text:
    Miller’s Estate.
    July 20, 1910:

      Guardian and ward — Surcharge—Costs.
    Where an auditor and the orphans’ court have both surcharged a guardian, he will be compelled to pay the costs of the audit.
    Argued May 10, 1910.
    Appeal, No. 156, April T., 1910, by Florence May Miller, from decree of O. C. Butler Co., Dec. T., 1908, No. 25, surcharging accountant in Estate of Florence May Miller.
    Before Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Decree modified.
    Exceptions to report of A. T. Scott, Esq., auditor.
    The opinion of the Superior Court states the case.

      Error assigned was decree surcharging the accountant.

      W. A. Hudson, for appellant.

      J. W. Hutchison, for appellee.
   Opinion by

Morrison, J.,

This is an appeal by the ward from the decree of the orphans’ court of Butler county in the adjudication of the final account of George B. Beilis, guardian of Florence May Miller. At the time of this adjudication she was of lawful age and she and her counsel had a full hearing, first, before an auditor and on exceptions to his report before the court below. The auditor surcharged the accountant with the following sums, to wit:

Rent for 76 acre farm.................... $175.00
Interest...............'................ 64.33
Excessive rebate on rental................ 7.00
Negligent advances to ward.............. 140.00
Total............................... $386.33

Also charged accountant with costs of audit amounting to $108. On exceptions and argument, the court below modified the auditor’s report as follows, to wit:

Surcharges:

On account of rent...................... $ 75.00
On account of interest.................... 64.33
On account of excessive rebate........... 7.00
On account of ^ the costs............... 54.00
Total............................... $200.33
Balance due ward as per account filed.. 761.21
Total........................... $961.54
Less costs...................... 108.00
Balance due ward............ $853.54

The record contains nine assignments of error and conceding that there may be ground for a fair difference of opinion as to the merits of some of them, a careful consideration of the evidence, arguments of counsel and the careful opinion of the learned court below, leaves us unconvinced that there is sufficient merit in these assignments to warrant us in disturbing the decree, except as to the sixth assignment which complains of the court for relieving the accountant from the payment of -one-half of the costs. In the circumstances disclosed by the evidence, we are not willing to place half the costs upon the ward. The learned court found the balance due her $853.54 and this was reached by charging her with $54.00 of costs. We sustain that exception so far as to add to the balance due the ward $54.00. This will modify the decree so that it will read, balance due ward $907.54.

The auditor and the court below both surcharged the accountant and, therefore, he ought to pay the costs.

The opinion of the learned court below satisfies us that he gave the testimony and the auditor’s report and the exceptions careful consideration and except as above stated, we are not prepared to modify or reverse his conclusions.

As modified, the decree is affirmed and the other assignments are overruled, and it is further ordered that the appellee pay the costs of this appeal.


source: Caselaw Access Project

author: Orlady, J.,

license: Public Domain

text:
    Clark, Appellant, v. Hubbard.

      Brokers — Real estate brokers — Commissions—Principal and agent— Fraud.

    1. A real estate broker who is the agent of both parties in an exchange of real estate, owes fidelity to both; and if he takes a note for commissions from one, concealing the essential fact that the property of the other is heavily mortgaged, and as a result the exchange fails, he cannot recover on the note.
    2. No broker, agent or middleman can recover for services which uncover double dealings, and a secret agreement with one of the principals, by whatever name the confidential relation is known. Perfect good faith must be shown to warrant recovery for such services.

      Trial — Witness—Subpoena—Testimony on previous trial.

    3. Where an unsuccessful attempt has been made to subpoena witnesses who had testified at a previous trial of the case, the testimony of such witnesses at the previous trial may be offered in evidence; and this is especially so where such witnesses had been cross-examined at length at the previous trial.
    Argued May 4, 1910.
    Appeal, No. 190, April T., 1910, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1902, No. 156, on verdict for defendant in case of L. A. Clark, trading as L. A. Clark & Company, v. George Hubbard.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit on a promissory note. Before Kennedy, P. J.

      The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1, 2) admission of evidence taken at the previous trial of the case; (3-11) various instructions.

      Levi Bird Duff, for appellant.
    The evidence is not sufficient to overthrow the note and the written agreement. To set aside an instrument on the ground of fraud, the evidence must be clear, precise and indubitable, and must refer to what occurred at the execution of the instrument: Campbell v. Patterson, 95 Pa. 447; Thorne v. Warfflein, 100 Pa. 519; Murray v. Railroad Co., 103 Pa. 37; Silvius v. Kosek, 117 Pa. 67; Hicks v. HarbisonWalker Co., 212 Pa. 437; Sacks v. Schimmel, 3 Pa. Superior Ct. 426.
    One who seeks to repudiate a contract on the ground of fraud must do so promptly: Andriessen’s App., 123 Pa. 303; Mehaffey v. Ferguson, 156 Pa. 156.

      Simon B. Huss, for appellee.
    It is a well-settled principle of law that a broker employed to find a purchaser is not entitled to a commission unless the purchaser is able, willing and ready to take the property on the terms specified by the principal: Turner v. Baker, 225 Pa. 359; Butler v. Baker, 17 R. I. 582 (23 Atl. Repr. 1019); Harmon v. Enright, 107 Mo. App. 560 (81 S. W. Repr. 1180); Dent v. Powell et al., 93 Iowa, 711 (61 N. W. Repr. 1043); Stewart v. Fowler, 37 Kan. 677 (15 Pac. Repr. 918); Iselin v. Griffith, 62 Iowa, 668 (18 N. W. Repr. 302).
    No broker, agent or middleman can recover for services, which uncover double dealing and a secret agreement with one of the principals: Linderman v. McKenna, 20 Pa. Superior Ct. 409; Everhart v. Searle, 71 Pa. 256; Rice v. Davis, 136 Pa. 439; Finch v. Conrade’s Executor, 154 Pa. 326; Wilkinson v. McCullough, 196 Pa. 205; Marshall v. Reed, 32 Pa. Superior Ct. 60; Evans v. Rockett, 32 Pa. Superior Ct. 365.
    July 20, 1910:
   Opinion by

Orlady, J.,

The plaintiff, a real estate agent, instituted negotiations for the exchange of certain real estate upon terms that were fully set out in an agreement between William M. Oberlin and George Hubbard. The negotiations resulted in a failure by reason of Oberlin refusing to comply with one of the provisions, which required him to deliver his property free from all liens and incumbrances, the reason given being that he could not raise the necessary money.

The note in suit, as appears by the testimony, was given to the plaintiff for commissions, and while absolute on its face, it is contended by the defendant that the note was to be.paid only on the consummation of the transaction, and that the plaintiff Clark knowingly deceived and misled him in assuring him that the lot to be conveyed by Oberlin was free and clear of incumbrance, when he, Clark, knew it was incumbered to a large amount.

There was considerable conflict in the testimony in regard to the good faith shown by the plaintiff, which culminated in the plaintiff submitting a point, as follows: “The note in suit is for the payment of $360 absolutely, without condition, and there is not sufficient evidence of any contemporaneous or other agreement to change the terms of the note, and the plaintiff is entitled to a verdict for the full amount thereof, with interest, unless the defendant has shown that it was obtained by fraud.” Which point was answered as follows: “This point is affirmed. I have so charged you substantially in my general charge, but the allegation is made here, on the part of the defendant, that there was fraud practiced by Clark in obtaining the note, the fraud consisting, as I have told you, in misrepresentations as to the liens, or rather the representation that there were no liens on Oberlin’s property, and that the hand money to Oberlin was paid in cash. If you are satisfied that that was done, that would defeat recovery. But that is denied by the plaintiff, hence the question is for you to decide whether or not such fraud or concealment and deception was practiced upon the defendant Hubbard.

This point and answer are to be taken in connection with the excerpts from the charge embraced in the ninth, tenth and eleventh assignments of error, which are as follows: “It appears by the testimony that Clark was act' ing for both parties; that is forbidden by law unless there is a perfect understanding between the parties as to the arrangement. The plaintiff concedes that he cannot collect the amount of this note if he in any way concealed or deceived Mr. Hubbard as to the facts connected with the transaction, and if he assured him, Hubbard, that there was no lien or incumbrance of any kind on this lot of Oberlin’s, and that it was free and clear, then he cannot collect anything on this note. That would be a fraud on Mr. Hubbard, that would defeat any recovery on this note.” And further, “Now these are about the circumstances of the case, and it all depends on the question whether the plaintiff has acted in good faith to the defendant, giving him all the facts and circumstances connected with the transaction and concealing nothing from him. It is required of him that he act in the utmost good faith in the whole transaction, otherwise he cannot recover in this suit.”

