author: Willard, J.,

text:
    Joseph Milleisen v. Michael Senseman, Appellant.

      Judgment — Binding effect of — Presumption of validity.

    An actual judgment by a court of competent jurisdiction is never to .be treated as a nullity in the first instance. He who purchases land liable to a judgment lien cannot have the judgment vacated for irregularity to avoid the lien.

      Judgment not to be attached collaterally.

    An actual but irregular judgment entered on the records of a court without authority, can only be reversed on a writ of error or set aside in the court below, on motion; and only at the instance of the defendant, a stranger or third party has a right to interfere with the judgment only when collusive.

      Title of sheriff's vendee not affected by irregularities after acknowledgment.

    After the acknowledgment of a sheriff’s deed in open court, the title of a sheriff’s vendee cannot be affected by mere irregularities however gross.

      Buies of court — A court is best judge of its mon núes.

    Every court is the best judge of its own rules and will not be reversed ' except for palpable error. The construction put by the court below upon its own rules is entitled to consideration by the appellate court.

      Buies of court — Compliance with, nunc pro tunc — Entry of judgment.

    A judgment note entered after ten years without motion and affidavit in support thereof as required by rule of court is voidable only and not void; and the court may permit a compliance with its rule nunc pro tunc.
    A sheriff’s vendee under such voidable judgment will not be disturbed by a vendee of the defendant who took subject to the lien of the said judgment which he may not collaterally attack in ejectment proceedings against the said sheriff’s vendee.
    Argued March 11, 1897.
    Appeal, No. 30, March T., 1897, by defendant, from judgment of C. P. Cumberland Co., on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Ejectment. Before E. W. Biddle, P. J.
    The facts sufficiently appear in the opinion of the court.
    The trial judge directed a verdict for plaintiff subject to the reserved question of law whether under all the evidence in the case the entry of judgment, No. 104, Feb. T., 1895, and the subsequent proceedings thereon, by execution and sale, passed a valid title to plaintiff for William G. Senseman’s undivided interest in the land described in the writs.
    Verdict for plaintiff for the land described in the several writs. Defendant appealed.

      Frror assigned was the entry of judgment on the verdict.

      J. W. Wetzel, for appellant.
    — The crucial question is whether there was a judgment in the court of common pleas at all prior to March 1,1895, and not as assumed by the court below, that there was a voidable judgment.
    There is nothing in the point made by the learned court below in our view of the case, that no one but Wm. G. Senseman can question the entry of judgment on the Milleisen note, because, as to him, if he had applied to strike it off, the court would have refused and on motion of plaintiff made just such an order as was made by the learned court below in this case: Emery v. Smith, 2 Dist. Rep. 133; Herman v. Fisher, 106 Pa. 121.
    A purchaser is not bound to notice a deed or mortgage defectively registered, nor a judgment or lien which appears on its face to be a nullity: Goepp v. Gartiser, 35 Pa. 130; Bolton v. Johns, 5 Pa. 149; Uhler v. Hutchinson, 23 Pa. 110; Myers v. Boyd, 96 Pa. 427.
    The nearest case in Pennsylvania approaching this one is that of Woods v. Woods, 126 Pa. 396.

      W. Penn Lloyd and F. IT. Soffer, with them W. F. Saddler, for appellee.
    — A judgment is not void which is entered by the prothonotary in a court of competent jurisdiction. The judgment was entered under authority from the defendant and in the very court in which he had authorized it to be entered. It was duly indexed in the judgment docket and its entry appeared to be regular in all respects: Helvete v. Rapp, 7 S. & R. 306; Northumberland Bank’s Appeal, 100 Pa. 418. It had therefore the qualities of a verdict: Braddee v. Brownfield, 4 Watts, 474.
    Even had the instrument not been within the rule of court it would not have been void: Railroad Co. v. Hamilton, 127 Pa. 1.
    A judgment is void only when it is incapable of giving or continuing a lien: Edwards’ Appeal, 66 Pa. 89.

      April 19, 1897:
    There is nothing better settled than that a judgment is never to be treated as a nullity in the first instance: Hauer’s Appeal, 5 W. & S. 473.
    If the judgment was voidable the defendant alone was competent to request the intervention of the court and this by direct proceedings: Brundred v. Egbert, 164 Pa. 620.
    It cannot be attacked collaterally: Breckwoldt v. Morris, 149 Pa. 291; Holshue v. Morgan, 170 Pa. 217.
    A bona fide purchaser of lands at sheriff’s sale, subsequently in dispute in ejectment, section 9 of the Act of 1705, 1 Sm. L. 57, a complete protection against every defect or irregularity, except when the judgment was absolutely void upon it face: Speer v. Sample, 4 W. 367; Shannon v. Newton, 132 Pa. 375.
    After acknowledgment of a sheriff’s deed in open court the title of the vendee cannot be affected by mere irregularities, however gross: Levan v. Milholland, 114 Pa. 49.
   Opinion by

Willard, J.,

By the death of Joel Senseman on the 4th of December, 1894, who died intestate, his son W. G. Senseman became vested with an undivided sixth interest in the title to three farms in the county of Cumberland. At the time of his father’s death he was indebted to the estate in the sum of about $3,300. On the 18th day of December, 1894, W. G. Senseman conveyed this interest in the said farms to his three brothers and sisters. The sisters subsequently made conveyances by which one of the farms was vested in each of the three brothers who were defendants in the actions of ejectment in the court below. On the 17th of March, 1884, W. G. Senseman made and delivered his promissory note to Joseph Milleisen and son for $398.10; the note was made payable one day after date and contained a warrant of attorney to confess judgment. On the 11th day of December, 1894, Milleisen and son presented the note at the prothonotary’s office, requesting the prothonotary to enter judgment thereon, which was done in pursuance of their request, and duly entered and docketed according to law. Rule 131 of the court of common pleas of Cumberland county is as follows: “ If a note, bond or other instrument containing a confession of judgment or warrant of attorney to enter judgment be above ten years old and under twenty, the court or a judge thereof, in vacation must be moved for leave to enter judgment, which motion must be grounded on an affidavit that the instrument was duly executed and that the money is unpaid and the party living. When the instrument is above twenty years old there must be a rule to show cause, served on the defendant if he can be found in the county.” The judgment of Milleisen and son against Senseman was entered without complying with the above rule of court, but on the 1st day of March, 1895, an affidavit was filed in pursuance of the rule of court and the court moved for leave to file the same nunc pro tunc, and the said judgment entered be approved, and upon the filing of the said affidavit the court made the following order: “And now, the 1st of March, 1895, leave is granted as within moved for, and the judgment entered is approved without prejudice however to any intervening rights of creditors or others.” On March 4, 1895, a fieri facias issued on the judgment of Milleisen and son and upon an alias fieri facias, issued September 8,1895, the interest of W. G. Senseman in the three farms above referred to was sold on the 8th day of November, 1895, to the plaintiff, Joseph Milleisen and a sheriff’s deed therefor duly executed, acknowledged and delivered to him. The plaintiff claimed title by virtue of his sheriff’s deed and the defendant by virtue of the deed from W. G. Senseman of the 18th of December, 1894, and the subsequent deeds from the sisters above referred to. At the trial the court reserved the question of law “ whether under all the evidence in the case, the entry of the Milleisen judgment and the proceedings thereon by execution and sale, passed a valid title to the plaintiff for W. G. Senseman’s undivided interest in the land described in the writ.” A verdict was rendered for the plaintiff, the court reserving the point of law as above stated. Subsequently the court by opinion filed determined the reserved question of law in favor of the plaintiff and directed judgment to be entered on the verdict, the court holding that the judgment in favor of Milleisen and son against W. G. Senseman entered on the 11th of December, 1894, was voidable only and could be attacked by no one but the defendant therein, and therefore the sheriff’s sale thereunder passed a good title to the plaintiff.

This is an attempted collateral attack upon the judgment of Joseph Milleisen and son against W. G. Senseman. Upon this judgment there was a sheriff’s sale. The appellee was the purcbaser and derived his title by virtue of his purchase at the sale and his deec[ from the sheriff of Cumberland county for the land described in the writ.

It is claimed that the judgment was void because entered contrary to rule of court. The defendant made no complaint on account of the manner in which the judgment was entered, he did not deny its validity nor complain of the lapse of time intervening between the date of the warrant of attorney and the entry of the judgment. He never took any step to have it opened or vacated. A direct attack by him might have resulted in the opening of the judgment and staying the proceedings and for sufficient cause, alleged and proved he might have had the judgment vacated. He did nothing. The appellant’s attack is unquestionably a collateral attack upon a judicial proceeding, and to make it successful he must show an entire want of power or collusion and fraud between the parties. There is no allegation of want of legal organization in the court, nor want of jurisdiction over the subject-matter or over the parties to the judgment, nor of the loss of jurisdiction once obtained, nor is fraud or collusion alleged. But it is contended that the judgment is absolutely void because the rule of court was not followed. The note and warrant of attorney were received and docketed as the judgment of the court, and as such it must stand unless legally vacated at the instance of a proper party.

u Nothing is better fortified by authority both British and American than that an actual judgment by a court of competent jurisdiction is never to be treated as a nullity in the first instance: ” Hauer’s Appeal, 5 W. & S. 478.

