above stated. Nowhere in the evidence does it appear that the defendant acknowledged, without qualification, that he owed the plaintiff any debt or demand. His statements as rehearsed by the plaintiff and all of his witnesses, in so far as they related to the plaintiff’s claim, were conditional.

In Macrum v. Marshall, 129 Pa. 506, it is said in the opinion of the Supreme Court: “That an acknowledgment, to take a case out from the operation of the statute, must be clear and unambiguous. It must recognize, and be directed to, the debt with sufficient clearness, and must amount to an unqualified admission that it remains due and unpaid. The words relied on in this case do not meet the test.”

In Henry v. Zurflieh, 203 Pa. 440, we find the same doctrine in the opinion of the Supreme Court by the late Mr. Justice Dean.

Linderman v. Pomeroy, 142 Pa. 168, is a strong case of a conditional promise which was held insufficient to toll the statute of limitations. In that case, plaintiff, according to his own account, said: “If Hoffman does this, if I owe you anything I will pay you, and if you owe me anything you will pay me. ‘Yes, sir;’ said he (appellant). ‘If you owe me anything you must pay me, and if I owe you I will pay you.’ It is on this promise, if. at all, that plaintiff must sustain his recovery.” But this was held, in an opinion by Mr. Justice Mitchell, to be wholly insufficient; citing many authorities.

In our opinion, the learned court erred in refusing a binding instruction in favor of the defendant and in refusing to enter judgment for the defendant non obstante veredicto.

The assignments of error are sustained, and the judgment is reversed, and judgment is here entered in favor of the defendant non obstante veredicto.


text:
    Campbell’s Estate.
    April 12,1909:

      Decedents’ estates — Contract—Evidence—Findings of fact — Review.
    A finding by an auditing judge of the nonexistence of a contract between the decedent and a claimant against his estate, if supported by sufficient evidence and confirmed by the orphans’ court, will not be disturbed by the appellate court.
    Argued March 4, 1909.
    Appeal, No. 34, March T., 1909, by John J. Howley, from decree of O. C. Lackawanna Co., No. 513, of 1905, dismissing exceptions to adjudication in Estate of Andrew Campbell, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication. Before Sando, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was decree dismissing exceptions to adjudication.

      Thomas P. Duffy, for appellant.

      M. J. Martin, with him C. A. Battenberg and Walter Briggs, for appellee.
   Opinion by

Morrison, J.,

In this appeal by John J. Howley from the decree of the orphans’ court we have a motion and reasons on the part of the appellee to quash the appeal. There is some merit in the motion and reasons, but in view of the fact that both parties have presented elaborate printed and oral arguments on the merits, we have concluded to overrule the motion and decide the case upon its merits.

The appellant appeared before the auditing judge and claimed on an oral contract, alleged to' have been made with the decedent in his lifetime, for the drawing of plans and specifications for the erection of a mausoleum to cost $12,000. The claim was two and one-half per cent on that amount. The learned auditing judge saw the witnesses and heard them testify and was not convinced that the appellant had a contract with the decedent to do more than draw plans and specifications for a retaining and foundation wall for the mausoleum; nor was the judge satisfied that the appellant ever did more than draw plans for such wall and foundation, and make a survey of the site.

A careful reading of the evidence and consideration of the arguments does not convince us of such flagrant or manifest error on the part of the auditing judge as calls for a reversal of the decree awarding the appellant commission only on the cost of the retaining wall and foundation, to the amount of $92.30, including interest. We are not called upon to say what we would have done on the evidence in this record if it had come before us, on first impression. Our question is, as has often been decided, does the record disclose such manifest error as requires a reversal of the findings of fact of the auditing judge, approved by the orphans’ court? The learned judge had a much better opportunity of determining the credibility of the witnesses and the weight of their testimony than we can have in reading the testimony in the printed record.

In Kern’s Estate, 18 Pa. Superior Ct. 506, speaking through Rice, P. J., we said: “That the findings of an auditor upon questions of fact, approved by the court below, will not be reversed on appeal, except for flagrant error. Especially is this true when the findings are based on oral testimony.” The testimony in the present case was oral and it is sufficient to support the findings of the learned auditing judge, and the orphans’ court approved his findings. See Henderson’s Est., 18 Pa. Superior Ct. 99; Pratt’s Est., 35 Pa. Superior Ct. 110, and cases there cited; Rigby’s Est., 18 Pa. Superior Ct. 5; Orne’s Est., 192 Pa. 626; Lafferty’s Est., 184 Pa. 502; Gimber’s Est., 184 Pa. 436.

