text:
    First National Bank of Waverly, N. Y. v. Cyrus Furman et al., Appellants.

      Practice, O. P. — Entry of limited judgment on a general verdict.

    The record showed that the jury was sworn to try the issue between the plaintiff and several defendants generally, of which defendants some who had not been served, entered a general appearance. Held, that it was error for the trial judge to order judgment to be entered, on a general verdict, against the defendants served and against them only.

      Practice, O. P. — Promissory note — Burden of proof of bona fide holding.

    A statement is insufficient under the act of 1887 which declares on a promissory note when there is no allegation of delivery nor that the plaintiff is a bona fide holder for value without notice. Such statement will be held insufficient on demurrer, but an affidavit of defense having been filed setting out such facts as would make a ease of fraudulent circulation of the note, if proved, the effect is to put the plaintiff on proof of bona fide holding.

      Promissory note — Execution on Sunday — Estoppel.
    Where a contract was not executed on Sunday nor the note dated then, one of several defendants will not be permitted to set up as a defense that he signed the note sued on, on Sunday, the plaintiff an alleged innocent holder for value having had no notice of the note having been signed on that day.

      Promissory note — Allegation of forgery — Burden of proof.

    An affidavit filed by one of several makers of a promissory note that his name attached thereto is a forgery, is such a denial as entitles defendants to have the execution of the note affirmatively proved on the trial of the case.
    ■ Practice, G. P. — Service of summons — Effect of general appearance.

    Where some of several defendants have been served and some have not, the effect of a general appearance for the defendants is to bring all into court as fully to all intents and purposes as if the summons had been regularly served by the sheriff upon all and duly so returned.
    Argued Feb. 16, 1897.
    Appeal, No. 10, Feb. T., 1897, by defendants, from judgment of C. P., Tioga Co., Nov. T. 1891, No. 145, on verdict for plaintiff.
    Before Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Assumpsit on promissory note. Before Mitchell, P. J.
    It appeared from tlie evidence that plaintiff’s claim is founded on the following promissory note:

      “ $583 33. Gaines, Pa., July 15, 1893.
    “ One year after date, for value received, we, or either of us, promise to pay Faulkner & Co., or order, five hundred and thirty-three dollars and thirty-three cents at the Farmers and Trader’s Bank, of Westfield, Pa., with interest at 6 per cent, per annum; interest payable annually.
    “E. D. Philips,
    Andrew Brimegin,
    “ W. B. Smith,
    Burt Furman,
    “ Nort Furman,
    William Stage,
    “ Cyrus Furman,
    Wallace Phoenix,
    “ W. J. Buchan,
    Will A. Rexford,
    his
    E. G. Beach,
    “A. (X) Vanderhoof, mark
    Jeff Morris.
    “ Witness, J. E. Faulkner.
    “ Endorsed Faulkner & Co.”
    The summons and statement of the plaintiff’s claim was served personally on all the defendants except A. Vanderhoof, W. J. Buchan and Cyrus Furman. As to these the sheriff returned “non est inventus.” A general appearance was entered by counsel for all the defendants, and on the same day an affidavit of defense was filed by Cyrus Furman, alleging as defense that the note was a forgery and never signed by him or any person. authorized by him to sign the same. Buchan and Vanderhoof, the other two defendants not served, filed affidavits of defense.
    Verdict for plaintiff in the sum of $613.69. Motions and reasons for a new trial being filed, on motion in arrest of judgment, were overruled and set aside and it was ordered that judgment be entered on the verdict in favor of the plaintiff and against defendants served and against them only. Defendants appealed.

      Errors assigned were (1) in admitting in evidence the note sued upon and in overruling the defendants’ objections : “ Defendants’ counsel object to the introduction of the note in evidence for the reason that one Cyrus Furman’s name purports to be signed to the note as one of the makers thereof and that there is an affidavit of defense in the case as to his name; that his name is a forgery to the note, which throws the burden of proof upon tbe plaintiff to prove the signature, certainly of Cyrus Furman, and as we insist the signatures of the execution of the note by all the other signers thereto, for the reason that the name of one Andrew Brimegin appears as signed to said note; there is an affidavit of defense on file to the effect that he subscribed his name to that note on Sunday, and on Sunday delivered it to the original payee; therefore the note is not competent in evidence as, against Brimegin unless that fact is overcome by proof to the satisfaction of the court, and for the further reason that the plaintiff is the First National Bank, of Waverly, which corporation is alleged to have purchased this paper before maturity.' There are several affidavits of defense alleging that this paper was not transferred before maturity for value; that it was not bought by the plaintiff in good faith for a valuable consideration or in substance; that therefore we insist that the several affidavits of defense in this case put the burden of proof upon the plaintiffs in the case to prove all the other signatures to the note and to prove the signatures of all defendants to the note that are contested and to prove the bona tides of transfer; that the affidavits offered charge the plaintiff with knowledge of the several affidavits of defense to this suit before they bought tins note in controversy and the due execution of the note by the defendants.
    “ Counsel for plaintiff does not offer the note in evidence as against Cyrus Furman, W. J. Buchan and Andrew Vanderhoof, the parties who are not served and are not in court, but only offer it as to the parties served.
    “ As to the modified offer of the note in evidence the same objection is made as to the original offer, and further say that Cyrus Furman, Andrew Vanderhoof and W. J. Buchan appear named in the praecipe in the case and appear in the statement filed as defendants, and in the summons as defendants in the-case. That Cyrus Furman, while the record shows, was not personally served with a summons in the case, has appeared with counsel in the case and filed an affidavit of defense alleging his name to be a forgery. Counsel insist he is in court and entitled to make answer as if he had been served with a summons, and for the further reason this being a joint and several note and the plaintiff having elected to sue all these defendants jointly, must recover against them jointly or against none. That it is incompetent to commence an action against defendants and then ask to be relieved from the effects of such an action by electing certain defendants to respond, and excuse others.”
    By the Court: The only question now before the court, is whether the note now offered in evidence is admissible as evidence under the law. We understand from the statement of counsel and it is not disputed by counsel for the defendants, (we have not ourselves examined the record) that there has been no denial made by any of the parties served with the writ in this case; that this note was executed by them as it appears to be on its face. We are clearly of the opinion that all' the suggestions of counsel in relation to other matters (and some of them mentioned in the objection to the offer) now made, relate to questions which do not control the one now before the eourt. In so far as they can affect the case trying they are to be submitted, if properly evidenced in reply to plaintiff’s case prima facie. We think the note must be taken to speak for itself in the absence of any denial of any of the defendants served with the process in this case. As to Cyrus Furman the eourt cannot determine the question of identity from the similarity of the name as signed to the affidavit that has been mentioned and the one in the process in the original writ; we will not undertake to determine that question in this summary way. The note is admitted in evidence and the objections are overruled.
    (2) In rejecting the evidence offered by defendants to be given by Cyrus Furman, viz : Cyrus Furman called and sworn: “Q. What is your name ? A. Cyrus Furman.”. Note marked plaintiff’s exhibit “ B ” shown the witness Cyras Furman; the note admitted in evidence for tire plaintiff and upon which the action is predicated which note purports to be signed by thirteen makers, more or less, among which names appears the name of Cyrus Furman, and it appearing by the record in this case, that Cyrus Furman is one of the defendants in this case, and has made an affidavit of defense in it in which he has stated he is one of the defendants in this case and in which he thus denied making, or signing the note offered in evidence and has stated if his signature appears there it is a forgery, and the said Cyrus Furman having appeared by counsel in the case and having filed such an affidavit, his attorneys now offer to ask him to examine the note in question and examine the name written Cyrus Fur-man, and say whether or not that is his genuine signature.
    Counsel for plaintiff object to the testimony offered, for the reason there is no proof in the case that the witness, Cyrus Fur-man, now upon the witness stand, is the Cyrus Furman upon the note, and it also appears by the affidavit filed by this witness that he never saw this note and knows nothing about it, and there is no presumption that this man is the same man that is upon the note.
    By the Court: “We have allowed already to be given in evidence the note upon which this suit is founded, but the note is not as the record stands and cannot be a charge against the defendant, Cyrus Furman, whoever he may be. It appears by the record he was returned “ not found,” therefore he had no notice of any suit and is not directed to appear, and we are not to assume because some individual by that name has appeared, that it is the individual in question whom the plaintiff seeks to charge. It will be time enough for him to answer when he is summoned to appear and answer the plaintiff in this case. The judgment upon the issue trying by this jury cannot in any manner affect any Cyrus Furman either this or any other because there has been no service upon any Cyrus Furman. The court can not undertake to determine this question of identity in this way.
    The objections are sustained and the evidence rejected.
    (3) In rejecting the following offer of evidence: Defendants’ counsel now offer to ask this witness (Cyrus Furman) if he knows and is familiar with the handwriting and signature of Cyrus Furman, the name purporting to be signed to the note in question. The object of this offer and the preceding offer was to show and is to show that the witness on the stand who claims to be a defendant in this case, to prove by the witness on the stand that the name Cyrus Furman subscribed as one of the makers of the note in controversy is a forgery, and to be followed by other proof showing that Cyrus Furman whose name is written to the note in controversy is the witness on the stand and that there is no other Cyrus Furman in the vicinity of Gaines where the note was signed by the other makers, and that he verily believes that the signature to that note was intended to be a forgery of bis name and is in fact a forgery of bis name and signature.
    To be further followed by proof that this witness and defendant, Cyrus Furman, lived at the time of the purported execution of this note in the vicinity of Gaines, and one of the neighbors and acquaintances of the other parties whose names are subscribed to the note in controversy.
    Counsel for the plaintiff object for the reason that witness has not stated, and it does not appear to the court that he knows of the Cyrus Furman whose name appears upon the note or that he ever saw the Cyrus Furman upon the note, therefore he would not be competent to testify to his handwriting — and for the reason that it does not appear that the witness upon the stand knows the Cyrus Furman who is alleged to have signed this note and there is no allegation in the case that this is the Cyrus Furman who did sign it. On the contrary the witness upon the stand has sworn that he never saw the note in question, and even if he were the Cyrus Furman named, not being on the record in this case as a defendant he cannot testify to this fact. Further object on the ground that the -Cyrus Furman in this case whose name purports to be on the note does live in the vicinity of Gaines, Cyrus Furman the witness upon the stand now intimates by the offer of counsel that he is the Cyrus Fur-man whose name is intended to be upon the note, not being served with a summons no claim has been made against him in the case, and even if true the note was a forgery as to him, it could not be given in evidence to affect the plaintiffs in this case being innocent purchasers for value before maturity.
    By the Court: We think we must reject this offer also for •the reason given in rejecting the former offer of a similar character : For under the law in this state the plaintiff is at liberty to proceed to judgment against a particular one of the makers of the instrument sued upon in this case and if not being able to get service upon all may be entitled to judgment against those served and brought into court in response to a service on the writ. We understand the offer to mean that the witness on the stand as has been stated is the person who made the affidavit in which it is stated that he did not sign the instrument, but he cannot himself testify to the identity of the person whose name appears upon the note and an offer to show, that in a certain locality only that no other Cyrus Furnam lives is evidence of a negative character that ought not to be permitted. The objections are sustained and the evidence rejected.
    (4) In rejecting the evidence contained in the following offer: Andrew Brimegin sworn.
    Plaintiffs’ exhibit “ B ” shown witness, the note in controversy. Defendants’ counsel offer to show that the witness on the stand who has sworn that his name is Andrew Brimegin, signed the note in controversy and on which this suit is predicated on Sunday — the Lord’s Day — and that on that day delivered to the original payee named in the note and that his name appears subscribed to said note, and that he was served with a summons in this case.
    (6) In its answer to the defendant’s first point, which is as follows: “ That the plea and affidavits of defense in this case overcome the presumption that the plaintiff acquired ownership of the note in suit before maturity in the ordinary course of business, and for a valuable consideration, and without notice of the facts stated in the affidavits of defense of any facts competent for the makers or either of them to prove as a defense against the payee of said note. Therefore, unless the jury believe from the evidence that the plaintiff purchased the note before maturity thereof, or for a valuable consideration in the ordinary course of business and without notice of the facts stated in the affidavits of defense, or of any facts of defense competent for the makers as against the payee of' said note, the plaintiff cannot recover.
    “ Under what we have already said to you we must certainly decline to affirm this point made by counsel for the defendants.
    “ Because it is all based upon matters of record in the files which do not affect the question trying before the jury at all. It relates to facts set out in certain papers called affidavits those ‘alleging certain facts, and alleging also that the persons making those affidavits believe those facts to be true and expect to prove them upon a trial before a jury. When things of that kind are properly stated before the court the effect of an affidavit of defense may be to stop judgment for the time being but it can go no further than that. And as to all these affidavits of the parties in the case none of them are before you. You are tobe governed by the evidence that has been admitted, and that is governed by the statements we have already made. That is the note upon which the plaintiff bases its claim and the assumption that the law makes, that it became the honest purchaser of it before it became due without notice.”
    (7) In giving binding instructions for plaintiff; (8) in making the order for judgment.