“A judgment of a justice, for a sum exceeding his jurisdiction, having been docketed, it cannot be treated as a nullity, and even if it could, its validity can only be questioned in a scire facias to revive it by a plea of nul tiel record: ” Walker v. Lyon, 3 P. & W. 98.

“ A judgment entered on a scire facias post annum et diem based upon a previous judgment that was void, or on one, of which there is no record, is not therefore void, but may be sustained as a new judgment. If the parties to it do not object, strangers cannot complain of it: ” Buehler’s Heirs v. Buffington, 43 Pa. 278.

The judgment was irregularly entered and was voidable. But what standing had this appellant to attack its validity ? He purchased the land incumbered with the .lien of the judgment, and in defending against the appellee’s title attacks it on the ground that it was irregularly entered. This he cannot do, for if any rule is firmly established it is that he who purchases land liable to a judgment lien cannot have the judgment vacated for irregularity to avoid the lien. “ An actual but irregular judgment entered on the records of a court without authority, can only be reversed on a writ of error, or set aside in the court below, on motion; but only at the instance of the defendant, a stranger or third party has a right to interfere with the judgment, only when it is collusive: ” Drexel’s Appeal, 6 Pa. 272. This rule has been adhered to in a long line of decisions from Drexel’s Appeal to Holshue v. Morgan, 170 Pa. 217. In Edwards’ Appeal, 66 Pa. 89, it was said, “ The judgment so confessed was good against him and sufficient to continue the lien and nobody else can complain, and he does not.” Nor is the rule modified in Woods v. Woods, 126 Pa. 396. In that case the application was by the defendant and nothing in this opinion is intended to deny the right of either plaintiff or defendant to move to vacate a judgment improperly entered.

The force and effect of the sheriff’s sale to the appellee, the acknowledgment and delivery of the sheriff’s deed for the disputed premises to him cannot be ignored. In McFee v. Harris, 25 Pa. 102, it was said, “ after acknowledgment of a sheriff’s deed in open court, the title of a sheriff’s vendee cannot be-affected by mere irregularities however gross.” To the same effect is Wilkinson’s Appeal, 65 Pa. 189; Atkinson v. Tomlinson, 91 Pa. 284; Hering v. Chambers, 103 Pa. 172; Levan v. Millholland, 114 Pa. 49.

The construction placed upon the rule of court by the learned trial judge in the court below is not without weight, and is entitled to our consideration, for it has been held repeatedly that every court is the best judge of its own rules, and unless we are satisfied that the construction is erroneous we will not reverse the judgment. Upon a careful consideration of the record in this case we are of the opinion that no error was committed and the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph Milleisen v. John J. Senseman, Appellant.
    Argued March 11, 1897.
    April 12, 1897:
    Appeal, No. 31, March T., 1897, by defendant, from judgment of C. P. Cumberland Co., on verdict for plaintiff.
    Before Bice, P. J., Willabd, Wickham, Beaveb, Reeder, Oblady and Smith, JJ.
    Affirmed.
   Opinion by

Willard, J.,

For the reasons given in our opinion this day filed in Joseph Milleisen v. Michael Senseman, ante, p. 455, the judgment of the court below is affirmed.


author: Willard, J,

text:
    Joseph Milleisen v. Harry Senseman, Appellant.
    Argued March 11, 1897.
    April 12, 1897:
    Appeal, No. 32, March T., 1897, by defendant, from judgment of C. P. Cumberland Co., on verdict for plaintiff.
    Before Rice, P. J., Willabd, Wickham, Beaveb, Reeder, Oblady and Smith, JJ.
   Opinion by

Willard, J,

For the reasons given in our opinion this day filed in Joseph Milleisen v. Michael Senseman, ante, p. 455, the judgment of the court below is affirmed.


author: Orlady, J.,

text:
    James C. Roller and C. F. Shoemaker, partners trading as Roller & Shoemaker, v. W. N. Meredith, Appellant.

      Statute of limitations — -Debt not grounded, upon lending or contract.

    In au action on a recognizance of bail for stay of execution, begun by writ of sci. fa. the remedy might as well have been by action of debt and the bar of the statute cannot be pleaded, — the cause of aefion being without specialty but not grounded upon any lending or contract.

      Statute of limitations — Oause not form of action determines the bar.

    In determining whether the statute of limitations is a bar in any particular case, regard must be had to the cause and not to the form of action ; whenever the cause of action is such as would be subject to the bar if prosecuted under any form then the statute is applicable, otherwise not.

      Appeals — defective record — Absence of assignments.

    Where the record does not show that a judgment was entered on the decree of the court and where no exception was asked for or allowed in the court below and no assignment of error has been filed, there is nothing on the record for the appellate court to decide.
    Argued March 15, 1897.
    Appeal, No. 5, March T., 1897, by defendant, from judgment of C. P. Franklin Co., Feb. T., 1896, No. 151, on case stated.
    Before Willard, Wickham, Beaver, Reeder, Orladt and Smith, JJ.
    Affirmed.
    Case stated on appeal from justice. Before Stewart, P. J. The case stated was as follows :
    And now January 27, 1896, it is hereby agreed by and between the parties to the above suit, that the following case be stated for the opinion of the court in the nature of a special verdict. Roller and Shoemaker the plaintiffs above named on December 28, 1888, recovered a judgment against E. Goss, before M. J. Slick, Esq., a justice of the peace within and for the county and state aforesaid in the sum of $67.55 with costs of suit.
    On the same day to wit: December 28,1888, W. N. Meredith became bail for stay of execution upon the above cited judgment. No execution was ever issued against Goss, and nothing more was done by the plaintiffs until December 27, 1895, when they issued a scire facias against the said W. N. Meredith, to show cause why they should not have execution against him in satisfaction of the above judgment.
    The sci. fa. was returnable to January 3, 1896, when the plaintiffs appeared before the magistrate by counsel and the said W. N. Meredith appeared in his own person, and pleaded the bar of the statute of limitations to the action against him.
    By agreement of both parties the case was continued to January 10, when the case was argued by counsel and the justice deferred his judgment to January 17.
    January 17,1896, the justice gave judgment against the plaintiffs for costs, upon the ground that the statute of limitations was a bar to the action.
    January 24, 1896, plaintiffs appealed from the judgment of the justice, and filed their appeal in the common pleas the same day.

      If the court be of opinion that the statute of limitations is not a bar to the action, then judgment to be entered for the plaintiff in the sum of $94.40 and costs; but if the court is of opinion that the statute of limitation is a bar to the plaintiff’s recovery, then judgment to be entered for the defendant for costs. The costs to follow the judgment and either party reserving the right to sue out a writ of error.
    Following is a copy of the recognizance :
    “Dec. 28,1888.

      “ I agree to become'bail absolute in the sum.of One Hundred and Thirty Dollars for stay of execution in the above case.
    “ (Signed,) W. N. Meredith.”
    The opinion and decree of the court, by Stewart, P. J., is as follows:
    “ In determining whether the statute of limitations is a bar in any particular case, regard must be had to the cause and not to the form of the action. ‘ It may be stated as a general rule, that whenever the cause of action is such as would be subject to the bar, if prosecuted under any of these forms, then the’ statute is applicable; otherwise not: ’ Hannum v. Borough of West Chester, 68 Pa. 475.
    “ Here the question is raised in an action on a recognizance of bail for stay of execution, begun by a writ of scire facias. Considering the cause of action, the remedy might as well have been by action of debt. As such it is to be regarded for present purposes. Can the bar of the statute be pleaded against it?
    “ The statute makes subject to the bar, ‘ All actions of debt, grounded upon any lending or contract, without specialty.’
    “ The cause of action here is without specialty, and the one question presented is, whether it be grounded upon any lending or contract. If so the bar of the statute will prevail; otherwise not.
    “ While I have no case at hand, directly in point, in which the applicability of the statute to recognizances for bail is ruled, yet an entirely safe conclusion can be reached in the light of the construction given to the words of the statute in Richards -v. Bickley, 13 S. & R. 395. In that case the action was in debt on a foreign judgment, but the reasoning of the court is as applicable as though it had been founded on a recognizance.

      “ It is said,” says Duncan, J., “ that all actions as well of debt as of assumpsit, are debts on simple contracts and therefore within the words of the statute. The words are, ‘ All actions of debt, grounded on any lending or contract without specialty.’ If it had been all actions of debt, without specialty, this action would have been included; but all actions of debt without specialty are not limited, but those only grounded on a lending or contract, and this action is not founded on any lending, and therefore not limited, though it be without specialty. All actions of debt are founded on contracts in deed or in law; and if it had been intended to limit all actions of debt generally, the words, ‘ grounded on any lending' or contract,’ would have been superfluous. But the statute was only intended to limit those actions which are grounded upon any lending or contract in fact, and the word lending explains the word contract to be of the same nature; and as early as 20 Car. 2, this construction was put on these words in Hoddsen v. Iiarridge, 2 Saund. 65, and the principle has ever since prevailed. It was the construction of the English Statute when our act was passed.”
    “ A recognizance of bail for stay of execution is no more a lending or contract than a foreign judgment. Any action upon it is of course founded upon a contract, but not on such contract in fact as is contemplated by the Statute.
    “ It follows that the case is with the plaintiff, and now March, 1896, judgment is ordered on the case stated in favor of the plaintiff and against the defendant, for the sum of ninety-four dollars and forty cents ($94.40) with costs.”
    The record disclosed no judgment entered and no assignments of error.