We find nothing in the record requiring us to disturb the decree of the orphans’ court. The appeal-is dismissed at the costs of the appellant, and the decree is affirmed.


author: Henderson, J.,

text:
    Monahan v. Auman, Appellant.

      Husband and wife — Necessaries—Suit for necessaries furnished wife— Desertion — Change of residence by husband.

    1. Where a husband deserts his wife or wrongfully compels her to withdraw from him without means of support there is an implication of law that her husband has given her credit to obtain the necessaries suitable to her condition. He who furnishes necessaries to a wife so separated, on the credit of her husband, does so at his risk and must show that she has been abandoned by her husband or has been forced to leave his residence.
    2. The fact that a husband has gone to another place than that in which he has recently been living does not create a presumption of desertion. He may lawfully change his residence. The wisdom of such a change is not a subject for the judgment of the court. There would be a serious abridgment of personal liberty if this right were subject to legal review. Where a husband changes his residence from a consideration of convenience or business advantage it is, generally speaking, the duty of his wife to accompany him, where he provides a home for her, and her refusal so to do without legal excuse amounts to desertion.
    3. A married woman may not establish a home for herself or take up lodgings with her parents or elsewhere at her husband’s expense unless she have such ground for separating from him as would entitle her to a divorce.
    4. In an action by a father against his daughter’s husband to recover for necessaries furnished to the daughter and her children, the husband may show what his earnings were, and that he sent to his wife each month “ a good share ” of such earnings.
    5. In such a case if the husband shows that he left his wife and went to another city in order to secure work, and that he offered to provide a home there, which she had refused, the case is for the jury, and it is reversible error for the court to charge as a matter of law, that plaintiff is entitled to recover.
    Argued March 2, 1909.
    Appeal, No. 35, March T., 1909, by defendant, from judgment of C. P. Luzerne Co., May T., 1907, No. 106, on verdict for plaintiff in case of F. J. Monahan v. William H. Auman, Jr.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover for necessaries furnished defendant’s wife and children. Before Halsey, J,

      The facts are stated in the opinion of the Superior Court.
    At the trial when the defendant was on the stand he was asked this question:
    "Q. Mr. Auman, from the time you left Wilkes-Barre here and went to Philadelphia up until March, the time this suit was entered, about how much did you make a year, average?”
    Plaintiff’s counsel: Object to that as not being material.
    The Court: Objection sustained.
    Defendant’s counsel: Expect to follow this with evidence that the defendant sent to his wife each month a good share of the defendant’s earnings up to the present time. Our defense here, if your honor please, is that there was no desertion. Give us the benefit of an exception and sealed bill.
    The Court: Yes, sir. Exception noted for defendant and bill sealed. [10]
    Defendant presented the following points:
    1. If the jury believes the evidence of the defendant that he offered his wife a home in Philadelphia, and she refused to live with him, without reasonable and legal cause, your verdict must be for the defendant. Answer: Refused. [1]
    2. If the jury believes that the defendant’s wife refused to return to him, and such refusal was not based upon such a cause as would entitle her to a divorce, then your verdict must be for the defendant. Answer: Refused. [2]
    3. If the jury believes that the conduct of the defendant was not such as endangered his wife’s life, and of the offer of such indignities to her person, as to render her condition intolerable, and life burdensome, she would not have a just cause under the laws for refusing to live with her husband, and your verdict must be for the defendant. Refused. [3]
    The court charged in part as follows:
    [Well, now, she had to be supported, and she went into her father’s family, to be maintained, to be fed and clothed. Now the issue here is, was she there by virtue of a relation under the law, which justifies a recovery here for her maintenance against the husband. In our judgment she was, and we so direct you.] [11]

      April 12, 1909:

      Errors assigned were (1, 2, 3, 11) above instructions, quoting them, and (10) rulings on evidence, quoting the bill of exceptions.