      Stephen F. Wilson, with him Norman N. Byan, for appellants.
    — A general appearance entered for several defendants brings them all into court irrespective of whether the writ has been served on all or not: Scott v. Israel, 2 Binn. 144; Blair v. Weaver, 11 S. & R. 84; Hatch v. Stitt, 66 Pa. 264.
    If, therefore, Cyrus Furman is a defendant in the case it must legally follow that the court erred in admitting the note in evidence without proof of the execution. Furman’s affidavits allege forgery. “ The averment (in a statement) that the note was delivered to the payee, who then and there for a valuable consideration indorsed the same to the plaintiff ” does not distinctly set up an indorsement and delivery before maturity and in fact is less specific than a common law declaration and might therefore have been demurrable: Newbold v. Pennock, 154 Pa. 591.
    ' When an affidavit avers that a note was put in circulation fraudulently, it must appear that the holder has such a title as bars all the equities between the original parties: Smith v. Bldg. Assn. 93 Pa. 19.
    As to the requisities of an affidavit alleging fraud in the circulation of negotiable paper, see Bank v. Bachenheimer, 5 Dist. Rep. 218.

      D. W. Baldwin, for appellee.
    — Each obligor guaranteed the genuineness of all the other signatures: 2 Greenleaf’s Evidence, sec. 164; Helms v. Agricultural Co., 73 Ind. 325; s. c. 38 Am. Rep. 147
    The plaintiff was not bound by the voluntary appearance of the defendants not served, even had they appeared: Bank v. James, 152 Pa. 365.
    As to the entry of judgment against the parties served, see Downey v. Bank, 13 S. & R. 289.
    The law presumes the indorsee of negotiable paper to be an innocent purchaser for value before maturity. To overcome this presumption bad faith must be proven or at least fraud shown in procuring the paper: Bank v. Garber, 178 Pa. 91; Bank v. Morgan, 165 Pa. 199; McSparran v. Neeley, 91 Pa. 17.
    April 12, 1897:
    A note signed on Sunday, dated .on a secular day, is good in the hands of an innocent purchaser: Com. v. Kendig, 2 Pa. 448; Harrison v. Powers, 76 Ga. 218; s. c. Am. Digest, 1890, 3518.
   Opinion by

Beaver, J.,

Thirteen defendants were included in the action of assumpsit brought by the plaintiff in this case in the court below. Of these ten were regularly summoned by the sheriff. As to three he returned the writ non est inventus. A general appearance was entered for the defendants. This brought them all into court as fully to all intents and purposes as if the summons had been regularly served by the sheriff upon all and duly so returned. This has been the universal practice in Pennsylvania, recognized and confirmed in Scott v. Israel, 2 Binney, 145, and later in Hatch v. Stitt, 66 Pa. 264. The defendants were, therefore, all in court, subject to its jurisdiction and each equally entitled to the rights of a defendant. Cyrus Furman, one of the defendants not served, made an affidavit of defense in which he distinctly alleged the forgery of his name to the note in suit. Brimegin, one of the defendants upon whom the process was served, alleges in his affidavit: “ This affiant is further informed and he believes it to be true that the name of Cyrus Furman to said note is a forgery and this affiant is advised by counsel that such a forgery is a just and legal defense for all of the defendants in the above entitled suit; and this affiant further states that he makes this affidavit of defense as much for all the defendants in this suit as for himself.” Similar affidavits were made by at least two other defendants who had been served with summons. Section 1, of Rule 18 of the rules of court of Tioga county is as follows: “ In all actions upon deed, bond, bill or other instrument of writing which has been declared on, and a copy whereof shall have been filed, within two weeks from the return day of the writ, it shall not be necessary for the plaintiff to prove on the trial, the execution thereof, or the handwriting of the drawers, acceptors or indorsers, of any bill or note so declared on, but tbe same shall be taken to be admitted, unless the defendant shall at, or before, the time of filing the plea in such action, deny the execution thereof, or the drawing, acceptance or indorsement of such bill or note, by affidavit.” We have here a distinct denial of the execution of the note, so far as Cyrus Furman is concerned, first, by his affidavit, and, secondly, by the affidavits of Brimegin et al. The plaintiff, therefore, was bound, as the first step in his case, to prove the execution of the note. It was offered in evidence, without such proof, objection was made thereto by the defendants and the objection overruled and the evidence admitted. The defendants, having complied with the rule of court by denying the execution of the note in suit as to one of the defendants, were entitled to have such execution affirmatively proved. The first assignment of error is, therefore, sustained.

The second and third assignments of error are also sustained. They relate to offers of evidence based upon the testimony of one of the defendants, Cyrus Furman, by which it was offered to be proved that the name Cyrus Furman signed to the note was a forgery; that there was no other Cyrus Furman in the vicinity of Gaines where the note was signed by the other. makers, and that the witness believed that the signature to the note was intended to be a forgery of his name and was in fact a forgery of his name and signature. We cannot understand the grounds upon which these offers were rejected. The court says: “We have allowed already to be given in evidence the note upon which this suit is founded but the note is not, as the record stands, and cannot be a charge against the defendant, Cyrus Furman, whoever he may be. It appears by the record he was returned not found; therefore he had no notice of any suit and is not directed to appear, and we are not to assume, because some individual of that name has appeared, that it is the individual in question whom the plaintiff seeks to' charge. It will be time enough for him to answer when he is summoned to appear and answer the plaintiff in this case. The judgment upon the issue tried by this jury cannot in any manner affect any Cyrus Furman, either this or any other, because there has been no service upon any Cyrus Furman. The court cannot undertake to determine this question of identity in this way.” But Cyrus Furman was in court. He had appeared by attorney. He had filed his affidavit of defense. He was present at the trial. So far as the record shows, his rights were then being determined by the jury. He had run the risk of having a judgment entered against him and of being made liable for costs. He was entitled to his rights as defendant as if he had been regularly summoned by the sheriff. If the same man had been summoned by the sheriff, he would have been no more really in court and subject to its jurisdiction than by the appearance for him by his attorney. If he was not the man whom the plaintiff intended to summon by his prsecipe, his name should have been stricken from the record upon.formal motion and the record should show affirmatively that the jury was not sworn as to him, or the plaintiff could have been permitted to show in rebuttal that the Cyrus Furman named in the prsecipe and the Cyrus Furman who appeared were not the same person. The testimony should have been admitted.

