text:
    Rozelle v. Lewis, Appellant.

      Land law — Deed—Boundaries—Courses and distances — Evidence— Oral proof — Statute of frauds.

    The courses and distances in a deed always give way to the boundaries found on the ground, or supplied by the proof of their former existence when the marks and monuments are gone; and this is as true of the grant by an individual as of official surveys. To establish the existence of such marks and monuments parol proof is admissible, and such testimony is not in contravention of the statute of frauds and perjuries.

      Evidence — Witness—Party dead — Executors and administrators.

    Where an executor with power of sale executes a contract in writing to sell the land of his testator, and the executor subsequently dies, the other party to the contract may testify as to matters occurring between him and the executor in the latter’s lifetime.
    Argued March 6, 1908.
    Appeal, No. 41, March T., 1908, by defendants, from judgment of C. P. Lackawanna Co., May T., 1900, No. 425, on verdict for plaintiff in case of Orlando Rozelle v. Mary L. Lewis and B. S. Lewis.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.

      Ejectment for land in the borough of Dunmore. Before Newcomb, J.
    At the trial the jury returned a verdict in favor of the plaintiff.
    On rule for a new trial Newcomb, J., filed the following opinion:
    This action was ejectment. May 17, 1902, there was a verdict for plaintiff subject to a point reserved by former Judge Wheaton of the eleventh district, specially presiding at the trial. Reasons were regularly filed and a rule for new trial allowed May 29, 1902.' No motion for judgment was ever filed. But among the files is found such motion with an order of the trial judge indorsed thereon: “Let the within motion be marked filed as of this date, May 29, 1902.” In the meantime, although not until nearly five years after the trial, Judge Wheaton retired from office. The charge of the court has never been filed. No explanation of this.delay and inattention of counsel is offered.
    Under these circumstances both the rule and motion for judgment may be treated as abandoned, and they should accordingly be discharged for want of due prosecution.
    On the merits, however, it is believed that the case was for the jury and the verdict should not be disturbed.
    The only thing seriously controverted by defendant is the admission of certain declarations of plaintiff’s grantor, now deceased, touching the boundary in dispute, and upon which plaintiff’s case depends.
    The suit involves the location of a town lot on a plot of lands in the borough of Dunmore as “Meylert’s Addition to Scranton and Green Ridge.” Louisa Gilmore was formerly the owner of block 318 as described in the plot which was of record. This block comprised twenty lots of which the first ten front westerly on Adams avenue. With the exception of Nos. 1 and 10, being corner lots, they are plotted of a uniform width of forty feet. They would appear to have been conveyed to Catherine Schadt in her lifetime. For in 1890, some years after her death, Mrs. Gilmore conveyed them to Charles Tropp of this city, and Frederick Scheidell of Sullivan county, N. Y., executors of Mrs. Schadt, by deed reciting a former conveyance to the deceased which this was intended to confirm. This deed was duly recorded.
    Mrs. Schadt’s death occurred in July, 1886. By her will, probated in September following,, she devised her estate, real and personal, to her executors in trust to carry out its specific provisions, except so far as they might discharge the bequests out of rents and profits. She further gave the executors power as follows: “In order that this my last will may be fully carried out. I hereby authorize and empower my said executors to sell or convey all or any part of my estate and convert the same into money to be by them securely invested as they may see fit and to that end they are hereby authorized and empowered to make good and sufficient deeds and conveyances of any and all of my said property and invest and dispose of the proceeds as above directed.”
    The legal title being thus in the executors, in 1893 they conveyed lot No. 7, as described in and by the recorded plot, to Rozelle, the plaintiff, by article of agreement. The article was never recorded, but the vendee took immediate possession in accordance with its terms and improved it with a dwelling house where he has resided ever since. The contractor who built the house was Mr. Lewis, one of the defendants. There was evidence uncontradicted that at that time the corners of the lot upon which the house was built were marked by stakes on the ground; that Mr. Lewis in company with the plaintiff measured between the two on the avenue and found them to inclose forty feet; that in locating the foundation of the house they designed it so as to be twelve feet from lot No. 8 on the northerly side and six feet from No. 6 on the other side, and took measurements for that purpose. The house was twenty-two feet wide.
    In 1896 Scheidell, surviving executor of Mrs. Schadt, sold lot No. 8 by articles to B. S. Lewis, Jr., and T. G. Lewis, defendant’s sons. There was evidence, though contradicted, that in making their improvements these vendees recognized plaintiff’s possession as he claimed it; that in laying a sidewalk on the avenue in front they conformed to his corner, and in laying a flag walk from front to rear on the southerly side of their lot, the line as he has at all times claimed it to be was discussed between him and them and that accordingly they laid their walk twelve feet from his house in order to conform to the line. There were no fences, but there was evidence that from 1897 until the controversy began in 1899 the strip of land to the south of the flag walk, now in controversy, was used by plaintiff for clothesline posts, one of which stood very close to the walk.
    From the time the vendees of lot No. 8 finished their house in 1897 they together with their parents, the defendants here, have lived on the lot. In 1898 their contract was assigned to Mrs. Lewis, the substantial defendant, by her sons. In September the same year title was conveyed to her by the surviving executor. She saw the walk and the clothesline post but never made inquiry of plaintiff as to where he claimed the corners or boundary to be. There is no evidence that anyone other than plaintiff ever used, occupied, or claimed any part of the forty feet south of the flag walk until some time in the fall of 1899. At that time without consulting plaintiff and in his absence Mr. Lewis erected what he called a line fence three and six-tenths feet south of the flag walk, and reduced plaintiff’s possession to thirty-six and four-tenths feet. That brought on this suit.
    Defendants rely upon what they claim under the advice of surveyors is the correct location of the lot line according to the plot. While not conceding that his location varies from the plot plaintiff relies especially upon the acts and declarations of Tropp in designating the corners of lot No. 7 on the date of his contract as required by him before he would execute it. It was the admission of this evidence that is the matter chiefly in controversy now.
    So far as objection went to the competency of the plaintiff to testify to the declarations of the deceased grantor acting as a trustee and executor with power to sell, we fail to see how the rule excluding the testimony of a surviving party, etc., applies, and that was not seriously urged at the argument. Granting that the witness was competent, then so far as concerns the competency of the evidence it is believed to be subject to the rules governing declarations as to boundaries by a former owner, or his agent, with power to sell. If so the estate of Mrs. Schadt would be bound by the declaration in question. The evidence was clear that at the request of plaintiff before the contract was accepted Mr. Tropp met him on the ground by appointment and there designated the lot described in the contract by corner stakes which he said had been placed by his surveyor. Upon the faith of that plaintiff signed the contract, and the executors stood by and saw him locate and build his house accordingly. This, if found to be the fact, so- far as Tropp or his survivor in the trust is concerned, would bind the estate regardless of the true corner under the doctrine of Willis v. Swartz, 28 Pa. 413.
    The principle upon which the decision rests is estoppel. It would, therefore, seem that the only other question would be whether the evidence was sufficient to affect Mrs. Lewis with notice of the facts which give rise to the estoppel. In effect as between vendor and vendee in such case the estoppel would amount to a defect of title in the vendor pro tanto to the extent of the discrepancy. When Mrs. Lewis afterwards took title to that, with notice, she took it subject to its infirmity.
    Under adequate instructions of the learned trial judge the facts regarding the designation of his corners by the executor were found in plaintiff’s favor. It was further left to the jury “to determine under the evidence whether plaintiff’s possession was of such character that made it the duty of Mrs. Lewis or her assignors to inquire of the plaintiff the character of his title and the extent of his claim;” and if his “possession was of such character as to put the duty of inquiry as to its extent upon the defendants then defendants would be bound by such facts as may reasonably be concluded would have been made known as a result of such inquiry.”
    The verdict must be taken to have settled this question of fact in plaintiff’s favor. The evidence to be considered by the jury for and against the plaintiff’s contention was impartially discussed in a preceding part of the charge. We cannot say that it was insufficient to warrant the conclusion that defendants had actual notice of the extent of plaintiff's claim and constructive notice of its character, especially in the absence of any evidence that Mrs. Lewis had any knowledge of his contract. There was no evidence of anything said or done by him that would tend to mislead her in the premises. All that he said and did was consistent with the claim he now asserts. Neither she nor her assignors claim to have asserted any other cl* different line than such as was defined by the flag walk prior to 1899 when for some reason she had a survey made.
    The reservation as found in the charge which we have had transcribed was as follows: “I reserve the question whether there is any evidence in the case to be submitted to the jury upon which the plaintiff is entitled to recover.” This was to cover defendant’s request for binding instructions.
    For the reasons stated the point reserved is decided against the defendants, the rule for new trial is discharged, the motion for judgment non obstante denied and thereupon judgment is directed to be entered on the verdict for plaintiff sec reg.

      Errors assigned were various rulings and instructions.