      Edward C. Klonower, with him James L. Lenahan, for appellant. —
    This was assumpsit for goods sold and delivered to the wife of the defendant below. She was living apart from her husband. To justify a recovery, it was necessary for the plaintiff to show: 1. That the goods were delivered. 2. That they were necessaries, and 3. That the wife had separated from her husband for good cause: Breinig v. Meitzler, 23 Pa. 156; Angier v. Angier, 7 Phila. 305; Cutler v. Cutler, 2 Brewster, 511; Van Dyke v. Van Dyke, 135 Pa. 459; Eshbach v. Eshbach, 23 Pa. 343; Detrick’s App., 117 Pa. 452; Cattison v. Cattison, 22 Pa. 275; May v. May, 62 Pa. 206; Cannon v. Windsor, 1 Houston (Del.), 143; Seibert’s App., 19 Pa. 49; Fitch v. Peckam, 16 Vt. 150; Sharp v. Crospey, 11 Barb. (N. Y.) 224; Chilcott v. Trimble, 13 Barb. 502.

      M. J. Mulhall, with him W. L. Raeder, for appellee,
    cited: Llewellyn v. Levy, 163 Pa. 647; Hultz v. Gibbs, 66 Pa. 360; Cunningham v. Irwin, 7 S. & R. 247.
   Opinion by

Henderson, J.,

The plaintiff’s action is on an implied assumpsit for board, lodging, clothing, medical supplies, etc., furnished to the wife of the defendant who is the plaintiff’s daughter. The right of recovery is founded on the allegation that the defendant separated himself from his wife and children without legal cause and without having made provision for their maintenance as their necessities demanded and his financial condition permitted. The facts set forth in the declaration imposed on the plaintiff the burden of showing that the defendant’s wife was living apart from him for justifiable reasons, for an action would only lie against the husband for the maintenance of his wife, where she was separated from her husband, when such separation was for good cause, in the absence of an express agreement to that effect. Where a husband deserts his wife or wrongfully compels her to withdraw from him without means of support there is an implication of law that her husband has given her credit to obtain the necessaries suitable to her condition. He who furnishes necessaries to a wife so separated, on the credit of her husband, does so at his risk and must show that she has been abandoned by her husband or has been forced to leave his residence: 2 Kent’s Com. 146; Cunningham v. Irwin, 7 S. & R. 247; Walker v. Simpson, 7 W. & S. 83; Breinig v. Meitzler, 23 Pa. 159; Hultz v. Gibbs, 66 Pa. 360. The fact that a husband has gone to another place than that in which he has recently been living does not create a presumption of desertion. He may lawfully change his residence. The wisdom of such a change is not a subject for the judgment of the court. There would be a serious abridgment of personal liberty if this right were subject to legal review. Where a husband changes his residence from a consideration of convenience or business advantage it is, generally speaking, the duty of his wife to accompany him, where he provides a home for her, and her refusal so to do without legal excuse amounts to desertion: Beck v. Beck, 163 Pa. 649; and in such case the husband is not liable to a third person for her support. Evidence was offered by the plaintiff tending to show desertion. It was proved that the defendant went to Philadelphia in 1903; that his wife then returned to her father’s home; that the defendant remained away for about four years; that a proceedings was instituted against him, apparently under the Act of April 13, 1867, P. L. 78, for not supporting his wife, in which proceeding a decree was entered against the defendant for the payment of $17.00 per month and the plaintiff testified that his daughter and her children had lived with him and that he had maintained them. In reply to this evidence the defendant testified that he went to Philadelphia, where he had formerly lived and where his father lived, to secure work; that his wife consented to his going; that as soon as he secured employment he began to remit money to his wife for her support and had continued so to do up to the time of the trial; that he wrote to her to come to Philadelphia and that he would provide her a home; that she neglected so to do and never replied to his letters and that he was ready to give her a suitable home if she had come where he lived. In view of this evidence the court was requested in the first point on behalf of the defendant to instruct the jury that if the defendant offered his wife a home in Philadelphia and she refused to live with him without reasonable and legal cause the verdict should be for the defendant. This point was denied, as were the second and third by which the court was requested to instruct the jury in effect that if the defendant’s wife refused to live with him and such refusal was not based on a cause that would entitle her to a divorce the defendant was not entitled to recover. These requests for instructions were suggested by the evidence and contained a statement of the law pertinent to the question at issue. The authorities cited, and others, declare that a married woman may not establish a home for herself or take up lodgings with her parents or elsewhere at her husband’s expense unless she have such ground for separating from him as would entitle her to a divorce. It became a material inquiry, therefore, whether the defendant’s removal to Philadelphia was made in good faith or whether in going there or remaining after he had moved he intended to desert his wife and children. If he was ready to provide a suitable home and his wife refused without good cause to join him there the plaintiff is not entitled to recover, for he of course had notice at the time he was furnishing a home and support for his daughter that she was living apart from her husband. In further support of his denial of desertion the defendant offered to prove what his earnings were, to be followed by evidence that he sent to his wife each month ‘ a good share ” of such earnings. This offer was rejected by the court, which ruling is made the subject of the tenth assignment of error. It was certainly competent to show that the defendant contributed to his wife’s support during thé period covered by the plaintiff’s bill, and the proportionate amount of his earnings which he so contributed would have a bearing on the question of his motive and he should have been permitted to prove if he could that he sent a reasonable part of his wages to his family. His obligation was to support them according to his ability, and evidence of what he earned would be some indication of what that ability was. Exception is taken to that portion of the charge of the court contained in the eleventh assignment as follows: “Well, now, she had to be supported, and she went into her father’s family, to be maintained, to be fed and clothed. Now the issue here is, was she there by virtue of a relation under the law, which justifies a recovery here for her maintenance against the husband. In our judgment she was, and we so direct you.” This instruction read in its immediate connection has the appearance of a direction to the jury that the plaintiff was entitled to recover and that the question for their consideration was, how much should the plaintiff receive for the maintenance and care of the wife and children of the defendant, and the jury probably so understood it. It advised the jury to find in a particular way, leaving to their consideration only the question of amount. Taking the evidence into consideration and the law applicable thereto the case was not one for binding instructions, but, as we have seen, one of fact calling for an answer to the question whether the defendant deserted his wife and children. The first, second, third, tenth and eleventh assignments are sustained; the other assignments are not sustained. Some of them are predicated of matters not found in the evidence.