The fourth and fifth assignments of error are not sustained. It is admitted that the note is not dated on Sunday. The offer made by the defendant Brimegin was to show that his signature was affixed to the note on that day and delivery made to the payees. He could not be allowed to contradict the express written contents of the note. It is not alleged that the contract was made on Sunday, or that the plaintiff had any notice of the note having been signed on that day. If the plaintiff was a holder for value before maturity, he took a note dated on a business day bearing the signature of this defendant. He had a right to presume that the note was signed, as its date indicated, and the defendant is estopped from denying that it was signed and delivered otherwise.

The statement in this case is insufficient, under the act of 1887, for the reasons set forth in Newbold v. Pennock, 154 Pa. 591. There«is no allegation of delivery nor is it alleged that the plaintiff is a bona fide holder for value, without notice. The statement would, doubtless have been held insufficient upon demurrer. The defendant, however, chose to have the case determined upon its merits and set out in the affidavit of defense such facts as would make a case of fraudulent circulation of the note, if proved, the effect of which, as intimated in Newbold v. Pennock, supra, was “ to put the plaintiff on proof' of bona fide holding.” The effect of an affidavit, as we have often held, is to prevent the plaintiff from talcing judgment by default, but he is doing so in effect, if upon a trial he is allowed to take judgment simply by the production of the note, notwithstanding the affidavit of the defendant that the note was fraudulently uttered and circulated. If the plaintiff’s title to the note hi suit was not sufficiently set out in the statement, he would not have been permitted upon objection, as the parties to the action stand, to have introduced the note in evidence, even if no affidavit of defense had been filed, and much less was such a course permissible when the affidavits of defense charged not only a forgery as to one of the makers of the note but fraud as to its circulation. The court below seemed to be of the opinion that to put the plaintiff upon proof of his title to the note was accepting the contents of the affidavits of defense as evidence in the case. Such, however, was not the effect of the affidavits. They were evidence of nothing on the trial and could do no more than put the plaintiff to proof of the execution of the note and his title to the ownership thereof. The sixth assignment of error is, therefore sustained.

It follows that the seventh assignment must also be sustained. As the case stood, the court was not justified in directing the jury to find a verdict'for the plaintiff.

In dismissing the motion for a new 'trial the court below made the following order: “It is ordered that judgment be entered on the verdict in favor of the plaintiff against the defendants served and against them only.” By what authority the court made this order we are at a loss to discover. The jury was sworn generally and a verdict rendered for the plaintiff. We are bound by this record. The opinion of the court in denying the motion in arrest of judgment and for a new trial is not a part of the record of the trial, and the statement therein contained that “ The plaintiff did not seek to charge any Cyrus Furman as a defendant, repudiated the appearance of the Cyrus Furman who filed an affidavit of defence and stated at the trial that the cause should go to the jury only on the issue joined with the defendants served and not as to the three other defendants not served, among which latter was Cja’us Furman, and, without objection, the jury was sworn accordingly,” is not sufficient to contradict the record of the trial which upon its face shows that the jury was sworn generally and delivered a general verdict. This record, without more, would undoubtedly sustain a judgment against all of the defendants. If the jury were sworn only as to the defendants served, that fact should affirmatively appear in the record of the trial. Inasmuch as it does not so appear, the court was in error in making the decree complained of in the eighth assignment of error. The judgment for the reasons herein set forth is reversed and a new venire awarded.


source: Caselaw Access Project

author: Beaver, J.,

license: Public Domain

text:
    Alice M. Light v. Harrisburg and Mechanicsburg Electric Railway Company, Appellant.

      Actions — Trespass—Ejectment of passenger — Damages.
    If a passenger is wrongfully ejected from a car the right of recovery is unquestioned in view of the trespass upon his rights even if no actual personal injury is suffered. Where the question of a wrongful ejection is one of fact, it is clear that the question must be left to the jury and the question of reasonable compensation is also for them.

      Appeals — Verdict against the evidence — New trial.

    That a verdict was against the overwhelming weight of the evidence is a good reason for a new trial, but when passed upon by the court below in considering the motion for a new trial the appellate court will not interfere with the exercise of a sound discretion judiciously exerted.

      Appeals — Review—Charge of the court.

    “Where the charge of the trial judge was apparently so satisfactory to both sides that written points were withdrawn, assignments of error alleging sins of omission in the charge will have but slight persuasive weight with the appellate court.
    Argued March 10, 1897.
    Appeal, No. 46, March T., 1897,
    by defendant, from judgment of C. P. Dauphin Co., Sept. T., 1896, No. 229, on verdict for plaintiff.
    Before Rice, P. J., Wile and, Wickham, Beaver, Reeder and Orlady, JJ.
    Affirmed.
    Trespass for wrongful ejectment from railway car. Before McPherson, J.
    The plaintiff, presenting a transfer ticket, was ejected from one of defendant’s cars upon refusal to pay additional fare. Two lines of defendant’s cars connected with a line running out of Harrisburg, one line going to New Cumberland, tbe other going to White Hill. The question turned on whether the car on which plaintiff was riding on proper schedule should have been the New Cumberland car and whether notice was given that it was going to White Hill and not to New Cumberland. The plaintiff on refusing to pay was ordered off the car and had to walk over to a junction where she subsequently got the New Cumberland car and was carried to her destination on her transfer ticket. She alleged that she had suffered injury in groping her way back in the dark through the fields from the point where she had been put off.
    Verdict for plaintiff for $140.83. On the trial of the case after the charge of the court wras delivered, both sides withdrew their printed points which had been submitted to the court. Motion for a new trial was discharged in the following opinion by McPherson, J. “ I agree with the defendant’s position, that this verdict was against the weight of the evidence; and if the amount in controversy was considerable, I would set aside the finding without hesitation. But as a practical question, the defendant cannot gain by another trial. Even if the verdict should be in its favor, the cost and trouble would outweigh the burden which the first jury had imposed. Of course, if a legal principle of any importance was involved, the situation would be different; but with nothing in dispute except a pure question of fact which must inevitably go to the jury, no matter how many trials are had, I feel justified in deciding this motion so as to cause the least inconvenience and expense to all persons concerned.
    “It is therefore ordered that if the plaintiff by writing filed on or before January 15 remits so much of the verdict as exceeds one hundred dollars, the prothonotary shall enter judgment on the verdict upon payment of the jury fee. If a remittitur is not filed he will enter an order that a new trial is granted.”
    Judgment entered for $100. Defendant appealed.

      Errors .assigned were (1-6) to the charge of the court alleging errors in what the court said and what it did not sajr; (7) that the verdict was against the overwhelming weight of the evidence; (8) in not instructing the jury to find in favor of defendant.

      April 12, 1897:

      Edgar L. King and William K Meyers, for appellant.
    — A mere scintilla of evidence does not justify a judge in leaving the question of negligence to the jury: Reinhardt v. South Easton, 4 Atl. Rep. 532.
    The mere negative testimony of the plaintiff is not enough to make out a charge of negligence against the defendant: Hauser v. Railroad Co., 147 Pa. 440.

      James I. Chamlerlin, for appellee.
    — The very size of the verdict clearly evidences that the damages were assessed by the jury on the basis of a wrongful eviction and were not compensatory for physical injuries, and follows closely in amount the case of Laird v. Traction Co., 166 Pa. 4.
    The acquiescence of counsel to the charge of the court brings this case within the authority of Fóx v. Fox, 96 Pa. 60.
    The trial judge in his opinion, dismissing a new trial, shows that he carefully exercised a judge’s prerogative and in this he also points out as a potent reason for the exercise of his discretion, that “ there is nothing in dispute except a pure question of fact which must inevitably go to the jury, no matter how many trials are had.” The relation and responsibility which a judge bears to cases tried before him is clearly put by Mr. Justice Williams, in Smith v. Times, 178 Pa. 481, 507.
   Opinion by

Beaver, J.,

At the close of the charge of the trial judge in the court below both plaintiff and defendant were so well satisfied with the sufficiency and fullness of the instructions therein contained that the written points previously submitted to the court were withdrawn. The appellant should, therefore, not be allowed to charge the court with sins of omission as is done in the fourth, fifth, sixth and eighth assignments of error. -It is to be presumed that in the points submitted the court was requested to charge upon the questions which, if the points had been allowed to remain in the hands of the court, would in the answers have fully met the objections now made by the appellant or would at least have given him specific grounds upon which to base his assignments of error.

The seventh assignment that “ the verdict was against the overwhelming weight of evidence ” is a good reason, when sustamed, for a new trial. It was passed upon by the court in considering the motion for a 'new trial and with the exercise of a sound discretion, judiciously exerted as in this case, we will not interfere.

We quite agree with the court below that no legal principle of any importance was involved in this case and that the facts must inevitably be submitted to the jury. The case, therefore, stands as favorably for the defendant as it is likely to stand at the end of any number of trials.