      R. A. Zimmerman, for appellants.
    The plaintiff was incompetent to testify to any conversation had between himself and the executors, relative to the location of his lot: Duffield v. Hue, 129 Pa. 94; Parry v. Parry, 130 Pa. 94; Bell v. Farmers’ Deposit Nat. Bank, 131 Pa. 318; Duffield v. Hue, 136 Pa. 602; Sutherland v. Ross, 140 Pa. 379; Duffield v. Rosenzweig, 144 Pa. 520; Dickson v. McGraw, 151 Pa. 98; Griggs v. Vermilya, 151 Pa. 429; Brothers v. Mitchell, 157 Pa. 484; Tarr v. Robinson, 158 Pa. 60; Wolf v. Wolf, 158 Pa. 621; Huntley v. Goodyear, 182 Pa. 613; Darragh v. Stevenson, 183 Pa. 397; Baldwin v. Stier, 191 Pa. 432; Robbins v. Farwell, 193 Pa. 37; Myers v. Litts, 195 Pa. 595.
    In this case, the grantor is dead. His right to affirm or deny the fact or the efficacy or the scope and terms of the alleged conversation and conveyance, having passed to the defendant, the grantee in the conveyance, Rozelle would be incompetent to testify adversely to her: King v. Humphreys, 138 Pa. 310; Crothers v. Crothers, 149 Pa. 201; Serfass v. Serfass, 14 Pa. C. C. Rep. 97; Robbins v. Farwell, 193 Pa. 37; Baldwin v. Stier, 191 Pa. 432; Rudolph v. Rudolph, 17 Pa. Superior Ct. 558.
    Where the description in a deed is plain and without ambiguity, parole evidence is not admissible to identify the property intended to be conveyed: Carroll v. Miner, 1 Pa. Superior Ct. 439; Koch v. Dunkel, 90 Pa. 264.

      George D. Taylor, for appellee.
    At common law, agents who carried on a transaction for one of the parties out of which the litigation arose were always competent to prove the transaction: American Life Insurance, etc., Co. v. Shultz, 82 Pa. 46; Hostetter v. Schalk, 85 Pa. 220.
    Under the act of 1887 the same rule on the competency of agents has been applied: Sargeant v. National Life Insurance Co., 189 Pa. 341; Hood v. Insurance Co., 22 Pa. Superior Ct. 244; Allen’s Est., 207 Pa. 325; Turner v. McAnany, 5 Kulp, 175.
    Lines fixed upon the ground or monuments fixed upon the ground to indicate lines and boundaries, will always control courses, corners and monuments, called for by the deed: Blasdell v. Bissell, 6 Pa. 258; Willis v. Swartz, 28 Pa. 413; Ogden v. Porterfield, 34 Pa. 191; Craft v. Yeaney, 66 Pa. 210; Burkholder v. Markley, 98 Pa. 37; Morse v. Rollins, 121 Pa. 537; Rook v. Greenewald, 22 Pa. Superior Ct. 641; Roos v. Connell, 7 Kulp, 113; Ins. Co. v. Sailer, 67 Pa. 108; Marcy v. Brock, 207 Pa. 95; Barnhart v. Riddle, 29 Pa. 92; Gertzer v. Kammerer, 36 Legal Intel. 392; Van Horne v. Clark, 126 Pa. 411; Penna. Railroad Co. v. Pearsol et al., 173 Pa. 496.
    December 7, 1908:
   Opinion by

Rice, P. J.,

As to the admissibility of the kind of evidence that was admitted under the offer recited in the first assignment of error, we entertain no doubt. As a general rule lines run and marked on the ground control the courses and distances mentioned in the conveyance, and this is as true of the grant by an individual as of official surveys. “The courses and distances in a deed always give way to the boundaries found on the ground, or supplied by the proof of their former existence, when the marks and monuments are gone:” Lodge v. Barnett, 46 Pa. 477. Amongst the numerous cases in which this principle has been recognized, and in the application of which parol testimony has been admitted to show the location of the marks and monuments on the ground which the grantor and grantee fixed as the true line, the following are specially pertinent to this case: Blasdell v. Bissell, 6 Pa. 258; Willis v. Swartz, 28 Pa. 413; Dawson v. Mills, 32 Pa. 302; Craft v. Yeaney, 66 Pa. 210; Burkholder v. Markley, 98 Pa. 37; Rook v. Greenewald, 22 Pa. Superior Ct. 641. The admission and giving effect to such testimony is not in contravention of the statute of frauds and perjuries. No estate in land is created or conveyed by parol any more than there is by the adoption of a consentible line, of which it has been said: “The statute is a rule of conveyance; it requires a writing to create an estate or interest in lands, that shall have more force or effect than a lease or estate at will only. But adjoining owners who adjust their division line by parol, do not create or convey any estate whatever between themselves; no such thought or intention influences their conduct; after their boundary is fixed by consent, they hold up to it by virtue of the title deeds, and not by virtue of a parol transfer:” Hagey v. Detweiler, 35 Pa. 409. So in the class of cases we are considering the written contract or deed' carries the title. But, as in determining the boundaries of the land granted, where there is a discrepancy between the lines run and marked on the ground and the courses and distances mentioned in the writing, the rule of law is that the former control, resort must necessarily be had to parol testimony in order to apply the grant to the subject-matter. We conclude that.upon that principle evidence of the kind under consideration was admissible. The same conclusion is reached by applying the principles of estoppel, as will be seen by an examination of the facts set forth in the opinion of the learned judge below. We refer also to his opinion for an entirely adequate discussion of the question whether the defendant had actual or constructive notice of the plaintiff’s possession and the' extent of his claim. As to the question of the quantity of evidence required to sustain the plaintiff’s contention, and as to the functions of the court and the jury in the determination of such a dispute, it is enough to refer to the case of Rook v. Greenewald, 22 Pa. Superior Ct. 641, and the cases there cited, which are to the effect that in such a dispute the jury are to decide according to the weight of the evidence under appropriate instructions from the court.

The remaining question that requires particular notice is as to the competency of the plaintiff to testify to matters occurring between him and Charles Tropp, the latter being dead at the time of the trial. The matters necessary to be noticed in the determination of this question are these: Charles Tropp and Frederick Scheidell, the executors of the estate of Catharine Schadt, deceased, who were empowered by her will “to sell or convey all or any part of my estate and convert the same into money, to be by them securely invested as they may see fit,” made a contract in writing with the plaintiff for the sale to him of lot No. 7 in a recorded plot of lots. After the death of Charles Tropp, the surviving executor made a written contract for the sale of the adjoining lot No. 8 to two sons of Mary L. Lewis. The sons having assigned their interests in the contract to Mary L. Lewis, the surviving executor subsequently conveyed lot No. 8 to her by deed said / to contain a warranty against all persons claiming from Catharine Schadt or her executors. The dispute in this action of ejectment was as to the location of the line between these two lots, the land involved being a strip 3.6 feet in width by 168 feet in depth. It is claimed that the plaintiff was incompetent .under clause e, sec. 5, of the Act of May 23,1887, P. L. 158, which, so far as material here, reads as follows: “Nor where any party to a thing or contract in action is dead, or has been adjudged a lunatic and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record, who represents his interest in the subject in controversy, shall any surviving or remaining party to such thing or contract, or any other person whose interest shall be adverse to the said right of such deceased or lunatic party, be a competent witness, to any matter occurring before the death of said party or the adjudication of his lunacy, unless,” etc. The contention of the defendant’s counsel is that the thing in action in this case was the plaintiff’s right to the possession of the premises in dispute; that the right to the possession was claimed under his articles of agreement supplemented by the conversation which he'proposed to prove with Charles Tropp; that without this conversation the plaintiff could not recover; and that inasmuch as Charles Tropp was a party to those articles and a party to the conversation, and his right and the right of the estate which he represented in the land in dispute had passed by the deed of the surviving executor to the defendant, Tropp being dead, the foregoing provision of the act of 1887 applies and the plaintiff was incompetent to testify. The appellee’s counsel concedes that M.ary L. Lewis is entitled to whatever interest in the land involved in this case remained in the estate of Catharine Schadt after the delivery to the plaintiff of his articles of agreement, but contends that whatever that interest was, it passed to the predecessor in title of Mary L. Lewis, not from Charles Tropp but from the estate of Catharine Schadt through its other and surviving representative. Charles Tropp, it is true, was a party to the contract under which the plaintiff claims, but the right which the plaintiff derived thereby was not the personal right of Tropp but the right of the estate which he represented. Again, the subject of controversy was the right to the possession of the strip of' land described in the writ, and, to state the proposition in another form, the interest which the defendant represented in that subject of controversy was not the interest of Charles Tropp but the interest of Catharine Schadt or the beneficial owners of her estate, and if this be true the plaintiff in testifying was not testifying under the presumed influence of an interest that was adverse to the right of Charles Tropp. It is not clear therefore that the provision of the act of 1887 above quoted applies in terms to the case in hand, and it is to be borne in mind that since the passage of the act of 1887 competency is the rule; incompetency the exception. “Departures from the common-law rules of evidence are for the legislature, and, when so made, inequalities, real or apparently so, resulting from the legislative removal of the disqualifications of witnesses cannot be urged as reasons why judges ought not to read the words of legislators as they are written: ” Brown, J., in Allen’s Estate, 207 Pa. 325; Broadrick v. Broadrick, 25 Pa. Superior Ct. 225. In permitting the plaintiff to testify as to the transactions with Charles Tropp, there was no greater inequality produced than there would have been if the transactions had been with an officer of a corporation, or an agent who had subsequently died. Perfect equality is unattainable, and has not been attempted in this legislation.

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


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    Keath v. Shiffer, Appellant.