The appellant contends that the plaintiff in the negotiations was not the agent of Hubbard, nor was he under obligation bo impart any information to him, and further that even if he did not give Hubbard full information, he was not guilty of fraud. To this we cannot agree. While the agreement of May 15, 1902, is between Hubbard and Oberlin, the plaintiff was such an important intermediary in the transaction that he owed perfect good faith to each. Incorporated in the body of the agreement was a provision that each of the parties was to pay to the plaintiff a designated two per cent of the valuation set on the property, as compensation for their services in negotiating the above-mentioned exchange. The agreement also contains a receipt signed by the plaintiff, from each of the parties for the sum of $200, as evidence for the faithful performance of the agreement, and attached to the agreement, is the following: “Received of George Hubbard his sixty day note, for $360.00, to cover above hand money and commissions in full when said note is paid. Signed, L. A. Clark.” Under the facts in this case Clark owed a duty to each of his clients which would be discharged only by absolute good faith, and he was not entitled to his commissions from Hubbard until he produced a purchaser, able, willing and ready to take the property on the terms specified by the principals. The exchange of the properties was not consummated for the reason that one of the parties was financially unable to remove a mortgage which was a lien against his property, the existence of which was known to plaintiff at the time he brought the parties together, and he dealt with Hubbard in the light of his knowledge of that fact. The failure to remove the mortgage on the Oberlin lot, while, not being within the control of the plaintiff, was a substantive fact which must have been taken into consideration when the agreement between the parties was made, and there was no modification of its terms: Turner v. Baker, 225 Pa. 359.

Proof was adduced to show that the receipt of $200 embraced in the agreement was not only misleading and deceptive, but that on its face it represented an actual cash payment of money, whereas it in reality represented a check for that same amount, which had been accepted in lieu of cash, but had never been paid. No broker, agent, or middleman can recover for services which uncover double dealings and a secret agreement with one of the principals, by whatever - name the confidential relation is known. Perfect good faith must be shown to warrant recovery for such services: Linderman v. McKenna, 20 Pa. Superior Ct. 409. This principle is based on the rule of public policy that no man can serve two masters. General rules are intended to be preventive of possible wrong rather than remedial of actual wrong, and should be rigidly enforced unless it clearly appear that the parties for whose protection they were intended have, with full knowledge of all circumstances, agreed to waive their rights thereunder: Marshall v. Reed, 30 Pa. Superior Ct. 60; Evans v. Rockett, 32 Pa. Superior Ct. 365; Mitchell v. Edeburn, 37 Pa. Superior Ct. 223; Jacobs v. Heppe, 29 Pa. Superior Ct. 406; Gandy v. Weckerly, 220 Pa. 285. In so holding we are not in conflict with Fulton v. Walters, 216 Pa. 56, since the jury in this case has found as a fact, upon sufficient evidence, that Clark was the agent of Hubbard as well as of Oberlin.

There was sufficient evidence to submit to the jury on the question of the plaintiff’s good faith, and we cannot say that it does not warrant the finding of the jury.

The first and second assignments of error relate to the receipt of notes of testimony of William M. Oberlin and Mina Oberlin, witnesses who had testified at a former trial of this case. It was admitted that the testimony offered was that taken by the official stenographer of the same court at a former trial of the case, when the plaintiff was present with his counsel, and cross-examined the witnesses at length, but it was objected that the defendant had not made a sufficient effort to secure a personal service of the subpoena on these witnesses, although it was conceded that they could not be found at the time of the trial. The objection is fully answered by Greenan v. Eggeling, 30 Pa. Superior Ct. 253. The court was satisfied with the sufficiency of the proof to justify the admission of the evidence, and we see no substantial reason for criticising this action, especially in view of the fact that the testimony was that taken at a former trial of the case in which the witnesses were examined and cross-examined.

The judgment is affirmed.


author: Morrison, J.,

text:
    Schellentrager v. O'Donnell, Appellant.

      Mechanics’ liens — Discharge of lien by bond — Practice, C. P. — Waiver of formalities — Scire facias — Act of June 4, 1901, P. L. Jfil.

    Where the owner of a building files a bond to discharge a mechanic’s lien against his property as provided by the Act of June 4, 1901, P. L. 431, and the lien creditor instead of proceeding in the manner provided in see. 25 of the act issues a scire facias, and the defendant files an affidavit to the merits and a plea, and also an amended affidavit to the merits, and the case is tried upon the merits, the defendant will be presumed to have waived all irregularities and technicalities, and will not be permitted, after a verdict against him to object to the form of the proceedings; nor under the circumstances will he be permitted to avail himself of the five year limit contained in the mechanic’s lien law relating to the time of trial; nor will he be permitted, after having released his property from the mechanic’s lien by means of the act of June 4, 1901, to raise for the first time in the appellate court any question as to the constitutionality of the act.
    Argued May 5, 1910.
    Appeal, No. 187, April T., 1910, by defendants, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1904, No. 1,104, on verdict for plaintiff in case of E. J. Schellentrager, trading as the Century Architectural & Engineering Company, v. John Henry O’Donnell and S. W. Vandersaal et al.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Scire facias sur mechanic’s lien. Before MacFarlane, J. The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $804. Defend- • ants appealed.

      Errors assigned were (1) in refusing to quash the scire facias; (2) refusal of binding instructions for defendants; (3) refusal of motion in arrest of judgment and (4) in refusing motion of defendants for judgment non obstante veredicto.

      B. J. Jarrett, with him Willis F. McCook, for appellant,
    cited: Kountz v. Ice Co., 36 Pa. Superior Ct. 639; Vulcanite Paving Co. v. Rapid Transit Co., 220 Pa. 603; Taylor Lumber Co. v. Carnegie Institute, 225 Pa. 486.
    July 20, 1910:

      Thomas M. Marshall, Jr., with him William H. Leahy, for appellee,
    cited: Howes v. Dolan, 9 Pa. Superior Ct. 586; Lewis v. Penna. R. R. Co., 220 Pa. 317.
   Opinion by

Morrison, J.,

The plaintiff having filed a mechanic’s lien against the property of the defendants, and the owners, O’Donnell and Vandersaal, desiring to avail themselves of the benefits of sec. 25 of the Act of June 4, 1901, P. L. 431, petitioned the court to have the lien discharged against the property, fix the amount of the lien and for leave to give bond, etc., as provided by said section of the act. The parties agreed, however, as to the amount and signers of the bond and the court made an order discharging the mechanic’s lien as against the property described therein, and striking said lien from the judgment index, and that the said plaintiff should thereafter look to the said bond for the security for his said mechanic’s claim in accordance with the act of assembly. The last sentence of said sec. 25 reads: “Thereafter the material disputed facts, if any, shall be tried by a jury, without further pleadings, with the same effect as if a writ of scire facias has duly issued upon said claim to recover the balance thereof; but the jury shall be sworn to try the issues between the claimant and parties signing the bond, or between the claimant and the party who paid the fund into court, as the case may be; and verdict, judgment and execution shall follow as in an action commenced at common law.”

Notwithstanding the plain terms of said order of court and sec. 25 of said act of June 4, 1901, which plainly provided for the manner of the trial of the case, the plaintiff’s counsel caused a writ of scire facias to issue on the original lien to a new number and term, to wit, No. 1,104, December Term, 1904; said sci. fa. was of course against the defendants in said lien, although it had theretofore been discharged and stricken from the judgment index by said order of court. The issue of this writ, to say the least, was a careless blunder. But the appellants’ counsel matched this carelessness by filing an affidavit of defense and thereafter in obedience to a rule to plead, entering a plea on June 14, 1909. The appellants’ attorneys next placed the case upon the issue docket. Thereafter, on April 14, 1909, appellants’ counsel procured leave and filed an amended affidavit of defense touching only on the merits of the case. Counsel for plaintiff then filed a replication to the amended affidavit of defense and service of notice of the same was accepted by appellant’s attorneys. November 9, 1909, a jury was sworn to try the case and on the next day juror withdrawn and cause continued till November 16,1909. November 11, 1909, proof of service of notice to Mercantile Trust Company, bondsmen, to appear, filed. Same day service of said notice accepted. November 18, 1909, motions of counsel for defendants to abate or quash the above sci. fa. and the mechanic’s lien filed at No. 20, June Term, 1904, presented in open court and the motions refused. The same day exception for defendant and bill sealed. Same day on trial list and before jury was sworn counsel for the plaintiff moved the court that the Mercantile Trust Company be added as a defendant in this case and it is so ordered. November 23, 1909, verdict in favor of plaintiff and against John Henry O’Donnell and the Mercantile Trust Company in the sum of $804 and in favor of the other defendants. This verdict against the signers of the bond is in accordance with the said twenty-fifth section of the act of June 4, 1901. Appellant’s counsel moved for judgment non obstante veredicto and filed a motion in arrest of judgment. Thereafter, on argument, the motions in arrest of judgment and for judgment for defendant non obstante veredicto were refused and judgment entered on the verdict.

