author: Oklady, J.,

text:
    Estate of Jacob Moses. Appeal of Ella N. Hause et al.

      Will — Construction—Bequest to children as a class.

    Under a bequest to the children of testator’s brothers and sisters, share and share alike to them severally, and their heirs and assigns forever, such of the children take as were living at the death of the testator, to the exclusion oí the representatives of children dying before the testator, but after the date of his will.
    The act of 1844 does not extend to such a case, for the legacies never vested in the children dying before the testator.
    Argued Nov. 18, 1896.
    Appeal, No. 108, Nov. T., 1896, by Clifton Pennypacker, Ella Hause and Maggie James, grandnephew and grandnieces of Jacob Moses, the testator, they being children of Silas Pennypacker, deceased, who was a son of Mary Pennypacker, deceased, who was a sister of Jacob Moses, the testator, from the decree of O. C. Chester Co., affirming the auditor’s report making distribution.
    Before Bice, P. J., Willard, Wickham, Beaver, Reeder, Orlad y and Smith, JJ.
    Affirmed.
    Exceptions to auditor’s report.
    The facts sufficiently appear from the report of William But? ler, Jr., auditor, which is as follows:
    By the ninth item the testator gives to the children of his brother Samuel Moses one fourth of the residue of his estate. At the time the will was executed there were three children of Samuel Moses living, to wit: John G. Moses, Margaret A. Chalfant and Eusebia N. Warden, and four grandchildren, to wit: Lewis B. Yanderslice, Horace F. Vanderslice, Adelle G. Bader and Sallie A. McKeone; children of a fourth child, Mary S. Vanderslice, who died in the year 1888. These grandchildren claimed before the auditor that they were entitled to

      take under the bequest to the children of Samuel Moses, what their -mother, Mary S. Yanderslice, would have taken if she had been living. This proposition was opposed by counsel for the executors, and A. P. Reid, Esq., who represented Mary Phillips, a child of Mary Pennypacker, deceased, they contending that the bequest is distributable solely to the three children of Samuel Moses, who were those living at the date of the execution of the will. Mary S. Yanderslice had been dead for some time at the date of the will, and her four children, and her two sisters and a brother, above named, were living at the date of the will, and are all still in being.
    The clause of the will is as follows: “ I give and bequeath to my brother Samuel Moses’s children, one equal fourth part to be divided between them, their heirs and assigns, share and share alike.”
    Counsel for these grandchildren did not rely in urging the claims of Iris clients upon the act of May 6, 1844, P. L. 565, relative to lapsing of legacies ; but as there are other claimants, under another clause of the will, who are similarly situated, whose counsel do, in part, depend on that act, the act lias been brought earnestly to the attention of the auditor, and has been by bim carefully and fully considered.
    The language of the act is as follows : “No devise or legacy hereafter made in favor of a brother or sister, or the children of a deceased brother or sister of any testator — such testator not leaving any lineal descendants, shall, be deemed or held to lapse or become void by reason of the decease of such devisee or legatee in the lifetime of the testator, if such devisee or-legatee shall leave issue surviving the testator. Saving always to every testator the right to direct otherwise.”
    This act has been interpreted so as to save a void as well as a lapsed legacy. It has been held to be effective to carry a bequest to the representatives of one named as a legatee, though such legatee was dead at the time the will was executed: Minter's Appeal, 40 Pa. 111; Hook’s Estate, 10 W. N. C. 140.
    It would therefore appear that if Mary S. Yanderslice is designated as a legatee, the fact that she was dead when the will was executed will not avoid the application of the statute against lapsing, and if there is nothing else in the way, her children will take her legacy.