The question of the right of plaintiff to occupy a place in the defendant’s car from the junction to White Hill which, in view of the fact that she left Harrisburg at 11:45 P. M., which is the schedule leaving time of the last car for New Cumberland whither she was bound, is one of fact, was disputed, and, therefore, to be submitted to the jury. It is clear that the character of the place as to safet}*' at which the plaintiff was compelled to leave the defendant’s car is a question which must also be left to the jury. The testimony of the plaintiff was that on a dark night she was compelled to leave the car and, after leaving it, found herself wading through mud and weeds; that she got into a washout or gulley and there fell and wrenched her limb which pained her for a week or more, and this is practically not denied, except that the employees of the company say there were sidewalks in the neighborhood which she might have taken. Whether she knew of their existence, however, does not appear.

We see no error in the part of the charge contained in the first and second assignments. It was for the jury to say, under all the circumstances of the case, whether or not the car which the defendant took after crossing the railroad was the one which according to the schedule of the appellant was bound for her destination or whether it was the regular White Hill car. If the former, she had a right therein. If the latter, she was rightfully ejected, in view of her refusal to pay her fare. If she were wrongfully ejected, the right of recovery was unquestioned, in view of the trespass upon her rights, even if no actual personal injury were suffered: Laird v. Traction Co., 166 Pa. 4. The question of the existence and character of such injury was also submitted to the jury for its finding and we see no error in the manner in which it was submitted, as complained of in the appellant’s third assignment.

A careful consideration of the entire case leads us to the conclusion that the rights of the appellant, both in the charge to the jury and in the decree of the court upon the motion for a new trial, were carefully guarded and that there is no real cause of complaint on its part. The assignments of error are all overruled and the judgment affirmed.


author: Orlady, J.,

text:
    D. W. Harley, Appellant, v. Maurice Leonard and J. B. M. Todd, Executor of Elizabeth Leonard, deceased.

      Married loomen — Incapacity to become surety — Effect of divorce a mensa and decree making her a feme sole trader.

    The disability of a married woman to become an accommodation indorser, guarantor or surety for another exists under the acts of 1887 and 1893. A divorce a mensa et thoro granted the wile with alimony cannot be so construed or applied as to make her anything else than a married woman in her contracts; neither will the wife’s settlement with an absconding husband of her claim for money under such divorce proceedings by accepting land in lieu of money, nor the fact that she has been declared a feme sole trader, change the result.

      Married women — Statutes—Acts o/1887 and 1892 — Interpretation.
    The expressed intent of the married woman’s acts of 1887 and 1893 is to enlarge the powers of a married woman to contract and the courts have sought to give full effect to this intent in interpreting these acts; and while the primary intent is not to be restricted by interpretation, plain restrictions are not to be enlarged by the same means.
    Argued. March 10, 1897.
    Appeal, No. 9, March T., 1897, by plaintiff, from decree of C. P. Juniata Go., April T., 1889, No. 110, revived to April T., 1894, No. 115, opening judgment as to Elizabeth Leonard.
    Before Rice, P. J., Willard, Wick-ham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    * Rule to open judgment as to Elizabeth Leonard. Before J. M. Bailey, P. J., of the 20th judicial district, specially presiding.
    It appeared that Elizabeth Leonard, a married woman, who had secured a divorce a mensa et thoro and had also been decreed to be a feme sole trader, had together with her son and as his surety executed a joint judgment exemption note for thq sum of $500, which had subsequently been revived for $650. After the death of Elizabeth Leonard a petition was filed by her executor to show cause why judgment should not be opened and he be let into a defense, which rule was subsequently made absolute by the court below. Plaintiff appealed.
    April 12, 1897:

      Error assigned was making the rule to open judgment absolute and in opening the judgment as to Elizabeth Leonard.

      Will L. Eoofes and L. E. Atkinson of Atkinson Pennell, for appellant.
    — As to the effect of the divorce a mensa et thoro cited: Clark v. Clark, 6 W. & S. 87.
    The act of the husband in renouncing his marital rights and putting himself permanently beyond the process of the courts of Pennsylvania was held sufficient to remove the disabilities of covertures and allow the wife to contract as if sole: Danner v. Berthold, 11 Mo. App. 351; Gregory v. Pierce, 45 Mass. 478; Abbot v. Bayley, 23 Mass. 89; Chapman v. Lemon, 11 Howard (N. Y.), 235. See also Schouler’s Domestic Relations, sec. 219 (4th ed.); Schouler on Husband and Wife, sec. 486; Cord on Legal and Equitable Rights of Married Women, sec. 1338 (2d ed.); Bishop on Marriage, Divorce and Separation, secs. 1335-1353.

      J. Eoward Eeelg, for appellees.
    — The act of 1887 was clearly not intended to permit a married woman to become a surety.
    Where the words of a statute are plainly expressive of an intent, the interpretation must be in accordance therewith: Bradbury v. Wagenhorst, 54 Pa. 180.
    A divorce a mensa et thoro on the ground of desertion does not effect the wife’s right to administer on her husband’s estate: Fyock’s Est., 135 Pa. 522; and a feme sole trader can only incur liabilities for necessaries and for the purposes of the trade in which she is engaged, or at least upon some substantial consideration moving to her: Jacobs v. Featherstone, 6 W. & S. 346. It was expressly ruled that she could not become surety for another: Cochran v. Garrettson, 1 Leg. Gaz. Rep. 218.
   Opinion by

Orlady, J.,

Elizabeth Leonard was married to Samuel Leonard February 12, 1839, and they lived together as man and wife until December, 1875, when the husband deserted his wife and went to Tennessee with another woman, Avith whom he is still living in that state.

On May 1, 1875, Elizabeth Leonard in the court of common pleas of Juniata county, Pennsylvania, secured a decree in diArorce a mensa et thoro against Samuel Leonard. In this action she was aAArarded the sum of $240 alimony annually. After futile attempts to enforce the decree and secure payments under it, the differences between the parties were amicably adjusted in 1888 by the defaulting husband conveying certain real estate to her and releasing his interest therein as tenant by the curtesy, and she executed and delivered to him a “ release of all claims for alimony, past, present and to accrue, all claims for future maintenance, and all claims for dower which she might have in all real estate which he then had or might afterwards acquire.”

On March 10, 1885, Elizabeth Leonard was on her petition declared a feme sole trader under the act of February 23,1718, and of May 4, 1855.

Maurice Leonard, one of the defendants, was indebted to the plaintiff in the sum of $500, to secure Avhich, he gave him a judgment note with one James Smith as surety. The surety failing in business, a demand for payment or other security was made by D. W. Harley of Maurice Leonard, who with Elizabeth Leonard on March 31, 1889, gave to the plaintiff a joint judgment note for the same amount payable one day after date, on which a judgment was entered to No. 110, April term, 1889, and revived against both on March 29, 1894, for the sum of $650.

Elizabeth Leonard died December 24,1894, and J. B. M. Todd, her executor, presented his petition to the court of common pleas, setting forth the above facts, and prayed for a rule to shoAv cause why the judgment should not be opened as to Elizabeth Leonard.

A rule was granted and after hearing was made absolute.

It is admitted by the appellant, that when Elizabeth Leonard signed the note her husband was living in Tennessee, and that she was surety for her son, but he contends, that the total, final and absolute desertion of the wife by the husband; his con-tinned living in Tennessee with another woman as his wife; the divorce making her a feme sole trader on her own petition; the release to the husband from all claims for alimony past, present and to accrue ; “ relieved her of all and every disability of marriage and that she was legally bound to the plaintiff.”

The piecemeal legislation on the subject of married woman’s rights was finally by the Act of June 3, 1887, P. L. 332 so enlarged that the rule was changed. Formerly her capacity to contract was exceptional and her disability general,- now the disability is exceptional and her capacity general: Patrick & Co. v. Smith, 165 Pa. 526; so general is her power to contract now, that her inability is the exception rather than the rule; Latrobe, etc., v. Fritz, 152 Pa. 224; but in the most liberal of all legislation on the subject of her rights and liabilities there were restrictions and limitations.

In the married persons’ property act of June 3, 1887, which was in force when this contract was made, her authority was limited by the proviso to the second section: “ That nothing in this or the preceding section shall enable a married woman to become accommodation indorser, guarantor, or surety for another,” and while this act was expressly repealed by the Act of June 8, 1893, P. L. 344, which enlarged her capacity to acquire and dispose of property, .to sue and to be sued, etc., the prohibition was as emphatic in the second section, “ but she may not become accommodation indorser, maker, guarantor, or surety for another.” It was the expressed intent of both acts to enlarge the powers of married women to contract, and this court has sought to give full effect to this intent in interpreting. While this primary intent is not to be restricted by interpretation, plain restrictions are not to be enlarged by the same means. This act declared the married woman might bind herself by many contracts which heretofore she could not legally make, yet it expressly continued her disability “to become an accommodation indorser, guarantor, or surety for another: ” Patrick & Co. v. Smith, 165 Pa. 526.

The essential facts in this case are admitted; when the note was signed her husband was living, and her relation to the note, the maker, and the consideration was that of surety for her son.

In no act of assembly or decided case can there be found any authority for holding her liable under these admissions. Nor can a divorce a mensa et thoro granted the wife with alimony be so construed or applied as to make her anything else than a married woman in her contracts. Her settlement with an absconding husband, of her claim for money under the divorce proceeding by accepting land in lieu of money, or in one payment instead of through years cannot be held to be anything else than a businesslike adjustment of a claim of doubtful value.