The judgment is reversed with a venire facias de novo.


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    Keystone Brewing Company v. Varzaly, Appellant.

      Judgment — Opening judgment — Signatures of note — Husband and wife — Evidence—Principal and surety.

    1. A judgment entered against a married woman on a judgment note will be opened where the testimony of the only subscribing witness called is to the effect that the note had been executed at a particular time and place, and this testimony is contradicted by that of the defendant’s husband, son, daughter and family physician, to the effect that the defendant was at her home in another town sick in bed on the day stated by the subscribing witness, and had been sick at home for a considerable 'period prior to that day.

      2. Where a wholesale liquor dealer furnishes liquor to a licensed hotel keeper, and receives from the latter’s wife a judgment note containing the provision that “this note is given to secure anything which I may now, or at any time hereafter be owing to ” the payees, and the latter knew that the wife had no interest in the business, although the sales were charged to her and her husband, a judgment entered on the note will be opened so as to determine whether or not the note was given by the wife as security for her husband’s debt. •
    3. The Act of June 8, 1893, P. L. 344, forbidding a married woman to become surety for another, is not to be evaded by connivance with the payee of an obligation, and where the object of such an instrument is to give credit to another, it is not binding on the maker who was a married woman, notwithstanding it may appear on its face to be her contract for the payment of money. The form of the obligation is not decisive in such a case.

      Trial — Evidence—Cross-examination.
    4. To permit a plaintiff to introduce his case on cross-examination, is irregular and often unfair to the opposite party. Where evidence is so introduced, it is to be treated as testimony presented as if the witness had been examined in chief.
    Argued March 3, 1909.
    Appeal, No. 28, March T., 1909, by defendant, from order of C. P. Lackawanna Co., Sept. T., 1906, No. 699, discharging rule to open judgment in case of Keystone Brewing Company for R. C. Wills v. John Varzaly, Administrator of Annie Varzaly, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Rule to open judgment. Before Newcomb, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order discharging rule to open judgment.