      The difficulty on this branch of the contention, which occurs to the auditor’s mind, is that Mary S. Vanderslice is not named as a legatee, and that there is consequently no bequest to her to be saved from lapsing by the act of 1844, and to be thus handed down to her children. Mary S. Vanderslice is not designated by name; and at the time the will was executed, she did not, as a fact, exist; she was dead; she was not a child of Mary Pennypaclcer. At this time there were children of Mary Pennypacker living, and they aptly answered the description of testator’s objects of bounty.
    It. follows, as above suggested, that no legacy is given to. Mary. S. Vanderslice, and that the act of 1844 has no application to the question under consideration. It is expressly decided in Gross’s Estate, 10 Pa. 360, that the act of 1844. 'does not apply in case of a bequest to children of a collateral relative i that in such case no estate vests until the death of the. testator; that until then the estates of the children are contingent, and if any of them are dead before the testator, no estate vested.in them. Guenther’s Appeal, 4 W. N. C. 41, and Bradley’s Appeal, 166 Pa. 300, are to the same effect.
    In Minter’s Appeal, and Hook’s Estate, above cited, the legacies saved by act of 1844 were unequivocally given to the parties whose death resulted in the application of the act.
    In Minter’s Appeal, the legacy saved by the statute wat given to “ My sister Barbara Saval.” In Hook’s Estate, the bequest was to Cumberland C. Hook.
    Since, then, no legacy was given to' the mother of the claimants, and the act of 1844, above considered, can consequently be of no benefit to them, they cannot take unless they are directly named as legatees; unless the words “heirs-and assigns ” as found in the bequest, designates and describes, them.
    No citation'of authority is necessary to sustain the prpposi-. tion that, if the bequest had been to the “ children,” without more, the claimants could not take. Where the term..^'children ” is used, and there are children, grandchildren do not take, unless there is language in the will making such purpose apparent: Hallowell v. Phipps, 2 Wh. 379; Dickinson v. Lee, 4 Watts, 82; Castner’s Appeal, 88 Pa. 478,; Hunt’s Estate, 133 Pa. 260; Denlinger’s Appeal, 170 Pa. 104.
    The question presented is whether the addition of -the words “ their heirs and assigns ” shows the purpose of the testator to have been, not to give to the “ children ” as an exclusive class. Have these words such operation ? Can they be construed as substitutionary, as expressing the purpose that if any of the children should be dead at the death of the testator, their children should take. If so, then the rule laid down in Gross’s Estate, 10 Pa. 360, to the effect that in case of a bequest to a class, the bequest is limited to those individuals of the class who are in being at the death of the testator, will not prevent the claimants taking, for that rule yields where a contrary intent appears. In the judgment of the auditor, however, the words “ heirs and assigns ” as found in the language of the bequest are not used in a substitutionary sense, are not intended to designate takers in the place or stead of the children. They are used as words of limitation of the estate given to the “ children; ” are intended to indicate that an absolute estate is given to them.
    If it be granted that if the word “ heirs ” stood alone, there might be some doubt as to its office, connected as it is with the word “ assigns,” there can scarcely be a legitimate doubt. The word “heirs” is itself a term of general import and comprehends collaterals as well as lineals, but the word “ assigns ” is still more comprehensive, includes those who are strangers to the blood, and could not be construed to mean the children of Samuel Moses’ child. The testator would not describe his grandnephews and nieces as “ assigns ” of his nephews and nieces. The auditor is of the opinion that the language of the bequest, giving to the “ children,” one equal fourth part to be divided between them, “ their heirs and assigns, share and share alike,” is susceptible of no other construction than as giving an estate to a class, and the words “ their heirs and assigns ” are not used in a substitutionary sense, as designating other takers,' but as words of limitation of the estate given to the children.
    The case of Dickinson v. Lee, 4 Watts, 82, would seem to compel the conclusion stated. The facts of that case are so nearly identical in their material features with those before the audit- or, that the conclusion there recorded must rule the question before him.
    In Dickinson v. Lee, the bequest was to “ all my children, their heirs or assigns, in equal shares, share and share alike,” etc. Here the bequest is to the “ children one equal fourth part to be divided between, them, their heirs and assigns, share and share alike.” There, as here, there were “ children.” .The court say: “ Here the testator had children, and there is no room to declare the grandchildren entitled on that ground. Then as to the description in other respects. The residue is ordered to be divided among all the testator’s ‘ children,’ their heirs or assigns in equal shares, share and share alike.” There is but one word in this (heirs) that can, by any construction, whatever, have the remotest relation to the children as constituting separate stocks; and that word, used as it is without words of restriction, is too general to be equivalent to issue, as it would equally let in collaterals. It is, however, coupled with a word (assigns), which if it is to have any effect at all, certainly cannot be a restrictive one. Even putting that difficulty aside, there is another, and á more formidable one, in the nature of the office these two words were evidently intended to perform. To speak analogically, they were used as terms, not of purchase, but of limitation; or at least of perpetuity, to indicate that the bequest was in full property.’
    The words “ their heirs and assigns ” not being used in a substitutionary sense, to describe takers in place of “ children,” but as words of description of the estate given to the “children,” the rule declared in Gross’s Estate, 10 Pa. 360, applies. The bequest is to the children as a class, and as is said in that case: “ Those only who are in being at the time of the testator’s death can take.”
    Gross’s estate not only enunciates principles which control the disposition of the questions before the auditor, but is so similar in its essential facts as directly to decide the questions. In that case the bequest was to “ the children of the brothers and sisters of my first wife, . . . share and share alike, to them severally and their heirs and assigns forever.” The court say: “Mr. Justice Yeates says: ‘Where the devise or gift to the children is general, and not iimited to a particular period, it is confined to the death of the testator.’ This, then, being the general rule, is there anything to make this case an exception ? It is contended there is, because the devise is to the children, share and share alike, to them severally, and their heirs and assigns forever. But it is difficult to distinguish this case from the rule, as stated by Chief Justice Tilghman, in Pemberton v. Parke. There it is to be equally divided among the children; here it is to be divided among them share and share alike— words conveying exactly the same meaning. It is clear these words are not intended to designate the persons who are to take, to control the general expressions, or to determine the time when the legacies are to vest; but are designated to indicate the manner they are to hold, viz, share and share alike, and the quality of their respective interests in the legacies, viz, an absolute estate. There is, therefore, nothing in these words to exempt the case from the operation of the general rule.”
    Counsel urged that the case of Dickinson v. Lee, above cited, was not in point because of the subsequent passage of the act of 1844, relative to the lapsing of legacies, and of the act of 1855, P. L. 368, relative to representation in case of intestacy.
    . As to the act of 1844, the auditor has given his reasons for thinking that it has no application in this case. It is his judgment that no legacy was given to the mother of the claimants, and that, consequently, there is no legacy to be saved from lapsing. Aside from this, it is expressly decided in Gross’s Estate, that the act of 1844 has no application where the bequest is to a class. Bradley’s Appeal, 166 Pa. 300, cited by claimants, does decide that the act of 1833, relative to legacies given to lineals, is operative even where the bequest is to a class, but holds that in this respect it differs from the act of 1844, relative to collaterals, and recognizes the rule laid down in Gross’s Estate, as the law, where the bequest is to collaterals. The auditor is unable to discover in what way the act of 1855 can benefit the claimants. If this was a case of intestacy, they as grandnephews and grandnieces of the decedent would take their mother’s share of the estate by representation.
    The act of 1855 extends representation this far. The act of 1855, however, can play no part when a testator has intelligibly manifested what disposition he desires made of his estate.
    The case of Sorver v. Berndt, 10 Pa. 213, was relied upon by claimants. There the bequest was to the children or legal heirs of my brother D. One of the children died before the testator, leaving a child. The court was of opinion that unless the words “ or legal heirs of my brother D. ” were construed as descriptive of beneficiaries other than children — as introducing other takers' ' — they could have no meaning. The court consequently held that by these words the testator expressed the purpose to have his brother’s heirs take, whether children or grandchildren.
    In the case before the auditor the bequest is not to the children or heirs of Mary Pennypacker, but to the children, their heirs and assigns. To say nothing of the presence of the word “ assigns,” in connection with “ heirs ” — showing that “ heirs ” is used in the sense of limiting the estate given to the children —there is a manifest difference between a bequest to the children or heirs of a brother, and a bequest to the children of a brother, their heirs. In the former case the testator expressly indicates that the bequest is not confined to his brother’s children, but that his brother’s heirs, whether children or not, shall take. Sorver v. Berndt is distinguished and explained in Gross’s Estate.
    In Long v. Labor, 8 Pa. 229, the word “ heirs ” is unequivocally used to describe substitutes, takers in the place of children, should any of then be dead at the date of distribution. The testator provided: “ And the remainder if any .... to be divided among my children who may be living at the time of such distribution; and in case any of them should be deceased, their heirs are to receive, in equal parts, such share as their parent would be entitled to receive, were they living.” In this case, manifestly, the rule of Gross’s Estate had no application because the testator had plainly ordered that the bequest should should not be limited to the children living at his death, but should be divided among the children then living, and the children of those who might then be dead.
    In McGlathery’s Estate, T Pa. C. C. 61, the court hold that “ children ” must be construed to mean issue, the testator having provided that the estate was to be divided between the children, “ the same as though it came from their father.” The language quoted was held by the court to demonstrate that the testator had in mind a more extensive scheme of distribution than to “ children ” strictly, that he intended to include all who would take under the intestate laws, children and other issue of the “ father.”
    In Denlinger’s Estate, 170 Pa. 107, the court hold that while the bequests were to classes, the issue of individuals of such classes dying before the testator might take, notwithstanding the rule of Gross’s Estate, because there was express language in the will distinctly showing that such was the intention of the testator.
    As above stated the auditor can discover no language in the will under consideration showing that the testator meant to designate substitution takers for children who might be dead— that he intended to designate the grandchildren of Mary Penny-packer as takers.
    Even if it should be conceded that by the use of the words “ their heirs and assigns,” the testator meant to indicate substitutes for such children as might be dead at his death, there would seem to be no justification for concluding that he intended substitution for any other than such children of Mary Pennypacker as were living at the time he made his will. He gave to the children of Mary Pennypacker, their heirs and assigns. When he used this language Mary S. Vanderslice, the mother of claimants, had been, for a considerable time, deceased. Was not the gift to those children of Mary Pennypacker who properly answered such description, who were living when the will was written; and was Mary S. Vanderslice — then not a child, but a dead woman — given anything? If she was not, then “ their heirs and assigns ” must refer exclusively to the heirs and assigns of the three children who were living at the date of the will.
    In Long v. Labor, 8 Pa. 229, in passing on the language, “ and the remainder, if any, .... is to be divided among my children who may be living at the time of such distribution, and. in case any of them should be deceased, their heirs are to receive, in equal parts, such share as them parents would be entitled to receive, were they living,” the court say: “ As the words in the last clause are properly applicable to the children of those who should die in the interval, and not to the children of those already dead, a strict interpretation of them wonld exclude the latter.”
    . In this case the court found justification for departing from the natural construction of the language thus used, in the fact that the testator in an earlier part of his will had, in disposing of the bulk of his estate, included the children of children who were deceased at the date of the will, and had thus expressly manifested an intention to make them beneficiaries, and to dispose of his estate upon the principle of equality. The court said: “ Here, we are not merely left to conjecture that the testator did not mean to exclude the offspring of the dead, from the absurdity or the injustice of the thing; but we can resort to his general principle of equal distribution which pervades every other part of the will. . . .
    “ Thus we see that the principle of his will is equality; and we are bound to give it effect so far as there is room for interpretation.
    “ In Gray v. Garman, no such principle was discoverable; for nothing had been previously divided among the residuary legatees, by any measure of distribution whatever.”
    In the will before the auditor there is nothing outside the residuary bequest to indicate what the testator’s purpose was with respect to the residue. The auditor is, to use language above quoted, “merely left to conjecture that the testator did not mean to exclude the offspring of the dead, from the absurdity or the injustice of the thing.”
    For the reasons given, the auditor is of opinion that tlie bequest under consideration requires the legacy to be distributed to John G. Moses, Margaret A. Chalfant and Eusebia N. Warden, exclusively. The claims of the grandchildren here, and of another set of grandchildren, under another clause, were most earnestly and ably presented, and the auditor has given his views at length because the exhaustive examination of the question made by counsel has inspired him with the desire that counsel shall know, that, if the auditor’s views are 'erroneous, they are not the result of arbitrary or hasty judgment.
    The auditor is of opinion that Jacob Moses intended that these claimants, his grandnephews and grandnieces should take. His relations with them appear to have been friendly, and no cause was discoverable for excluding them. This is mere conjecture, however, outside the will, and the auditor has not been able to find any language in the paper creating them beneficiaries.
    By item ten of the will, one equal fourth part of the residue is given to the children of testator’s brother, John Moses, share and share alike. At the date of the will John Moses’ children were, and they are all living now, Martin Moses, John D. Moses, Hosea Moses, Annie Emery, Sarah Krauser, Rebecca Young and Ellen Hallman. These parties, seven in number, will each be awarded one seventh part of one fourth of the residue.
    By item eleven, one fourth part of the residue is given to the children of the testator’s brother, Martin Moses, share and share alike. The children are: Samuel Moses, Reuben Moses, William Moses, Edward Moses, Abram Moses, Rachel Moses, and Annie Simmers. • These children were all living at the date of the will, and are in being at this time. They will each be awarded one seventh part of one fourth of the residue.
    I. Newton Wynn, Esq., called the auditor’s attention to an attachment execution, Abraham Moses v. Samuel Moses, No. 41 October term, 1895. The attachment was issued upon a judgment for $800, with interest from April 1, 1895. The attachment was served upon the defendant, and upon the executors of Jacob Moses, deceased, as garnishees. This share of Samuel Moses will be retained by the executors until the attachment proceedings are concluded, or they are satisfactorily secured.
    By the last item, testator bequeaths to the children of his sister, Mary Pennypacker, one fourth part of the residue, to be divided between them, their heirs and assigns, share and share alike, excepting her son, William J. Pennypacker, who is excluded from participation.
    At the date of the will there were three children of Mary Pennypacker living: William J. Pennypacker, Albert P. Penny-packer and Mary Philips. These children are in being at this time. Mary Pennypacker had had a fourth child, Silas Penny-packer, but he was dead at the date of the will, leaving to survive him three children: Clifton E. Pennypacker, Ella Hause and Margaret James. Tn the opinion of the auditor, for the reasons given in connection with the claims of grandnephews and grandnieces, under the bequest to the children of Samuel Moses, these children of Silas Pennypacker are not entitled to participation in this legacy. William J. Pennypacker is excluded, and consequently this last fourth part of the residue will be equally divided between Albert P. Pennypacker and Mary Philips.
    The following exception was filed, inter alia, to the auditor’s report and dismissed by him:
    Second. The auditor erred in disallowing the Silas Penny-packer heirs to participate in the distribution.