While the jury was inadvertently sworn as to the original defendants in the mechanic’s lien and the signers of the bond, the court only allowed a verdict against the latter and directed a verdict in favor of the other defendants. Therefore, we cannot see that any harm resulted to the appellant and his bondsmen from this technical error. Now as counsel for both sides of this controversy appear to have elected to try the case on its merits without taking the trouble to strictly follow the provisions of the said sec. 25 of the act of June 4, 1901, and the order of the court made on the petition of the appellant, and as counsel on both sides seem about equally to blame for the irregular practice adopted, and as the trial seems to have been fair and it probably resulted in a just verdict, an appellate court ought not to be astute in searching for reasons for a reversal of the judgment. We think it should now be assumed that there was a tacit agreement to waive matters of form and to try the case on its merits: Sauerman v. Weckerly, 17 S. & R. 116.

“Pleading to a scire facias operates as a waiver of defects as to dates in the lien:” Klinefelter v. Baum, 172 Pa. 652. The latter case is cited approvingly in Scott v. Scott, 196 Pa. 132. We think the appellant in the present case waived all irregularities in the proceedings by filing an affidavit to the merits, filing a plea, and then just before the trial, filing an amended affidavit of defense upon the merits, showing a clear intention to try the case on the merits and to waive technicalities.

The result of issuing the superfluous sci. fa. and the other pleadings was, in effect, that the parties got before the court and jury and tried the real question on its merits, i. e., Did the defendants, the signers of the bond, owe the plaintiff and if so, how much? The learned counsel for appellant very fairly say in the first sentence of their printed argument, “The only points that appellant desires to raise in this appeal are those set forth in the statement of the questions involved.” The statement of the “ questions involved” is as follows:

1. “Where a bond has been filed discharging the real estate from the lien, is a mechanic’s lien claimant bound to recover a judgment upon his claim before the expiration of five years from the date when the bond was filed, or in such case is there no limit to the time when the judgment should be obtained?

2. “Does the plaintiff by failure to comply with the provisions of the act in prosecuting his claim obtain an extension of time in which to obtain that verdict by reason of the defendant’s joining issue with him upon the scire facias issued after the lien had been discharged by the filing of a bond?

3. “Does section 25 of the mechanic’s lien act of June4, 1901, provide a new remedy as to being in contravention of article 3, section 7, of the constitution which forbids the general assembly from passing any legal or special law providing or changing methods for the collection of debts, or the enforcing of judgments?”

As to the first two paragraphs of the questions involved we think they are disposed of by sec. 25 of the act of June 4, 1901; see the last sentence of that section hereinbefore quoted. When the lien has been discharged by one of the methods provided for in said section, there is no limit of time fixed within which the trial shall be had. But the provision is, “verdict, judgment and execution shall follow as in an action commenced at common law.” The defendants having elected to have the lien discharged and to try the case as if commenced at common law, cannot be permitted to avail themselves of the five-year limit contained in the mechanic’s lien law.

The third question involved attempts to raise the constitutionality of sec. 25 of the act of June 4, 1901. The appellant availed himself of the provisions of said section to get his property released from the mechanic’s lien and thereafter tried the case on its merits and raised no question. of the constitutionality of the section in the court below, and, therefore, we are not disposed to consider that question here. The appellant’s counsel all through the case, in the court below, so far as the record shows, were practically recommending said section to the court as valid law. We think the appellant is now estopped from raising the constitutional question here. Availing himself of the benefits of said section to release his property from the mechanic’s lien in effect destroyed the hen and left the plaintiff no remedy for his claim except -an action on the bond. The appellant solemnly agreed to try the case on the merits in the manner provided in said sec. 25. To now permit him to escape liability on the ground of the unconstitutionality of said section would work great injustice to the plaintiff. Under the facts disclosed by the record we decline to consider the constitutionality of said section, and that question is not decided. However, we remark that the method therein provided for disposing of a mechanic’s lien is not forced upon the defendant, but is entirely at his option, and it may be difficult to discover in said section any illegal or unconstitutional provisions as to a defendant who voluntarily agrees to defend against a mechanic’s lien as therein provided. In considering this case we have not overlooked the case of Sterling Bronze Co. v. Syria Imp. Assn., 226 Pa. 475, and the cases of Vulcanite Portland Cement Co. v. Allison, 220 Pa. 382; Vulcanite Pav. Co. v. Rapid Transit Co., 220 Pa. 603, and Lumber Co. v. Board of Trustees of Carnegie Inst., 225 Pa. 486, but we do not understand those cases as necessarily deciding said sec. 25 of the act of June 4, 1901, unconstitutional, because that section does not provide any new method for the collection of the debt or the enforcement of the judgment provided by the act of June 4, 1901. But as we have in this opinion already intimated, it simply provides a method whereby the defendant in a mechanic’s lien may at his option, with leave of court, substitute a bond for the liened property, and in case of such substitution, provides for the trial of the case. When the defendant voluntarily selects the method described in said section for disposing of the lien we cannot see how he can be permitted to complain of the judgment obtained against him on his voluntary bond.

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


text:
    Swaney v. Doumont, Appellant.

      Landlord and tenant — Exemption—Husband and wife — Wife’s goods on premises.

    1. The goods of the wife of a tenant on the demised premises may be seized for rent, and the wife is not entitled as against the landlord to the benefit of the $300 exemption law. She is not a defendant nor debtor within the meaning of the Act of April 9, 1849, P. L. 533.
    2. Where a wife sues her husband’s landlord for an alleged wrongful seizure and sale of her goods for rent, and sets up in her statement of claim that the defendant had been guilty of trespass for two reasons, (1) that she had not received proper notice of the levy, and (2) that she had not been allowed the benefit of the exemption law, she will not be permitted at the trial, without any amendment of the statement of claim, to show that certain property had been returned as having been sold for a less price than she bid for it at the sale.
    Argued May 10, 1910.
    Appeal, No. 127, April T., 1910, by defendants, from judgment of C. P. Butler Co., March T., 1909, No. 16, on verdict for plaintiff in case of Mary A. Swaney v. Arthur Doumont and Aaron Fisvitz.
    Before Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass for an alleged wrongful distress and sale of goods. Before Galbreath, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $100. Defendants appealed.

      Errors assigned were (3, 4, 6) the instructions quoted in the opinion of the Superior Court.

      Stephen Cummings, with him F. J. Forquer, for appellants.
    The goods of a tenant’s wife, found on the demised premises, are liable for distress for rent in arrear, although they are her separate property: Page v. Middleton, 118 Pa. 546; Blanche v. Bradford, 38 Pa. 344; Rosenberger v. Hallowell, 35 Pa. 369; Huey’s App., 29 Pa. 219; Eberhart’s App., 39 Pa. 509.
    July 20, 1910:
    In trespass, nothing can be given in evidence but what is expressed in the declaration: Busch v. Calhoun, 14 Pa. Superior Ct. 578.