      Husband and, wife — Alienation of wife’s affections — Criminal conversation — Evidence.
    A husband may maintain an action against one who has wrongfully induced his wife to separate from him, and it is not necessary in order to sustain such an action, that the plaintiff should either allege or prove criminal conversation. In such a case the jury may be properly instructed that in estimating the damages, they could take into consideration the social relations of the parties and the apparent affection existing between husband and wife before the separation.
    Where the plaintiff in such a case has offered evidence as to the conduct of the parties prior to the separation, laying a reasonable ground to infer an improper relation then existing between them, testimony as to their relations after the separation is admissible in order to render certain the inference to be drawn from the prior conduct.
    Under the Act of May 8, 1907, P. L. 184, in an action of crim. con. by a husband, the wife is a competent witness to rebut an attack upon her character or conduct. The statute does not make the wife generally competent as a witness in such actions, but only in regard to the matter of her character or conduct.
    Argued Nov. 13, 1908.
    Appeal, No. 60, Oct. T., 1908, by defendant, from judgment of C. P. Lancaster Co., June T., 1907, No. 32, on verdict for plaintiff in case of Edwin Keath v. A.bner K. Shiffer.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for alienation of a wife’s affections. Before Hassler, J.
    When Abner K. Shiffer was on the stand he was asked this question: “Q. State whether or not the plaintiff here, Mr. Keath, called upon you either at your office or place of business or your house where your mother was after his separation from his wife.”
    Mr. Musser: That is objected to for the same reason that we objected to Mrs. Keath. It is irrelevant.
    The Court: That is disallowed.
    Defendant excepts. Bill of exceptions signed and sealed. [8]
    Defendant offered to prove by Mrs. Sadie Keath that the separation of herself and her husband, the plaintiff, was caused by other reasons than any alleged intimacy between her and the defendant.
    Objected to by plaintiff on account of the incompetency of * the witness to testify to those facts.
    The Court: The objection is sustained. Exception. [9]
    Defendant also offers, to prove by Sadie Keath, wife of the plaintiff, that the plaintiff never charged or accused her of any criminal relation or intimacy with the defendant before separation.
    Objected to by plaintiff on account of the incompetency of the witness to testify to these facts.
    The Court: The objection is sustained. Exception. [10]
    Thomas Keath, a witness called by plaintiff, was asked this question: “Q. You are acquainted with Edwin Keath, you say, and have been for a long time. What is his social standing in the community in which he lives?
    Objected to by defendant.
    The Court: Let him answer. Exception. [11]
    The court charged in part as follows:
    It has been shown on the part of the plaintiff that he and his wife were living together at White Oak, or Penryn, in this county, happily, and early in January, 1907, they separated. It was shown in the plaintiff’s behalf that the defendant came to his house frequently, both when he, the plaintiff, was at home and when he was not at home; and that she went to the home and place of business of defendant frequently; that on one occasion a witness saw them standing together at the fence in front of her house at night; that on another occasion she sat on his lap; and on another occasion while sitting together on the porch he got close to her and put his hands on her and pinched her; that he took her driving in company with other people; and that on one occasion she was at his place of business late at night. [It has also been shown that since the separation a witness called on behalf of the plaintiff saw the defendant and the plaintiff’s wife in a compromising position in a dark room in a house near Schaefferstown, Lebanon county, and that after she left plaintiff’s house she stayed at a hotel in Lititz where the defendant on several occasions called on her and took walks with her. It has also been shown that since August, 1907, she is living at the home of defendant.] [17]
    The defendant testifies that nothing improper occurred between them at the house in Lebanon county, and that he did not call on the plaintiff’s wife but once while she was at Lititz, and that for the purpose of subpoenaing her as a witness. Other people were in the room of the house in Lebanon county, and they have been called and say they did not see anything improper between the defendant and the plaintiff’s wife on that occasion. If you find from the testimony that there were improper relations between them at that time, you can only consider it in connection with the testimony of what transpired between the defendant and plaintiff’s wife before the separation. It could not have been the cause of the separation because it occurred after the separation had taken place, but as I have said it may be considered by you in connection with the testimony of the other acts which did occur before the separation, so as to aid you in interpreting that previous conduct between the parties, and to render that which has been left doubtful in your minds certain. If you do not find the testimony as to the acts and relations between the parties is such as to justify your belief that there were any such acts as would lead to the alienation of the affections of the plaintiff’s wife, then of course this testimony should not be considered by you.
    The defendant denies any improper relations existed at any time between him and the plaintiff’s wife, or that he alienated her affections. He is corroborated in most if not all particulars by other witnesses. He explains his visits to the home of plaintiff and his wife and her visits and being at his place of business by the fact that she was employed by him to strip tobacco, to help pack cigars, and to stamp the boxes.
    [You will consider all the testimony, and are not bound by my recollection of it, and if from it all you are satisfied that the defendant did alienate the affections of plaintiff’s wife from him, even though you are not satisfied he had carnal knowledge of her, your verdict should be in favor of the plaintiff. But if you find he did not alienate her affections from her husband, then your verdict should be in favor of the defendant.] [1]
    [If you should find that the defendant has been the cause of the separation of plaintiff and his wife, the plaintiff is entitled to recover damages at your hands. What these damages are depends upon your discretion, as you are presumed to have knowledge of what would compensate the plaintiff for the loss of the love, services, society and comfort of his wife, and, in arriving at this conclusion, you must consider the position and circumstances in life of both the plaintiff and defendant, and the previous relations of the plaintiff and his wife, that is, before the separation.] [7] In this connection I direct you to disregard the testimony of the plaintiff as to what the relations were between himself and wife before the separation, as it was improperly admitted.
    Plaintiff presented these points:
    1. If the jury believe from all the evidence-that the defendant by his conduct with Mrs. Sadie Keath caused her to separate from her husband it was not necessary to prove illicit intercourse. Answer: This point we affirm. We have already told you that in the charge. [2]

      Defendant presented these points:
    1. Under the statement and pleadings in this case, there can be no recovery, unless the defendant and the plaintiff’s wife were guilty of illicit intercourse previous to the separation on January 10, 1907, and which caused the separation. Answer: Refused. [3]
    2. There is no proof that the defendant was guilty of sexual intercourse, or fornication with Mrs. Keath, previous to the time of the separation on January 10, 1907, and, therefore, there can be no recovery on the part of the plaintiff. Answer: Refused. [4]
    3. In order to recover, in an action of this kind, there must be convincing proof of illicit intercourse between the plaintiff’s wife and the defendant previous to the time of the separation. Answer: Refused. [5]
    4. If their separation was caused by anything else, or for any other reason than that of criminal relation, the verdict must be in favor of the defendant. Answer: Refused. [6]
    Verdict and judgment for plaintiff for $250. Defendant appealed.

      Errors assigned among others were (1-6, 8,17) above instructions, quoting them; (7-11) above instructions, quoting the bill of exceptions.

      B. F. Davis, for appellant.
    The court below in their charge to the jury held that it was not necessary to show criminal knowledge on the part of the plaintiff’s wife with the defendant, or that the jury should be “satisfied he had criminal' knowledge of her” in arriving at a verdict in this case: Wood v. Mathews, 47 Ia. 409; Bigaouette v. Paulet, 134 Mass. 123; Yundt v. Hartrunft, 41 Ill. 9; Bedan v. Turney, 99 Cal. 649 (34 Pac. Repr. 442); Egbert v. Greenwalt, 44 Mich. 245 (6 N. W. Repr. 654); Sherwood v. Titman, 55 Pa. 77; Evans v. O’Connor, 174 Mass. 287 (54 N. E. Repr. 557); Macfadzen v. Olivant, 6 East, 387.
    During the progress of the trial, the defendant called the wife of the plaintiff as a witness in his béhalf. The court below held that she was not a competent witness for anything, although the record does not specifically show that fact. We therefore offered to call her for the purposes set forth in the said assignment, and we think the court below was in error in rejecting our offers: Act of assembly of May 8, 1907, P. L. 184; Bigelow v. Sickles, 75 Wis. 427 (44 N. W. Repr. 761); Ratcliff v. Wales, 1 Hill (N. Y.), 63; Evans v. O’Connor, 174 Mass. 287 (54 N. E. Repr. 557).

      M. E. Musser, for appellee.
    The fact of adultery .may be and usually is proved by circumstantial evidence: Silvernali v. Westerman, 2 Kulp, 7; Cornelius v. Hambay, 150 Pa. 359.
    In this case, plaintiff’s wife was called by defendant manifestly to testify against the interests of her husband. There is no doubt, therefore, that under this act, plaintiff’s wife was not a competent witness: Cornelius v. Hambay, 150 Pa. 359.
    In an action for alienation of affections it is proper for the jury to consider the social relations of the parties: Matheis v. Mazet, 164 Pa. 580.
    Evidence of improper intimacy of defendant with plaintiff’s wife after her separation or divorce from her husband, may be given in connection with proof of acts prior to the separation or divorce, alleged to show improper intimacy: Sherwood v. Titman, 55 Pa. 77; Silvernali v. Westerman, 2 Kulp, 7; Gardner v. Madeira, 2 Yeates, 466.
    December 7, 1908:
   Opinion by

Porter, J.,

The gravamen of this action, as set forth in the statement filed by plaintiff, was the alienation of the affections of the wife of the plaintiff and causing her to desert and abandon him. The statement did not aver that there had been criminal conversation between the wife and the defendant, although it did state that on two occasions they were seen under such circumstances “as to warrant the conclusion that improper relations existed between them.” This amounted to nothing more than an averment of certain facts, followed by a statement that these facts were sufficient to warrant the inference of another fact, but it was not the equivalent of specifically charging the defendant with criminal conversation. The parties went to trial upon the statement which only sufficiently averred that the defendant had wickedly and intentionally alienated the affections of the wife of the plaintiff, and had persuaded her to desert and abandon him. That a husband may maintain an action against one who has wrongfully induced his wife to separate from him and that a wife has a like right against one who has intentionally induced her husband to abandon her is well settled: Gernerd v. Gernerd, 185 Pa. 233; Reading v. Gazzam, 200 Pa. 70. It is not necessary, in order to sustain such an action, that the plaintiff should either allege or prove criminal conversation. The distinction between this class of cases and those in which criminal conversation is the gist of the action is illustrated by Gilchrist v. Bale, 8 Watts, 355. The first, second, third, fourth, fifth and sixth specifications of error are dismissed.