      P. F. Loughran, and A. A. Vosburg, for appellant. —
    Where a married woman is sought to be held on an obligation as to which she claims that she is a surety for her husband, her liability is not determined alone by the form of the obligation, if the object is to evade the disability created by the statute. The fact, not the form, will determine her liability: Sibley v. Robertson, 212 Pa. 24; Henry v. Bigley, 5 Pa. Superior Ct. 503; Jaquett v. Allabaugh, 16 Pa. Superior Ct. 557.

      April 12, 1909:

      Charles Connell, with him Clarence Balentine, for appellee,
    cited: Stephan v. Hudock, 4 Pa. Superior Ct. 474; Good Hope Bldg. Assn. v. Amweg, 22 Pa. Superior Ct. 143.
   Opinion by

Henderson, J.,

The plaintiffs obtained judgment against Annie Varzaly by virtue of a writing purporting to be an obligation for the payment of $600 dated March 25, 1905, and payable one day after date. The paper is signed by the mark of the obligor and witnessed by F. P. Butler and James J. Walsh. The defendant died soon after the judgment was entered; whereupon, letters of administration were issued to her husband, John Varzaly, who afterwards presented his petition to the court asking that the judgment be opened to permit him to make a defense. The judgment was objected to on two grounds: (1) that the note upon which it was entered was not signed by Annie Varzaly, nor by any person by her direction or on her behalf; and (2) that no consideration was received by Mrs. Varzaly for the obligation, and that any consideration which passed on account of it was to John Varzaly and not to Mrs. Varzaly. A consideration of the testimony taken on the rule to open the judgment leads us to a different conclusion from that reached by the learned judge of the court below. The plaintiffs’ evidence shows that Mrs. Varzaly was a foreigner not familiar with the English language, except to the extent that she spoke “broken” English, and she did not sign her name to the paper alleged to be her obligation. F. P. Butler, one of the subscribing witnesses, was called in behalf of the plaintiffs and testified that the note was signed and delivered by Mrs. Varzaly, March 25, 1905, at the office of the Keystone Brewing Company in Dunmore. The other subscribing witness was not called to prove the paper. In support of the allegation that the note was not executed by Mrs. Varzaly, her husband, her son and her daughter all testified that she was at home in bed sick at Dickson City on the day when the plaintiffs claimed it was given in Dunmore; that she had been sick for a considerable period and was not away from home at that time. The daughter testified that her mother was sick in bed on March 17, and that she did not get up for three weeks. There was also the testimony of Dr. Bower, Mrs. Varzaly’s physician, who testified that he attended her in 1905 and 1906; that she was afflicted by acute gastritis; that he visited her on March 25, 1905; that she complained of pain, was very much emaciated and was in bed and that an ordinary person in her condition would not have gone out of the house. This evidence was strongly contradictory of the testimony of the witness, Butler, and raised an issue of fact on which the defendant was entitled to a trial by jury: Schomaker v. Dean, 201 Pa. 439. If the defendant’s witnesses are believed the evidence discredits the note. It is not the case of a defense against a note admittedly executed by the defendant, but one where the instrument itself is attacked and where the evidence impeaching it is direct, positive and from the mouths of four witnesses. There is no suggestion that the note was signed at any other time or place or under any other circumstances than as stated by Butler, and if a jury should find on the evidence produced that Mrs. Varzaly was not at Dunmore when the note is said to have been given, a trial court would not be disposed to set aside the verdict. The learned judge considered the decisive question to be whether the note was executed by Mrs. Varzaly, — not whether she executed it on the particular day of its date, — and attached importance to the fact that the defendant called the subscribing witness, Butler, and that Butler testified to the genuineness of the obligation. As there is nothing to show that the note was signed at any other time than on the day of its date, and as the only evidence of the plaintiffs is that that was the day of its execution, it is difficult to see how one could conclude from the evidence that it was signed at some other time. It can hardly be said that the defendant proved the note by one of the subscribing witnesses. The occurrence was this — F. P. Butler, the manager of the brewing company, was called by the defendant and examined with reference to certain business transactions between him and John Varzaly and Annie Varzaly, but he was not examined in chief as to the genuineness of the note. On cross-examination, however, the plaintiff questioned him in regard to the execution of the note, This was not properly cross-examination; it was a part of the plaintiffs’ case on which the witness testified in behalf of the plaintiffs. To permit the plaintiff to introduce his case on cross-examination is irregular and often unfair to the opposite party. Where evidence is so introduced it is to be treated as testimony presented as if the witness had been examined in chief: Hughes v. Westmoreland Coal Co., 104 Pa. 207; Clarke Co. v. R. R. Co., 27 Pa. Superior Ct. 251.