      W. H. Martin, for appellee.
    The appellee, Mary A. Swaney, was not a stranger to the lease between the appellant, Arthur Doumont, and her husband, but was one of the tenants tinder the lease and therefore a debtor for the rent due under the lease within the meaning of the exemption laws: Blanche v. Bradford, 38 Pa. 344; Balmer v. Peiffer, 16 Lancaster, 251; Hess v. Beates, 78 Pa. 429.
    There was no error in the admission of the evidence proving irregularities in the proceedings and sale: Mixel v. Betz, 168 Pa. 328; Galbraith v. Philadelphia Co., 2 Pa. Superior Ct. 359; Harding v. Lloyd, 3 Pa. Superior Ct. 293; Murphy v. Chase, 103 Pa. 260; McElroy v. Dice, 17 Pa. 163; Snyder v. Boring, 4 Pa. Superior Ct. 196; Ramsdell v. Seybert, 27 Pa. Superior Ct. 133.
   Opinion by

Orlady, J.,

William Swaney, the husband of the plaintiff, executed a lease for a house and lot by an agreement in writing, in which he waived the benefit of all exemption laws,.and with his wife took possession of the property and moved into it their household furnishings. The tenant defaulted in the payment of the rent and the landlord, Arthur Dumont, one of the defendants, issued a distress warrant and levied upon the personal property on the premises, when this plaintiff gave notice in writing that she claimed all the property, and further claimed as against the landlord, the benefit of the $300 exemption law. This notice was ignored and the’property was sold for $46.15 as the property of the lessee tenant. This action was brought for the recovery of damages which she alleges she sustained by reason of the sale of her goods. The trial resulted in a verdict for the plaintiff for $100. ' '

The court held in his charge to the jury that the wife was entitled to the benefit of the exemption law, and answered a point submitted by the defendant as follows: “The plaintiff in this case, not having signed the lease, nor having any contractual relation with the landlord, but having moved her goods into the house rented by her husband, is not a tenant or debtor of the landlord. Answer: Refused, the plaintiff in this case being the wife of the defendant. That William Swaney, the husband of the plaintiff, having leased the house under a written lease, in which he waived the benefit of all exemption laws, the goods of the plaintiff having been found upon the premises, were liable for the rent. Answer: That is affirmed as a proposition of law, but it did not deprive her of a right to exemption.”

The important question in the case is what relation did this plaintiff hold to the landlord. Was she a defendant or a debtor within the meaning of the Act of April 9, 1849, P. L. 533, so as to entitle her to the benefit of the exemption law? The claim for exemption under this statute is a personal privilege, and while it may be waived, it cannot be assigned or claimed by a stranger. A person who is entitled to the benefit of our exemption law is referred to in the act by two words, defendant and debtor. It was held in Rosenberger v. Hallowell, 35 Pa. 369, that a subtenant or assignee of a tenant, who has not been recognized as such by the landlord, cannot claim the benefit of the exemption law as against a distress for rent; neither the relation of landlord and tenant, nor that of debtor and creditor exists between the landlord and such assignee.

This plaintiff held no contractual relation, direct or implied, with the landlord, and was not in any sense a debtor. The statute contemplates two classes of debtors, execution defendants and defaulting tenants. Exemption is offered to both, to the first it is exemption of $300 worth of property owned by them; to the second, a like amount owned or in possession of the debtor tenant. This distinction in favor of the tenant was necessary to give the full effect of the statute; for whilst only an owner’s property could be seized in execution a landlord might seize any property in the possession of the tenant on the demised premises, though the tenant was not the owner. The exemption of the debtor within the limit of $300 was to be coextensive with the right of the creditor, whether he came with execution or with landlord’s warrant. The right of exemption, a merely abstract right, such as it exists in the statute, becomes a vital, personal, effectual privilege when the debtor asserts it timely, but waived by him, no one else, however he may claim under the debtor, can set it up and hinder a creditor: Eberhart’s Appeal, 39 Pa. 509.

In Ball v. Penn, 10 Pa. Superior Ct. 544, we held that the goods of a married woman which had been removed from the demised premises, cannot be followed by the landlord of her husband and a distress levied thereon for rent in arrears for the reason that the wife was held to be a stranger to the lease. There can be no uncertainty as to who was the lessee in this case. The lease itself shows that it was the husband. The fact that he had a wife can in no sense be said to have made her also a lessee unless we are willing to go to the length of deciding that a wife is hable upon a contract of her husband.

In Blanche v. Bradford, 38 Pa. 344, the Supreme Court says: The general rule of law makes all goods and chattels found on the demised premises subject to distress for the rent thereof, even though they be not the tenant’s goods. Some exceptions to this rule, so far as it affects strangers, have been found necessary, growing out of its incompatibility with the very purpose of the lease. None of the exceptions, however, involve any principle that can be extended to the protection of the goods of the tenant’s wife, living with him on the premises. In fact she is no stranger to the lease, being one of the family for whom it was obtained, and therefore one of the tenants under it. Her relation to her husband makes her so, she participates in the benefits of the lease, and there is no sufficient reason for saving her from liability for its burdens. The special law, called the married woman’s act of 1848, was evidently not intended to alter this general law of landlord and tenant, and we do not think that it should be extended by construction to do so. If this woman had not been a wife, but merely a tenant in the lessee’s house, she would have, been feme sole, and still her goods would have been liable to distress for the rent. That she is a wife, and under the control of her husband, and that he may endanger her property by a too excessive rent, are necessary results of the marriage relation, which no course of legislation or jurisprudence can prevent.

In regard to which case we held in Ball v. Penn, 10 Pa. Superior Ct. 544. The only point decided there was that a wife’s goods while upon the demised premises are liable to levy and distress for rent in arrears. In the course of the opinion it was said that she was no stranger to the lease, but one of the family for whom it was obtained, and therefore one of the tenants under it. We take this to mean nothing more than that she received the benefits of the lease, and the fact that her goods were upon the premises when the distress was levied, made them Hable.”'

The property sold in this case consisted of the usual items of household furniture, and the landlord was not bound to inquire .whether the personal property to be taken into the house under the lease was owned by the wife or by his tenant. The property was presumably the husband’s as the ostensible head of the family, and as between the landlord and tenant, and it was so held out by him to be.

The general rule of the common law is that the landlord’s right to distress for rent extends to furniture leased by the owner thereof to the tenant as a keeper of a boarding house on the demised premises: Myers v. Esery, 134 Pa. 177, and that such articles were not within the rule which exempts such goods of a stranger ón demised premises, as are kept for storage, by warehousemen, or for sale, and as in that case it was said, that between the furniture dealer and tenant the goods might belong to the former, but as between the tenant and the landlord, the furniture belonged to the tenant and was hable for distress: Page v. Middleton, 118 Pa. 546; Wanamaker & Brown v. Carter, 22 Pa. Superior Ct. 625.

Neither the relation of landlord and tenant, nor of debtor and creditor was established between Mrs. Swaney and the landlord of her husband, and if not a debtor for the rent, she was not entitled to the exemption of the statute. That her property was seized was due to the fact of it being found upon the demised premises. The landlord’s warrant was not issued against her, nor was she in any way a party to the proceeding. The third and fourth assignments of error are sustained as they should have been affirmed without qualification.

The fifth assignment of error is as follows: “The statement of claim filed by the plaintiff in this case not having specifically set forth that the goods distrained on had not been sold to the highest bidder, the jury should disregard all testimony of the plaintiff as to that fact,” which was refused. The statement alleges that the defendant had been guilty of trespass in selling the goods for two reasons-: 1. That she had not received proper notice of the levy. This, the court held on the trial, was not well founded. 2. That she had not been allowed the benefit of the exemption law. The plaintiff proceeded to trial without an amendment of her statement, yet offered evidence under objection to show that certain property had been returned as having been sold for a less price than she bid for them at the sale, and the court said to the jury that if the defendant did not make the sale in the way in which it should have been made, in that, they did not sell the articles levied upon to the highest bidder, it was such an irregularity as would render the person making the sale in that way a trespasser from the beginning. Without an amendment of the statement the proof adduced should have been confined to the issue raised by the pleading. The defendant could not be expected to meet the new allegations in the evidence, and while he did not plead surprise but remained in the trial, the damage done by that character of testimony cannot be estimated. The record shows that the testimony embraced a much wider scope than was indicated in the statement. The necessity for accuracy and precision in the pleadings are as necessary as ever, and when objection is made to such testimony, and the plaintiff elects to offer proof outside of his definite statement, he must take the chance of such divergence being considered on an appeal. The fact that certain goods were knocked down for a less price than was bid for them may, or may not have been, an irregularity. The property in this case sold for $46.15 as the property of William Swaney. If the plaintiff in this case is not a tenant, debtor or defendant, shé would not be entitled to the surplus if the sale exceeded the rent, nor is she liable for any deficiency in the rent by reason of the sale not producing a fund sufficient to pay it.

The judgment is reversed.


author: Head, J.,

text:
    Shrader v. T. W. Phillips Gas & Oil Company, Appellant.