      A similar exception was also filed by H. H. Gilkyson, Esq., attorney for the heirs of Mary S. Vanderslice.
    The auditor’s report was confirmed and exception dismissed by opinion of Waddell, P. J., as follows:
    We think the auditor has reached a proper conclusion upon the question submitted for his consideration.-
    His report is exhaustive and shows careful research and judicious consideration.
    It may be the principles established by Gross’s Appeal, 10 Pa. 860, and subsequent cases, result in hardships and will be modified or abandoned in time, but we prefer the court of last resort should indicate some such purpose before we depart from what appears to be the present rule of distribution under the circumstances of this estate.

      Error assigned was in not sustaining the second exception filed to the report of the auditor.

      Wm. M. Hayes, H. H Gilkyson, with them I. Newton Wynn and J. Carroll Hayes, for appellant.

      Alfred P. Reid, with him J. Frank E. Hause, for appellee.
    December 7, 1896:
   Opinion by

Oklady, J.,

The report of the auditor, which was confirmed by the learned court below, covers practically all that may be said with advantage on the subject of controversy.

Gross’s Appeal, 10 Pa. 360, rules the one under consideration and is a binding authority on this court. Nor does it stand alone: Guenther’s Appeal, 4 W. N. C. 41; Ashburner’s Estate, 159 Pa. 545; Bradley’s Estate, 166 Pa. 300; Striewig’s Estate, 169 Pa. 61, when before the court of last resort raised substantially the same question, and the rule of distribution has not been changed.

The decree of the court is affirmed.


source: Caselaw Access Project

author: Reeder, J.,

license: Public Domain

text:
    Commonwealth of Pennsylvania v. Joseph Arnheim, Daniel Arnheim, David Arnheim and Solomon Goldsmith.

      Partnership — Conditions 'of partnership defined.

    A partnership can be created'as well in a single business transaction, as for the purpose of carrying on a business extending over a period of time and involving a number of transactions.

      Criminal law — Embezzlement as consignee — Partnership.
    Where a contract provides for the parties thereto to share the profits and losses upon the sale of horses equally or otherwise, such contract constitutes a legal partnership, and there can be no conviction for embezzlement by one of the parties as consignee, there being nothing in the evidence to take the agreement out of the general rule defining a partnership.
    Argued April 13, 1896.
    Appeal, No. 48, April T., 1896, by Joseph Arnheim from judgment and sentence of Q. S. Allegheny Co., Sept. Sess., 1895, No. 591, on verdict of guilty.
    Before Rice, P. J., Willard, Wickham, Reeder, Orlady and Smith, JJ.
    Reversed.
    Indictment charging embezzlement by consignee and factor.
    Defendants were indicted on the charge of embezzlement as consignees and factors of certain horses alleged to have been consigned to them by M. H. Tichenor et al., trading as Tichenor & Co. Defendants were members of a limited partnership doing business under the name of The Arnheim Live Stock Co., Ltd. There was evidence tending to show an agreement whereby certain horses belonging to Tichenor & Co. were to be sold through The Arnheim Live Stock Co., Ltd., and after deducting all expenses in connection with the purchase, sale and shipment of said horses the profits or losses were to be equally divided between Arnheim and Tichenor & Co. The horses were sold by the Arnheim Co. and money deposited to their account, and subsequently that company was sold out by the sheriff without any remittance to or settlement with Tichenor & Co. by the Arnheim Co.
    At the trial before McClung, J., defendants submitted, inter alia, the following points.

      1. Under all the evidence in the case, the verdict as to all the defendants should be not guilty, the jury, however, to pass upon the question of costs. Answer: Refused.
    3. If the jury believe M. H. Tichenor & Company, previous to the sale, made a contract with the Arnheim Live Stock Company, Limited, or with any member of said company in its behalf, whereby they were to share in the profits and losses upon said horses, equally or otherwise, such contract constituted a legal partnership and there can be no conviction in this case. Answer : Refused and answered at length.
    Verdict of guilty as to Solomon Goldsmith and Joseph Arnheim and not guilty as to Daniel Arnheim and David Arnheim, with a reconnnendation of mercy.

      Errors assigned were answers to defendant’s first and third points, reciting same.

      T. M. Marshall, Jr., with him D. F. Patterson, for appellant.
    No paper-books submitted for the appellee.
    December 7, 1896:
   Opinion by

Reeder, J.,

While this was an Mdictment agamst several of the members of a limited partnership for embezzlement as consignees the verdict of the jury was “guilty” as to but two, one of whom, Joseph Arnheim, has appealed.

In the third point submitted by the defendant at the trial in the court below, the court was asked to say to the jury that, if the contract made with M. H. Tichenor & Company, “ Whereby they were to share the profits and losses upon the sale of the horses equally or otherwise, such contract constituted a legal partnership, and there can be no conviction in tMs case.”

Instead of affirming tMs point, the court said: “ An agreement to purchase horses and share the profits and losses is evidence’ of the existence of a partnership, and, without more, would authorize the jury to find a partnership. But, under the evidence, we cannot say that, even if there was an agreement to share profit and losses, there was necessarily a partnersMp as between the parties, and hence the point is refused.”

We think the defendant was entitled to an unqualified affirmanee of this point. A partnership can be created as well in a single business transaction, as for the purpose of carrying on a business extending over a period of time and involving a number of transactions. This is well settled in Pennsylvania by a line of decisions, beginning with Sims v. Willing, 8 S. & R. 103.

An agreement to share profits, without an agreement to share losses, may constitute a partnership: Edwards v. Tracy, 62 Pa. 374; Miller v. Bartlet, 15 S. & R. 137.

While it is true that an agreement to share profit and loss does not absolutely constitute a partnership, yet, unless there are circumstances in the transaction that show there was no purpose to create a partnership, they will control: Lindley on Partnership, pp. 67, 68,69, 75, 76, and cases there cited. An agreement to share profits and losses may be said to be the type of a partnership contract.