The instruction of the court that the jury, in estimating the damages, should take into consideration the social relation of the parties, and the apparent affection existing between the husband and wife, before the separation, was free from error: Matheis v. Mazet, 164 Pa. 580. The seventh specification is overruled.

The offer of' the defendant to prove by Mrs. Keath, the wife of the plaintiff, what occurred at the time she and the défendant rode with Mr. Witmyer was improperly rejected. The testimony of Henry Witmyer, as to what occurred at the time in question, was manifestly offered for the purpose of leading the jury to infer that the relations between Mrs. Keath and the defendant were improper, and the appellee has printed the testimony of Witmyer in full in his paper-book with the other evidence which he there argues was sufficient to sustain a finding that the defendant and the wife of the plaintiff had committed adultery. That this testimony involved an attack on the character and conduct of the wife of the plaintiff would seem to be too clear for argument. The Act of May 8, 1907, P. L. 184, provides: “That in all civil actions brought by the husband, the wife shall be a competent witness in rebuttal, when her character or conduct is attacked upon the trial thereof, but only in regard to the matter of her character or conduct.” The effect of this statute is to make the wife a competent witness to rebut the attack upon her character or conduct, when her character or conduct is attacked upon the trial of an action brought by her husband. This statute does not make the wife generally competent as a witness in such actions, but only in regard to the matter of her character or conduct. The eighth specification of error is sustained. The offer of evidence, the rejection of which is the foundation of the ninth specification of error, was too broad, in that it would have permitted Mrs. Keath to testify to matters other than those regarding her own character and conduct. The ninth specification is, therefore, dismissed, as is also the tenth specification, for the same reason.

The testimony as to the relations between the defendant and the wife of the plaintiff, after the separation of the latter from her husband, was admissible for the purpose of interpreting their conduct previous to the separation. The plaintiff had offered evidence as to the conduct of the parties prior to the separation, laying a reasonable ground to infer an improper relation then existing between them, and testimony as to their relations after the separation was admissible in order to render certain the inference to be drawn from the prior conduct: Sherwood v. Titman, 55 Pa. 77.

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


author: Henderson, J.,

text:
    Cummins’s Estate.

      Will — Cancellation—Legacy—Erasure—Intention.
    Testatrix defaced and obliterated the name of a legatee in a will by-drawing a horizontal and diagonal lines through the names. In the clause following this bequest, she also obliterated in the same manner ■the names of two other legatees. Across the two clauses she wrote diagonally the words “Cancelled by death,” underneath which she wrote her signature. The words “by death” and her last name extended across the first legacy. There was evidence that the two legatees named in the second clause were dead at the time the cancellation was made. The legatee in the first clause was living at the time, and this was known to the testatrix, and he survived the testatrix. A witness testified that the testatrix about a year before her death, stated that she had canceled the bequest to the legatee in the first clause, and gave as a reason for such action that she did not wish him to receive any of her money. Held, that the testatrix had in fact canceled the bequest to the first legatee, and that he was entitled to take nothing under her will.
    Argued Nov. 18, 1908.
    Appeal, No. 177, Oct. T., 1908, by S. Mason McCollin, M. D., from decree of O. C. Delaware Co., dismissing appeal from register of wills in Estate of Almena Cummins, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Appeal from register of wills.
    In addition to the facts stated in the opinion of the Superior Court it appears that the two clauses of the will of the testatrix showing the cancellations were as follows:

    The court dismissed the appeal.

      Error assigned was decree dismissing the appeal.

      W. Nelson L. West, with him George T. Butler, for appellant.—
    An inspection of the original will shows clearly that the tes-r tatrix’s intention was to apply the words which she wrote across the face of the three bequests to all three of them. Her signature is practically all on the clause relating to Doctor McCollin’s bequest, and from the appearance of the paper there is absolutely nothing which would indicate that the words of the explanation should be limited to the two bequests to the Misses Service, or that they were to stand on any different footing from the bequest to Doctor McCollin; if such had been her intention there was ample room to have written the words merely upon the bequest to the two women. In fact, the inference would clearly be the other way. The method of striking out the letters is exactly the same in all three bequests and the wording explaining the striking out runs across them in the same manner, showing that the entire cancellation was one act. The testatrix therefore assumed as a fact that all three legatees were deceased. Two of them were dead at the time her will was proven, the third was not. There is therefore a clear mistake of fact as to him, and under the well-settled doctrine of dependent relative revocation her cancellation of the legacy to him was inoperative: Mendinhall’s Appeal, 124 Pa. 387.
    The oral testimony of Mr. Gilfillan should not have been considered: Nettleton v. Caryl, 20 Pa. Superior Ct. 250; Sutch’s Est., 201 Pa. 305.

      Joseph deF. Jurikin and William I. Schaffer, for appellee.—
    A codicil revoking a former will or codicil, or a devise or bequest in a will or codicil, because of the mistaken apprehension of the existence of a fact, will not be given that effect; but a codicil making a deliberate, independent revocation of a former will or codicil, though there be a mistaken apprehension of the existence of some other independent fact, will be a revocation: Attorney General v. Ward, 3 Ves. Jr. 327; Campbell v. French, 3 Ves. Jr. 321; Mendinhall’s App., 124 Pa. 387; Dunham v. Averill, 45 Conn. 61.
    When the will is traced from the hands of a testator and found altered or mutilated, or not found at all, it is presumed to have been altered, mutilated or destroyed by the testator himself animo revocandi, and the burden of proof is on those seeking to establish the entire will to- repel this presumption: Betts v. Jackson, 6 Wend. 173; Idley v. Bowen, 11 Wend. 227; Minkler v. Minkler, 14 Vt. 125; Bulkley v. Redmond, 2 Bradf. 281; Davis v. Sigourney, 49 Mass. 487; Johnson’s Will, 40 Conn. 587; 1 Jarman on Wills (5th .Am. ed.), 133, 283, note 7.
    The legal presumption is strongly corroborated by the deolaration of the testator himself to other parties: Russell v. Frisbie, 19 Conn. 205; Douglas v. Chapin, 26 Conn. 76; Armstrong v. Morrill, 81 U. S. 120; Travellers’ Ins. v. Mosley, 75 U. S. 397.
    The cancellation by a testator of a portion of his will is a valid revocation of the bequest so canceled: Bigelow v. Gillott, 25 Am. Rep. 32; Tomlinson’s Estate, 133 Pa. 245.
    The court below found that the witness Robert G. Gilfillan was a competent witness. No specific exception was taken to this finding, and no attempt is made in the argument of appellant to controvert the finding.
    December 7, 1908:
   Opinion by

Henderson, J.,

If it were made clearly to appear that the legacy to Dr. McCollin was cancelled by the testator under the impression that the legatee was dead, the doctrine of Campbell v. French, 3 Vesey, Jr., 321; Mendinhall’s Appeal, 124 Pa. 387; and kindred cases, would save the bequest because it was revoked under a mistaken apprehension, but we agree with the conclusion of the court below that it not only does not appear that the cancellation of the legacy was made under such misapprehension but that the evidence shows that it was made for a different reason. The legacy was annulled in accordance with one of the methods permitted by the Act of April 8,1833, P. L. 249, independently of the superimposed words of cancellation, and the presumption is that such obliteration was made either before the will was signed, or after it was executed, with the intention of revoking the particular bequest. The. words written across the face of the bequest do not explain themselves, but in the light of extraneous facts disclose the testator’s motive with reference to that part of the will to which they refer. There is nothing on the face of the will which necessarily relates these words to the legacy to Dr. McCollin: It is only because they extend from that portion of the will containing the Service legacies on to the part containing the bequest to the appellant that' the fact is assumed that the testator had reference not only to the Service but the McCollin bequests. It is evident that these words were not written by the testator to effect a cancellation but rather to give her reason for her action, for the bequests to Dr. McCollin and to Elizabeth Service and Mary Service are effectually stricken from the will by defacing and obliterating the names of these legatees. It is to be noted that the word “cancelled” in the superimposed words is written across the Service bequest, and that the clause of the will relating to Dr. McCollin is only affected by an extension of the remainder of the sentence and a part of the testator’s name. It could hardly be contended that in the absence of the defacing marks on the McCollin bequest the words in question would have the effect to destroy the bequest to him. When resort is had to other evidence than the will the significance of the inscribed words becomes apparent, for the legatees named in the Service bequests died before the testator and therefore could no longer be objects of her bounty. This fact makes what was written across the will intelligible and reasonable in explanation of the testator’s conduct with reference to the cancellation. The burden is on the appellant to show that the legacy to him was cancelled on the mistaken supposition that he was dead. This he undertakes to do by showing that he is alive and contending that the explanatory writing relates to the legacy to him as well as to the Misses Service. As there is no evidence that the testator believed the appellant to be dead, except that inferable from these words, and as it appears without controversy that they truthfully refer to the Service legacies, we think there is not such a necessary reference to the bequest to the appellant as to justify the conclusion that the testator cancelled his legacy because she thought he was dead. If there is any doubt about this, however, the evidence offered shows that the cancellation of the McCollin legacy was for another reason. The testimony of Mr. Gilfilian is that in a conversation with the testator about a year before her death' she told him that she had cancelled the bequest to Dr. McCollin in her will, and gave as a reason for such action that she did not wish Dr. McCollin to receive any of her money. It is necessarily implied in this statement of the testator- that she knew that Dr. McCollin was living at the time of her conversation with the witness, and at that time she referred to the legacy as having been cancelled. There is further evidence that the family of the testator and the family of Dr. McCollin were intimate, and exchanged visits, and presumably lived in the same vicinity, all of which is inconsistent with the theory that the testator believed at the time of the alteration of her will that Dr. McCollin was dead.