If, however, there was no doubt as to the validity of the note we think it clear that the second ground of defense justifies the opening of the judgment. According to the plaintiffs’ own showing Mrs. Varzaly only received $100 on the day this note was given. The obligation contains this provision: “This note is given to secure anything which I may now or at any time hereafter be owing to either or both of the above named payees.” These payees were engaged in the business of selling liquors. John Varzaly was a licensed hotel keeper. The liquors for which the plaintiffs claim the obligation was given were for use at this hotel. The plaintiffs knew that Varzaly had the license and that the goods were to be so used. The sales were charged to John Varzaly and Annie Varzaly. The .plaintiffs knew or are presumed to have known that Annie Varzaly had no legal interest in the liquor business carried on by her husband. The transaction as exhibited by the plaintiffs’ evidence has the appearance of an arrangement to secure credit for the husband, on the wife’s obligation, and to hold her liable for her husband’s debts. The form of the obligation is not decisive in determining the liability of a married woman. If the object be to evade the protection of the statute her liability will be determined by the fact, not by the form: Patrick v. Smith, 165 Pa. 526; Sibley v. Robertson, 212 Pa. 24; Jaquett v. Allabaugh, 16 Pa. Superior Ct. 557. The Act of June 8, 1893, P. L. 344, forbids that a married woman become accommodation indorser, maker, guarantor or surety for another. This provision is not to be evaded by connivance with the payee of an obligation, and where the object of such an instrument is to give credit to another it is not binding on the maker who is a married woman, notwithstanding it may appear on its face to be her contract for the payment of money. The goods to secure the payment for which this obligation was given went directly, according to the plaintiffs’ own showing, into the hotel of John Varzaly for his use in the exercise of a license granted to him in the court of quarter sessions. Mrs. Varzaly was not in the liquor business as the plaintiffs well knew, and their arrangement with reference to this note if Mrs. Varzaly signed it was apparently intended to aid John Varzaly in the prosecution of his own business. Such being the complexion of the evidence the judgment should be opened to permit the defendant to show that the note was given for this purpose. If Mrs. Varzaly received $100 when the note was given and the plaintiffs understood that she was getting it on her own credit and not for her husband the defense as to that amount would not be available, but if the consideration for the balance was, as appears to be admitted, liquor furnished to John Varzaly for use in his business or if the note stood as security for bills contracted by him in that business it is not an obligation of Mrs. Varzaly’s estate. We are of the opinion that such an issue of fact was presented on both of the grounds set up as entitled the defendant to a decree permitting him to make defense.

The order of the court discharging the rule to open the judgment is therefore reversed, the rule to open the judgment is reinstated and is now made absolute and the record remitted for further proceedings.


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    Leas, Appellant, v. Hafer.

      Affidavit of defense — Practice, C. P. — Promissory notes — Payment.
    In an action on a promissory note an affidavit of defense is not sufficient to prevent judgment which merely alleges that the full sum due from the defendant to the plaintiff was paid to an alleged agent of the plaintiff “in checks, cash and notes,” without giving the amounts, dates, places of the alleged payments, or any circumstances relating thereto, and which does not allege that the checks and notes were ever accepted by the plaintiff or paid by the defendant.

      Argued March 8, 1909.
    Appeal, No. 7, March T., 1909, by
    plaintiff, from order of C. P. Adams Co., April T., 1908, No. 363, discharging rule for judgment for want of a sufficient affidavit of defense in case of W. G. Leas v. F. K. Hafer.
    Before Rice, P. J-., Porter, Henderson, Morrison, Orlady,.Head and Beaver, JJ.
    Reversed.
    Assumpsit on a promissory note.
    The facts appear by the opinion of the Superior Court.

      Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.