      Lease — Oil and gas lease — Rental—Payment.
    Where a gas lease provides that the rental named should apply only to a well “from which gas is marketed,” and that the rent named was “to be paid quarterly while marketed,” the lessee is not relieved from paying rental during a summer quarter because he does not actually deliver gas to customers during that quarter, although he mines it and holds it in reserve in his lines and wells to await the increased consumption in colder weather.
    Argued May 10, 1910.
    Appeal, No. 171, April T., 1910, by defendant, from order of C. P. Butler Co., Dec. T., 1908, No. 83, making absolute rule for judgment for want of a sufficient affidavit of defense in case of A. C. Shrader v. T. W. Phillips Gas & Oil Company.
    July 20, 1910:
    Before Henderson, Morrison, Qrlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for rental. Before Criswell, P. J., specially presiding.
    The opinion of the Superior Court states the facts.

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

      Clarence Walker, for appellant.

      John M. Greer, with him John B. Greer and Thomas H. Greer, for appellee,
    cited: Nesbit v. Godfrey, 155 Pa. 251; Double v. Heat & Light Co., 172 Pa. 388; Wilson v. Philadelphia Co., 210 Pa. 484.
   Opinion by

Head, J.,

By a written lease, dated May 8, 1902, the plaintiff demised unto the defendant company, or its predecessor in title, the exclusive right to drill and operate for oil and gas on a tract of land in Armstrong county containing 156 acres. The term of said lease is first definitely fixed at a period of five years, but this term could be extended under the conditions described in the following language: "and as long thereafter as oil or gas is produced in paying quantities or active operations for oil ór gas are being conducted thereon.” The term as first described had expired before the cause of action in this case arose, and had it not been for the provision quoted, the rights of the defendant under the lease would have long since been at an end. As the defendant contends that it is still lawfully in possession of the land, of the gas well which has been drilled thereon, and of the gas produced thereby, it thereby asserts that the lease is still operative under the conditions quoted. It is still, therefore, in the possession and enjoyment of the leased estate, and- it would seem naturally to follow that its liability to pay the rent reserved in the lease still continues.

The amount of rent to be paid and the times of payment, under the conditions thus existing, are declared in the following language of the lease: “Should any well not produce oil but produce gas, and the gas therefrom be sold off the said premises, the consideration to the party of the first part for the gas from each well from which gas is marketed shall be at the rate of $300.00 per annum to be paid quarterly while marketed.” All of the rentals due under the lease, it is agreed, had been paid down to May, 1908. When the first quarter of the year then beginning had expired, as the defendant continued to hold the leased premises and to assert that the lease was in full life, the plaintiff demanded the share of the annual rental then due, and, upon the refusal of the defendant to pay, brought this action to recover.

The defendant filed an affidavit of defense setting up substantially these facts: That it is a corporation engaged, inter alia, in the production and supply of natural gas. That in the conduct of its business it furnishes its gas to domestic consumers in a number of large towns of several adjacent counties. That during the winter months its consumers use large quantities of gas which it must be able to supply. That during the summer months this demand is so greatly reduced that it must hold in reserve in its lines and wells considerable quantities of gas to await the return of colder weather and a consequent increase in consumption. That because of this state of facts it was not marketing the gas of the plaintiff, within the meaning of the lease, during the quarter sued- for, and therefore was not liable to pay any rent for that period. The learned court, below, being unable to perceive in these facts a legal defense to the claim of the plaintiff, made absolute a rule for judgment, and the defendant appeals.

It will be observed in the first place that the term of the lease was a period of years, to wit, five years. That the rental fixed in case gas was produced in paying quantities was an annual rental, to wit, $300. We may concede that at the beginning of each recurring year the defendant would have the right to determine in good faith whether or not the term of the lease should be extended for another year. Having determined that it should so extend, we are of the opinion that the true construction of this lease, in accordance with sound reasoning and precedents, fixed its liability to pay during that year the annual rental mentioned, of course, in the manner provided by the lease: Lysle v. Williams, 15 S. & R. 135; Marys v. Anderson, 24 Pa. 272; Nesbit v. Godfrey, 155 Pa. 251; Double v. Heat & Light Co., 172 Pa. 388.

It was entirely within the power of the parties to so provide that the lessee might be absolved from the payment of rent during any given year, or any quarter of that .year, under conditions agreed upon, without destroying the existence of the demised estate. As we understand the. contention of the defendant, this is precisely what happened. It is urged upon our attention that the lease provided that the rental named should apply only to a well “from which gas is marketed,” and that the rent named was “to be paid quarterly while marketed.” We are asked to draw from these expressions in the lease the legal conclusion that the defendant had the right to so arrange its business as to thus compel the plaintiff to carry, without expense to it, the portion of its stock of surplus gas which it could not market to advantage during the warm months but could sell with profit during the cold months. The result of this would be that the plaintiff was fully performing all of the covenants of his lease, presumably in consideration of the rental thereby reserved, but that by reason of the manner in which the defendant, for its own advantage, had arranged its business, it could enjoy all the fruits of the lease, take all of the gas produced by the well on the demised premises, take it when it was most profitable for it to take it and at the time when it chose to take it, and yet escape with the payment of one-half the annual rental reserved.

The defendant does not aver that there was no market for natural gas during the period sued for. It does not allege that consumers could not be found, manufacturers or others, to whom it could sell the gas during the summer months. It does say. that it chose to select a certain class of those in the market for gas which alone it would supply, to wit, domestic consumers. But we do not think the plaintiff, in law or in right, was bound by this voluntary action of the defendant. The latter, under its lease, could utilize the gas as it chose. As between it and the plaintiff, the gas was marketed when it took it. Had it been obliged, in the conduct of its business, to consume a quantity of gas under its own boilers to operate its pumps or other machinery, and-utilized the gas from this well for such purpose, it could hardly be -contended, from the standpoint of the plaintiff, that his gas was not being marketed and that he was not entitled to his rental. Or again, if the defendant was obliged to supply, without compensation, certain public buildings, and utilized the gas from this well for such purpose, in relief of its other supplies, the same conclusion would follow. We repeat, the defendant had the right to organize its business as it chose and conduct it in any manner that would best sub-serve its own interests and was not forbidden by law. If, in thus conducting its business for its own advantage, it saw fit to utilize the gas of the plaintiff one month by consuming it itself, another month by , selling it to other consumers, and still another month by holding it in reserve until market conditions were more favorable to its interests, all of these things it had a right to do. But it seems to us that neither reason nor authority, nor indeed the dictates of natural justice, as we perceive them, would sanction the theory here advanced by the defendant.

We are of opinion, therefore, that the facts averred in the affidavit of defense disclosed no legal bar to the plaintiff’s demand and the learned trial judge was right in making-absolute the rule for judgment.

Judgment affirmed.


author: Henderson, J.,

text:
    Bell’s Estate
    (No. 1).

      Trusts and trustees — Removal—Discretion of court — Act of May 1, 1861, P. L. 680 — Evidence.
    The discretion vested in the court of common pleas by the act of May 1, 1861, to remove a trustee whenever the said court shall be satisfied that the trustee is wasting or mismanaging the trust estate, or that for any reason such estate is likely to be jeoparded by the continuance of such trustee, will not bo reviewed by the appellate court where the evidence shows that the trustee was negligent, incompetent and dissipated, that he mixed the trust funds with his own, and neglected to charge himself with all of the funds received.
    Argued May 11, 1910.
    Appeal, No. 78, April T., 1910, by Edward Sergeant, Trustee, from decree of C. P. Lawrence Co., Dec. T., 1906, No. 29, removing Trustee in Estate of John Bell, deceased.
    Before Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition to remove trustee. Before Porter, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was decree removing the trustee.

      A. W. Gardner, with him J. K. Wallace, for appellant.—
    It is not the duty pf the court to refuse to remove a trustee at the mere whim or caprice of the beneficiary. There should be a substantial reason appearing to the court before it removes the trustee who enjoyed the confidence of the person who created the trust and who by reason of his fitness for executing it, was empowered to act as trustee: Morgan’s Est., 26 W. N. C. 236; Thomas’s Est., 11 Pa. Dist. Rep. 256; Mulley’s Est., 17 York, 102; Bryson v. Wood, 187 Pa. 366; Ingles’s Est., 76 Pa. 430; Williams’s App., 73 Pa. 249; Merkel’s Est., 131 Pa. 584; Neafie’s Est., 199 Pa. 307; Stevenson’s App., 68 Pa. 101; Price’s Est., 209 Pa. 210.