The suggestion was made at the argument that Mr. Gilfillan is an interested witness, being a legatee under the will, and therefore not competent, but that point does not seem to be pressed. Any objection to his testimony is rather to its weight than its competency. It was credited by the court below and no reason has been presented why it should not be now. It is not unreasonable or improbable, and is in no way contradicted. It was not offered, as seems to be supposed by the learned counsel for the appellant, to reform an instrument on the ground of mistake, but to identify the legacy to which the inscribed words refer. Without explanation they would be meaningless, and it was competent to show by parol that they had reference to the Service bequests. The decree is in accordance with the evidence and the law applicable to the case and is therefore affirmed.


text:
    Miller Lock Company v. Diehl Manufacturing Company, Appellant.

      Contract — Warranty—Breach of warranty — Machinery—Delay—Evidence.

    The seller of a machine specifically guaranteed “the rating, stability and performance of its apparatus, and will without charge, during a period of one year from the date of shipment, repair or at its option, furnish to the purchaser a new part in' exchange for any part or parts of machines of its manufacture that shall, under normal conditions of operation, and under proper supervision and attendance, develop any mechanical or electrical defect.” The warranty was part of the specifications. Among the things which the specifications required the machine to perform was: “Without shifting the position of the brushes, the generators will operate at all loads between no load and full load without sparking, and will withstand momentary overloads of thirty-five per cent without injurious sparking.” The evidence showed that the machine sparked continuously and injuriously at much less than full load from the time it was installed, that this was a serious defect, that the seller was notified and made frequent attempts to make the machine work, but did not succeed, and refused to do anything more. Held, that the seller was bound to furnish a machine which would operate properly as a whole, and that the warranty was not limited merely to keeping the machine in repair for one year, or furnishing new parts.
    When a party does not allege fraud and seek to recover upon that ground and there is no covenant in the contract for a return of the goods, it is not necessary in an action on an express covenant of warranty in a contract for the sale of machinery that the plaintiff should, before bringing suit, redeliver or tender the property to the defendant.
    The mere fact that the purchaser of a machine uses the machine for over a year before throwing it out, although it does not work in a manner covered by an express covenant of warranty, will not defeat a right to recover on the warranty.
    In an action for the breach of an express covenant of warranty contained in a contract for the sale of a machine, where it appears that the plaintiff has paid for the machine, the plaintiff may offer evidence as to the value of the machine, and Im may show that it was valueless as a machine, and that its only market value was as scrap.
    Argued Oct. 9, 1908.
    Appeal, No. 24, Oct. T., 1908, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1905, No. 479, on verdict for plaintiff in case of Miller Lock Company v. Diehl Manufacturing Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a covenant of warranty contained in a contract for the sale of an electric generator.
    The facts are stated in the opinion of the Superior Court.
    The defendant presented the following points:
    1. If the jury believe that the defendant company at its own expense kept the machine in reasonable repair for the period of one year from date of shipment, your verdict must be for the defendant. Answer: Refused. [1]
    3. By virtue of the contract under which the machine was sold by the defendant to the plaintiff the defendant was obligated for the period of one year to keep the machine in operation up to the standard of its warranty, namely, “without shifting the position of the brushes the generator will operate at all loads between no load and full load without sparking, and will withstand momentary overloads of 35 per cent without injurious sparking,” and since the plaintiff did not return or offer to return the machine at the expiration of one year from date of shipment, but continued to use it, such action on his part is deemed to be an election to retain the machine, and the plaintiff is, therefore, permitted to recover only such sum as would compensate for the cost of the proper repair of the machine. No such cost has, however, been proven and your verdict must, therefore, be for the defendant. Answer: Refused. [2]
    4. Under all the evidence of the case your verdict must be for the defendant. Answer: Refused. [3]
    Verdict for plaintiff for $1,080, upon which judgment was entered for $600, all above that amount having been remitted. Defendant appealed.

      Errors assigned amongst others were (1-3) above instructions, quoting them.

      Joseph Hill Brinton, with him J. Lawrence Wetherill, for appellant.
    The general rule is that in the absence of fraud or an agreement to rescind, an executed or completed sale as distinguished from a mere executory one cannot be rescinded for mere breach of warranty: Mining Co. v. Jones, 108 Pa. 55; Street v. Blay, 2 Barn. & Ad. 456.
    The warranty was expressly limited to one year from date of shipment.
    Even had the warranty been silent as to time, the law imputes a reasonable time: Armour v. Produce Co., 28 Pa. Superior Ct. 524; Tete Bros. v. Eshler, 11 Pa. Superior Ct. 224; Rohn v. Dennis, 109 Pa. 504; Kessler v. Perrong, 22 Pa. Superior Ct. 578; Leaming v. Wise, 73 Pa. 173; Howard v. Turner, 155 Pa. 349; Spiegelberg v. Karr, 24 Pa. Superior Ct. 339; Moneyweight Scale Co. v. Woodward, 29 Pa. Superior Ct. 142.
    No expert testimony as to market value should have been admitted: Taylor v. Saurman, 110 Pa. 3; Franklin Fire Ins. Co. v. Gruver, 100 Pa. 266; Coyle v. Com., 104 Pa. 117.

      Ira Jewell Williams, with him Francis Skunk Brown and Alex. Simpson, Jr., for appellee.
    There was no limitation of time as to the warranty of the “rating, stability and performance ” of the apparatus. The breach was of that warranty. The undertaking to repair or replace parts mechanically or electrically defective, relates to the furnishing of repair parts, made necessary by latent defects.
    A warranty is a self-existent contract collateral to the contract of sale: McFarland v. Newman, 9 Watts, 55.
    The buyer cannot rescind, but must sue on the warranty: Kase v. John, 10 Watts, 107; Freyman v; Knecht, 78 Pa. 141; Eshleman v. Lightner, 169 Pa. 46; Morse, Williams & Co. v. Arnfield, 15 Pa. Superior Ct. 140.
    The fact of the warranty and its breach having been conclusively proved, there could not have been binding instructions for the defendant or judgment non obstante veredicto: Fearl v. Hanna, 129 Pa. 588; Deen v. Herrold, 37 Pa. 150.
    The fact that the buyer, after having used the property for some time, pays the purchase money due or executes his notes therefor, does not operate as a waiver of his right of action for a breach of the warranty: Johnson v. Roy, 112 Fed. Repr. 256; Bowers Rubber Co. v. Blasdel, 47 Pac. Repr. 931; Briggs M. Rumley Co., 96 Iowa, 202 (64 N. W. Repr. 784); National Oak Leather Co. v. Armour Cudahy Packing Co., 99 Ky. 667 (37 S. W. Repr. 81); Stoddard Mfg. Co. v. Miller, 107 Mich. 51 (64 N. W. Repr. 948); Osborne v. Carpenter, 37 Minn. 331 (34 N. W. Repr. 163); New Birdsall Co. v. Keys, 99 Mo. App. 458 (74 S. W. Repr. 12); Russell v. Corning Mfg. Co., 49 N. Y. App. Div. 610; Aultman, etc., Co. v. Hefner, 67 Tex. 54 (2 S. W. Repr. 861); Elliott v. Puget Sound, etc., S. S. Co., 22 Wash. 220 (60 Pac. Repr. 410); Park v. Richardson, etc., Co., 81 Wis. 399 (51 N. W. Repr. 572).
    This is particularly true where the payment is induced by the seller’s promise to remedy the defect or return a part of the purchase money: Kingman v. Meyer, 70 Ill. App. 476; York Mfg. Co. v. Bonnell, 24 Ind. App. 667 (57 N. E. Repr. 590); Mallory Com. Co. v. Elwood, 120 Iowa, 632 (95 N. W. Repr. 176); Munford v. Kevil, 109 Ky. 246 (58 S. W. Repr. 703); McCormick Harvesting Mach. Co. v. McNicholas, 66 Minn. 384 (69 N. W. Repr. 36); Seymour v. Phillips, 61 Neb. 282 (85 N. W. Repr. 72); Aultman, etc., Co. v. Hefner, 67 Tex. 54 (2 S. W. Repr. 861).
    December 14, 1908:
   Opinion by

Porter, J.,

The plaintiff having bought of the defendant and paid for a certain electric generator, under a contract which contained a covenant of warranty, brings this action to recover damages for an alleged breach of such warranty. The covenant of warranty upon which the plaintiff relies was embodied in the specifications attached to and forming a part of the contract of sale, and the particular clause of the covenant in question is in these words: “The Diehl Manufacturing Company specifically guarantees the rating, stability and performance of its apparatus, and will without charge, during a period of one year from the date of shipment, repair, or at its option, furnish to the purchaser a new part in exchange for any part or parts of machines of its manufacture that shall, under normal conditions of operation, and under proper supervision and attendance, develop any mechanical or electrical defect.” The specifications of which this warranty formed a part stated in detail the “rating” of the generator in question, the amount of power it would develop and its efficiency; they also stated the manner in which it would do its work, that is, the way in which it would perform, under varying conditions. The covenant of warranty was a part of the specifications, and the “rating” and “performance” called for by that covenant were the rating and performance stipulated for in the specifications. Among the things which the specifications required the machine to perform was: “Without shifting the position of the brushes, the generator will operate at all loads between no load and full load without sparking, and will withstand momentary overloads of thirty-five per cent, without injurious sparking.” The plaintiff produced evidence in the court below which, if believed, established that the generator furnished under the contract never did come up to this requirement of the specifications, that it sparked continuously and injuriously when running at much less than full load from the time it was installed, that this was a serious defect which interfered with the entire operation of plaintiff’s factory and frequently rendered it necessary to cease operating the electric generator; that defendant company was notified of the failure of the machine to perform as required and that it made frequent and protracted attempts to make the machine work as it ought to do, but finally admitted that the machine could not be made right and refused to do anything more.