She was still the wife of Samuel Leonard. A divorce a mensa et thoro does not destroy the relation of marriage, but merely suspends some of the obligations arising out of that relation: Clark v. Clark, 6 W. & S. 85.

Under the decree the wife would be entitled to dower and the husband to curtesy; neither right being destroyed by divorce a mensa et thoro: Thorndell v. Morrison, 25 Pa. 326. The exchanged releases were necessary to discharge and bar dower and curtesy: Nye’s Appeal, 126 Pa. 341. It did not affect her right to administer on his estate as his widow: Fyock’s Estate, 135 Pa. 522. Whether he resided in Pennsylvania or Tennessee was not material, as it was his wilful desertion without regard to his subsequent residence which entitled her to the decree.

Nor does it change the result that she was a feme sole trader. There is no necessity for a decree that a wife is to be held a feme sole trader in order to entitle her to the privileges conferred by the act of May 4, 1855: Black v. Tricker, 59 Pa. 13; Orrell v. Van Gorder, 96 Pa. 180; Bank v. Denig, 131 Pa. 241.

Her rights result from the fact of her husband’s desertion or neglect to provide for her and not from the certificate.

The desertion by the husband, however long continued or wherever his residence, did not annul the marriage relation, and ’ the decree of the court authorizing the deserted' wife to act as a feme sole trader did not confer any contractual right on her to bind her separate estate as surety for another.

The judgment was voidable and the application to set it aside .is made in her name: Koechline v. Henkel, 144 Pa. 215.

In this case as in Real Estate Co. v. Roop, 132 Pa. 496,, “ It is conceded that this judgment was given by a married woman. It was not pretended that it was done in the management of, or for the benefit of her separate estate, or in the prosecution of any business in which she was engaged, or for necessaries; ” in which case it was held that the judgment was confessed without authority and void as to the married woman, and was stricken from the record.

The assignments of error are not sustained and the judgment is affirmed.


author: Reeder, J.,

text:
    W. H. Whyte v. A. W. Cramer, Appellant.

      Judgment — Opening thereof — Usury—•Subterfuge.
    The law will look through all disguises and subterfuges and will open a judgment which is based on an attempt to make a contract for usury where by the agreement' and the testimony a strong doubt is raised on this ground as to the validity of a judgment.
    Argued Jan. 12, 1897.
    Appeal, No. 7, Jan. T., 1897, by defendant, from order of C. P. Lackawanna Co., Sept. T., 1895, No. 514, making absolute rule to show cause why judgment should not be opened.
    Before Rice, P. J., Willard, Wick-ham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Rule to open judgment and let defendant in to a defense. Before Edwards, J.
    It appeared from the evidence taken in support of the rule to open judgment that the defendant was sold out by the sheriff in 1889 and his property bought in by the plaintiff for $1,045. Subsequently plaintiff, Whyte, executed the deed for the property to defendant, Cramer, and Cramer executed a bond and mortgage for the sum of $2,000. It was alleged on behalf of the defendant that the whole transaction was in the shape of a loan by Whyte to Cramer.
    These papers executed subsequently to the sheriff’s sale remained in the possession of Whyte for several years. The transaction being in an unsettled condition on May 3,1894, the following agreement was entered into between the parties :
    “ For a good consideration it is hereby agreed by and between the parties, hereto, that the deed from W. H. Whyte and wife to Adon W. Cramer, dated December 12, 1889, shall be delivered to said Cramer, the bond and mortgage made by Cramer to said Whyte on the aforesaid date for the sum of two thousand dollars, together with said deed, now both be put on the record, and sixty days from May 1,1894, be given to said Adon W. Cramer, in which to raise and pay off the amount due upon said bond and mortgage, before any action shall be taken by said Whyte to collect the same. And it is further agreed that when payment is made by said Cramer, if within said time, he shall only be required to pay the unpaid payments of interest upon two thousand dollars and the sum of $1,045 in addition thereto, together with the legal record costs, to obtain full satisfaction and surrender of said bond and mortgage. It being understood and agreed that the interest herein named that is in excess of that upon the sum of $1,045, is in consideration of the delivery of the deed as aforesaid, transfer of the premises, and settlement as herein provided of the matter between the parties hereto.”
    Judgment having been entered on defendant’s bond a rule was taken to open the same and the court found that the amount due upon the bond was as follows
    Amount of money paid to sheriff . . $1,045.00
    Three years’ interest on mortgage dated Dec. 12, 1889, paid by defendant .... 360.00
    Leaving the principal of the bond Dec 12, 1892 1,045.00
    Interest on bond from Dec. 12,1892, to Sept. 23,
    1895 ........ 334.33
    $1,379.33
    Sept. 2, 1895, cash paid plaintiff by agreement 945.00
    Amount due Sept. 23, 1895 ... $ 434.33
    The rule to open the judgment in this case is made absolute except as the sum of $434.33 with interest from September 23, 1895.

      Errors assigned were (1) in excepting the sum of $434.33 with interest from September 23, 1895, from order making the rule absolute: (2) In stating the following in his opinion: “ Defendant contends that the transaction was a loan and that sheriff’s deed, together with the other papers, are plaintiff’s security for the repayment of the loan with interest.” (3) In stating in his opinion “ that the defendant paid $360 — three years’ interest upon the mortgage.” (4) In stating in his opinion as follows: “ September 23,1895, cash paid Sheriff by agreement, $945.” (5) In finding in his opinion as follows: “It may be that a full consideration of the testimony on both sides outside of the agreement of May 3, 1894, would justify us in sending the case to a jury. But this agreement, in our judgment, is conclusive upon the defendant.”
    April 12, 1897:

      M. E. McDonald, for appellant.
    — The original taint attaches to all consecutive obligations, growing out of the original usurious transaction and none of the descendant obligations can be free from it if the descent can be traced : Earnest v. Hoskins, 100 Pa. 551; Marr v. Marr, 110 Pa. 60; Hartranft v. Uhlinger, 115 Pa. 270.
    That a judgment was confessed for the amount supposed or claimed to be due is not material. When such a judgment is made in part of usury, the courts will open it and afford relief: Wood’s Appeal, 11 W. N. C. 30; Marr v. Marr, 110 Pa. 60.

      Q. Oomegys with him E. N. Shurtleff, for appellee.
    — The opening of a judgment entered upon a warrant of attorney, is a matter of sound discretion; on appeal, it is for the higher court only to determine whether such discretion has been rightly exercised: Earley’s Appeal, 90 Pa. 321; Schenck’s Appeal, 94 Pa. 37.
    The plaintiff relying upon the positive declarations of defendant as contained in the agreement of May 3, 1894, was thereby induced to materially change and alter his condition. The principles of estoppel apply: Robertson v. Hay, 91 Pa. 242.
   Opinion by

Reeder, J.,

Upon the defendant’s deposition in connection with that of the plaintiff himself this judgment should have been opened and a jury permitted to pass upon the question. The defendant’s property was about to be sold by the sheriff when he-alleges he went to Whyte and asked him to loan him (Cramer) $1,045 to save it. Cramer alleges that Whyte agreed to loan him the money upon condition that he would pay him the interest upon $2,000 for the loan. Whyte bid in the property for $1,045 and received a sheriff’s deed for it. At about the same time he .executed a deed to the defendant taking a bond with warrant and a mortgage for $2,000. The deed was not delivered or the mortgage recorded or judgment entered by virtue of the warrant upon the bond until four or five years after when a written agreement was entered into between the parties. The plaintiff himself states that the consideration for the purchase of the property from him by Cramer was $1,045, a further sum of $100 for his trouble in the matter and the interest upon $2,000 until the $1,045 was paid. This statement of facts was such as would entitle the defendant to have the judgment opened and the amount due upon the bond to be determined by a jury unless the written agreement entered into between the parties is conclusive of the defendant’s rights. The court did in fact open judgment as to the entire amount due ($945 having been paid into court) except $434.33 but as to that refused because of this written agreement. This agreement is conclusive unless under the testimony it may be in contravention of the laws of the state because an attempt under a disguise or by a subterfuge to make a contract for usury. If by the agreement and the testimony taken in connection therewith a strong doubt is raised as to the validity of this agreement the judgment should have been opened as to the whole amount still unpaid. We think there is enough in this case to raise such a doubt and the judgment should have been opened. The exceptions are sustained, the judgment reversed and the record remitted for further proceedings in the court below.


text:
    Joseph Silverman, trading as Joseph Silverman & Co., v. W. E. Rumbarger and C. M. Mead, trading as W. E. Rumbarger, Appellant.

      Evidence — Presumption of legality — Burden of proof.

    It is a presumption of law that every one has conformed to the law and the burden is upon him who alleges the contrary.

      Sale — Illegal business — Burden upon Mm alleging illegality.