      Linn Harlaugh, for appellant.
    — Chief Justice Gibson repeatedly terms a recognizance of this kind a contract — an original undertaking: Wolfe v. Nesbit, 4 W. & S. 312. See also, Jones v. Bomberger, 97 Pa. 432; Jones v. Raiguel, 97 Pa. 437.
    6r. W. Atherton, for appellee.
    — The common law fixed no time as to the bringing of actions. Limitations derive their authority from statute: U. S. v. Thompson, 98 U. S. 486.
    A recognizance is an obligation of record entered into before some court of record or magistrate duly authorized: 2 Black.’s Com. 341; Respublica v. Cobbett, 3 Dal. (U. S.) 475.
    April 19, 1897:
    The object of the scire facias is to notify the cognizor to appear and show why execution should not issue for the sum acknowledged: State v. Warren, 17 Tex. 283.
    The statute does not apply when the subject of the action is a debt of record: Dehaven v. Bartholomew, 57 Pa. 126.
    It has always been held that the bail on appeal from a magistrate is not entitled to the benefit of the statute: Edwards v. Withrow, 22 W. N. C. 576.
    A judgment in a justice’s court is not within the .statute of limitations: Pease v. Howard, 14 Johns. 479.
   Opinion by

Orlady, J.,

This is an appeal from a judgment ordered by the court below upon a case stated, but the record does not show that a judgment was entered thereon; that any exception was asked for or allowed in the court below. No assignment of error has been filed and there is nothing on this record for us to decide: Shaffer v. Eichert, 132 Pa. 285.

However the case has been examined as if regularly in court and the decision below was correct.

The judgment is affirmed.


author: Beaver, J.,

text:
    John Shires, now for use of H. J. Shaylor and G. M. Clark, doing business as Shaylor & Clark, Appellant, v. William O’Connor.

      Contract — TSntire contract.

    A contract which has for its object “ to cut and peel the hemlock timber standing or lying upon certain land, to cure the bark and load it on the cars; to. trim and cut the timber into log lengths and to deliver on the banking grounds on or before a given date ” is an entire contract. It was one undertaking, though made up of several items; there was one price, though for convenience, because the work was to be paid for as-it progressed it was to be apportioned to the sevérai items, and there being a further stipulation reserving ten per centum until the completion of the contract, does not affect the entirety of the contract.

      Contract — Substantial performance — Question for jury.

    The question of substantial compliance with a contract is one for the jury and the jury was correctly instructed on the modern equitable doctrine, that if there had been substantial compliance with the contract the plaintiff would be entitled to recover if a few items had been overlooked, in the case at bar, if a few trees were left uncut and a limited number of logs were undelivered.

      Measure of damages — Contract—Substantial performance.

    The measure of damages for a partial failure of a contract, if found by the jury to have been substantially performed, is the loss, if any, which the defendant has sustained on that part of the contract work remaining uncompleted.

      Evidence — Offers based on comparisons and opinions inadmissible.

    On a question of substantial performance, evidence is properly excluded which instead of presenting facts from which the jury could judge of the completeness of plaintiff’s work contained comparisons with other similar jobs in the neighborhood and the mere opinions of witnesses.

      Practice, C. P. — Refusal to grant exceptions — When not arbitrary.

    A refusal to grant an exception is not arbitrary when based on the following reason given: “We decline to give any more exceptions on this subject. We have already given exceptions that will cover it.” It appearing that similar questions were asked other witnesses which upon objection, were ruled out and as to which rulings the court granted exceptions which are not assigned for error.
    Argued Feb. 18, 1897.
    Appeal, No. 34, Feb. T., 1897, by plaintiff, from judgment of C. P. Tioga Co., Sept. T., 1895, No. 557, on verdict .for defendant.
    Before Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Assumpsit upon contract for cutting and peeling hemlock timber, etc. Before Mitchell, P. J.
    The plaintiff brought suit to recover the balance of about $701 alleged to be due on a contract to cut and to peel the hemlock timber, standing or lying upon a certain tract of land; to cure the bark properly and to load it on the cars; to trim and cut into lengths and to deliver on the banking ground.
    The agreement further provided that in consideration of the faithful performance of all the agreements, the party of the first part agrees to pay the party of the second part $3.50 per cord of twenty hundred pounds, purchaser’s measure, for the bark, and $3.50 per thousand feet for the logs, payment to be made by the party of the first part each month preceding, reserving ten per cent until completion of the contract when full payment will be made.

      The defense was that there had not been a complete and substantial performance of the contract.
    The court construed the contract to be an entire one and instructed the jury that there must be substantial compliance therewith to entitle the plaintiff to recover and left the question of such substantial performance to the jury.
    Verdict for defendant. Plaintiff appealed.

      Errors assigned among others were (10) answer to the defendant’s seventh point, which point was as follows: “ 7. The contract is entire and not severable, and the verdict must be for the defendant unless the jury find from the evidence that the plaintiff has fulfiled the terms thereof. Answer: We must qualify this to correspond with what we have already said to you; that the contract is so far entire as to require a substantial compliance with its terms on the part of the plaintiff before he can recover.”
    (Assignments one and thirteen related to the same question of the entirety of the contract.) (2) Answer to the plaintiff's fourth point, which point and answer are as follows: “ 4. If the jury believe from the evidence that in July, 1894, plaintiff Shires and defendant settled, and that defendant then paid plaintiff in full for all logs and bark before that time delivered, and for a quantity of logs on skidways and that defendant did not then retain, but paid the ten per centum of the price of said logs and bark, which by the terms of the. contract he might have withheld, then the court instructs you as a matter of law, that defendant cannot now retain a sum of money equivalent to the ten per cent so paid, from the balance of money if any which the jury may find from the evidence is now due under said contract. Answer: This point as stated generally is refused. But we say to you that if the plaintiff did substantially complete the job under the contract, that in that case the defendant cannot retain any more of the money unpaid upon the contract than is sufficient to compensate him reasonably for the damages he has sustained by the failure of the plaintiff to complete the job substantially according to the express terms of the contract.”
    (The third, sixth, seventh, eighth, ninth, eleventh and twelfth assignments raised the same point.) (4) Answer to plaintiff’s sixth point, which point and answer are as follows: “6. The measure of damages for a partial failure of performance of the contract in evidence is the loss if any which defendant has sustained on that part of the contract work remaining uncompleted. If work remains to be done under the contract, and the defendant at or within a reasonable time after plaintiff quit work, could have done or hired such remaining work done at the contract price or for a less sum, the defendant has sustained no damage and the jury cannot allow any. Answer: We decline to affirm this point precisely as it is stated. But we do affirm it with the qualification which we will interline when it will read as follows : The measure of damages for a partial failure of the contract in evidence is the loss, if any, which the defendant has sustained on that part of the contract work remaining uncompleted. If any considerable work remains to be done under the contract and the defendant at or within a reasonable time could have done or hired such remaining work done at the contract price or a less sum the defendant has sustained no damage and the jury cannot allow any. As qualified we affirm this point. And it is an important point in the case. But before applying the law as stated in this point, it is necessary for the jury to consider all the evidence bearing upon the question as to what timber the plaintiff undertook to peel and how far in fact, he did peel the timber and cut the logs, etc., as the contract requires, and if he failed in peeling and clearing the land as he agreed to only in some unimportant part, of the character we have spoken of, then, the point which we have qualified and stated to you would be applicable. But if you are satisfied from the evidence that he did not thus fully to that extent, that a reasonable exercise of judgment in the business of lumbering would require him to clear the land, then, as I have already said to you, there could be no recovery under the contract for anything at all; because the plaintiff has not performed the contract he has undertaken to perform as the law contemplates he should.
    “As there is no dispute under the evidence as to the amount that remains due under the contract for the timber and bark actually delivered after deducting the payments that were made upon the contract by the defendant; I believe there is no dispute that according to the express terms of the contract that amount is substantially as it is laid in the plaintiff’s claim which is $701 and some cents. I think there is no dispute on that question. So that it would follow from the application of this point, if you reach the conclusion that the plaintiff, John Shires, and those who worked under him, did not clear off the land he undertook to clear, in the manner we have spoken of, did not substantially comply with this contract, then there could be no recovery even under the rule as stated in this point and as qualified by the court.”
    (14) In refusing to give the plaintiffs an exception to the ruling of the court in striking out the answers of plaintiff’s witness, Ernest Watkins, to questions asked him by plaintiff’s counsel, which questions and answers and ruling of the court are as follows : “Q. Now you may state if from your experience and observation as a lumberman, would prudent and proper lumbering have required the removal of those trees from the land, under contract to clear the land of merchantable timber down to ten inches and the bark. A. With the exception of three trees the job was done as well as any in that country, cleared up as well as any.”
    Defendant’s counsel moved to strike out the answer of the witness as not being responsive to the question, and for the reason it gives a comparison of this job with other jobs, and that is not the question. The question is, Was this job done in a prudent, careful manner; would a prudent, careful lumberman have taken off these trees ?
    By the Court: We think we must strike that evidence out. The witness did not answer in a proper manner. We strike out that answer, and the jury must not consider it.
    Question read to the witness: A. As I said before, with the exception of those three trees the job was cleaned off, up, in good shape.
    By the Court: That answer we think should be stricken out. It is substantially the same that was formerly stricken out by the court. It involves an expression of the witness upon the general question which we think is for the determination of the jury and not for the determination of the witness. The witness may answer only whether or not it was prudent and economical management in lumbering there upon those premises as he had testified he found them.
    Counsel for plaintiff ask for an exception.