      July 20, 1910:

      Robert K. Aiken, with him W. D. Wallace, for appellees,
    cited: Parsons's Est., 82 Pa. 465; Nicholson's Est., 20 Pa. 50; Piper’s App., 20 Pa. 67; Wilson v. Pennock, 27 Pa. 238; Kellberg’s App., 86 Pa. 129; Bryson v. Wood, 187 Pa. 366; Perrett’s Est., 14 Pa. Superior Ct. 611.
   Opinion by

Henderson, J.,

This case comes up on an appeal from the decree of the court of common pleas removing the appellant as trustee of the estate devised to him under the will of John Bell. The jurisdiction of the court is not questioned and the only point contended for by the appellant is that the evidence was not sufficient to warrant the action of the court. The proceeding originated on the petition of two of the cestuis que trustent setting forth that the trustee had mismanaged the estate, was insolvent and had become an unfit person to execute or look after the duties of the trust and praying the court to remove him as such trustee. The case was heard before the presiding judge and evidence was taken showing the manner in which the trustee had discharged his duties, the form of his accounts and his habits. Testimony relating to the latter subject was taken in the orphans’ court in a proceeding to remove the appellant as executor of the same will and the evidence in that case was also before the court. After a consideration of all of the evidence the court found that the appellant had mismanaged the estate, had become incompetent to discharge the duties of his trust and that such incompetency was likely to continue to the injury of the estate under his control. The trustee and the witnesses were before the court and an opportunity was thus given to duly estimate the value of the testimony given. There was evidence showing neglect, incompetency and dissipation. It was also shown that the trustee mixed the trust funds with his own and that he neglected to charge himself with all of the funds received. The conclusion of the court was, therefore, supported by competent evidence. The Act of May 1,1861, P. L. 680, vests in the court a discretion to remove a trustee whenever the court shall be satisfied that such trustee is wasting or mismanaging the property under his charge or that for any reason the interests of the estate or property are likely to be jeoparded by the continuance of such trustee. This discretion must be exercised, of course, on proper evidence, but where testimony of the character implied in the act of assembly is presented the action of the court ought not to be reversed except where it is very clearly made to appear that there was an abuse of discretion: Piper’s Appeal, 20 Pa. 67; Wilson v. Pennock, 27 Pa. 238; Perrett’s Estate, 14 Pa. Superior Ct. 611. A careful examination of the evidence does not satisfy us that there was such abuse of discretion. Giving credit as the court evidently did to the evidence in support of the petition facts appeared such as warranted the decree of the court under the act of assembly.

The decree is affirmed at the cost of the appellant.


text:
    Bell’s Estate
    (No. 2).

      Executors and administrators — Removal—Discretion of court — Act of May 1, 1861, P. L. 680 — Evidence.
    1. The discretion vested in the orphans’ court by the act of May 1, 1861, to remove an executor, will not be reversed by the appellate court, unless the latter court is convinced that the orphans’ -court abused the discretion vested in it.
    2. A decree of the orphans’ court removing an executor will not be reversed where the evidence tends to show that the executor had mingled the funds of the estate with his own funds, that his accounts were improperly kept, and that his intemperate habits disqualified him from the further discharge of his duties.
    Argued May 11, 1910.
    Appeal, No. 73, April T., 1910; by Edward Sergeant, from decree of O. C. Lawrence Co., Dec. T., 1907,-No. 20, discharging him as trustee of the Estate of John Bell, deceased.
    Before Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      July 20, 1910:
    Petition for the removal of an executor. Before Porter, P. J.
    The facts appear by the opinion of the Superior Court.

      Error assigned was decree removing executor.

      A. W. Gardner, with him J. K. Wallace, for appellant.

      Robert K. Aiken, with him W. D. Wallace, for appellees.
   Opinion by

Henderson, J.,

This case was argued with No. 78, April Term, 1910, ante, p. 60, and involves practically the same question as was raised in that appeal. The appellant was executor of the will of John Bell and two of the legatees instituted a proceeding in the orphans’ court to secure the removal of the executor for squandering and mismanaging the estate and for incompetence. The testimony taken in the proceeding to remove the appellant as trustee under the same will was offered in evidence in this proceeding and was considered by the court. The only question involved is the sufficiency of the evidence to support the decree. The court exercised a discretion authorized by the Act of May 1, 1861, P. L. 630, in making the order complained of and that action can only be reversed when we are convinced that the court abused the discretion so vested: Perrett’s Estate, 14 Pa. Superior Ct. 611. We were unable to so find in the proceeding to remove the appellant as trustee and as the evidence in that case was before the orphans’ court when this case was determined it necessarily follows, that the affirmation of the decree in the appeal from the court of common pleas leads to a like result in this case. .There was evidence from which it might be concluded that the appellant had mingled the funds of the estate with his own funds, that his accounts were improperly kept and that his intemperate habits disqualified him from the further discharge of his duties. As the appellant and the witnesses were not before us we have not the same opportunity to estimate the worth of their testimony which the court below had. It was clear to that court that the accountant had mismanaged the estate and that he was not competent to administer it. This was not necessarily a reflection on his integrity but bears on his judgment as a trustee and on his personal habits.

We are not satisfied that the court abused the discretion which the law gives and the decree must be affirmed.


text:
    Pennsylvania Company, Appellant, v. Wallace.

      Appeals — Costs—Printing paper-books — Final decision — Acfs of May 19, 1897, P. L. 67, and April 15, 1907, P. L. 83.

    1. Where a judgment on a verdict for plaintiff is reversed and a new venire awarded, and on a second trial a verdict and judgment is again rendered in favor of the plaintiff, and this judgment is affirmed, the defendant is not entitled to recover from the plaintiff the cost of printing his paper-books and other costs in the first appeal.
    2. The Act of April 15, 1907, P. L. 83, related only to such eases as arose after the passage of the act and not to cases pending and undisposed of at the time of its passage.
    Argued May 11, 1910.
    Appeal, No. 129, April T., 1910, by plaintiff, from judgment of C. P. Lawrence'Co., Sept. T., 1909, No. 104, on case stated in suit of Pennsylvania Company v. Fred F. Wallace.
    Before Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Case stated to determine liability for costs of printing paper-books. Before William E. Porter, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court entered judgment for defendant on the case stated.

      Error assigned was in entering judgment for defendant on the case stated.

      July 20, 1910:

      Oscar L. Jackson, with him C. B. Fernald, for appellant.

      Robert K. Aiken, for appellee.
   Opinion by

Orlady, J.,

The plaintiff recovered a verdict in an action of trespass against the plaintiff in the common pleas of Lawrence county for $14,750, which on appeal to the Supreme Court was reversed with a venire facias de novo: 219 Pa. 327. On the second trial of that action the plaintiff therein recovered a verdict of $15,250, and on appeal to the Supreme Court it was affirmed, 222 Pa. 556, and became a final adjudication of the cause of action. The Pennsylvania Company then filed a bill for the costs paid to the prothonotary of the common pleas and in the Supreme Court, $18.00, and for the printing of its paper-book on the first appeal to the Supreme Court, $317.

This case stated raises the question of the liability of the plaintiff in the original action against the Pennsylvania Company for the costs and expenses incurred by that company in its appeal to the Supreme Court, and on which appeal the judgment of the court below was reversed, and the solution thereof depends upon the interpretation to be given to two acts of assembly, which are parts of the same system and are to be construed together. It is to be noted that this is not a case where the party successful in securing the final judgment seeks to tax and collect costs from the party against whom the final judgment is entered, but is one where the party against whom the final judgment is entered endeavors to collect, as costs, court charges and cost of printing paper-books on its successful appeal to the appellate court, from the party who secures the final judgment. The Act of May 19, 1897, P. L. 67, provides, sec. 21, “The costs in any appealed cause shall consist of the amount paid to the prothonotary or clerk of the court below and of the appellate courts, and an attorney fee of three dollars in each court to which an appeal is taken. Such costs shall be paid by the party finally losing the cause, except as herein otherwise provided, and in equitable proceedings, where the court shall otherwise direct. In all cases where the appellate court shall be of opinion that the appeal was sued out merely for delay, it shall award as further costs, an additional attorney’s fee of twenty-five dollars, and damages at the rate of six per centum per annum in addition to legal interest.” The Act of April 15, 1907, P. L. 83, provides, “That in all cases, either in law or equity wherein an appeal is taken to any judgment, decree or order to the Supreme Court or the Superior Court, the party in whose favor the final decision is rendered shall be entitled to charge and collect from the losing party as part of the costs, such amount as shall have been expended for printing paper-books upon said appeal. Said amount to be taxed and collected in the same manner as costs are now taxed and collected by law.”