    The plaintiff who had sold whisky to defendant, testified that he was a wholesale liquor dealer in Ohio where the contract was made; this was prima facie proof that he was lawfully carrying on that business and the burden was upon defendant to show that he had a right to take, use and not be compelled to pay for the property purchased because plaintiff was carrying on a traffic illegal in the state of Ohio.
    Argued Feb. 11, 1897.
    Appeal, No. 37, Feb. T., 1897, by defendant, from judgment of C. P. Clearfield Co., MayT., 1895, No. 28, on verdict for plaintiff.
    Before Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered. Before Mestrezat, P. J., specially presiding.
    The action was brought by the plaintiff, a resident of Cincinnati, Ohio, where the contract was consummated, to recover on account of several barrels of whisky sold by plaintiff to defendants.
    The plaintiff’s testimony disclosed that he was engagedinthe wholesale liquor business in the cityof Cincinnati. One of the defendants, C. M. Mead, denied the partnership. The court left the. case to the jury on the question of partnership.
    Verdict for plaintiff for$322.60. Defendants moved in arrest of judgment on the ground that the plaintiff had not affirmatively proved that he had a license to deal in liquors. This rule was discharged by the court below. Judgment for plaintiff. C. M. Mead appealed.

      Errors assigned were (1) in admitting the following question offered on behalf of the plaintiff: “ Q. At the time you sent this order into the house state whether or not you communicated Mr. Mead’s conversation to the plaintiff in this case?” (2) in refusing binding instructions for defendant; (3) in overruling defendant’s motion in arrest of judgment, which motion and ruling thereon are as follows: “ And now May 14, 1896, the defendants by their attorney move in arrest of judgment and for judgment non obstante veredicto, for the following reasons : 1. Under the evidence in the case the sale of the liquors in question was in direct violation of the Act of April 12, 1875, section 8, P. L. 40, and a recovery is prohibited by the 7th section, Act of May 8, 1854, P. L. 663, which reads as follows : ‘ No action shall be maintained or recovery had on any case for the values of the liquors sold in violation of this or any other act, and defense may be taken in any case against such recovery without special plea or notice.’ 2. Under the pleading and the evidence no right of action is disclosed.”
    Ruling of the court on the above motion. “And now November 23, 1896, this matter came on to be heard and was argued by counsel. And now December 1, 1896, after consideration thereof the rule to show cause why judgment should not be arrested, etc., is discharged, and it is further ordered and directed that upon payment of the jury fee judgment be entered on the verdict.”

      A. L. dole, with him H. A. Moore, for appellant.
    — An action on a transaction prohibited by statute cannot be maintained although a penalty be imposed and the transaction be not declared void: Thorne v. Ins. Co., 80 Pa. 15.
    The defendant contends that the inception of the contract in this case is in direct violation of the 8th section of the Act of April 12, 1875, P. L. 40; also in violation of the 2d section of the Act of April 14, 1863, P. L. 389. That defense might be taken in this case without special plea is established by the 7th section of the Act of May 8, 1854, P. L. 663.
    If a controversy arises in our own courts on a contract made in another jurisdiction prima facie it is to he governed by the law of this state ; and if it is claimed that the law of the place of contract establishes a rule unknown to our law such foreign law should be proven: Bennett v. Cadwell’s Exrs., 70 Pa. 253.
    The law of another state upon a subject coming under notice in the trial of a cause will be presumed to be the same as the law of this state upon the same subject: Bollinger v. Gallagher, 170 Pa. 84.

      W. d. Pentz, for appellee.
    — If no place be designated byothe contract, the place of sale is the point at which goods- ordered or purchased are set apart and delivered to the purchaser, or to a common carrier, who for the purpose of delivery represents him: Perlman & Co. v. Sartoris, 162 Pa. 320.
    The contract being consummated in Ohio, does not violate our liquor laws: Com. v. Munk, 1 Pa. Superior Ct. 479; Com. v. Hess, 148 Pa. 98; Com. v. Fleming, 130 Pa. 138; Braunn v. Keally, 146 Pa. 519.
    It is a presumption of law that everyone has conformed to the law, and the burden of proof is on him who alleges the contrary; 19 Am. & Eng. Ency. of Law, 42; Schum v. Railroad Co., 107 Pa. 8; Horan v. Weiler, 41 Pa. 470.
    There is no presumption that the penal statutes of a foreign state are tbe same as our own: Cutler v. Wright, 22 N. Y. 472; Harris v. White, 81 N. Y. 532; Grider v. Driver, 46 Ark. 50.
    April 12, 1897:
   Opinion by

Reeder, J.,

This action was brought in the court below to recover a balance upon an account for several barrels of whisky sold by plaintiff to defendant. The appellant claims that the court erred in submitting the case to the jury because the plaintiff could not recover until he showed affirmatively that he had a license to deal in liquors. This contract was undoubtedly consummated in the city of Cincinnati in the state of Ohio where the plaintiff testifies he was engaged in the wholesale liquor business. These goods were there when they were sold to the defendant and were delivered to a common carrier, consigned to him, the freight to be paid by the defendant. The plaintiff produced evidence to show that he was engaged in the wholesale liquor business-in the city of Cincinnati. This prima facie was proof that he was lawfully carrying on that business and the burden was upon the defendant to show that he had a right, to take, use and not be compelled to pay for his property because he was carrying on a traffic illegal in the state of Ohio. “ It is a presumption of law that everyone has conformed to the law, and the burden is upon him who alleges the contrary: ” 19 Am. & Eng. Ency. of Law, 42. Even though this was a Pennsylvania contract the presumption would be with the plaintiff and the burden upon- the defendant to show that the goods were sold in violation of law because of the plaintiff not being a licensed-dealer. Justice Thompson in Horan v. Weiler, 41 Pa. 470. “ They might recover without producing their license and of course without saying anything about it in their narr. The cases cited by the appellee prove the rule that a breach of law will not be presumed against anyone, and that the presumption is to the contrary until proof overcomes it: 1 Greenleaf, 411; 1 Barn. & Aid. 463; 10 East, 216; 19 Johns. 345; 12 Wheat. 69; and that he who alleges the contrary must prove it, 3 East, 199.”

Judgment affirmed.


text:
    Weil Bros. & Co. v. M. Cohn, Appellant.

      Evidence — Fraud—Conspiracy.
    In questions of fraud in consequence of a conspiracy, the declarations of any of the pavlies to the alleged conspiracy in the consummation of the common purposes are admissible.

      Fraud — Conspiracy—Charge of court.

    The issue being as to the existence of a fraudulent conspiracy the jury is properly instructed to the effect that: A conspiracy to defraud may be effected by the giving of a written obligation even though the original obligor was not a party to the conspiracy. That is to say, an obligation ■may be given in good faith by the obligor and a conspiracy entered into to use this obligation for a wrongful purpose.

      Conspiracy — Effect of cumulative evidence.

    The issue being one of alleged conspiracy to defraud, the question is properly left to the jury when the aggregate effect of the testimony is strong enough to carry the question to the jury although each of the statements of testimony taken by itself is slight and falls far short of establishing such conspiracy.
    Argued Feb. 10, 1897.
    Appeal, No. 8, Feb. T., 1897, by defendant, from judgment of C. P. Clearfield Co., Feb. T., 1895, No. 187, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Feigned issue to test validity of judgment.
    The facts sufficiently appear in the opinion of the court.
    Verdict and judgment for plaintiff. Defendant appealed.

      Errors assigned raised substantially two leading questions : First, whether the acts and declarations of one or more alleged conspirators are admissible as evidence against another alleged conspirator without some substantial evidence of the existence of the conspiracy having been first offered. Second, that there was not sufficient evidence to connect the defendant, M. Cohn, with any conspiracy whatever and that, taken together, the ease presented by the plaintiff was entirely insufficient to wipe out and destroy a solemn judgment in a court of record.

      A. L. Oole. and S. V. Wilson, for appellant.
    — It is not enough, to charge fraud and prove in support thereof, slight circumstances of suspicion only, to be of any avail it must be clearly proved: Morton v. Weaver, 99 Pa. 47; Jones v. Lewis, 148 Pa. 234; Loeffler v. Schmertz. 152 Pa. 615; Kitchen v. Mc-Closkey, 150 Pa. 376; Tisch v. Utz, 142 Pa. 186.
    While it is true that evidence of collusion need not be conclusive it must do more than raise a suspicion, it must lead to a belief: Lowe v. Dalrymple, 117 Pa. 564; Mead v. Conroe, 113 Pa. 220; Bank v. Tinker, 158 Pa. 17.
    There was no evidence in this case to show that defendant, M. Cohn, was a party to a fraudulent combination: Mead v. Conroe, 113 Pa. 220.
    Such acts and declarations as were admitted in evidence in this case were totally irrelevant: Bell v. Throop, 140 Pa. 641.
    A judgment creditor cannot lose his honest judgment against this debtor because he advises his debtor to cheat another creditor: Fidler v. John, 178 Pa. 112; Miller v. McAlister, 178 Pa. 140.