      By the Court: We decline to give any more exceptions on this subject. We have already given exceptions that will cover it.

      J. W. Mather and N. H Ryan, with him S. H. Wilson, for appellant.
    — The contract was severable and not an entire contract.
    The case of Preston v. Finney, 2 W. & S. 53, is authority upon this point, as also Wilhelm v. Caul, 2 W. & S. 26, also Oil Co. v. Brewer, 66 Pa. 351; Morgan v. McKee, 77 Pa. 228; Rugg & Bryan v. Moore, 110 Pa. 236; Gill v. Lumber Company, 151 Pa. 534; 2 Parsons on Contracts, 29-31; Robinson v. Snyder, 25 Pa. 203; Fessler v. Love & Powell, 43 Pa. 313.
    The plaintiff contends that when William O’Connor, the defendant, accepted the five thousand and fifteen cords and seven hundred and seventy-nine pounds of bark and paid for it in full, and when he accepted five million seven hundred and sixty-eight thousand eight hundred and twelve feet of logs and paid for them, all but f55.ll, he abandoned the strict terms of that part of the contract which provides for the “ reserving ten per centum until the completion of the contract,” and cannot now go back on that much of the contract, for it is settled and ended. All he could do w;ould be to retain ten per cent upon the balance of the logs undelivered, which principle is well settled in the case of Coal Co. v. Coal Co., 57 Pa. 301.

      Horace B. Baclcer and David Qameron, for appellee.
    — The contract was clearly an entire one and the statement of the law by the court below on the question of substantial performance is very liberal to the plaintiff: Pallman v. Smith, 135 Pa. 188.
    If an exception had been granted covering these answers, the court was clearly right in refusing another: Com. v. Arnold, 161 Pa. 320.
    If none had been granted covering the evidence contained in those answers it was the duty of plaintiff’s counsel to so inform the judge and tender him a bill for his examination and signature.
    Having failed in this plain duty to the judge as well as to their client, their complaint is without reason. Something must be left to the discretion of the trial judge in granting and

      April 12, 1897:
    refusing exceptions, otherwise it would be in the power of counsel to impose intolerable burdens on him and prolong trials beyond human endurance. A refusal to grant a bill of exceptions is not assignable as error: Com. v. Arnold, 161 Pa. 320; Patterson v. Kountz, 63 Pa. 246; Morberger v. Hackenburg, 13 S. & R. 26.
    The action taken is not the remedy by which the error complained of can be either heard or corrected: Com. v. Arnold, 161 Pa. 320.
   Opinion by

Beaver, J.,

Shaylor & Clark, the use plaintiffs in this case, sought to recover from the defendant a balance alleged to be due them under a contract under seal between Shires, the legal plaintiff, and O’Connor, under which the former agreed “to peel the balance of the timber standing on the lands of the Blossburg Coal Co. lying between Arnot & Corduroy Road leading to the Long Run Railroad ; ” “ to cut and to peel the hemlock timber standing or lying on above named land down to ten inches in diameter at the stump and up to six inches in diameter at the top,” “ to cure the bark properly and to load it on the cars of the Long Run Railroad in good order for transportation on or before the 1st day of October, 1893; ” “ to trim and cut into log lengths and to deliver on the banking ground at upper end of Long Run Railroad on or before the 1st day of April, 1894.” Provision is also made in the agreement for the manner in which the logs are to be cut and piled. The agreement provides further :' “ In consideration of the faithful performance of all the agreements, the party of the first part agrees to pay the party of the second part $3.50 per cord of twenty hundred pounds, purchasers’ measure, for the bark, and $3.50 per thousand feet for the logs; all logs to be scaled by the Company’s Scaler and by the Doyle rule; payment to be made by the party of the first part each month for the bark and logs delivered the calendar month preceding, except and reserving ten per centum until the completion of this contract, when full payment will be made.”

The plaintiff below declared upon this contract, alleging that there was due him upon the entire work the sum of $701.36. The testimony in the case is voluminous. Numerous points were presented by the appellant and the appellee and the assignments of error number fourteen. They relate principally to the answers of the court below to the points of the plaintiff and defendant but resolve themselves into four questions :

1. As to the entirety of the contract. Was it an entire contract or was it severable ?

2. As to the rule of substantial compliance.

3. As to the measure of damages, and

4. As to the refusal of the court to grant exceptions in regard to the testimony of Ernest Watkins.

The first, tenth and thirteenth assignments relate to the question of the entirety of the contract. The court properly held that the contract was entire. Quigley v. DeHaas, 82 Pa. 267, is an authority directly in point. The subject of the contract was the peeling of the bark from the timber upon the lands described in the agreement and the cutting into log lengths and removal of the timber so peeled. Although these items are separately described, they are, nevertheless, part of one entire job. It is true that the appellee agreed to pay a separate price for the peeling and delivery of the bark and the cutting and hauling of the logs, but these prices are to be paid “ in consideration of the faithful performance of all the agreements ” and as in Quigley v. DeHaas, supra, there is a reservation of “ten per centum until the completion of this contract, when full payment will be made.” It was said by Mr. Justice Gordon in the case above cited “ that this provision was designed to secure the proper completion of the whole work is not open to doubt and, if the plaintiff is permitted to recover full price for a partial performance, it is certain that this covenant is in effect abrogated.”

The appellant had the full benefit of a very liberal holding and fair statement in various forms of the modern equitable doctrine of substantial compliance, leaving as was meet the question as to the fact of such compliance entirely to the jury. The second, third, sixth, seventh, eighth, ninth, eleventh and twelfth assignments of error may all be grouped under this one subject. The court below held in the general charge and in the answers to points that, if there had been substantial compliance with the contract, the plaintiff would be entitled to recover, even if a few trees were left uncut and a limited number of logs were undelivered. The rule laid down in Pallman v. Smith, 135 Pa. 188, was substantially followed by the court below. In that case the court below said: “So in this log contract, if the plaintiff substantially fulfilled his contract by cutting the logs and delivering them substantially as he had agreed to, then he can recover, although there may be a few logs that were not delivered. If they were logs that were covered by the falling of the trees so that they could not be seen at the time of hauling the logs or logs that were covered deep in the snow so that they could not be hauled — even a small amount I mean — that would not be a substantial failure to comply; but, if there was a large amount of logs left on the land and the job was so carelessly and recklessly done that you could see it was only partially done, the plaintiff could not recover at all.” This language was approved by the Supreme Court and it is practically what was said to the jury in the present case. The entire question as to whether or not the job was substantially completed or was performed in such a faulty and negligent manner as was contrary to proper and prudent lumbering was fully and fairly submitted to the jury. In the former ease the court told the jury that there could be a recovery, subject to a deduction for the actual cost of finishing the job. In the latter case there could be no recovery. What more could the appellant ask, if the contract was entire, as it undoubtedly was ?

In case of a recovery, that is, in case the jury found a substantial compliance with the contract, the measure of damages, as laid down by the court in answer to the plaintiff’s sixth and seventh points, as contained in the fourth and fifth assignments of error was substantially correct. It is the rule laid down in Sticker et al. v. Overpeck, 127 Pa. 446, and in Gallagher v. Sharpless, 134 Pa. 134.

As to the fourteenth assignment of error, which relates to the testimony of Ernest Watkins, the court was clearly right in striking Out the answers of the witness to which objection was made. Instead of facts from which the jury could judge of the completeness of the plaintiff’s work, they contained comparisons with other lumber jobs in the neighborhood and the mere opinions of the witness. The refusal to grant an exception was not arbitrary but for the reason, as the court said that “We decline to give any more exceptions on this subject; we have already given exceptions that will cover it.” Bésides tins such a refusal is not assignable for error. An examination of tbe testimony shows that similar questions were asked other witnesses which, upon objection, were ruled out and as to which rulings the court granted exceptions but which are not assigned for error. The plaintiff, therefore, suffered nothing by the refusal to grant this particular exception.

A careful review of the whole case shows no substantial error of which the appellant can justly complain. The judgment is therefore affirmed.


author: Rice, P. J.,

text:
    Andrew Stephan v. Mary Hudock, Appellant.

      Married women — Contractual capacity under Act of 1887.
    Since the passage of the Act of June 8, 1887, P. L. 822, a married woman's confession of judgment is presumably valid. It is no longer .necessary to state on the record the facts which before the act were necessary to the judgment’s validity.
    Formerly her capacity to contract was exceptional and her disability general; now her disability is exceptional and her capacity general; the burden is on her, when she seeks to avoid a contract, to bring it within one of the few exceptions.