The legislature intended by these enactments to discourage frivolous and vexatious appeals by imposing the cost of printing the paper-books, as an additional item of costs, on the party ultimately held liable; and to reimburse the party in whose favor the final decision is rendered by permitting him to charge and collect from the losing party the amount he had been obliged to expend for printing the paper-books upon the appeal. The act provides that they are to be taxed at the end of the proceeding in the same manner as other costs are now taxed and collected, and they do not refer to interlocutory or intermediate, but only to final judgments. To hold otherwise would encourage litigation and raise collateral questions as to an equitable liability on such appeals where every one of the assignments of error was not sustained. The words “finally losing the cause” in the act of 1897 and “final decision” in the act of 1907, refer to the state of the record of the court in which the case is tried, which puts an end to the action; when no further question is reserved for future determination except such as may be necessary to carry the final judgment into effect. As a general rule a judgment is not considered a final one which settles only a part of several issues of fact: 11 Ency. P. & P. 965.

As stated by the court below, “Upon the first appeal the Supreme Court did not render a final decision in the cause of action. Nor did the Supreme Court so regard it, for the lower court was reversed, a new venire was awarded, so that upon another trial the lower court could try the case in the light of the decision of the Supreme Court upon the particular questions that were before the lower court at the first trial. The final decision was rendered by the Supreme Court on the second or last appeal.” The words quoted from the statutes refer to that conclusion of the law upon the facts found or admitted which ends the litigation, as distinguished from an interlocutory judgment given in the progress of a cause upon some plea, proceeding or default which is only intermediate, and does not finally determine or complete the suit: 3 Bl. Com. 396.

This question of liability has been before us in other phases, and we have held that the act of 1907 related only to such cases as arose after the passage of the act, and not to cases pending and undisposed of at the time of its passage: Smith v. Illinois Central R. R. Co., 36 Pa. Superior Ct. 584; Barto v. Beaver Traction Company, 37 Pa. Superior Ct. 447; Miller v. Jackson, 38 Pa. Superior Ct. 477; Duff v. Thrall, 39 Pa. Superior Ct. 254; vide also Henning v. Keiper, 43 Pa. Superior Ct. 177.

The court below held that this plaintiff, who was the defendant in the original action, is not entitled to recover from this defendant, who was the plaintiff in the original action, the expense of printing the paper-books on the first appeal to the Supreme Court, nor for the other items of costs claimed by it.

The judgment is affirmed.


text:
    Marshall v. Pennsylvania Company, Appellant.

      Equity — Jurisdiction—Remedy at law — Railroads—Right of way— Adverse possession.

    1. Where rights which are legal are asserted on one side, and denied on the other, the remedy is at law and cannot be settled in equity forms.
    2. A bill in equity will be dismissed for want of equitable jurisdiction where the plaintiff claims title by adverse possession to a slope of land not inclosed and not cultivated, adjoining the tracks of a railroad, and the defendant railroad claims that the land was taken under its charter powers, and that the slope was a part of its right of way and necessary for the protection of its roadbed.
    3. Where the charter of a railroad company authorizes the company to take land to the extent of a certain width named, the courts will presume that the full width authorized by the charter was appropriated in the absence of evidence, tending to show a limitation to a less amount.
    Argued May 11, 1910.
    Appeal, No. 10, April T., 1911, by defendant, from decree of C. P. Beaver Co., March T., 1910, No. 6, on bill in equity in case of Asenath J. Marshall v. Pennsylvania Company, Lessee of and Operating the Pittsburg, Fort Wayne & Chicago Railway.
    Before Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Bill in equity for an injunction. Before Holt, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was decree continuing injunction.

      W. A. McConnel, for appellant.
    Equity had no jurisdiction: O’Neil v. McKeesport, 201 Pa. 386; Wash-burn’s App., 105 Pa. 480; Delaware, etc., R. R. Co. v. Newton Coal Mining Co., 137 Pa. 314; Rhea v. Forsyth, 37 Pa. 503; Mammoth Vein Consol. Coal Co.’s App., 54 Pa. 183.

      July 20, 1910:

      J. F. Reed, for appellee,
    cited: Zahn v. Ry. Co., 184 Pa. 66; Jarden v. Philadelphia, etc., R. R. Co., 3 Whart. 502; Miller v. Lynch, 149 Pa. 460; Edgett v. Douglass, 144 Pa. 95; Manbeck v. Jones, 190 Pa. 171; Richmond v. Bennett, 205 Pa. 470.
   Opinion by.

Henderson, J.,

This controversy arises out of a dispute in regard to the location of the defendant’s right of way. This right of way was acquired by grants to the Ohio & Pennsylvania Railroad Company under which corporation the defendant claims. The location of the line of the original company was adopted in 1850. The grants did not specify the width of the right of way, but as the charter of the company authorized it to take land to the extent of sixty-six feet in width except at cuts and fills we may presume that the full width authorized by the charter was appropriated in the absence of evidence tending to show a limitation to a less amount: Jones v. R. R. Co., 144 Pa. 629. The plaintiff acquired title long after the location of the right of way and her deed calls for the railroad as the western boundary. The question is one of title, therefore, and there is a lack of equitable jurisdiction for the plaintiff’s title is denied in the bill and this denial is supported by evidence. It is true that there are no marks of the outside lines of the land originally appropriated, but the notes of survey and the map of the original location were proved and are relevant evidence bearing on the subject of the extent of the appropriation. It is peculiarly within the power of a railroad company to establish the true location of its lines. They are not required to record the location, but generally surveys are adopted which define them with reasonable accuracy. The learned trial judge was of the opinion that the plaintiff had been in open, hostile, peaceable and notorious possession of the slope for more than fifty years to the extended line of a stone wall on the east side of the track. If by that it was meant that the plaintiff had acquired adverse possession to that line we think the evidence is not of such a clear and definite character as to give jurisdiction in equity. The slope was not inclosed and not cultivated and according to the evidence of the defendant was not susceptible of cultivation and a fence had existed for a long time at the top of the slope inclosing the level ground included in the plaintiff’s lot. If the defendant’s right of way extended up the slope which formed the bank at the base of which the tracks were built it may well be doubted whether the use or occupancy testified to by the plaintiff would give title by adverse possession. The use of the slope for the protection of the roadbed was such an occupancy as was consistent with the enjoyment of the right of way and it does not follow because there were no tracks or buildings thereon that no part of it was occupied by the company. The location of the defendant’s right of way, the question of possession of the slope and of the alleged abandonment of a part of its. right of way by the defendant were disputed questions of fact under the evidence and the case is therefore brought within the rule set forth in Rhea v. Forsyth, 37 Pa. 503; Washburn’s Appeal, 105 Pa. 480; O’Neil v. McKeesport, 201 Pa. 386, and many other cases which hold that where rights which are legal are asserted on one side and denied on the other the remedy is at law and cannot be settled in equity forms. Some exceptions exist where the facts are admitted or the right is undoubted, but the plaintiff’s case is not one of that kind.- When the right is established at law equity may give adequate protection in the enjoyment of the right, but it is not the means of establishing it. There is no such emergency disclosed by the testimony as is necessary to move a chancellor to stay the hand of the defendant and any wrong which can be shown may be redressed by an action of ejectment or trespass.

The decree is reversed and the injunction dissolved at the costs of the appellee.


author: Porter, J.,

text:
    Lichetti, Appellant, v. Conway.

      Vendor and vendee — Liquidated damages — Penalty—Hand money— Articles of agreement.