The defendant contends that all it was required to do, under this covenant of warranty, was to keep the machine in repair for one year, or at its option furnish to the purchaser a new part in exchange for any part or parts of the machine which might within a year develop any mechanical or electrical defect, that the concluding part of the covenant, relating tQ repair of defective parts, is to be construed as a limitation of the general covenant, and that all the defendant company could be required to do was to repair the several parts of the machine which developed mechanical or electrical defects. This contention cannot be sustained. The “rating” and “performance” mentioned in the covenant related to the operation of the machine as a whole, producing results; and the covenant warranted against defects inherent in the design of the machine. That clause in the covenant providing for the repair of parts which developed defects within a year was intended to insure proper workmanship and durability in the several parts of the apparatus. The defendant further contends that'the plaintiff company cannot recover because it has retained the machine; that as a condition precedent to a recovery in this action the plaintiff ought to have rescinded the contract and returned the machine. This contention is equally without foundation. This action is not predicated on a rescission of the contract, but is founded upon one of the express covenants thereof. When a party does not allege fraud and seek to recover upon that ground and there is no covenant in the contract for a return of the goods, it is not necessary in an action on an express covenant of warranty in a contract for the sale of machinery that the plaintiff should, before bringing suit, redeliver or tender the property to the defendant: Borrekins v. Bevan, 3 Rawle, 23; McFarland v. Newman, 9 Watts, 55; Kase v. John, 10 Watts, 107; Freyman v. Knecht, 78 Pa. 141; Eshleman v. Lightner, 169 Pa. 46; Himes v. Kiehl, 154 Pa. 190. When in such a case the purchaser retains the property, having paid the price, the measure of damages is the difference between the actual value of the property as it was at the time of the sale and its value if it had been as warranted.

The delay of the plaintiff in bringing this action was not, under the circumstances disclosed by the evidence, fatal to the right to recover. The evidence disclosed that the plaintiff promptly made complaint to the defendant shortly after.the machine had been installed in the factory, that the defendant gave assurances that the difficulty could be remedied and that the plaintiff gave the defendant every opportunity to do so, but there was no evidence in the case that the plaintiff ever finally accepted the machine as satisfactory. Mere delay in bringing the action on a covenant of warranty will not defeat the right to recover; such actions are only subject to the same limitations that apply to other actions on contracts. The mere fact that the plaintiff company used the machine for over a year before throwing it out, although it did not work in a satisfactory manner, would not defeat the right to recover. The plaintiff had paid for the machine and, although it was-not what they were entitled to have under their contract, they had the right to make such use of it as could be made until it was convenient for them to shut down their factory and procure something else. This action was not- brought to recover the purchase money paid, but for damages for the breach, of the covenant of warranty.

The evidence produced by the plaintiff as to the value of the machine actually delivered was properly admitted. Witnesses having expert knowledge on the subject ■ having testified that the machine had no value as a generator and that its only market value was as scrap, it was proper for the plaintiff to produce evidence of the value as scrap. The defendant was not precluded from showing what was the value of this machine either as a generator or for any other purpose. All the assignments of error are dismissed.

' The judgment is affirmed.


text:
    Tabor Manufacturing Company, Appellant, v. Lovell.

      Contract — Agreement among creditors — Chattel mortgage.

    One of three creditors held a chattel mortgage under the laws of Massachusetts on a machine belonging to the debtor. The three creditors entered into an agreement by which the mortgagee was to foreclose the mortgage and divide the proceeds among the three creditors. Subsequently and immediately before the foreclosure sale the three creditors entered into another agreement by which it was provided that if the mortgagee bought in the property, it should operate the same and divide the net profits equally with the others until the other two creditors were paid in full. The property was bought in by the.mortgagee at a price stated, but no part of the purchase price was paid by the mortgagee to the other two creditors. Subsequently the mortgagee resold the property and divided the amount received equally with the other two creditors. One of these creditors whose account had been guaranteed, had taken a note from the guarantor and had agreed to credit against the note one-half of the moneys which should be received by such creditor from the sale of the property. Held, that the guarantor was entitled to credit only on one-half of the amount received from the resale, and was not entitled to an additional credit of one-half of one-third of the purchase price at the foreclosure sale.
    Argued Oct. 13, 1908.
    Appeal, No. 151, Oct. T., 1908, by plaintiff, from judgment of C. P. No. 4, Phila. Co., .March T., 1906, No. 3,480, on verdict for- plaintiff in case of Tabor Manufacturing Company v. Clifford S. Lovell.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Judgment modified.
    Assumpsit on a promissory note for $960.01. Before Carr, P. J.
    Indorsed upon the note in suit was the following:
    Amount of note, 10.02.05........................ $962.01
    Interest from 10.02.05 to 12.05.05................. 10.12
    $972.13
    Less payments on account as follows:
    10.05.05 .......................... 2.16
    10.30.05 .......................... 2.83
    11.14.05 .........................! 13.96
    12.05.05 .............•............. 34.04
    --- 52.99
    Interest to 12.05.05........................07
    -- 53.06
    919.07
    By sum realized from sale...................... 377.37
    541.70
    To interest from 12.05.05 to 1.02.06............... 2.50
    Balance due 1.02.06......................... 544.20
    Other facts appear by the opinion of the Superior Court.
    On a rule for judgment non obstante veredicto the court entered the following judgment:
    And now, to wit, April 28, 1908, the court being of opinion that the defendant is entitled to a credit upon the note in suit for the sum of $515.95, received by the plaintiff from the Mechanics’ Foundry Company, February 19,1906, in pursuance of the agreement of the parties made at the trial, judgment is entered in favor of the plaintiff for the difference between the amount of the verdict, and the said credit, with interest on said note adjusted to this date, to wit: for $36.50.

      Error assigned was the judgment of the court.

      M. Hampton Todd, for appellant.

      Edward Austin Waters, for appellee.
    December 00, 1908:
   Opinion by

Porter, J.,

The plaintiff brought this action upon a promissory note and under an agreement of the parties at the trial the jury rendered a verdict in favor of the plaintiff for $617.54, the question being reserved, “Whether or not under the evidence in this cause the defendant is entitled to be credited on the note in suit with the whole or any part of the sum of $515.95, being the one-half of the amount received by the plaintiff from the Mechanics Iron Foundry Company under a release dated February 19th, 1906, with leave to the court to make the proper credit, if any, and enter judgment accordingly.” The learned judge of the court below held that the defendant was entitled to credit for the said sum of $515.95 and accordingly entered judgment in favor of the plaintiff in the sum of $36.50; from which judgment the plaintiff appeals.

The complicated facts and numerous written contracts out of which the question here presented arises are stated at length in the opinion of this court in Tabor Manufacturing Co. v. Lovell, 32 Pa. Superior Ct. 177, a former appeal in this same proceeding, and it is not necessary that they should be here repeated. We there held that under the agreements which were set forth in the affidavit of defense the defendant was entitled to have credit upon this note for one-half of the $1,031.91 which the Mechanics’ Iron Foundry Company had, on February 19, 1906, paid to the plaintiff, and said, that, whether the plaintiff was entitled to credit for one-half of this entire amount and also for the sum of $377.37 for which the plaintiff had already been allowed a credit was a matter which must be determined at the trial. All of the facts which the defendant had set forth in his affidavit of defense were established by uncontradicted testimony at the trial, or formally admitted by the plaintiff to be true, and no good reason has been presented for departing from the conclusion at which we arrived in the former appeal; that the sum of $1,031.91 paid by the Mechanics Iron Foundry Company to the plaintiff was in effect, so far as this defendant was concerned, a payment upon the indebtedness of Storm & Company to the plaintiff, and the defendant was entitled to have one-half that amount credited upon the note in suit. Whether he was also entitled to have the credit of $377.37 is under the evidence an entirely different question.