      Practice, C. P. — Opening judgment — Judge sits as chancellor.

    The judge to whom an application to open a judgment is made acts as a chancellor; it is his duty to weigh the testimony; and he is not required in every case of conflicting evidence to send the case to the jury; and upon appeal the appellate court will only see that his discretion has been properly exercised.

      Married women — Liability on an obligation — Burden of proof.

    One who presents a money obligation of a married woman since the act of 1887 has made out a prima facie case which can only be defeated by showing that the contract is one of the kinds prohibited by the act. The presumption even in the case of a judgment is that it is regular and valid. The fact that a husband and wife signed a judgment note does not raise the presumption that the wife signed as a surety; and the allegation of the wife resting upon her unsupported testimony, which is opposed by the corroborated testimony of the plaintiff, that she did sign as surety, is not sufflcient to compel a chancellor to open a judgment against her.
    Argued Jan. 11, 1897.
    Appeal, No. 15, Jan. T., 1897, by defendant, from order of C. P. Luzerne County, June T., 1898, No. 95, discharging rule to open judgment.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.

      April 19, 1897:
    Rule to show cause why judgment should not be opened and Mary Hudock let into a defense. Before Lynch, J.
    The facts sufficiently appear in the opinion of the court.

      Error assigned was refusal to open judgment as to Mary Hudock.

      Gr. L. Halsey and Chas. Orion Stroh, for appellant.
    — Mary Hudock being a married women and not engaged in any trade or business when the money was loaned, and not given for necessaries, nor for the use, enjoyment and improvement of her separate estate, sufficiently proves that the execution of this note in question is not such an obligation as the act of June 3, 1887, authorizes. It was not given for any of the three statutory obligations: Building & Loan Assn. v. Fritz, 152 Pa. 224; 31 W. N. C., 330; Investment Co. v. Roop, 132 Pa. 496; 25 W. N. C. 380; Turner v. Laubagh, 6 Kulp. 368.
    All the decisions since the act of 1887 of the Supreme Court wherein the judgment notes of a married woman are held to be valid are cases where they were engaged in a trade or business, or the notes were given in the management of their separate estates or for necessaries.

      A. C. Campbell, with him John JR. Sharpless, for appellee.—
    The authorities which were applicable to questions arising before the passage of the -act of 1887 are entirely inapplicable now. The judgment of a married woman which was then presumably void is now presumably valid: Abell v. Chaffee, 154 Pa. 254; Adams v. Grey, 154 Pa. 258; McNeal v. McNeal, 161 Pa. 109.
    To rebut the presumption of the validity of the note, the defendant depends entirely upon the uncorroborated testimony of the defendant.
    The refusal of the court helow to open a judgment when the testimony is conflicting will not be disturbed by the Supreme Court: Range v. Culbertson, 168 Pa. 324; Wernet’s Appeal, 91 P.a. 319; Massey v. Blair, 176 Pa. 34.
   Opinion by

Rice, P. J.,

On December 18, 1891, the defendant and her husband gave their joint promissory note, with confession of judgment, to the plaintiff, for a loan of $400. Judgment was entered thereon on May 18, 1893, and on November 29, 1895, she applied for and obtained a rule to show cause why the judgment should not be opened as to her, and she let into a defense. She testified, in support of her application, that her husband borrowed the money for which the note was given; that she did not get any of it, and that her husband used part of it to pay on a contract for the erection of a house for him. The contractor testified that on December 19 (the day after the loan was made) John Hudock paid him $250. What became of the balance of the money — ■assuming that this was part of the money borrowed —does not appear.

The plaintiff, on the other hand, testified that the defendant and her husband both came and asked for the loan, but that she “ asked me more than John did. She said I need not be afraid; that she'would pay me back before the year was up. She said she wanted the money to pay a bill to some one at Shepton. She said if I would help her along to pay that bill she would pay interest, and before the year was up she would pay me the money. I did not want to pay the money until both came in and both signed their name.” The justice of the peace who drew up the note, John Hussman, who was present, and the plaintiff, all testified that the money was delivered to her, and the latter two, that she took it away from the office, where the note was signed. What became of it afterwards, of course they could not say. Hussman testified that after the loan was made the defendant said: “ God shall help me if I shall cheat you out of this.” The plaintiff and his Avife testified that about two years after the loan Avas made the defendant paid $32.00 on account of interest.

Since the passage of the act of June 3,1887, a married Avoman’s confession of judgment is presumably valid. It is no longer necessary to set out on the record the facts which before the act were necessary to the judgment’s validity. “ Formerly her capacity to contract was exceptional, and her disability general, now the disability is exceptional and her capacity general; the burdd&i is on her, when she seeks to avoid the contract, to bring it within one of the feAV exceptions: ” Patrick v. Smith, 165 Pa. 526. One of the exceptions is the contract of suretyship, and if the defendant signed this note as surety for her husband the judgment should have been opened. But the burden of proof was upon her; the fact that her husband signed the note with her does not raise the presumption that she signed as surety. Therefore, her allegation to that effect rests upon her unsupported testimony and is opposed by the corroborated testimony of the plaintiff.

It is settled by a long line of decisions that the judge to whom an application to open a judgment is made acts as a chancellor ; that it is his duty to weigh the testimony; that he is not required in every case of conflicting evidence to send the case to a jury; and that on appeal the appellate court will only see that his discretion has been properly exercised: Earley’s Appeal, 90 Pa. 321; Hickernell’s Appeal, 90 Pa. 328; Roenigk's Appeal, 2 Cent. Rep. 68; Wernet’s Appeal, 91 Pa. 319; Jenkintown Nat. Bank’s Appeal, 124 Pa. 337; Lomison v. Faust, 145 Pa. 8; Com. v. Titman, 148 Pa. 168. “ It is difficult,” said Chief Justice Paxson, “ to lay down the precise measure of proof which should move a chancellor to open a judgment. That he may not act unless there is more than an oath against oath is a familiar rule in chancery practice: ” Jenkintown Nat. Bank’s Appeal, supra. If the only question in the case were, whether the loan was made to the defendant or she simply signed the note as surety for her husband, it would be impossible, in the light of the foregoing decisions, to say that the refusal to open the judgment was a clear abuse of legal discretion.

Assuming that the note was given for money borrowed by the defendant is she liable ?

It was held in the case of Real Est. Inv. Co. v. Roop, 132 Pa. 496, that, subject to the restrictions specified in the provisos to sections 1 and 2, the act of 1887 confers upon a married woman the power to make three classes of contracts only, namely (a) in connection with a trade or business in which she is engaged, (5) in the management of her separate estate ; (e) for necessaries ; and the authority to execute obligations is confined to one or other of these classes. In the following cases the facts required no departure from this construction of the act in order to sustain the contracts there in question: Bauck v. Swan, 146 Pa. 444; Walter v. Jones, 148 Pa. 589; Latrobe v. Fritz, 152 Pa. 224; Milligan v. Phipps, 153 Pa. 208; Abell v. Chaffee, 154 Pa. 254; McCormick v. Bottorf, 155 Pa. 331; McNeal v. McNeal, 161 Pa. 109. But there is a class of cases, of which Adams v. Grey, 154 Pa. 258, is at the head, iu which it seems to us a broader construction has been given to the act. In the case cited the court below struck off a judgment confessed by a married woman in part payment of furniture and household effects, and (it was alleged) in part payment for the goodwill of a house of prostitution. But it was held on appeal that there was nothing to justify either striking off or opening the judgment. The decision was put on the ground that the contract was executed by delivery of the furniture, etc., and not upon the ground that it belonged to one of the three classes mentioned in the Roop case. After a review of the provisions of the act of 1887 the present chief justice said: “ With the exception of such disabilities as are particularly specified in or contemplated by the provisions of the act, they are emancipated from their common law disabilities and authorized to incur contract liabilities, etc., as if they were femes sole ; and such has been the trend of our decisions whenever questions have arisen since the passage of the act.”

In Evans v. Evans, 155 Pa. 572, the issue was as to the title to a house bought by the wife of an execution defendant with money borrowed on her individual credit. “ The validity of her note,” said Justice Gbbbn, “ has no place in this contest, but if it had, we have affirmed the validity of the judgment of a married woman for borrowed money, and could not well deny the validity of her promissory note for the same purpose.”

A married woman may purchase land on credit, and give any kind of lawful lien upon it as security for the purchase money: Campe v. Horne, 158 Pa. 508.

She may contract to purchase real estate for the purpose of a residence for herself and family, and make herself personally liable for money borrowed to pay for it: Steffen v. Smith, 159 Pa. 207. In this case she borrowed, and gave her note for $3,200, but only $3,000 was applied to the payment of the purchase money. The court below held that she was liable for the whole sum borrowed and the judgment was affirmed.

A married woman who accepts money for safe keeping and refuses to return it when demanded, cannot take refuge behind the plea of coverture: Fullam v. Rose, 160 Pa. 47.