There is nothing in the evidence of the defendant to take this agreement out of the general rule; and therefore the court erred in not affirming this point. The testimony of the defendant was that there was an agreement between Arnheim & Company and Tichenor & Company that the latter should ship horses from Chicago to the former at Pittsburg, which would be sold by Arnheim & Company for the joint profit of both; and, if there was no profit, that they should divide whatever loss was incurred between them.

The case was tried upon the theory, on the part of the commonwealth, that no such contract was ever entered into. The point presented asked the court to say that, if the jury believed there was such contract, it constituted a partnership. Under this testimony the court should have so said, there being nothing in the evidence of the commonwealth to show that the contract as alleged by the defendant was anything else but a contract of partnership, and the defendant was entitled consequently to an unqualified affirmation of this point.

We do not think there is any merit in the first assignment of error. Joseph Arnheim was a member of the limited partnership to the extent of one share of stock. It is true he was also an employee, receiving a certain stipulated sum for his services, as well as a share in the- profits of the business. He himself testifies that in the absence of his brother he managed the business. The contract between Arnheim & Company whatever its character may have been was made between himself and M. H. Tichenor & Company in Chicago. It was testified to by J. W. Bratton that Joseph Arnheim conducted this sale. The money received by the Arnheim Live Stock Company was received by their bookkeeper, and instead of being kept separate, appears to have been deposited to their general account and checked out by them, so that when payment was demanded the bank balance was exhausted, and Tichenor & Company could not procure their money.

Whether this action of the bookkeeper employed by the firm was or was not the result of Joseph Arnheim’s action in quietly permitting it, was a question for the jury. The legal obligation of the Arnheims to keep Tichenor & Company’s money separate and apart from their own is undeniable. If the horses were a consignment to them, the neglect to do so, and the use of the money by the firm for other purposes than payment to them, was embezzlement on the part of the members of the firm either permitting or knowing of its having been done and accepting the benefits of the result or acquiescing in the diversion of the money. Whether Joseph Arnheim was a party to this embezzlement was a question for the jury, and there was sufficient evidence in this case to warrant the court below in the submission of that fact.

The second assignment of error is sustained, the judgment reversed, and a venire facias de novo awarded.


author: Orlady, J.,

text:
    Clayton v. The Chester Traction Company, Appellant.

      Negligence — Contradictory evidence of negligence— Question for jury.

    Where the evidence discloses a number of important, positive and direct contradictions between the plaintiff’s and defendant’s testimony on material questions, the case presents a condition which can be settled only by submission to the jury under proper instructions.
    Argued Nov. 16, 1896.
    Appeal, No. 3, Nov. T., 1896, by defendant, from judgment of C. P. Delaware Co., Sept. T., 1895, No. 89, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.

      Trespass for injuries arising from a collision with defendant’s car.
    From the evidence it appears that the plaintiff, riding a five year old horse bareback northward on Edgemont avenue, was overtaken hy defendant’s car and the horse collided with the front corner of the car on the right hand side, was thrown and in falling on the plaintiff broke his leg. The evidence as to the negligence of the defendant company was contradictory, there being evidence tending to show that the car was going at a rapid rate of speed, faster than the condition of things at this point justified, and that the motorman was in a position to see the condition of the horse and rider, and by slackening his speed could have prevented the accident.
    Verdict for plaintiff for $1,000. Defendant appealed.

      Error assigned was declining to affirm defendant’s point, which point and answer was as follows:
    1. Under all the evidence in this case the verdict should be for the defendant. Answer: You will understand, gentlemen, that that asks me to take the whole question from the jury, and it requests that the court shall determine that there is not sufficient evidence to submit the case to the jury for their consideration. I cannot do that; I must leave you to determine the questions which I have submitted for your consideration without expressing any opinion as to what conclusion you should reach on these points.

      W. B. Broomall, for appellant.
    The question in this case is whether there was any evidence of negligence in the movement of the car to submit to the jury. The element of the speed of the car played no important part in the case: Yingst v. Railway Co., 167 Pa. 438.

      O. B. Dickinson, for appellee.
    December 7, 1896:
   Opinion by

Orlady, J.,

The refusal of appellant’s only point, — “ Under all the evidence in this case, the verdict should be for the defendant,” is the sole error assigned.

A careful examination of the evidence discloses a number of important, positive and direct contradictions between the plaintiff’s and defendant’s testimony on material questions, which could be settled only by submission to the jury under proper instructions.

Whether the motorman was negligent, or the plaintiff contributed in any degree to the injury; whether the horse was run into by the car, or backed against the side of the car; whether tlie accident was the result of a sudden emergency, the speed of the car, the conduct of the rider and motorman; the cause of the accident and the incidents attending the collision, were all fairly submitted in an impartial charge.

We cannot relieve against the finding of the facts by the jury, and the judgment is affirmed.


author: Smith, J.,

text:
    J. B. Larzelere & Son, Appellants, v. Gustavus W. Tiel and Edgar A. Tooley, Copartners, trading as Tiel & Tooley, and David Cherry.

      Partnership — Application of firm, assets to individual debt.

    When copartners by their language or actions authorize or ratify the application of firm assets to the payment of the individual debt of one of them, all will be bound by such application. The question is primarily one of consent, and consent may be gathered and inferred from the attending circumstances, such as the knowledge of the other partners that the assets are being so applied, and their acquiescence therein.
    Where property for which an individual partner was indebted went into the partnership stock, under an agreement that the firm should assume the balance due for it, and that was the consideration for the transfer, then in equity and good conscience it became the firm’s debt; and if they assumed it by their notes, they cannot repudiate those obligations.

      Practice, O. P. — Province of court and jury — Unfair comments on evidence.

    Courts and juries are organized for the purpose of administering justice through the forms of law. The function of the court is to direct the course of the trial within the rules of procedure and evidence and to expound the law applicable to the questions raised for the guidance of the jury. In commenting on the evidence the court should deal with that of both sides equally and impartially, and leave with the jury their exclusive right to determine the facts.
    To present one side of the evidence, to belittle that of either side, or to say there is no evidence on a material point when in fact there is, all of which was done in the case at bar, is unfair and erroneous, and the ends of justice will peremptorily demand a reversal.

      Biased charge not cured by declarations that evidence was for the jury.

    An erroneous charge cannot be cured even by frequent declarations to the jury that all the evidence was for their consideration.
    To hold that a trial judge may partially and inadequately present the facts to a jury in positive terms, and that the injured party has no remedy for this, simply because he told them that his opinion was not binding upon them, would be grossly unjust, and subject the administration of the law to ridicule and contempt.

      Practice, G. P. — New trial — Misleading and inadequate charge.