Under the covenants of the agreement, dated July 27, 1905, between the Mechanics Iron Foundry Company, George R. Allen, and the Tabor Manufacturing Company, the parties agreed to pool their issues in the endeavor to collect their several claims against Storm & Company, and one of the provisions of that agreement was that in case the Mechanics Iron Foundry Company foreclosed a mortgage which it held upon certain machinery owned by Storm & Company it would divide the proceeds, after deducting expenses, between the several parties in proportion to the balance then remaining of their several demands. This did not operate as an assignment of the mortgage, the foundry company simply became obliged to account for the proceeds of the sale under the mortgage. This agreement was approved of in writing by this defendant and Storm & Company. The parties to the agreement subsequently concluded that it was advisable for their protection that the mortgage should be foreclosed-. The mortgage was upon machinery which was located on the premises of, and in the possession of, the Mechanics Iron Foundry Company, in Boston, Massachusetts, and was duly recorded. The mortgage' contained a provision that the mortgagee, upon any default, might sell the property after giving ten days’ notice; “And out of the money arising from such sale the grantee or his representatives shall be entitled to retain all sums then secured by this mortgage, whether then or thereafter payable, .... or to discharge any claims or liens of third persons affecting the same.” Notice having been given the property was sold under this mortgage on December 5, 1905, and was bought in by the Mechanics Iron Foundry Company for $2,750.00. The expense of the sale under the mortgage was $105.51, leaving the net proceeds $2,644.49. The same day that the sale was made, but prior thereto, an agreement was entered into between this plaintiff, George R. Allen and the Mechanics Iron Foundry Company, under the provisions of which it was agreed that if at the sale under the mortgage the property was sold to the Mechanics Iron Foundry Company the foundry company would continue to operate the plant and after deducting, as the cost of manufacture, certain specified rates per pound for castings from the money actually received from time to time upon the sale of said castings, the Mechanics Iron Foundry Company would pay an amount equal to one-third of the balance to the said Allen and an amount equal to one-third of the balance to the Tabor Manufacturing Company, "in liquidation of the indebtedness now due from the said Storm & Company, and in settlement of the interest of said George R. Allen, and the said Tabor Manufacturing Company, in the property covered by said mortgage, until the said George R. Allen and the said Tabor Manufacturing Company shall have been paid in full, at which time all rights of the said George R. Allen and the said Tabor Manufacturing Company to the property covered by the said mortgage and agreement of July 27, 1905, and under this agreement, shall cease.” The purchase of the property at the sale, by the Mechanics Iron Foundry Company, was made in pursuance of this agreement. Had it not been for the agreement of December 5, 1905, the foundry company would have been required, under the provisions of the agreement of July 27, 1905, to account to the plaintiff company and to Allen for their' proportions of the net proceeds of the sale, namely $2,644.49; of which the- Tabor Manufacturing Company would have been entitled to receive $782.16. The agreement of December 5, 1905, modified the contract of July 27th, of the same year, and relieved the foundry company from accounting and paying to the other parties in this manner. The agreement of December 5, and the sale in pursuance thereof, changed the right of the plaintiff company from that of calling upon the foundry company to account for the proceeds of the sale of the machinery to that of being entitled to receive one-third of the excess of the amount of the sales of the castings, resulting from the future operation of the factory, over the cost of manufacturing those castings at a fixed price. The effect of this was that at the time of the sale the plaintiff company was not a mortgagee, nor was it a purchaser at the sale; the amount for which the property sold at the sale' was totally immaterial to this plaintiff. The Mechanics Iron Foundry Company was not obliged to pay to the Tabor Manufacturing Company, as its share of the proceeds of the sale, the sum of $782.16; nor is there any evidence in this case which would justify a finding that it did actually make such payment. True it is that the .plaintiff company subsequently gave credit to the defendant for $377.37, which sum was said to be the one-half of the amount of the share of the plaintiff in the fund resulting from the sale, the slight discrepancy in the amount is probably to be accounted for by some expense not referred to in the testimony. But this was done upon the theory of the plaintiff that, because the interest of Storm & Company, the mortgagors, was divested by the sale, the right of the defendant to .have credited upon this note any part of the money which the plaintiff subsequently received under the various agreements with regard to the property, ceased. The plaintiff contended that the defendant was entitled to credit for one-half of the share of the plaintiff in the fund resulting from the sale under the mortgage, if that fund had been distributed under the agreement of July 27, 1905, but that the defendant was not entitled to credit for one-half of any amount which the plaintiff received under the provisions of the contract of December 5, 1905. The plaintiff upon this theory conceded that the defendant was entitled to credit for $377.37, and for that amount the defendant did receive credit in the verdict which was rendered by the jury.

We are of opinion that the defendant was entitled to credit for one-half of all that the plaintiff received under the several agreements down to the final release of February 19, 1906. There is no dispute under the evidence as to the amounts which were received down to December 5, 1905. The defendant proved that the plaintiff had received $1,031.91, on February 19, 1906, the one-half of which is $515.95. The defendant did not prove that the Mechanics Iron Foundry Company had actually paid to the plaintiff company the sum of $782.16, as its share of the proceeds of the sale under the mortgage. The only sum, therefore, received by the plaintiff under the provisions of the contract of December 5, 1905, for one-half of which the defendant was entitled to credit, was the item of $1,031.91. The defendant’s evidence entitled him to credit for the entire sum of $515.95. The plaintiff contended that the defendant was only entitled to credit for $377.37, out of the funds received after the sale, and for the amount thus conceded the defendant has credit in the verdict. It follows that instead of reducing the verdict by $515.95, with interest from February 19, 1906, the court should have reduced the verdict by the amount of $138.58 with interest from said date. The verdict was rendered on April 8, 1908. The amount of the additional credit to which the defendant was entitled, with interest to April 8, 1908, is $156.36, which deducted from the amount of the verdict leaves $461.18.

The judgment is modified and judgment is now entered in favor of the plaintiff and against the defendant for $461.18, with interest from April 8, 1908, and costs.


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    Catts v. Catts, Appellant.

      Divorce — Setting aside decree — After-discovered evidence — Discretion of court — Appeals.
    The refusal of the court to open a final decree in divorce on the ground of after-discovered testimony so as to give the respondent an opportunity to contradict a witness who had testified in behalf of the libelant, will not be reversed in the absence of anything to show an abuse of the sound discretion of the court below.
    Where a decree in divorce was set aside on the ground that there was doubt as to whether the rule for final decree had been served on the respondent and this action of the court was reversed on appeal, and thereafter the respondent applied to reopen the case for the purpose of offering after-discovered testimony, and this application is refused and a second appeal is taken, the respondent cannot on the second appeal, and after the time for an appeal from the original proceeding had expired, allege that the evidence in the original proceeding was not sufficient to support the decree.
    Argued Oct. 14, 1908.
    Appeal, No. 74, Oct. T., 1908, by defendant, from decree of C. P. No. 1, Phila.'Co., Sept. T., 1904, No. 239, refusing to open a final decree in divorce in case of Robert M. Catts v. Ola J. Catts.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Petition for final decree in divorce. Before Brégy, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was decree refusing to open final decree in divorce.

      Charles Hunsicker, with him Joseph W. Hunsicker, for appellant.
    The order opening the decree in divorce having only been reversed, the case stood open and the respondent had a right to proceed de novo just as in the case of a nonsuit, where the plaintiff has a right to bring a new action: Catts v. Catts, 35 Pa. Superior Ct. 293; Spees v. Boggs, 204 Pa. 504.
    The respondent also had a right to take an appeal within six months from the entry by the Superior Court of the judgment of reversal, because, having won below, she was not hurt until after that judgment was entered, and to assign any error which the court below made in the original matter. This she now does by her fourth assignment of error, her appeal having been taken May 5,1908, within the six months: Act of March 22, 1850, P. L. 230, sec. 2; 1 P. & L. Dig., col. 132, sec. 17; Ormsby v. Ihmsen, 34 Pa. 462; Gates v. Penna. R. R. Co., 154 Pa. 566; Hughes v. Miller, 192 Pa. 365.

      Reuben Levi, with him Daniel J. Shern, for appellee.
    It was within the sound discretion of the court to refuse to open the decree: Gazzam v. Reading, 202 Pa. 231; McNeile v. Cridland, 6 Pa. Superior Ct. 428; Koch v. Biesecker, 7 Pa. Superior Ct. 37; Reno v. Shallenberger, 8 Pa. Superior Ct. 436; O’Donnell v. Flanigan, 9 Pa. Superior Ct. 136; Dean v. Munhall, 11 Pa. Superior Ct. 69.
    In support of the contention that the appellant should have appealed from the decree of divorce of the lower court within a period of six months thereafter, and not wait until his laches preclude him, we submit the case of Spees v. Boggs, 204 Pa. 504; Pennington v. Pennington, 10 Phila. 22; Fay v. Fay, 27 Pa. Superior Ct. 328; Barnsdall v. Barnsdall, 171 Pa. 625.
    December 7, 1908:
   Opinion by

Henderson, J.,

The plaintiff obtained a decree of divorce against the appellant April 3, 1905, in the court of common pleas No. 1 of Philadelphia county. On March 8, 1907, the respondent in that -proceeding presented a petition to the court asking .that the decree be opened and the petitioner granted leave to file an answer and make defense. On March 26th of the same year an answer was filed and testimony taken before the court. The grounds set forth in that petition were that the respondent neither had notice of the meeting to take testimony before the master nor of the rule for final decree; and that the testimony taken before the master, on which the decree was entered, was not true. Two of the judges of the court heard the witnesses on the rule granted on this petition. They limited the inquiry, 'however, to evidence bearing on -the regularity of the proceeding leading up to the decree of divorce. On the evidence thus taken .the court determined that there was doubt as to whether the rule for ■final decree was served on the respondent, and the decree was therefore set aside. This action of the court was reversed on an appeal by the complainant to the Superior Court: Catts v. Catts, 35 Pa. Superior Ct. 293. Thereupon, March 17, 1908, the appellant presented a petition to the court below asking for the same relief, and on April 21, 1908, the court refused to grant a rule on the petition. The appellant then took this appeal and complains first, that the court should have granted a rule on her last .petition to open the decree, and second, that the court should have heard testimony on the first application on the question of the falsity of the evidence offered by the complainant in support of his application for divorce. 'Both of the applications to which exception is taken involved the exercise of a sound discretion by the trial court. The last application to reopen the case was merely a renewal of the former petition, with the added proposal to offer evidence to contradict the testimony of the complainant taken in that proceeding. It was in effect a motion for a new trial on the ground of after-discovered testimony by which it was proposed to contradict a witness who testified in behalf of the appellee. Such an application should be entertained with great caution, as was said in Gazzam v. Reading, 202 Pa. 231. It is possible in nearly every case to discover something after the trial which would have been relevant and perhaps important evidence to the losing party, but there would be no end to controversy if a lost opportunity might be recovered by granting a new trial in which the deficiencies of a former trial might be supplied. Such applications can be best considered by the trial court, and it is only in cases of clear abuse of discretion by .that court that a refusal of the application is assignable for error: De Grote v. De Grote, 175 Pa. 50; Koch v. Biesecker, 7 Pa. Superior Ct. 37; Reno v. Shallenberger, 8 Pa. Superior Ct. 436.