In an action of trespass by a married woman against a slieriff, for damages for the sale, as the property of her husband, of two horses claimed by her, the evidence tended to prove that, at her request, the horses were purchased by her husband to supply the place of two horses owned by her in her own right, one of which had died, and the other she had sold, and that the notes were subsequently paid by her to the holder thereof with money of her own separate estate. It was held that this evidence was sufficient to carry the case to the jury. “Instead of being strictly and narrowly exceptional, as it was under the act of 1848, her capacity to contract has practically become the general rule.”

As to the duty of one who lends money to a married woman to prove that she actually applied it in her business or to some purpose connected with the use or enjoyment of her separate estate, I cannot do better than to quote the language of Justice Mitchell in a case where this precise question arose, “ To hold, as it is claimed, that one who lends a married woman money, by discounting her note or otherwise, must see that she actually applies it to use in her business, would be going back to the state of limited rights of property and contract, which it was the object of the Married Persons Property Act of 1887 to put an end to. The auditor reports. that her notes were discounted by the bank and she received the money, but that ‘ there was no evidence which proves directly what she did with the proceeds.’ It is not necessary that there should be. One who presents a money obligation of a married woman since the act of 1887, has made out a prima facie case which can only be defeated by showing that the contract is one of the kinds prohibited by the act. The presumption even in case of a judgment is that it is regular and valid: ” Spott’s Estate, 156 Pa. 281. See also Koechling v. Henkel, 144 Pa. 215.

In our opinion that presumption has not been overcome in the present case by the quantity of proof which made it the duty of the court, in the exercise of its discretion, to set aside or to open the judgment.

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


author: Wickham, J.,

text:
    Jennie E. Dennis, Executrix of William H. Dennis, deceased, v. Mary C. Grove, Appellant.

      Married woman — Promissory note — Moral consideration.

    A married woman is liable if in fact a debt is hers, although it is contracted in the name of her husband.
    A married woman’s note given in payment of a debt contracted by her husband, but which she might legally have contracted herself, for materials bought for and used on her own farm is based on a sufficient consideration.

      Sale — Validity of, when violating act of June 28, 1879.
    Where goods offered for sale are required, by statute, on pain of a forfeiture or penalty, to be marked or branded in a certain way, the price thereof may be recovered, unless there is also an express prohibition as to the sale.

      Sales — Certificate of secretary of commonwealth — Condition precedent.

    As the certificate of the secretary of the commonwealth required by the Fertilizer Act of June 28, 1879, P. L. 180 is only obtainable at the end of each year and relates to the sales for that year, it cannot be deemed a prerequisite or condition precedent to doing business.
    Argued Feb. 15, 1897.
    Appeal, No. 31, Feb. T., 1897, by-defendant, from judgment of C. P. Union Co., Sept. T., 1892, No. 5, on verdict for plaintiff.
    Before Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Assumpsit on a promissory note dated Nov. 24,1890. Before McClure, P. J.
    Tire facts sufficiently appear in the opinion of the court.
    Verdict and judgment for plaintiff for $160.50. Defendant appealed.

      Errors assigned among others were (1) to the admission of the deposition of William H. Dennis: Mr. Follmer: We offer the deposition to show the consideration for which the note was given; to show the amount and kind of phosphate for which the note was given and to show where it was used, and to show that the defendant in the case has a separate estate; and to show what took place between the plaintiff and the defendant at the time the note was given.
    Mr. Linn: We object that the evidence is inadmissible, the plaintiff having already shown that the original consideration moved to Abraham Grove, the husband of the.wife, and this note in suit was given by the wife for the husband’s note and not for these goods, but for the note, that the plaintiff has already shown that the book account, was not produced; that the original consideration did not move to Mary C. Grove, but that the consideration of this note was security for her husband for a debt that he owed before. ■ That the evidence is immaterial to the issue trying, for the reason that under the act of assembly of the commonwealth of Pennsylvania the analysis of the phosphate must be such as is stamped upon the bag, — and it is immaterial to this issue that the testimony of the witness is that ten bags were of a lower grade than the others, for the same reason.
    By the Court. The objections are overruled. The defendant excepts and bill sealed.
    (8) In refusing the motion for nonsuit after the testimony was closed, which was as follows: Mr. Linn: I ask to leave— plaintiff having closed, I move that a judgment of nonsuit be' entered against the plaintiff on the ground that it appears that Mr. Dennis was selling commercial fertilizers and that he sold to the defendant a fertilizer which is the sole consideration for the note given; that he has not complied with the act of assembly in regard to sellers of commercial fertilizers sold for manurial purposes, in any respect. It has been shown that he has not plainly stamped on the sack the name of the manufacturer; he has not stamped on the package the place of the manufacture; he has not stamped on the bag a true analysis of the contents, but on the contrary it has’ been shown that he has fraudulently and in contravention of the act of assembly stamped the part containing the potash in a form that would mislead the purchaser. Of course, the latter part is a question of evidence; I understand that, that the testimony of Dr. Frear must be submitted to the jury, for however learned the doctor may be, it is still evidence that is submitted to the jury. There is another reason why the nonsuit should be granted; that he has not complied with the second section of the act of assembly of the 28th of June, 1879, which is as follows:
    “ Every manufacturer or importer of commercial fertilizers, as specified in section one of this Act shall on or before the first day of August next ensuing or before offering the same for sale in this Commonwealth, file annually in the office of the Secretary of the Commonwealth an affidavit stating the amount of said fertilizer or fertilizers sold within the State during the last pre-
    ceding year and if said amount be one hundred tons or less, he or they shall pay to the Treasurer of the State the sum of ten dollars for- each and every such article of such commercial fertilizer sold- within 'the state during the last preceding year, and if the said amount shall exceed one hundred tons and be less than five hundred tons, he'or they shall pay the suih of twenty dollars as aforesaid; and if said amount shall be five hundred tons or more he or they shall pay the sum of thirty dollars as aforesaid; if such manufacturer or manufacturers or importers shall not have made any sales within the Commonwealth during the preceding year he or they shall pay the sum of ten doliars as aforesaid. Every such manufacturer -or importer shall, at the same'time, file with the Secretary of the Board of Agriculture a copy of the analysis required by section one of this Act, and shall be entitled to receive from the Secretary of the Commonwealth a certificate which shall be countersigned by the Secretary of the Board of Agriculture, showing that the provisions of this Act have been complied with.”
    By the Court: We will allow this case to go to the jury. ■The defendant excepts and bill sealed.

      J. M. Linn, with him P. B. Linn, for appellant.
    — -The act of 1887 does not permit a wife to become surety for the debts of her husband and such is the liability admitted to be enforced in this ease: Investment Co. v. Roop, 132 Pa. 496; Milligan v. Phipps, 153 Pa. 208; Patrick v. Smith, 165 Pa. 526.
    The law will not lend its aid to a claim founded on its own violation. Nor is there any distinction in this state whether the contract is malum prohibitum or malum in se: Bank & Bridge Co. v. Haldeman, 7 W. & S. 233.
    An action cannot be maintained on a contract in violation of a statute: Holt v. Green, 73 Pa. 198; Thorne v. Ins. Co., 80 Pa. 15.

      Alfred Hayes, with him Wm. B. Bodmer, for appellee.
    — The act of 1887 gives married women unrestricted power to acquire real estate and to incur corresponding liabilities: Steffen v. Smith, 159 Pa. 207; Gockley v. Miller, 162 Pa. 271; Patrick v. Smith, 165 Pa. 526.

      April 19, 1897:
    The judgment having been opened, the judgment note stands as plaintiff’s cause of action and by putting it in evidence the plaintiff has established a prima facie case and puts the defendant to a defense: Harbaugh v. Butner, 148 Pa. 273.
    There was no evidence in this case that the act of assembly referred to was not complied with and there surely can be no presumption that a misdemeanor was committed: Evans v. Hall, 45 Pa. 235.
   Opinion by

Wickham, J.,

William H. Dennis, whose executrix is the plaintiff in this action, sold to the defendant’s husband a quantity of what was known as the “ Read Fertilizer Co.’s Soluble Bone and Potash,” and took his, the husband’s note for the price thereof. The fertilizer was bought for and used on the defendant’s farm, which was occupied by herself and her husband in the usual way. About six weeks after the giving of the note it was surrendered, through an arrangement made between Dennis and the Groves, and the note of Mrs. Grove, which is-here in suit, was given in its place for the original debt.

At the trial several defenses were set up, three of which we are called on to consider. First, it was contended that the defendant’s coverture absolved her from her obligation. Second, that the sacks containing the fertilizer were not stamped with the name of the manufacturer, the place of manufacture, and a truthful analysis, as required by the Act of June 28,1879, P. L. 180. Third, that-the plaintiff failed to produce and offer in evidence the certificate, from the secretary of the commonwealth, required by the act.

We may preface the consideration of these defenses with the remark, that if the defendant is liable, her liability must have its inception in the circumstances attending the purchase and use of the fertilizer, there being nothing in the legislation enlarging the rights and duties of married women which would authorize her to bind herself, by note, for her husband’s debt pure and simple. The creditor must be able to point to some moral obligation at least, resting on the wife, in order to hold her to her promise.