    With the evidence preponderating greatly in favor of the plaintiffs, it is error for the trial judge to deliver a charge to the jury which in phrase and substance was marked by a very strong bias in favor of the defendants ; and in which the brief allusions to the evidence are opposed to the weight of the testimony, and where, in the light of the evidence, the instructions were so inadequate, unwarranted, misleading and inconsistent, that the jury could deduce no intelligent or correct rule to guide them.
    Argued Oct. 14, 1896.
    Appeal, No. 103, Nov. T., 1896, by plaintiffs, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1894,No.896, on verdict for defend ant.
    Before Rice,P. J., Willard, Wickham, Beavek, Reedek, Orlady and Smith, JJ.
    Reversed.
    Feigned issue framed by agreement of parties. Before FinLETTEK, P. J.
    The following facts were stated in the opinion of the Superior Court:
    “ This feigned issue was formed for the purpose of ascertaining the amount due by Tiel & Tooley on a judgment confessed to Larzelere & Son, the appellants.
    “On June 1, 1894, G. W. Tiel and E. A. Tooley agreed in writing to become partners in the teaming business. It was stated in the articles, inter alia, that ‘ G. W. Tiel contributes ten head of horses and five wagons, with an indebtedness against them of about $700, one half of which the said E. A. Tooley agrees to assume,’ and it appears that Tooley contributed $100 in wagons and $30 in cash. Prior to- this time, Tiel had been in the business himself, and had purchased nine of these horses from the appellants ; and he owed on them, when this partnership was formed, a balance of $461.29, for which he gave his individual notes. He was also indebted to others at that time, whose claims, he alleges, were included in the indebtedness stated in the articles.
    “ The new firm continued to deal with the appellants, bought property from them from time to time for use in the business, and gave the firm notes in part payment. As the individual notes of Tiel matured, payments were made on them from the firm’s moneys, and firm notes were given in renewal for the balances, and ultimately, by payments and renewals, they were taken up with firm money and paper. Tiel seems to have managed the financial part of the business, principally, and gave all the notes, except one for $330, which was signed by Tooley, and included some of Tiel’s old debt to the appellants.
    “ On January 23, 1895, one of the appellants went to Tiel & Tooley and made a settlement of their business dealings, when it appeared that they owed the appellants $729.46. Both Tiel and Tooley were present at this settlement, and the latter wrote down the items of this indebtedness as given by Larzelere. On February 12, 1895, Tiel confessed a judgment to the appellants in the firm name for the sum of $738.03, the amount tuen claimed as due, and represented by the firm’s bank notes held by the appellants. Afterward Tooley confessed a judgment in the firm name to David Cherry for $320.25. Executions were issued on both judgments, the firm property was sold, and the proceeds paid into court to await the determination of the issue.
    “A verdict was rendered in favor of the appellants for $207.03, which would appear from the testimony to be the amount due them, excluding the individual indebtedness of Tiel; and from the judgment entered on that verdict this appeal was taken.
    “ The facts related were testified to on the trial and were not contradicted. It was further testified, on behalf of the appellants, that the indebtedness mentioned in the articles included the balance then due them by Tiel, that Tooley knew this and expressly agreed to assume it as a firm debt, and that until paid it was to be included in the firm notes which were to be given in renewal; that Tooley was aware of the giving of the several notes and of Tiel’s individual debt having been included in them; and that Tooley actively participated in the final settlement, when the whole matter was canvassed and adjusted, and the balance ascertained. These facts were all testified to by Tiel and largely corroborated by Larzelere, and were also corroborated by the partnership articles, by a receipt given in July, 1894, showing the substitutions of the firm paper for Tiel’s, by the notes given for that purpose, and by a memorandum made by Tooley himself. Tiel also testified that at the formation of the partnership he named the appellants, with Mr. McDondall and David Cherry, as his creditors, and mentioned that the Larzelere notes were coming due and that Tooley then promised to furnish money to meet them, but did not do so.
    “ The only evidence against the appellants’ contention is the testimony of Tooley. He said that he understood from Tiel, when the partnership was formed, that the appellants’ claim was very small, and that the $700 mentioned in the agreement was due mostly for feed; that it was not to be applied to the payment of any specific indebtedness, but was for the general debts of the firm. He denied that he ever agreed to assume, as a member of the firm, the indebtedness of Tiel to the appellants, or that there was any arrangement for its assumption under the agreement, and that he did not Imow of its inclusion in the firm obligations. Yet, he admits that he himself signed and gave the appellants one firm note for $330, ‘for the $700 indebtedness,’ and says that was the understanding with Tiel when he gave it.
    “ It was not denied that the appellants’ claim against Tiel was part of the price of the horses furnished the firm under the agreement, and was therefore an indebtedness of the character mentioned in the articles, nor that the sum for Avhich judgment was confessed was due to the appellants. Tooley did deny that any part of the indebtedness mentioned in the articles was for the claim of the appellants ; but he did not attempt to show to whom it was due, or what the general debts of the firm were which he alleged it was to pay; nor did he try to explain how the firm, on organizing, could have had any ‘ general debts.’ ”
    The court charged the jury as follows:
    “When this partnership was formed, articles of agreement were drawn in Avriting, and that is the law of the parties themselves. By these articles of copartnership Mr. Tooley agreed that f700 of the indebtedness of his partner, Tiel, should be considered as a partnership debt. That is to say, he agreed with his partner that the debt might be paid out of the partnership assets at any time satisfactory to the parties. (It gets his partner to pay that much of his private indebtedness out of the firm funds, but it does not give any individual creditor of Mr. Tiel the right to sue either the partnership or Mr. Tooley for a debt which was due by the other partner to them. [Before Mr. Tooley could be made responsible for a private debt of his partner, it must be shown that he expressly agreed, not that Mr. Tiel would pay it, but that he expressly agreed, between the creditor and Mr. Tooley, that it should become a partnership debt and be paid out of its funds.] [3] [It is an easy matter, and it would have been for this plaintiff, had he entered into any private arrangement with Mr. Tiel as to his debt — I say it would have been an easy matter, as suggested by counsel, and it was his duty to say to Mr. Tooley, his partner, ‘ Mr. Tiel has entered into an agreement with me as to the debt he owes me that it shall become a partnership debt. Are you satisfied with that arrangement ? ’ If that had been done there could be no dispute about the matter and no litigation. But there was no direct communication with Mr. Tooley. There is no evidence in this case even that his partner, so far as I can recollect the testimony, definitely and positively went to him and said, ‘ I owe Mr. Larzelere so much money, and I have agreed that it shall become a partnership debt.’] [2] [Now before you can render a verdict in this case for a debt which Mr. Tiel owed, or any portion of it, there must be evidence that Mr. Tooley expressly agreed with Mr. Larzelere that it should become a partnership debt, and it is your duty to find that by evidence, and not by inference. It would be a very great injustice to his partner to infer it simply from transactions which afterwards occurred.] [4] [Mr. Tooley did not keep the books or take the receipts which were given, and in fact knew nothing about the transaction ; at least he has sworn so, and there is no evidence to the contrary. It would be a great hardship if one partner is made liable for such a debt unless there is evidence of it.] [1]) [5] Before that can be done it should appear either in writing, or from evidence, that the partner who is so charged with the indebtedness thoroughly understood the agreement as made, and how much the debt was, and everything in relation to it. I have already said that I have not seen any evidence of that kind; but that is only my own opinion, and is not binding upon you. If you can find in this case that under the evidence^ with a knowledge of all the facts, Mr. Tooley, by inference or expressed words, agreed to pay Mr. Larzelere this debt, then he is responsible. In other words, it becomes a partnership debt, and Mr. Tiel would then have a right to give this judgment note. If there is no such evidence, then just so far as that judgment note embraced the private indebtedness of Mr- Tiel, so much must that be abated. I have not followed the calculations of counsel in this matter, but if that is the only matter in dispute, then it is easy, and the verdict in this case should only be for the difference between the outstanding debt of Mr. Tiel and the amount of the judgment.”
    Verdict for plaintiffs $207.03. Plaintiffs appeal.

      Errors assigned inter alia were, (1-4) portions of the general charge, reciting same as indicated in brackets; '(5) because the learned trial judge in his charge to the jury commented favorably upon the theory and evidence of the defendants without doing the like for the plaintiffs.

      Henry C. Boyer, with him George P. Rich, for appellants.

      John S. Freemann, of Keator, Freemann & Jenkins, with him P. Cooper Shapley, for appellees.
    December 7, 1896
   Opinion by

Smith, J.,

(after stating the facts as above):

With the evidence preponderating greatly in favor of the plaintiffs, the learned trial judge delivered a charge to the jury which in phrase and substance was marked by a very strong bias in favor of the defendants. The brief allusions to the evidence in the charge are opposed to the weight of the testimony, and, in the light of the evidence, the instructions were inadequate, unwarranted, misleading and inconsistent.

The agreement does not provide, as the learned judge said, •that the debt mentioned in the articles should be considered a partnership debt, to be paid out of the partnership assets. Tooley agreed to assume one half of the indebtedness “ against ” the property contributed by Tiel; but without more this would not make it a partnership debt; nor is there anything in the agreement limiting its payment to the partnership assets. Prima facie and by implication the one half of the indebtedness in the articles was assumed by Tooley in consideration of the equal interest he acquired in the property contributed by Tiel, and an action for it might be maintained against Tooley upon delivery of the property to the firm. True the partners might have made it a firm debt in the agreement, or by a subsequent one, and being the purchase money of property received by the firm there would be air equitable consideration; but the language of the articles will not justify such a construction. This erroneous view leaves out of sight the terms of the articles, as well as the testimony of Tiel to the effect that Tooley was to pay down from $800 to $400, which was to be applied to the appellants’ claim against Tiel. The learned judge’s construction of the articles would limit Tooley’s liability for the one half of his debt to his interest in the partnership assets, and if these were lost before its payment, he would be absolved from personal liability and the debt would remain Tiel’s alone. Tooley, it is true, said that his part was to be paid out of the earnings; but Tiel's testimony is to the contrary, and the point was in dispute.