      J. O. Horton, with him W. O. Arnold, for appellee.
    — In questions of fraud the door is wide open, and as a part of the res gestae, the declarations of either of the conspirators are admissible: Heath v. Page, 63 Pa. 108; Kinzer v. Mitchell, 8 Pa. 64; Price v. Junkin, 4 Watts, 85.
    The least degree of concert of action or collusion between parties to an illegal transaction makes the acts of one, the acts of all, and the acts and declarations of one may be given in evidence to effect the others: Gibbs v. Neely, 7 Watts, 305; Jackson v. Summerville, 13 Pa. 359; Reitenbach v. Reitenbach, 1 R. 362; Wilbur v. Stickland, 1 R. 458; McCaskey v. Graff, 23 Pa. 321; Deakers v. Temple, 41 Pa. 234.
    In Young v. Edwards, 72 Pa. 257, Williams, J, says: “In civil cases the jury determine cases according to the" weight of evidence, and not by the sufficiency to produce convictions of absolute certainty of the conclusions arrived at.” All questions of fraud in fact, and fraudulent intent are for the jury: Vallance v. Ins. Co., 42 Pa. 441; Barr v. Boyles, 96 Pa. 31; Craver v. Miller, 65 Pa. 456; Ehrisman v. Roberts, 68 Pa. 308. “ Actual collusion or fraud in fact is always for the jury: ” Loucheim Bros. v. Henszey, Admr., 77 Pa. 305.
    April 12, 1897:
    When evidence has been given, tending to establish a combination to defraud creditors, the declarations of either party, though not made in the presence of the other are evidence: McKee v. Gilchrist, 3 Watts, 230; Price v. Junkin, 4 Watts, 85; Gibbs v. Neely, 7 Watts, 305; Jackson v. Summerville, 13 Pa. 359; McCaskey v. Graff, 23 Pa. 321; Kelsey v. Murphy, 26 Pa. 78; Peterson v. Speer, 29 Pa. 478; Deakers v. Temple, 41 Pa. 234; Brown v. Parkinson, 56 Pa. 336; Confer v. McNeal, 74 Pa. 112; Burns v. McCabe, 72 Pa. 309.
    But slight evidence of collusion is necessary to render the admissions of one of two conspirators admissible against the other: McDowell v. Rissell, 37 Pa. 164; Scott v. Baker, 37 Pa. 330.
   Opinion by

Reeder, J.,

H. Cohn was the owner of a stock of goods in the borough of Dubois. N. B. Bloom was induced to purchase the business together with the stock of goods of H. Cohn for $700 cash and notes aggregating $4,000 indorsed by M. Cohn. To secure M. Cohn for his indorsements a judgment note was given by N. B. Bloom to M. Cohn for $4,000 which was entered of record and subsequently execution was issued upon the above judgment and the stock of goods of Bloom sold by him. The plaintiffs who were judgment creditors' of N. B. Bloom filed a petition asking for a feigned issue to try the validity of the judgment given to M. Cohn, alleging that the giving of this judgment was in consequence of a conspiracy to defraud the creditors of Bloom, to which conspiracy M. Cohn was a party. The issue was granted, and upon the trial the jury rendered a verdict for the plaintiff. The only question necessary for consideration at any length by us is whether there was sufficient evidence of a fraudulent conspiracy between M. Cohn, H. Cohn and L. G. Dietz to justify the court in submitting that question to the jury. L. G. Dietz conducted the clothing store of H. Cohn as manager. He was the brother-in-law of Bloom. H. Cohn desired Dietz to purchase the store and stock of goods. Not having the money he induced Bloom to come from somewhere in the state of New Jersey with the view of purchasing. Bloom agreed to purchase the store and goods and gave H. Cohn twenty-four notes of $166.67 each, aggregating in amount $4,000 which were indorsed by M. Cohn and this judgment note to M. Cohn as collateral security for his indorsements. They agreed to pay M. Cohn $200 for making these indorsements. The plaintiff claims that the sale of goods from H. Cohn to Bloom was the result of a conspiracy to defraud the future creditors of Bloom, by securing credit to Bloom so that he could purchase a large stock of goods, and when these were accumulated to seize them upon execution issued upon the judgment given to M. Cohn and thus cheat and defraud those -who sold him goods. As an evidence 'of fraud the plaintiff offered testimony showing that M. Cohn did not indorse all of the notes; that those he did indorse were irregularly indorsed so that there is doubt about his liability ; that immediately after the notes were indorsed Ire declared that H. Cohn had so arranged it that he would not be responsible at all and that he was paid $200 for his trouble; to others he admitted that he was only liable for a portion of the $4,000 ; that before this judgment of $4,000 was entered Bloom was urged by H. Cohn and L. G. Dietz to purchase a large stock of goods and to give statements, which he did, that the entire amount of his indebtedness did not exceed $1,500; that when the goods were sold by the sheriff, M. Cohn, the plaintiff in the execution upon which they were sold wanted them sold in a lump which the sheriff refused to do; that at the sheriff’s sale M. Cohn and H. Cohn purchased the major portion of the stock which was piled indiscriminately in one pile; they were assisted by L. G. Dietz; that at the time of sale Dietz attempted to take goods not yet sold and put them upon the pile of M\ and H. Cohn; after the sale M. Cohn took possession of all the goods purchased by him and H. Cohn. Either of these statements of testimony taken by itself is slight and would come far short of establishing a conspiracy to defraud, but taken together thejr are strong enough to carry the question to the jury and therefora there was no error committed by the court below in its submission. What we have just said indicates that we consider the testimony received by the court as admissible, and therefore the first six assignments of error are overruled.

In questions of fraud in consequence of a conspiracy the declarations of either of the parties to the conspiracy in the consummation of the common purpose are admissible: Price v. Junkin, 4 Watts, 85; Jackson v. Summerville, 18 Pa. 359; McCaskey v. Graff, 23 Pa. 321: McDowell v. Rissell, 37 Pa. 164; Heath v. Page, 63 Pa. 108. In the 7th assignment of error the appellant complains of the language used by the court in sustaining an objection made by him. The ruling was in his favor and an exception was taken by the plaintiff. As the defendant did not take any exception to the language of the court in making the ruling he cannot assign it for error. The exceptions to the charge of the court are without merit. The instructions of the learned court upon the law are full, adequate and correct. They are to the effect that a conspiracy to defraud may be effected by the giving of a written obligation even though the original obligor was not a party to the conspiracy. That is to •say an obligation may be given in good faith by the obligor and a conspiracy entered into to use this obligation for a wrongful purpose. This is as much a conspiracy on their part as it would have been had the maker of the obligation been a party to it. These instructions are manifestly given to cover this phase of the case. If these notes were given by Bloom without intending to defraud or cheat his creditors and the goods purchased by him in good faith and the misrepresentations as to his financial standing, so as to obtain credit, made with the expectation of being able to pay for the goods procured by reason of them, yet if he was induced to do these acts by the importunities and persuasions of H. Cohn and M. Cohn and Dietz for the purpose of enabling them to get possession not only of the residue of the old stock sold to him but the new goods purchased by him,' it was as much a conspiracy on their part to defraud Bloom’s creditors by reason of the judgment held by M. Cohn as if Bloom had been a party to it, and if satisfactorily established by proof would avoid the judgment of M. Cohn as effectually in one case as in the other. There was therefore no error in the parts of the charge of the court assigned. This consideration of the law and our determination of it disposes of all the assignments of error.

Judgment affirmed.


author: Smith, J.,

text:
    Daniel A. Spotts v. Tillie F. Spotts, Appellant.

      Equity — Sale of real estate — Specific performance.

    Where the plaintiffs testimony was abundant to establish accurately a written agreement to sell real estate in which the land was described with sufficient certainty, the price, time of payment and where the deed was to be delivered, also that the first payment was made when plaintiff received the written agreement and that the balance was tendered at the time called for in the contract, a decree for specific performance will be sustained.

      Evidence — Conclusions inadmissible.

    Offers of evidence are properly excluded which call for conclusions rather than statements of fact.
    Evidence— Subsequent admission cures prior error in rejecting testimony.