      W. C. Sheely, for appellant. —
    One who says in his affidavit that he has paid a debt, without more, simply expresses a legal conclusion from facts not disclosed. He should set forth the facts so that the court can tell whether he has paid: Stockley v. Riebenack, 12 Pa. Superior Ct. 169; Killen v. Brown, 6 Pa. Superior Ct. 15; Port Kennedy Slag Works v. Kruse, 5 Pa. Superior Ct. 622.
    And an averment of payment in cash, notes and checks is not sufficient without giving the dates and amounts of these payments so that the court can ascertain whether the note in suit has been fully paid: Hiestand v. Williamson, 128 Pa. 122; McCracken v. First Reformed Presby. Congregation, 111 Pa. 106; Snyder v. Powers, 3 Walker, 277; Comly v. Simpson, 6 Pa. Superior Ct. 12; Bank v. Muller, 2 W. N. C. 50; Smith v. Potter, 1 W. N. C. 51; Erlicher v. Lawson, 5 W. N. C. 473; O’Donnell v. May, 1 Wilcox, 113; Fluck v. Hope, 1 W. N. C. 42; Betz v. Gilmore, 1 W. N. C. 145; Bube v. Hauck, 16 LanC. L. R. 412; Mallory v. Miner, 9 Kulp, 166: Weidman v. Frank, 19 LanC. L. R. 30.

      J. L. Butt, for appellee. —
    It is the settled policy of the Supreme Court of Pennsylvania not to reverse the judgment of the court below on a motion or rule for judgment for want of a sufficient affidavit of defense unless a plain error of law is made to appear by the action of the court below: Griffith v,

      April 12, 1909:
    Sitgreaves, 81* Pa. 378; Radcliffe v. Herbst, 135 Pa. 568; Ætna Insurance Co. v. Confer, 158 Pa. 598.
   Opinion by

Henderson, J.,

It is not claimed on behalf of the defendant that the first affidavit of defense is sufficient. It is a bare allegation that the note which was the foundation of the action had been fully-paid and settled and that there was nothing due thereon. The supplemental affidavit of defense enlarges somewhat on these averments, but in substance is of the same effect. It may be inferred from the defendant’s statement that there were several accounts or claims due from him to the plaintiff growing out of their previous association in the bank, and the impression produced by the affidavit is that the plaintiff’s agent settled and adjusted these claims with the defendant who paid the agent the amount due to the plaintiff. What particular claims or accounts were the subject of the settlement is not set forth, but it is alleged that the payments made “ covered the liability represented by the note in suit and that the same is now fully paid and there is no liability on the part of your affiant.” An averment of payment merely is not sufficiently precise to prevent judgment. The facts should be set forth so that the court could judge whether they amounted to payment. The only defense set up is payment, and this should be stated with particularity as to the amount and manner of payment: McCracken v. First Reformed Presby. Congregation, 111 Pa. 106; Stockley v. Riebenack, 12 Pa. Superior Ct. 169. The only averment of the manner of payment is that the full sum due and owing by the defendant to the plaintiff was paid to the plaintiff’s agent in “checks, cash and notes.” How much was cash and how much was in checks or notes is not stated. Whose checks and notes were turned over and the time when this was done is not disclosed. The affidavit should have set out with reasonable particularity how and when the payments were made: Hiestand v. Williamson, 128 Pa. 122. There is no averment of inability to give a more specific statement of facts, and we are not at liberty to assume that the securities delivered by the defendant could not be identified and described. There is the further objection that it is not averred that the plaintiff accepted the checks and notes referred to in payment of the note or in part payment thereof. Nor is it stated that the notes and checks were ever paid to the plaintiff by the defendant or by any other person. To make payment absolute there must be an express agreement by the creditor to receive a note as such. Neither the defendant’s note nor the note of a third party amounts to payment on an existing debt, unless accepted as such by the creditor. They are collateral security or at most conditional payment of money: Holmes v. Briggs, 131 Pa. 233; Philadelphia v. Stewart, 195 Pa. 309; Berlin Iron Bridge Co. v. Bonta, 180 Pa. 448. The supplemental affidavit of defense is altogether insufficient in the respects referred to.

The judgment is therefore 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 legal or equitable cause shall be shown to the court below why such judgment should not be entered.