There is nothing in the testimony indicating that the firm assumed any of this debt, except what is due to the appellants, or relieving Tooley from his liability according to the provisions of the articles. The court was greatly in error in saying to the jury that Tooley knew nothing about the transactions upon which the appellants based their claim against the firm, and that there was no evidence contradicting Tooley’s testimony to that effect, opposed as it was by the testimony of two witnesses, the documentary proofs, a part of which Tooley made himself, and Tooley’s admission that he signed one of the notes to the appellants given in payment of “the $700 indebtedness,” and which in fact included a part of the Tiel debt, and that this was the understanding when he gave it. It was equally erroneous for the court to instruct the jury that it was the duty of the plaintiffs to go to Tooley and inform him that Tiel agreed to make their claim a partnership debt and get his assent to it. This might have been a prudent step, but no such duty rested upon the appellants. According to the testimony of the appellants’ witnesses this would be superfluous, as they testified that Tooley had agreed to the assumption of the debt, and it had been carried by the firm papér with his consent for over six months. The instruction would naturally mislead the jury into believing that Tooley could not be bound unless he agreed with the appellants personally; in this, the learned judge ignored all the testimony to the effect that Tooley had so agreed, and laid down, as a rule of law, a measure of duty unwarranted by legal authority.

It was misleading to suggest to the jury that Tiel should have gone to Tooley and “definitely and positively” said to him: “ I owe Mr. Larzelere so much money, and I have agreed that it shall become a partnership debt.” The parties had a right to transact the business in their own language and in their own way; the law does not prescribe the language or actions of men in everyday business life, and courts and juries are concerned only with that which actually took place and its legal effect: Phila. Trust etc. Co. v. Railroad Co., 177 Pa. 38. It would have been more to the point to have called the attention of the jury to what had heen said on behalf of both parties, and stated for their guidance the rules of law applicable thereto. Nor is there any authority to sustain the instruction of the learned judge, that before they could find for the appellants “ there must be evidence that Mr. Tooley expressly agreed with Mr. Larzelere that it should become a partnership debt, and it is your duty to find that by evidence and not by inference. It would be a very great injustice to his partner to infer it simply from the transactions which afterwards occurred. It would be a great hardship if one partner is made liable for such debt, unless there is evidence of it.” It is settled law that when copartners by their language or actions authorize or ratify the application of firm assets to the payment of the individual debt of one of them, all will be bound by such application. The question is primarily one of consent, and this may be gathered and inferred from the attending circumstances, such as the knowledge of the other partners, that the assets are being so applied, and their acquiescence therein: Todd v. Lorah, 75 Pa. 155; Leonard v. Smith, 162 Pa. 284.

But is this a case where one partner seeks to pay Ms individual debts with the firm’s assets ? If, as indicated by the articles and the testimony for the plaintiffs, the property for which Tiel was indebted to the appellants went into the partnership stock, under an agreement that the firm should secure or assume the balance due for it, and that was the consideration for the transfer, then in equity and good conscience it was the firm’s debt; and if they assumed it by their notes, they cannot now repudiate those obligations, and the court should have so instructed the jury: Lindley on Partnership, 705; Siegel v. Chidsey, 28 Pa. 279; Walker v. Marine Bank, 98 Pa. 574.

The reinarles of the learned judge, that it would be a great injustice to Tooley to infer the assumption of the appellants’ claim from the transactions after the organization of the firm, were clearly erroneous. If, as testified, Tooley knew and assented to the giving of the notes which included the appellants’ claim against Tiel, and gave one of them himself, then the jury were bound to infer tbis, if indeed inference were necessary, from those subsequent transactions. This remark and the subsequent one that “ It would be a great hardship if one partner is made liable for such a debt unless there is evidence of it,” were both uncalled for, and naturally prejudiced the jury. If the positive evidence, oral and written, to the effect that Tooley did assume the appellants’ claim against Tiel, be true, it was in effect telling the jury that it would be “ a great injustice ” and “ hardship ” to make him pay for the property wMeh he bought and held as copartner. It was also an error to say that the agreement to pay the appellants’ claim should be found “ by evidence, and not by inference,” and at another time to say that they might find it “ by inference or expressed words.” From these inconsistent statements, the jury could deduce no intelligent or correct rule to guide them.

But it is contended that even if the learned judge erroneously said there was no evidence on material'points, and ascribed grave importance to the absence of tilings which were not essential, yet because he said to the jury, “I have already said that I have not seen any evidence of that kind; but that is only my own opinion, and is not binding upon you; ” he thereby left the whole case to them for decision, and hence they were not concluded or affected by Ms remarks, and the judgment must stand. That is not the law; on the contrary, our Supreme Court has rightly said that even frequent declarations to the jury that all the evidence was for their consideration does not cure a biased charge : Lerch v. Bard, 177 Pa. 197.

In the case last cited the Supreme Court further says: “We' know, the learned judge of the court below and every lawyer knows, how unfavorable may be the impression made upon, generally, untrained thinkers, who must deliberate and form conclusions within a very few hours, by prominently presenting, as the last word to them, only one side of a disputed cause, and this, too, by a judge eminent because of his judicial integrity, and ability; ” remarks peculiarly applicable here.

To hold that a trial judge may partially and inadequately present the facts to a jury in positive terms, and that the injured party has no remedy for this, simply because he told them that, his opinion was not binding on them, would be grossly unjust, and subject the administration of the law to ridicule and contempt.

Courts and juries are organized for the purpose of administering justice through the forms of law. The function of the court- is to direct the course of the trial within the rules of procedure and evidence, and to expound the law applicable to the questions raised, for the guidance of the jury. In commenting on the evidence the court should deal with that of both sides equally and impartially, and leave to the jury their exclusive right to determine the facts. When the trial judge discusses the evidence the jury are apt to accept his presentation as the correct view of it and find a verdict accordingly. It is therefore of the last importance that'the judge should discard all personal views and treat the evidence on both sides with equal candor and consideration. To present but one side of it, or to belittle that of either side, or to say there is no evidence on a material point when in fact there is, all of which was done in this case, is unfair and erroneous, and the ends of justice, therefore, peremptorily demand a reversal of the judgment.

The main issue of fact was whether Tiel and Tooley assumed the individual indebtedness of Tiel to the appellants, expressly, or by a course of dealing which would estop them from denying that they had done so, and it called for the application of simple and familiar principles of law.

Tlie partnership articles bound the partners, and Toole'y’s allegation, denied by Tiel, that the indebtedness mentioned was for feed and not for horses and wagons as stated in the agreement, could not prevail against the writing unless sustained by another witness or corroborating circumstances; the agreement being silent as to the exact amount of the debt and to whom it was due, oral testimony might be resorted to in order to ascertain those facts, if they became material. If the partners agreed' to pay, or to assume by notes, the balance due to the appellants on property contributed by Tiel to the partnership stock, in lieu of paying Tiel for it, and payments were made and notes given for that purpose, the transaction was lawful and binding; the firm was but paying for the property transferred to it.

The seven assignments of error are to the charge and answers-to points. The sixth and seventh were not argued or pressed; the first five are sustained, the judgment is reversed and a venire facias de novo is awarded.


author: Orlady, J.

text:
    Joseph Schoeneman & Co. v. Joseph L. Weill and Jennie Levy, Appellants.

      Evidence — Wide latitude as to fraud — Question for jury.

    In the investigation of an alleged fraudulent transaction a wide door is open to the admission of evidence, and under the facts in this case there being certainly some evidence tending to prove fraud, it was proper to submit the whole question to the jury. The credibility of the witnesses being clearly for the jury.

      Husband and wife — Execution—Interpleader—Evidence of husband's declarations.

    In a feigned issue between the husband’s vendor, claiming to rescind on the ground of fraud, and the wife as execution creditor of the husband, evidence is admissible as to conversations with and declarations by the husband in the absence of the wife notwithstanding she is a parly to the' suit.
    The wife had control of her execution, and in seeking to enforce it against property claimed by a stranger to the writ, must maintain her husband’s title to the goods. As execution creditor she can have no higher title to the goods than the husband at the time of levy. If he has no title, she has no right to sell.