Under the act of June 3,1887, a married woman has the same rights in the management of her separate estate or business as if she were single, but “ in exercising the rights of a feme sole she must also incur the liabilities of one. She cannot have her property improved at the expense of others any more than can a single woman:” Milligan v. Phipps, 153 Pa. 208. Nor is her liability lessened by the fact that the expenditure may not have been necessary for the preservation or enjoyment of her separate estate, as, since the passage of that act, she is the sole judge of that question: Milligan v. Phipps, supra. It is no longer necessary in order to recover money loaned to a married woman to show that it was actually applied to the benefit of her estate or business. “ One who presents a money obligation of a married woman, since the act of 1887, has made out a prima facie case, which can only be defeated by showing that the contract is one of the kinds prohibited by the act. The presumption even in case of a judgment is that it is regular and valid: ” Spotts’ Estate, 156 Pa. 281. “With the exception of such disabilities as are particularly specified in or contemplated by the act, married women are emancipated from their common law disabilities, as if they were femes sole: ” Adams v. Grey, 154 Pa. 258. It is true that a judgment confessed by a married woman, to secure the payment of a debt due by her husband from which she derived no benefit, and for which she was not liable, will be opened on her application: Harris v. Reinliard, 165 Pa. 36. Yet if it be found that, in fact, a debt is hers, although contracted in the name of her husband, she will be held liable for it: Voskamp v. Conner, 173 Pa. 109.

It is evident from all the authorities that, within the scope of their statutory powers, married women are on an equality with their husbands and with unmarried persons, and may bind themselves in the same manner and to the same extent. There-, fore it must be held that married women, in the prosecution of their statutory privileges, may charge -themselves with duties arising out of moral obligations. A moral obligation is a duty subsisting in conscience, natural justice'and morality, but not enforceable at law, and it may become the basis of a legal obligation through an express agreement; the moral obligation being a sufficient consideration to support the agreement Hemphill v. McClimans, 24 Pa. 367; Bailey v. Philadelphia, 167 Pa. 569. Upon this principle, while a loan to a member of a copartnership, of money which is afterward used in the firm business, remains the debt of the borrowing partner, yet if the firm assume the debt, the moral obligation, arising from the use of the money by the firm, is sufficient to sustain a judgment based on such assumption, even against the general creditors of the firm: Siegel v. Chidsey, 28 Pa. 279; Walker v. Bank, 98 Pa. 574; Larzelere v. Tooley, 3 Pa. Superior Ct. 109.

This principle has also been extended to the obligations of married women, since the passage of the married persons property act of 1887. In Brooks v. Merchants Nat. Bank, 125 Pa. 394, the notes of a firm of which a married woman was a member, given after the passage of that statute, in renewal of notes given prior to its passage, were held to be valid, the Supreme Court saying: “ The moral obligation to- pay the notes given during coverture was a sufficient consideration for the renewal notes given since the passage of the act of 1887.” And in Spott’s Estate, supra, a husband who borrowed $1,000, which was used in his wife’s business, was permitted to recover it from her estate, upon proof of her declarations that she had received the money and used it in her business, and that she intended to pay off the judgment which her husband had given for the loan. There was no evidence of an express contract on her part, the substantive ground of liability being the use of the money in her separate business. Having received the money she was morally bound to repay it, and though the debt was that of her husband, her subsequent express promise to pajr it was binding upon her.

In the case before us, the note, of the appellant was in effect given for an article used in and about the management of her separate estate, and was bought for that purpose from the plaintiff’s testator. So far as the evidence shows she was the sole beneficiary of the transaction. The fact that her husband may have managed the farm cannot, in itself, affect her rights and liabilities respecting it; in the light of the circumstances and of her promise he was presumably acting under her direction. Her note therefore was given in payment of a debt which she might legally have contracted, and under the authorities cited, it was based on a sufficient consideration.

Coming now to the other questions involved in the decision of the case, it is necessary to consider the provisions of the act of June 28,1879, above referred to. The first section provides “ That every package of commercial fertilizer sold, offered, or exposed, for sale, for manurial purposes, within this commonwealth, shall have plainly stamped thereon the name of the manufacturer, the place of manufacture, the net weight of its contents, and an analysis stating the percentage therein contained of nitrogen, or its equivalent in ammonia in an available form, of potash soluble in water, or soluble and reverted phosphoric acid, and of insoluble phosphoric acid.” The second section, while, in some respects not as clearly worded as it might be, provides in substance that every manufacturer or importer of commercial fertilizers shall file annually, in the office of the secretary of the commonwealth, an affidavit stating the amount of fertilizer or fertilizers sold within the state during the last preceding year, together with a copy of the analysis required by the first section of the act and shall thereupon, after the payment of a certain license fee, calculated according to the amount of the sales, be entitled to a certificate showing that the provisions of the act have been complied with. By the third section, it is provided that any one selling, offering or exposing for sale any commercial fertilizer, such as falls within the operation of the law, without the analysis required by the first section, or with an analysis stating that it contains more of the constituents above named than is actually contained therein, or for the sale of which “ all the provisions of section two have not been complied with,” shall be guilty of a misdemeanor and forfeit a sum of money, one half to go to the informer. It is not necessary for the purpose of this case to refer to the other provisions of the act.

It will be observed that there is nothing in the act expressly prohibiting the sale of fertilizers contained in packages improperly stamped. Whatever may have been the trend or effect of the earlier decisions in Pennsylvania, the case of Rahter v. First Nat. Bank of Lancaster, 92 Pa. 393, seems to fully establish the rule, that where goods offered for sale are required, by statute, on pain of a forfeiture or penalty, to be marked or branded in a certain way, the price thereof may be recovered, unless there is also an express prohibition as to the sale.

As the certificate of the secretary of the commonwealth it is only obtainable at the end of each year and relates to the sales for that year, it cannot, therefore, be deemed a prerequisite or condition precedent to doing business.

There is nothing in the case requiring further discussion.

Judgment affirmed.


text:
    William L. Wilson and George D. Wilson v. Lovina B. Downing, Appellant.

      Practice, O. P. — Sheriff's sale — Summary proceedings — Insufficient affidavit.

    In summary proceedings, by a purchaser at a sheriff’s sale to obtain possession of realty, authorized by the Act of June 16, 1836, P. L. 780, an affidavit not strictly complying with the terms of the act is invalid.
    An affidavit is inadequate which attempts to meet conditions arising un-' der secs. 114 or 115 of the act of 1836, by using the form of. oath prescribed, by see. 116, which form is not intended for nor adapted to the conditions covered by either of the former sections.

      Statutes — Constitutional law — Executions—Act of 1878.
    The Act of May 24, 1878, P. L. 134, relating to executions is constitutional. Its provisions are within the limits suggested by its title. It does not offend against art. III. sec. 6, of the constitution forbidding amendments and extensions of acts by mere reference to the title.
    Argued Feb. 9, 1897.
    Appeal, No. 4, Feb. T., 1897, by defendant, from decree of O. P. Centre Co., Nov. T., 1895, No. 7, dismissing exceptions to the judgment of a justice, confirming the same.
    Before Rice, P. J., Willai-id, Wickham, Bbavbk. and Reeder, J J.
    Affirmed.
    Certiorari to justice of the peace.
    It appears from the record that this was a certiorari to a justice of the peace bringing up the record of the justice in summary proceedings had before him by the sheriff’s vendees to recover possession of premises sold at sheriff’s sale under the provisions of the act of June 16, 1836, and the amendment thereto by act of May 24, 1878.
    After the testimony was closed and an adjournment had for. noon, and when the justice and jurors met after noon, Lovina B. Downing, one of the defendants, presented to the justice an affidavit of claim of title. ,
    Other facts sufficiently appear in the opinion of the court.
    The justice entered judgment for the plaintiffs to which exceptions were filed as follows :
    The plaintiff in error excepts to the record of the justice and to the proceedings before him as follows, viz:

      X. The record and notice attached to the justice’s transcript show conclusively that the plaintiffs below failed to give the said Lovina B. Downing and D. O. Downing three months’ notice to vacate the premises in dispute, before instituting proceedings before the justice to recover possession. [1]
    2. The record showing failure to give preliminary notice to appellant, the justice should have dismissed the proceeding when the notice was offered in evidence by the plaintiff below.
    3. That the record, as returned by the said justice of the peace, is defective because it does not show that after the said Lovina B. Downing had made affidavit of claim of title herself that the said justice ever did summon the said Lovina B. Downing to appear before him, as provided for by an act of assembly in such case made and provided. [2]
    4. The record of the justice shows affirmatively thatlie had-no jurisdiction to enter any judgment on said proceeding, inasmuch as the said Lovina B. Downing had filed the affidavit and bond required by sections 114 and 115, act of June 16, 1836, prior to the entry of said judgment, whereby and by virtue of which the jurisdiction of the said justice in said proceeding was ousted and superseded. [3]
    5. The record shows that after the tender to him of the affidavit and bond referred to he proceeded to decide for himself the question of title to the real estate involved. [4]
    6. The record shows that after the tender to him of the bond and affidavit referred to he submitted to the jury the question of fact involved, and the jury under his instruction having found for the plaintiffs, he proceeded to enter judgment in the proceeding in favor of the plaintiffs and assessed their damage at $50.00, all of which was clearly beyond his jurisdiction. [5]
    7. The record shows that having entered judgment as aforesaid in favor of the plaintiffs in the proceeding after a tender of the bond and affidavit by the said Lovina B. Downing, the said justice issued a writ or warrant directing the sheriff to deliver possession of the said premises to the plaintiffs below, and to collect the said costs and damage, all of which was done, as appears by the return of the' sheriff to said warrant. [6]
    8. The said justice erred in giving judgment against the said Lovina B. Downing for the reasons'he assigns in his record. He had no power -to pass upon the sufficiency of the affidavit, it appearing that it was made in the exact language of the act of assembly in such case made and provided. [7]
    9. The said record is generally erroneous and incorrect, and shows conclusively that the said justice had no jurisdiction to enter any judgment in the said proceeding. [8]
    Which were dismissed by the court below and the judgment of the justice confirmed. Defendant appealed.