Nothing is presented which would justify us in declaring that the learned .judges of the court below were chargeable with an abuse of discretion in respect to .this application.

The same .consideration would affect the action of the court in refusing to rehear the case on its merits on the original application of the appellant. The decree was regularly entered and the offer was to introduce evidence nearly two years thereafter to contradict the evidence of the complainant and retry the case. The court was within the limits of a sound discretion in saying, “ We will not retry the divorce case now.”

The subject of the fifth assignment of error is not raised by the pleadings; no exception was taken to the decree of divorce, nor was either of the petitions of the appellant for the rehearing based on the allegation that the evidence in the original proceeding was not sufficient to support the decree, and that question cannot now be raised by an assignment of error after the time within which the respondent was required by law to appeal on that ground.

We are not convinced that there was error in the disposal of the case and the appeal is therefore dismissed.


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    Land-Wharton Company v. Hughes, Appellant.

      Contract — Writing—Contemporaneous parol agreement — Evidence— Affidavit of defense.

    In an action by an engineering company for the cost of a report on a railroad property, where the written contract consisted of a letter offering to do the work for a certain amount per day, and a letter in reply stipulating that the time on the report should not exceed three days, the defendant may show by parol evidence that as an inducement for the signing of the letter accepting the offer, the plaintiff’s secretary agreed that he would do the work in person, that the investigation should occupy three full days, that a proper investigation could not be made in less time, that as a matter of fact the examination covered only a period of four hours, that the figures and information in the report were obtained not .by personal examination by plaintiff’s officer, but from a person who had formerly been in the employ of the railroad company, and that by reason of the negligence alleged, the report was of no value. In such a case the defendant’s offer is not an attempt to impeach a written instrument, but is an offer to prove a contemporaneous parol agreement not inconsistent with the terms of the writing which was the inducement to the defendant to sign the writing.
    In such a case it is immaterial that the defendant did not return the report or offer to return it, inasmuch as the report was not an article of merchandise and to be treated as such.
    Argued Oct. 15, 1908.
    Appeal, No. 228, Oct. T., 1907, by defendant, from order of C. P. No. 1, Phila. Co., March T., 1907, No. 354, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Land-Wharton Company v. Peter J. Hughes.
    Before Rice, P. J., Porter, Henderson, Morrison) Orlady and Beaver, JJ.
    Reversed.
    Assumpsit to recover the .costs of a report on a railroad proposition.
    The writing containing the contract were the following letters:
    “To Mr. Peter J. Hughes,
    “530-531 Real Estate Building,
    “Philadelphia, Penna.
    “Dear Sir:
    “Mr. J. K. Davis, of H. F. Sanville and Co., 710 Girard Trust Building, Philadelphia, informed me that in making the proposed report on the Jeanette and West Newton Traction Co., proposition, we are to look to you for our fees.
    “To avoid any misunderstanding will you please drop us a line confirming Mr. Davis’ statement..
    “Our charge for the service will be based on the time occupied in making the examination and preparing a report at the rate of Fifty ($50) Dollars per day, plus actual expenses.
    “Yours very truly,
    “Land-Wharton Company,
    “[Sig.] Frank Land,
    “Secretary and Treasurer.”
    “Mr. Frank Land,
    “Land-Wharton Co.,
    “Pennsylvania Building, Philada., Pa.
    “Dear Sir:
    “Replying to your letter of the 11th inst,, I hereby accept your proposition, providing the time on the report does not exceed three days.
    “Your report to cover complete estimates for cost of construction, complete cost for operation and complete report of estimated earnings.
    “Yours very truly,
    “[Sig.] Peter J. Hughes.”

      The. material averments of the affidavit of defense are set forth in the opinion of the Superior Court.
    The court made absolute the rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      John Wilson, with him W. W. Porter and Maxwell Stevenson, for appellant.
    Where a contemporaneous agreement, not in writing, is sought to be set' up as a defense against a written contract, the rule governing the case seems to be this, that not only may ambiguities in a written instrument be explained by parol, but it may be varied, added to or contradicted, where it is shown that, but for the oral stipulations made at the time, the party affected would not have executed it: Endlich on Affidavits of Defense, sec. 462; Greenawalt v. Kohne, 85 Pa. 369; Keough v. Leslie, 92 Pa. 424; Building & Loan Assn. v. Hetzel, 103 Pa. 507; Cake v. Bank, 116 Pa. 264; Coal & Iron Co. v. Willing, 180 Pa. 165; Fidelity & Casualty Co. v. Harder, 212 Pa. 96; Gandy v. Weckerly, 220 Pa. 285; Wheatley v. Niedich, 24 Pa. Superior Ct. 198; Harvey v. Dimon, 36 Pa. Superior Ct. 82.

      Benjamin Alexander, with him Arthur F. Schneider, for appellee,
    cited: Tete Bros. v. Eshler, 11 Pa. Superior Ct. 224; Spiegelberg v. Karr, 24 Pa. Superior Ct. 339.
    December 14, 1908:
   .Opinion by

Henderson, J.,

The contract which is the basis of this action consists of two letters, one written by the plaintiff to the defendant and the other a reply thereto written by the defendant to the plaintiff.

The pleadings show that, the plaintiff is an engineering company which undertakes to make examinations of railroad properties and to report on the condition and earning capacity thereof. The defendant had in contemplation the purchase of a traction line known as the Jeanette & West Newton Traction Company, and desired a report giving complete estimates for cost of construction, complete cost of operation, and complete report of estimated earnings. The contract declared on does not show who was to make the examination and report.

The defendant alleges in his affidavit of defense that his negotiation with the company was through Frank Land, the secretary and treasurer, and that it was expressly agreed that the inspection, examination and report to be made should be made by Land in person; that it was agreed at the same time that the investigation would occupy three full days exclusive of the time spent in traveling to and from the property and in compiling the report, and that a proper investigation could not be made in less time than three full days. It is. further alleged that this agreement by Land was the inducement to the defendant to sign the letter set forth in the plaintiff’s statement, and that his signature thereto was made upon the sole faith and credit thereof. It is then averred that in violation of this agreement the said Land in fact only devoted a period of about four hours to investigating the traction company, and that this time .was' spent in driving along the track of the company from West Newton to Jeanette, a distance of sixteen and one-half miles; that said Land obtained practically all of the figures and information contained in the plaintiff’s report to the defendant from one George 0. Baker, who had formerly been in the service of the traction company, and such information was not the result of a personal investigation by the said Land, according to the terms of his agreement with the defendant. By reason- of this neglect of the plaintiff’s agent to make the inspection which the defendant desired, and because prospective purchasers of the property from the defendant were not willing to accept the figures furnished by the said Baker, the defendant alleges the report submitted by the plaintiff was of no value and that the consideration of the contract wholly failed.

These averments, we think, bring the case within the doctrine of Greenawalt v. Kohne, 85 Pa. 369; Cake v. Pottsville Bank, 116 Pa. 264; Fidelity & Casualty Co. v. Harder, 212 Pa. 96; Gandy v. Weckerly, 220 Pa. 285; and numerous other cases.

The offer of the affidavit of defense was to show an oral agreement contemporaneous with the written contract, on the faith of which the instrument was executed. This oral agreement is not in contradiction of the contract sued on. It expresses a condition according to which the contract was to be performed on a point not set forth in the writing. The plaintiff could only act through an agent whose duty it would be, among other things, to make a physical inspection of the property. The defendant apparently relied on the capacity and experience of Land, and as a condition upon which he was willing to sign the letter of acceptance demanded that Land make the examination in person, and this was assented to by him as alleged in the affidavit. The writing makes no reference to the time necessary to make the examination except the maximum limit of three days. The oral stipulation, upon the faith of which it was said to have been signed, contemplated an employment of three full days, in view of the character of the work to be performed and the necessity for full information. Even if it were not expressly so agreed it would be implied that the agent of the plaintiff thus selected should make his own examination, and from all the sources reasonably available acquire the information on which it was understood the defendant would rely in making the investment which he had in contemplation. It may well be doubted whether the objection to the affidavit should prevail, even without the alleged parol agreement, if the plaintiff’s representative instead of acquiring his information from his own original investigations took the statements on which his report was based from Baker, for the report of the company in such case would not have as its indispensable element of value the opinion of the expert formed at the end of his own investigation. However that may be, we are of the opinion that the defendant’s offer is not an attempt to impeach a written instrument by showing a parol contemporaneous agreement varying and contradicting it, without an allegation of proof of the omission of such parol agreement from the written contract by fraud, accident or mistake, but is an offer to prove a contemporaneous parol agreement not inconsistent with the terms of the agreement in writing which was the inducement to the defendant to sign the writing. We need not discuss the cases bearing on that point; those heretofore cited fully support the conclusion. It is contended by the appellee that the defendant retained the report submitted by the plaintiff and thereby waived all the alleged “defects and breaches” in its production. The report is treated as an article of merchandise, and application is sought to be made of the law governing the sale and delivery of goods. What the defendant wanted and proposed to pay for was not merchandise but information; not the paper on which the report was written but the facts therein set forth. In delivering to the defendant the result of its examination the plaintiff did not lose anything. The same information might be in possession of many people, its value depending on the accuracy of its representations, and if, as claimed by the defendant, the report was not the result of the personal inquiry and examination of the plaintiff’s agent and not as complete and thorough as was contracted for, it might not have any value to the defendant. He would have a right at least to show that such was the case.

We are of the opinion that the defendant is entitled to present his defense to a jury. The judgment is reversed and a procedendo awarded.