      Argued Nov. 12, 1896.
    Appeal, No. 85, Nov. T., 1896, by .defendants, from judgment of C. P. Lancaster Co., Jan. T., 1896, No. 68, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Interpleader to try right to certain personal property levied upon by the sheriff on fi. fas. to January term, 1896, Nos. 58 and 54.
    The following facts were stated in the opinion of the Superior Court.
    “ On September 10, 1895, Joseph Schoeneman & Company of Philadelphia sold and delivered to Louis P. Levy of Lancaster, Penna., children’s, boys’ and men’s suits of the value of $517. On December 14,1895, Levy confessed judgment in the sum of $850 to his brother-in-law, Joseph N. Weill, and about the same time one to Jennie Levy, his wife, for $1,200.
    “ On these two judgments executions were issued to Nos. 53 and 54 of January term of 1896 of Lancaster county, and the stock of merchandise of Louis P. Levy taken in custody by the sheriff. Soon afterwards Joseph Schoeneman, for appellees, identified some of the goods sold in September previous, and gave notice that the plaintiff rescinded the sale on account of the fraudulent representations inducing it, and claimed the property in a notice to the sheriff, on whose petition this issue was framed to try the right to the property scheduled. The jury found for the plaintiff and defendants appeal.
    “There are thirteen assignments of error. The first to eighth inclusive are directed to the admission of testimony offered by plaintiff to show a fraudulent design in securing the plaintiff’s property, objected to by defendants without assigning any reason in support of the objection, but intended to be covered by one statement: ‘Defendants object to any conversation with L. P. Levy or any declarations he may have made to the witness in the absence of his wife, she being a party to this suit.’
    “ The issue as framed and tried in the court below was limited to the question of good faith in the purchase by Levy of the bill of September 10,1895, of plaintiffs. The integrity of the judgmente of Joseph L. Weill and Jennie Levywasnot questioned; for the purpose of the trial they were admitted to be honest and correct. The contention was, that the goods scheduled in plaintiffs’ statement had been secured by Louis P. Levy under such false and fraudulent representations as warranted Schoeneman & Co. in rescinding the sale and claiming the property; that title to it did not pass, and the property as against Levy and these defendants was in the plaintiffs.”
    Verdict for plaintiffs. Defendants appealed.

      Errors assigned were (1-7) admission of evidence of conversation with L. P. Levy, defendant in the execution, of declarations which he made to the witness in the absence of his wife, she being a party to this suit; (8) admission of evidence as to value of the property; (9) swearing the jury and going to trial, there being two defendants, one of them being the wife of a man Avho may be called as a witness; (10) answer to plaintiffs’ point, reciting same; (11, 12) ansAvers refusing defendant’s first and second points, requesting binding instructions for defendants, reciting same ; (18) in charge where it was said: “ If there was any indebtedness at the time then of course your verdict will have to be for the plaintiffs.”

      B. F. Davis, for appellants.
    The evidence objected to is inadmissible upon any theory, citing as to the first seven assignments of error: Martin v. Rutt, 127 Pa. 380; Burrell Twp. v. Uncapher, 117 Pa. 353; Johnson v. Watson, 157 Pa. 454.
    The old rule which prevents husband and wife testifying “ against each other ” is not relaxed by either statute or decision: Rowley v. McHugh, 66 Pa. 269 ; Pleasanton v. Nutt, 115 Pa. 268; sec. 4 (c), Act of May 23,1887, P. L. 158; Tisch v. Utz, 142 Pa. 186 ; Leedam v. Leedam, 160 Pa. 273.
    There was no evidence that Levy Avas indebted to his wife, to Weill or any one else at or before the time of the sale, and it Avas error to have left the question to the jury: Selser v. Roberts, 105 Pa. 242 ; Railroad Co. v. Bock, 93 Pa. 427; Urket v. Corvell, 5 W. & S. 60.

      W. U. Hensel, with him J. Hay Brown, for appellees.
    We do not agree that the point thus raised and- comprehended in numerous of the assignments of error has ever'been “passed upon in an interpleader issue by the Supreme Court.” Certainly not in Martin v. Nutt, 127 Pa. 380, nor in any other case cited in appellants’ brief, and we are quite confident when it comes to be passed upon it will not be decided in the way our adversary contends for.
    But this identical question has been considered and disposed of by the Supreme Court of Pennsylvania in a case not cited in appellants’ paper-book, although it is a recent one, decided since the act of 1887, long after Pleasanton v. Nutt, 115 Pa. 266, and a case with which the distinguished counsel for appellants is quite familiar, for he was, if not of counsel, one of the parties in Norbeck v. Davis, 157 Pa. 403 (1893).
    December 7,1896,
   Opinion by

Orlady, J.

(after stating the facts as above) :

There was no controversy between husband and wife as to these goods. He did not make claim of title to them. The dispute was between his creditors as to whether he ever had title, and the evidence was properly received under authority of Norbeck v. Davis, 157 Pa. 403.

Louis P. Levy was not called as a witness, and to exclude proof of the representations made at the time the goods were secured would open wide the door to successful fraud, and place in the hands of the fraudulently disposed the power of securing property through conspiracy with his wife, and at the. same time prevent any investigation of the fraud. This is not the law and is contrary to its policy.

He was the actor in the alleged fraud. It was competent to show just what he did, and its effect in securing the property. Any other rule would enable a scamp to transfer the fraudulently secured property to his wife through the medium of a confessed judgment and friendly process, and withdraw it from reach of an honest creditor.

She had control of her execution and in seeking to enforce it against property claimed by a stranger to the writ, must maintain her husband’s title to the goods. As execution creditor she can have no higher title to the goods than her husband at the time of levy. If he had no title, she had no right to sell.

The court properly limited the inquiry of the jury to this one question: “ These judgments are not attacked at all in any way. It is not necessary that they should be. They may be fraudulent for anything we know or care in this suit. The simple question here is whether the title is in Schoeneman & Co., or in Levy.”

The ninth assignment, relating to the jury being sworn and going to trial, with Joseph L. Weill and Jennie Levy as defendants, “ there being two defendants, one of them being the wife of a man who may be called as a witness,” is not to be seriously considered, as the suggested danger did not arise. Levy Avas not called as a witness, and it could not make any change in the case in the view taken as to the character of proof. Further, the issue was so framed without objection.

The tenth assignment is to the answer to plaintiff’s point submitted : “ If the jury believe from the evidence that when Levy made the written statement of September 5, 1895, on which he procured the goods, he was indebted to his wife, to Weill, or to any one else, his answer was false and the goods were obtained by fraud, and the verdict should be for the plaintiff.” The ansAver to which was, “That, we say, would be true. We ansAver that in the affirmative. If the jury are satisfied from the whole eA'idence that these statements, or any of them, with reference to his indebtedness were false, then he obtained these goods by fraud and false representations.”

In the investigation of alleged fraudulent transactions, a wide door is opened to the admission of evidence, and under the facts in this case it was proper to submit the whole question to the jury. The credibility of the witness Avas clearly for the jury.

The eleventh and twelfth assignments relate to the charge of the court in submitting to the jury the question of fraud. There is certainly some evidence tending to prove fraud. The jury is the proper tribunal to weigh it, and determine what it proves: Landis v. Neff, 9 Atl. Rep. 926. This question was fairly submitted to the jury. We discover no error in the admission of evidence, nor in the charge. The judgment is affirmed.


text:
    Sarah Himes v. Aaron Herr, Appellant.

      Principal and agent — Extent of agent's power, how shown.

    The extent of an agent’s powers depends upon the authority under which he acts. This may be shown by his written instructions or his course of dealing, and applies to cases where an agent has been allowed to exercise enlarged powers from time to time and his acts therein have been ratified by his principal.

      Principal and agent — Satisfaction of judgment by attorney at law.