      Errors assigned were (1-8) in overruling and in dismissing appellant’s exceptions to the record of the justice, reciting same; (9) in making the following order and decree: “ And now January 15, 1896, the exceptions are overruled and the judgment of the justice is affirmed;” (10) in not sustaining the exceptions to said record and in not reversing the judgment of the justice and awarding restitution of property; (11) in attempting by an opinion filed to find certain facts dehors the record, which he assigns as sufficient reason for refusing to sustain the exceptions to the record of the justice.

      David E. Fortney, with him Charles F. Hewes and W. Harrison Walker, for appellant.
    — The court below was led into the error it committed in undertaking to find facts dehors the record to support the judgment of the justice, rather than to examine into the regularity of the proceedings before him by the transcript returned: Buchanan v. Baxter, 67 Pa. 348.
    A certiorari to a magistrate brings up nothing but the record: Bedford v. Kelly, 61 Pa. 491; Railway Co. v. Keenan, 56 Pa. 198.
    The justice has no right to rule on the affidavit, further than to assure himself that it was in the form required by the act of assembly. The moment it was made the jurisdiction of the justice was at an end. Upon the filing of the affidavit in the words of the statute the case was not before the magistrate for further consideration: Elton v. Stokes, 12 W. N. C. 240.
    The proceedings may be arrested by making the oath prescribed by the 116th section of the act: Railway Co. v. Keenan, 56 Pa. 198. Like effect was given to affidavits in the words of the act now under consideration in Dean v. Connelly, 6 Pa. 239; Walker v. Bush, 30 Pa. 352.
    The Act of May 24, 1878, P. L. 134, is unconstitutional. Many acts of assembly similarly drawn have been declared unconstitutional: Iron Works v. Oil Co., 122 Pa. 627; Donohugh v. Roberts, 11 W. N. C. 186; Oakley v. Oakley, 11 C. C. Rep. 572.
    The title of the act does not express the same so clearly and fully as to give notice of the legislative purpose to those who may be specially interested therein and unless it does this it is useless: Road in Phœnixville, 109 Pa. 44; Quinn v. Cumberland Co., 162 Pa. 55.

      A. O. Burst with him Orvis, Bower $ Orvis, for appellees.—
    The affidavit made by appellant was insufficient and not in compliance with the act of assembly,'so as to stay the further cognizance of the case by the justice. It was made under the 115th section of the act and fails to set forth the name of such person under whom she claims by a title different from that of defendant, as whose property it was sold: Bank v. Cowperthwaite, 10 W. N. C. 532.
    The appellant presented her affidavit to the justice too late. No case can be found in which an affidavit under the act of 1836 was presented or filed after a hearing was had and the party presenting the affidavit had testified in the case.
    In Brown v. Quinton, 2 Clark, 425, it was held that on the hearing of a certiorari to the judgment of a justice every reasonable presumption will be made in favor of his proceedings consistent with the record. It is well settled that the defendant and all in possession under him subsequent to the entry of the judgment upon which the property was sold must surrender possession to the sheriff’s vendee: Duncan v. Sherman, 121 Pa. 520.
    The act of May 24, 1878, is not unconstitutional. It is not in any sense such an amending act as the legislation referred to in Iron Works v. Oil Co., 122 Pa. 627 and kindred authorities relied upon by appellant’s counsel. It is expressly entitled a supplement to the act of June 16, 1836; it does not enlarge or abridge the rights of any citizen, or even change the process pointed out in the original act. It merely confers jurisdiction on a single justice of peace. It stands upon precisely the same footing as many kindred acts of legislature relating to the jurisdiction of justices, notably the Act of June 6, 1879, P. L. 194, which enlarges, among other things, the subject-matter of that officer’s jurisdiction from $100 as it was under the act of March 20, .1810, to $300 as it now is, and no one has ever dreamed of attacking the act of 18791
    April 19, 1897:
   Opinion by

Wickham, J.,

The appellees purchased, at sheriff’s sale, a tract of land owned and occupied by Robert W. Downing, and sold on execution as his property. Due notice was given, by the appellees, under the Act of June 16, 1836, P. L. 780, to Downing, and also to the appellant, his wife, and D. O. Downing his son, who were in possession of the land, to remove from and give up the same. This notice being disregarded, proceedings to obtain possession were commenced, before a justice of the peace, against the Downings, under the said act of 1836, and the supplement thereto of May 24, 1878, P. L. 134.

At the hearing and inquisition before the justice, the appellant, claiming the benefit of one or both of sections 114 and 115 of the act of 1836, made and filed the following affidavit: “ I, Lovina B. Downing, do swear that I verily believe that I am legally entitled to hold the premises in dispute against the petitioners, that I do not claim. the same by, from or under the defendant as whose property the same were sold, that I do not claim the same by, from or under the defendant as whose property the same were sold, by title derived to me subsequently to the rendition of the judgment under which the same were sold but by a different title.”

An examination of section 114 of the act and an analysis of the affidavit shows, that the latter does not meet the requirements of either subdivision of this section. The first provides that the claimant to the premises shall swear, that he “ has not come into possession and does not claim to hold the same under the defendant in the execution, but in his own right,” and the second requires him to state in the oath, “ that he has come into possession, under the title derived to him from the said defendant before the judgment under which the execution and sale took place.” It will be noticed that there is nothing in the affidavit as to how the appellant did or did not come into possession, nor any assertion that she claims in her own right. To allege, as she does, that she claims under “ a different title ” from that of her husband, is not necessarily an averment that she is claiming in her own right. The title on which she relies may be that of a third party and her claim may therefore be in his right. Nor is the affidavit sufficient under section 115 of the act, which provides, “ that if the person in possession of the premises shall make oath or affirmation, before the justices, that he does not hold the same under said defendant, but under some other person, whom he shall name, the said justices shall forthwith issue a summons to such person, requiring him to appear” .... and if the said person shall appear and make oath or affirmation, that he verily believes that he is legally entitled to the premises in dispute and that he does not claim under the said defendant but by a different title,” etc., and shall enter into recognizance, the justices shall forbear to give judgment. Section 116 prescribes the form of oath to be made by the person brought in by the summons referred to in section 115, and unfortunately for the appellant, this form, not intended for nor adapted to, her case, is the one she adopted. If she held under some other person than the defendant in the execution, she should have so stated and named the person.

We are of the opinion that the affidavit was not offered too late, but, as it utterly fails to comply with the act of assembly, the justice rightly disregarded it.

The objections to the constitutionality of the act of 1878 are baseless. The act is entitled “ A further supplement to an Act entitled, ‘ An Act relating to executions,’ approved June 16, 1836, providing that one justice of the peace, alderman, or magistrate shall act where two are now required.” Its provisions being within the limits suggested by the title, and being also germane to the subject of the original statute, its title is sufficient: Craig v. First Pres. Church, 88 Pa. 42, Millvale Borough v. Evergreen Ry. Co., 131 Pa. 1. Nor is the act contrary to act 3, sec. 6 of the Constitution of 1874, which provides that “ No law shall be revived, amended or the provisions thereof extended or conferred, by reference to its title only, but so much thereof as is revived, amended, extended or conferred, shall be re-enacted and published at length.” What is meant by these words is, that all statutes shall be self-explanatory and complete in their provisions, Titusville Iron Works v. Keystone Oil Co., 122 Pa. 627, and this act comes up to that requirement. The constitution of Ohio contains a clause very similar to the above, to wit: “ No Act shall ever be revised or amended by mere reference to its title, but the act revised or section amended shall be set forth and published at full length.” In Lehman v. McBride, 15 Ohio, 578, 602, 603, the court say, “As we understand this clause of the constitution, it requires, in the case of an amendment of a section or sections of a prior statute, that the new Act shall contain, not the section or sections, which it proposes to amend, but the section or sections in full as it purports to amend them. That is, it requires, not a recital of the old section, but a full statement, in terms, of the new one .... The constitutional provision was intended, mainly, to prevent improvident legislation, and with that view, as well as for the purpose of making all acts, when amended, intelligible, without an examination of the statute as it stood, prior to the amendment, it requires every section, which is intended to supersede a former one, to be fully set out.” This is a reasonable construction, and one fully applicable to the clause above quoted from our own constitution.

Judgment affirmed.