    Where offers of evidence are rejected but the party is subsequently permitted to testily substantially concerning the facts covered by the offers the proponent suffers no injury by the ruling on his offers.
    Argued March 12, 1897.
    Appeal, No. 45, March T., 1897, by defendant, from definitive decree of C. P. Cumberland Co., March T., 1896, No. 4, directing specific performance.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Appeal for specific performance. Before E. W. Biddle, P. J.
    The case came up on bill, answer and proof. Short abstracts of the bill, answer and proof are as follows:
    The plaintiff sets forth in his bill inter alia, as follows to wit:
    1. That the defendant was the owner of a certain lot of ground in the borough of Carlisle, Pa.
    2. That on the 12th day of November, 1895, an agreement was made and signed between said defendant and plaintiff for the sale of said lot of ground.
    “ Agreement made and entered on this 12th day of November, A. D. 1895, by and between Tillie Florence Spotts, of the borough of Carlisle, Cumberland county, Pennsylvania, of the first part, and Daniel A. Spotts, of the same place, county and state aforesaid, witnesseth:
    “ 1st. That the said party of the first part doth hereby agree to sell and convey to the party of the second part, his heirs and assigns, that certain lot of ground situated on South Hanover street, in the said borough of Carlisle, it being part of a lot of ground known as No.-, South Hanover street, bounded as follows, to wit :
    “ On the west by said North Hanover street, on the north by lot now owned by said party of the first part, and originally part of the same lot, on the east by an alley, on the south by lot of Simon Kline, dec’d, containing in front-feet on said South Hanover street, and extending in depth 240 feet to the alley.
    “ 2nd. Immediate possession will be given to the party hereto of the second part upon compliance with the conditions hereinafter set forth.
    “ 3rd. The party of the first part hereby agrees that the alley way now used for the use and convenience of the property which is hereby intended to be conveyed, shall hereafter be used in common by the present purchaser and the present occupant of the other portion of the property.
    “4th. That the wall of the property, or house adjoining the property hereby conveyed, shall be used as a party wall up to a point when it becomes necessary to add to it in order to make a three story building at the expense of the party of the first part; and should the parties hereto agree to make either or both of the buildings three stories in height, they shall bear equally the expenses attendant upon such an arrangement.
    “ In consideration whereof the said party of the second part agrees to pay unto the said party of the first part $700 in payments as follows, to wit: one hundred dollars ($100) upon the execution of this agreement. The balance on the first day of April, A. D. 1896, when deed will be made.
    “ The party hereto of the first part retains the ownership of the property until the above conditions are fully complied with.
    “ Witness our hands and seals the day and year written.
    “ Tillie F. Spotts [seal.]
    “D. A. Spotts, [seal.] ”
    3. That in pursuance of said agreement the said plaintiff, on tiie 14th day of November, 1895, paid to the said defendant $100 on account of the purchase money of said lot of ground; and further, that on the 1st day of April, 1896, tendered the balance of said alleged purchase money, to wit: $600, (six hundred dollars), etc. Plaintiff therefore prays a decree for specific performance, etc.
    The defendant in her answer, avers, inter alia, as follows, to wit:
    1. That the alleged agreement in writing set forth in plaintiff’s bill, was not completed or delivered to said plaintiff, but that possession of it was obtained by said plaintiff from said defendant by misrepresentation of the facts, and by false statements and deceit.
    2. That she, said defendant, specifically denies that there ever was any contract for the sale of the lot of ground described in paragraph 2 of said bill; and avers that there never was any sale of said lot either by said alleged written agreement, or in any other manner whatever.
    8. That said defendant denies that she accepted the sum of $100, or any other sum from the plaintiff on account of the purchase money of said lot, but avers that the sum of $100 was left on her table by said plaintiff when he received from her the alleged agreement, under the circumstances detailed in paragraph 3 of answer. That she offered to return and tendered to him the said $100 which he refused and still refuses to accept.
    4. That she, said defendant, refused to accept said alleged balance of purchase money, and to execute and deliver to said plaintiff a deed, etc., and denied that there ever was any agreement for the sale of any part of her said lot by her with said plaintiff. That she is not bound in law or equity to execute and deliver to him a deed for the lot claimed, etc.
    The defendant therefore prays the court that the plaintiff’s bill be dismissed at his costs.
    Plaintiff moved the court to rule that the answer is not responsive to the bill and that unless defendant mates out a defense by independent testimony the decree will be made pro confesso. This motion was overruled by the court.
    The court below held, inter alia, “ It is not denied by the defendant that the agreement was signed by her, yet she alleges that it was not completed or delivered to said plaintiff, but obtained by said plaintiff by misrepresentation of the facts, and by false statements and deceit.” These allegations are not responsive to the bill and. upon the defendant rested the burden of proving by clear and satisfactory evidence some facts which would justify the conclusion that she had been deceived.or overreached by the plaintiff. She has entirely failed to do this and we are satisfied that the bill gives a correct version of the transaction between the parties, and that no element of fraud or deceit on the part of the plaintiff has been shown.
    The court decreed specific performance. Defendant appealed.

      Errors assigned were (1) in refusing to permit the following question to be answered by the defendant, when testifying on the trial of the case. “Q. By Judge Henderson. We propose to ask, under paragraph 4 (of answer), the witness on the stand whether she ever made any agreement of sale for a lot on South Hanover street, or any other lot to her brother; we offer that as a fact, not as a question of law, whether she ever agreed to sell or not.”
    By Mr. Biddle: Objected to, that under the pleadings the question as to whether there was an agreement to sell is a question of law, and not of fact, and the witness is therefore incompetent to testify.
    By the Court: The purpose and effect of the question is merely to elicit from the witness her opinion as to whether or not she and the plaintiff made an agreement in reference to the lot in question; this is the only matter in dispute in the case, and is a mixed question of law and fact. We think the objections are well taken; they are sustained; defendant excepts and bill sealed.
    (2) In sustaining objection to the following question: By Mr. Henderson: “ Miss Spotts, state if you please, if you ever contracted for the sale of a lot described in paragraph 2 of plaintiff’s bill, to wit: A lot on South Hanover street, 21 feet, including a three foot alleyway on the northern side immediately south of said other land of said Tillie F. Spotts, and extending in depth two hundred and forty feet (240) to the alley on the east, did you ever contract for the sale of such a lot?”
    By Mr. Biddle: The same objection.
    By the Court: The objection sustained; defendant excepts and bill sealed.

      (8) In finding that the answer of defendant was not responsive to the bill.
    (4) In making the following decree: “ And now, J anuary 12, 1897, this case came on to be heard and was argued by counsel, whereupon after due consideration, it is adjudged and decreed as follows : That within twenty-one days hereafter, the defendant, Tillie F. Spotts, shall execute and upon receipt of the remaining six hundred dollars of purchase money shall' deliver to the plaintiff, Daniel A. Spotts, a good and sufficient deed in fee simple for the lot of ground described in the agreement of November 12, 1895, according to the true tenor thereof and also give to him possession of said lot.”
    It is further ordered that the defendant pay the costs.

      J. Webster Henderson and R. M. Henderson, for appellant.—
    The answer is responsive and the bill in its entirety is denied: Eaton’s Appeal, 66 Pa. 483; Pusey v. Wright, 31 Pa. 387; Bell v. Bank, 131 Pa. 318.
    Specific performance is a matter not of right but of judicial grace: Pennock v. Freeman, 1 Watts, 401; Henderson v. Hays, 2 Watts, 148.
    And though a contract be valid at law equity will not enforce a specific performance, unless tbe transaction be free from suspicion of fraud or surprise: Campbell v. Spencer, 2 Binney, 129; Patterson v. Martz, 8 Watts, 374; Brady’s Appeal, 66 Pa. 277.
    Doors of equity are shut against one who in his prior conduct in the very subject-matter at issue, has violated good conscience, good faith and fair dealing: Orne v. Coal Co., 114 Pa. 172; Cortelyou’s Appeal, 102 Pa. 576.

      F. M. Biddle, Jr., and F. F. Beltzhoover, for appellee.
    — The court below found as a fact that the bill gives the correct version of the transaction between the parties and no element of fraud or deceit on the part of the plaintiff has been shown. Parties to a contract may not testify as to their undeclared intentions at the time the contract was formed: Spencer v. Colt, 89 Pa. 314; Building Association v. Hetzel, 103 Pa. 507.
    The answer was not responsive to the bill. If a contract be set forth and the defendant be called on to answer it, a denial that it exists, modo et forma, would not be good; the defendantshonld state how it existed and wherein it had no existence: Pusey v. Wright, 31 Pa. 387; Railroad Co.’s Appeal, 3 Penny. 164; Bell v. Bank, 131 Pa. 318.
    April 19, 1897:
    The answer not being responsive and having been replied to the court below properly held that upon defendant rested the burden of proving, by clear and satisfactory evidence, some facts which would justify the conclusion that she had been deceived or overreached by the plaintiff: Audenreid’s Appeal, 89 Pa. 114; Naglee’s Est., 52 Pa. 154.
    The terms of the written agreement were sufficiently certain to sustain a decree for specific performance: Thompson v. Coal Co., 7 Phila. 617; Payne v. Howard, 117 Pa. 579.
    A description by quantity is, in its nature, the least certain. It is to the boundaries the grantee must look; he has a right to all the land within them. The quantity is a matter of calculation, and be it more or less, it passes: Large v. Penn, 6 S. & R. 488; Koch v. Dunkel, 90 Pa. 264.
   Opinion by

Smith, J.,

The material averments of the bill ill this case set forth a written contract for the sale of a lot of ground, part payment of the purchase money, a tender of the balance, and demand for a deed as called for in the writing. The prayer was for specific performance. The answer denies that the contract was completed and alleges that the writing was not delivered to the plaintiff in execution of the agreement but to be handed to the defendant’s attorney, and that the plaintiff retained it without authority. The cause was tried before the president judge who, after hearing the evidence submitted by both parties and the arguments of counsel, granted the prayer of the bill. From this decree the defendant appealed.

The testimony was abundant to warrant the action of the court. There was a written agreement signed by both parties, in which the land was described with sufficient certainty, and the price, the time of payment and when the deed was to be delivered, were accurately stated. The first payment was made when the plaintiff received the written agreement and the balance was tendered at the time called for in the contract. When the tender was made two witnesses who were present testified that they saw the money offered to the defendant which she refused. They also stated that they heard her admit that she had sold the lot to the plaintiff by written agreement and that he had paid 'her $100 of the purchase money. The testimony of these witnesses is substantially the same as that of the plaintiff as to what then occurred and was not denied by the defendant. The testimony of these witnesses with that of the plaintiff as to the entire transaction, the written contract held by him, the payment of the first instalment and its retention by the defendant, were clearly sufficient to outweigh the denial of the defendant and the additional testimony adduced in her behalf. It is not alleged that the price was inadequate or the bargain improvident.

The remarks of the learned judge that some parts of the answer were not responsive to the bill and therefore the burden as to those matters was cast upon the defendant are of no importance because, at the hearing, the plaintiff was required to prove his entire case irrespective of any alleged defects in the answer, and the motion to the effect “ that the answer is not responsive to the bill, and that unless the defendant makes out a defense by independent testimony the decree will be made pro confesso was overruled by the court.

The offers of evidence the exclusion of which is complained of in the 1st and 2d assignments of error, called for conclusions rather than statements of fact and were properly overruled. Furthermore, the defendant subsequently testified substantially concerning them. It is needless to enter upon a discussion of the law applicable to the facts, as it was duly observed by the learned court in the disposition of the case. The controlling question was one of fact and that was determined in accordance with the weight of the evidence.

The specifications of error are overruled and the decree is affirmed.