    Where an attorney at law, who has loaned money for his client on a judgment and has been permitted to act as her agent and attorney in this and other matters, receives the principal of the debt and enters satisfaction on the judgment, but misappropriates the money, a rule to strike off the satisfaction should not be granted where the client had authorized such a course of business to be established and continued as to warrant a man of ordinary caution in believing that the attorney was her trusted representative.
    Argued Nov. 13, 1896.
    Appeal, No. 102, Nov. T., 1896, by defendant, from decree of C. P. Lancaster Co., Jan. T., 1896, No. 964, making absolute rule to strike off satisfaction of judgment.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Rule to strike off satisfaction of judgment. Real debt $500.
    The following facts appear from the opinion of the Superior Court.
    “ To No. 964 of January term, 1886, a judgment was entered in the common pleas of Lancaster county in favor of Sarah Himes against Aaron Herr for $500, which was revived by an amicable scire facias to No. 154 of January term, 1891, for the same amount, and judgment entered thereon February 2, 1891.
    “ On April 1, 1892, G. C. Kennedy, a member of the bar, at that time in good professional standing, received -from the defendant the amount of the debt and interest, and placed on record of the judgment the following satisfaction memorandum:
    “ ‘ This judgment is paid, satisfied and released. Witness my hand and seal.’
    “‘G. C. Kennedy, [Seal]
    “ ‘ Attorney for Sarah Himes.’

      “ January 27, 1894, Sarah Himes presented her petition verified by her affidavit to the court, setting forth: That on February 2,1891, she advanced and loaned to Aaron Herr the sum of $500; that said Herr gave to her a judgment bond for the sum of $500, which was duly entered; that on April 1, 1891, G. O. Kennedy, a member of the Lancaster bar, without any authority from her, and without her knowledge or consent, entered satisfaction of said judgment; that Kennedy was not employed by her for the purpose of entering satisfaction; that he was not authorized to enter an appearance for her; that she never received any money in payment of the judgment; that she did not know of the satisfaction of the judgment until about December 1, 1893; that Kennedy never informed her that he had entered satisfaction of the judgment, but for the purpose and with intent to deceive and defraud her, paid to her the interest on April 1, 1892, and April 1, 1893, telling her that Herr had paid him her interest; and prayed for a rule to show cause why the said entry of satisfaction of said judgment should not be stricken off, and that it should remain a lien against Aaron Herr.
    “ A rule was granted, to which Aaron Herr filed an answer stating: That Kennedy was a regular member of the bar on April 1,1892, when he paid to him the principal and interest of the judgment; that Kennedy was the attorney and agent generally for Sarah Himes and invested money for her; that the money for which he gave the judgment to Sarah Himes he received from G. C. Kennedy by his individual check; that he never saw Sarah Himes; that he always paid the interest on the judgment to Kennedy as her agent; and that he is informed and believes Kennedy was authorized to invest and receive money belonging to Sarah Himes.
    “ Depositions were taken, and after hearing, the rule was made absolute. The defendant appeals to this court.
    “ From the evidence of plaintiff in the case, it appears she was eighty-three years old in 1894; Kennedy was her relative, a grandnephew — and for her had made a number of important investments, she placing the money in his hands, and he issuing his individual checks to the borrowers, receiving interest on the loans and transmitting them to her. Her advanced age is sufficient excuse for not remembering several large loans made through Iris direction and under his care, as shown by the records. In this case, the defendant was not a client of Kennedy, but hearing that he had control of the money to be invested, sought him as the representative of the money, and after negotiations gave on April 1, 1886, to Kennedy his judgment bond (in which Sarah Himes is the obligee) and received from him his individual check for $500. Judgment was entered in common pleas of Lancaster county, arid on February 2, 1891, the judgment was revived and its lien continued by an amicable scire facias without knowledge of the plaintiff.”
    The court made absolute the rule to strike off satisfaction of judgment. Defendant appealed.

      Errors assigned were (1, 2) in striking off the entry of satisfaction.

      George Nauman, for appellant.
    Agency may be made out as an implication from circumstances as well as by direct proof: Jordan v. Stewart, 23 Pa. 247; Arthurholt v. Ins. Co., 159 Pa. 7 ; Williams v. Walker, 2 Sanford Chanc. 325; McMahon v. Bardinger, 18 W. N. C. 112; Miller v. Preston, 154 Pa. 63.

      C. Reese Eaby, for appellee.
    Where the testimony proves that the money was paid to an attorney on the faith of his supposed integrity and financial responsibility, without any inquiry as to whether he was authorized to receive it or not, a satisfaction must be stricken off. This doctrine was laid down by the Supreme Court in Sergeant v. Martin, in 133 Pa. 122; citing also Pepper v. Cairns, 133 Pa. 114.
    As to powers and duties of an attorney at law, see Kirk’s Appeal, 87 Pa. 243; Campbell’s Appeal, 29 Pa. 401.
    An agent authorized to receive the' interest on a mortgage has no right to give a discharge for the principal: Taylor v. Wingert, 33 Leg. Int. 238; Cowden v. Bechler, 6 Pa. C. C. 10; Anderson on Contracts, sec. 342.
    Authority to loan money and take security for its payment implies no authority to collect it: Wharton on Agency, sec. 230; Isaacs v. Zugsmith, 103 Pa. 77; Tompkins v. Woodford, 1 Pa. 156; Slaymaker v. Herr, 12 Lanc. Law Review, 342.
    The law is undoubted that authority alone to .collect the interest does not imply authority to collect the principal: Taylor v. Wingert, 33 Leg. Int. 238; Bryant v. Hamlin’s Executors, 3 Dist. Rep. 385.
    December 7, 1896
   Opinion by

Orlady, J.,

(after reciting the facts as above) :

From the inception of the loan until April 1, 1892, the interest was annually paid by Herr to Kennedy. The court below, in the opinion filed, imposed the whole burden of inquiry upon the borrower. “ Kennedy did not tell him whose money it was and he did not know until he saw the bond. After he saw the bond he knew the money came from Mrs. Himes. He does not say he ever made inquiry where Mrs. Himes resided or whether he should pay the money to her. He never asked Kennedy or inquired whether he had authority to receive the money and enter satisfaction on the record or not. He paid the money and took his chance. His negligence was his undoing.”

This was too severe a test of his duty and liability. Conversely it could be said Mrs. Himes knew when the loan was made in 1886 that Herr was to be her debtor and sent the money to Kennedy for delivery to Herr; knew the judgment yas entered because she had a certificate ; approved of the payment of interest annually to Kennedy and accepted it from him; knew or should have known of the revival of the judgment by Kennedy; and when informed of the satisfaction of the judgment by Kennedy in December, 1893, and his receipt of this money, recognized the indebtedness as being that of her grandnephew, who for seven years had looked after this and other loans for her, and not Aaron Herr, whom she had never seen, by making a claim for this, with other money, and accepting in satisfaction of this very claim, a deed (dated January 2, 1894, with a consideration mentioned at $2,603.25 “made up of a mortgage of $2,000 against Hofmaster and the judgment of Aaron Herr for $500 and other items) ” from him, with a full understanding of her act, when represented by competent counsel, to satisfy these claims, she accepted his interest in a farm in Salisbury township, and a transfer of his interest in the fee in the Lechler estate.

The authorities cited by appellee do not apply to this case. It is different in its facts from any presented. During the whole course of the business, Sarah Himes authorized such a course of business to be established and continued, as to’warrant a man of ordinary caution in believing that Kennedy was her trusted representative, in the care of this investment; and when his default was discovered, at once ratified his act of receiving the money for her, by accepting from him a deed in satisfaction of the claim.

The extent of an agent’s powers depends upon the authority under which he acts. Tins may be shown by his written instructions or his course of dealing. It is true the public are not always bound by the private instructions of the agent; and may hold the principal responsible, though the particular acts are in excess of his private instructions. It applies to cases where the agent has been held out to the world as such by the principal, allowed to exercise enlarged powers from time to time, and his acts therein have been ratified by his principal: American Life Ins. Co. v. Shultz, 82 Pa. 46; Schrack v. McKnight, 84 Pa. 29; Hubbard v. Tenbrook, 28 W. N. C. 351.

The records of the county show that from 1879 to 1892 G. C. Kennedy, acting for Sarah Himes, entered, satisfied, released, transferred, revived and otherwise cared for eight judgments and mortgages aggregating $16,600, some by virtue of a special power of attorney, and others as attorney at law. None of these was repudiated and her ratification of his act is to be presumed from the absence of dissent, which is equivalent to precedent authority.

Under the special facts in this case, the court erred in making the rule absolute, and the decree is reversed, costs to be paid by the appellee.