    1. Where articles of agreement for the sale of real estate provide that the price should be $33,000, and that $500 shall be paid on the signing of the agreement, and also stipulates “if purchaser fails to complete purchase the $500 paid on account is to be kept by sellers to liquidate damages,” and the purchaser after paying the $500 fails to complete the purchase, the sellers may retain as their own the $500, although they may have subsequently sold the property to another person for exactly the same price.
    2. Whether a sum mentioned in articles of agreement for the sale of land to be retained by the sellers in case of a breach of the contract by the purchaser, is 'to be treated as a penalty or as liquidated damages, is a question of law to be decided by the court upon consideration of the entire contract, in the light of the circumstances under which the parties dealt. The fact that the sum paid at the signing of the agreement is greatly disportionate to the entire purchase money is a circumstance tending to show that such sum was intended as liquidated damages and not as a penalty.
    Argued Oct. 21, 1909.
    Appeal, No. 74, Oct. T., 1909, by plaintiff, from judgment of C. P. No. 4, Phila. Co., March T., 1907, No. 2,365, on verdict for defendants in case of Lafayette A. R. Lichetti v. William Conway and Frank S. Elliott.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.
    Affirmed.
    Assumpsit to recover hand money paid under articles of agreement for the sale of real estate. Before Audenried, J.
    At the trial the court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      October 10, 1910:

      Samuel Scoville, Jr., with him Julius B. Price, Jr., for appellant.
    The trial judge erred in his construction of the agreement of sale: Jacoby v. Stettler, 2 Cent. Repr. 607; Hudson v. Reel, 5 Pa. 279; Feay v. Decamp, 15 S. & R. 227; Wotring v. Shoemaker, 102 Pa. 496.
    The presumption that this sum was paid as a penalty and not as liquidated damages was not overcome by the defendants, and the learned trial judge erred in directing a verdict for the defendants: Keck v. Bieber, 148 Pa. 645; Clements v. R. R. Co., 132 Pa. 445; Emery v. Boyle, 200 Pa. 249.

      Alfred D. Wiler, for appellees.
    The learned court below held that the parties had liquidated their damages and that the plaintiff having failed to comply with his contract, could not recover. There is no doubt that this contract being in writing, the construction of it was, as a matter of law, for the court: Shreve v. Brereton, 51 Pa. 175.
    The circumstances of this transaction plainly show that liquidating the damages was one of the essentials of the contract: Streeper v. Williams, 48 Pa. 450.
   Opinion by

Porter, J.,

The parties entered into a written agreement, dated July 20, 1906, under the covenants of which the defendants agreed to sell and convey and the plaintiff agreed to purchase and pay for a certain property situate at No. 2005 Chestnut street, Philadelphia, for the sum of $8,000, subject to a ground rent of $25,000. The covenants required the plaintiff to pay $500 on the signing of the agreement, the balance of $7,500 in cash at the time of settlement which was to be made on or before October 1, 1906, and the ground rent of $25,000 was to remain a charge upon the property. The premises were to be conveyed clear of incumbrance except subject to the ground rent. The covenant of the agreement which it is material in this case to consider was in these words, to wit: “If purchaser fails to complete purchase the $500.00 paid on account is to be kept by sellers to liquidate damages.” The plaintiff paid the $500 required upon the signing of the agreement, and it is an admitted fact that he failed to complete the purchase and took no further steps in the performance of his covenants. The defendants elected not to bring an action upon the contract to recover the entire purchase money, but upon the plaintiff’s failure to complete the contract elected to consider it as abandoned, and in March, 1907, succeeded in finding another purchaser to whom they sold the property for the same price at which the plaintiff had covenanted to buy and pay for it. The plaintiff then brought this action to recover the $500 which he had paid at the time of the signing of the article of agreement. The learned judge of the court below held that under the provisions of the agreement the defendants were entitled to retain this $500 as liquidated damages for the failure of the plaintiff to keep his covenants, and gave binding instructions in favor of the defendants. The appellant assigns this ruling for error.

The appellant contends that the covenant of the agreement above quoted is to be controlled by the words “to liquidate damages”; and that the preposition “to” as here used is to be construed as meaning “in order that they may.” In other words, the appellant asserts that the parties meant to say, in the clause in question: “If purchaser fails to complete purchase the $500.00 paid on account is to be kept by sellers, in order that they may liquidate damages.” He asserts that the $500 was to be retained by the sellers to liquidate the damages, if there were any. “If the damages were less than $500.00 the implication was that the balance would go back to the buyer. If the damages amounted to the full deposit, the whole $500.00 was to be retained to pay them.” The learned counsel for appellant refrained, with commendable caution, from stating what would have been the result, under this covenant, if the damages had exceeded $500. Had this covenant been entirely omitted from the agreement the defendants would have had the right, upon the failure of the plaintiff to comply with its terms, to elect to bring an action on the agreement for the entire purchase money, or to rescind the contract and bring an action to recover damages for its breach. They would, in the absence of this particular covenant, have had the right to recover damages in any amount that the evidence warranted. With this covenant in the agreement can it for one moment be contended that they ought to have been permitted to recover more than $500? The contention of the appellant is founded entirely upon giving to the preposition “to” a particular and peculiar meaning out of the many which that little word can be twisted to import. This construction of the sentence completely ignores the plain and direct meaning of the really important words in the covenant. When the plaintiff failed to keep his contract, this covenant expressly declares that the $500 which had been paid should be “kept by sellers.” The covenant contains no limitation as to how long they should keep it, nor the purpose to which they should devote it. The money was already in the possession of the defendants when the plaintiff made default, and that default gave them the right to continue to have, hold and enjoy it. It became theirs to keep. The construction of the clause contended for by the appellant equally disregards the primary meaning of the word “liquidate” as used in the covenant, which is to make liquid, make clear, or plain; clarify, free from obscurity. The purpose of the parties in introducing this covenant into the contract was to free from obscurity the question of any damage that might arise from failure of the plaintiff to perform and to settle and make clear the amount of the damage to which the sellers should in such case become entitled. To liquidate the damages, to which the sellers should become entitled if the buyer failed to complete his purchase, the parties covenanted that the seller should, in that event keep the $500 which they had received.

Whether the sum mentioned in the agreement to be retained by the sellers, in case of a breach of the contract by the purchaser, was to be treated as a penalty or as liquidated damages was one of law to be decided by the court upon consideration of the entire contract, in the light of the circumstances under which the parties dealt. The purchase price agreed upon for the property was $8,000, but it was subject to a ground rent of $25,000, for the installments of the rent upon which the sellers were liable as they became due, so that the real value of the property was $33,000. The plaintiff paid only $500 at the signing of the agreement, on July 20, 1906, and thus tied up the property until October 1, 1906, when the final settlement was to be made. There is here a striking disproportion between the sum paid and the purchase money. This covenant did not protect the defendants against failure to make title after payment of the first installment. The sum paid being so disproportionate to the entire purchase money, the covenant that the sellers should keep the amount paid, in case the purchaser failed to perform, clearly was not intended to enforce payment of the entire purchase money. This leads obviously to the conclusion that the only intention of this stipulation was to protect the sellers against a total failure where the contract was abandoned. “Were the sum adequate in magnitude to compel specific performance we might conclude that it was intended as a penalty only against which equity would relieve on a full compliance with the contract. But its manifest inadequacy as compared with the full price of the property leaves no other reasonable conclusion than that it was intended as a compensation to either party when the other wholly abandoned the contract. In this view the parties must have intended the sum as liquidated damages and not as a penalty:” Steeper v. Williams, 48 Pa. 450; Shreve v. Brereton, 51 Pa. 175.

The intention of the parties as gathered from their written agreement was that the defendants should retain the small cash payment which they had received in case the plaintiff failed to complete the purchase. This contract was one which the parties were competent to make. In the absence of such a covenant the measure of damages for the breach upon the failure of a purchaser to comply with his covenant to pay for land, is ordinarily the difference between the contract price and the value of the land. Of all facts difficult to establish, however, the value of land is one of the most difficult; in many neighborhoods sales of land are not frequent and no two persons will precisely agree as to the value thereof. Covenants of the parties liquidating the damages in such cases, when not unconscionable, will be enforced by the courts: Baney v. Killmer, 1 Pa. 30; Mathews v. Sharp, 99 Pa. 560; Keck v. Bieber, 148 Pa. 645; Emery v. Boyle, 200 Pa. 249.

The plaintiff’s own testimony shows that without any legal or other excuse he failed to comply with his part of the contract. The burden was upon him to establish a right to recover. He was bound to show that he had performed his part of the contract by paying or tendering payment of the full purchase money; or that he had some legal excuse for failing to pay or tendering. This was not an action brought by the vendors of land to recover the purchase price, and it was not necessary for the defendants to prove that they had tendered to plaintiff a deed for the property: McCullough v. Boyd, 120 Pa. 552. The plaintiff was not entitled to recover and the learned judge of the court below was entirely right in giving binding instructions in favor of the defendants.

The judgment is affirmed.


text:
    Schoonover’s Estate.

      Vendor and vendee — Payment of purchase money — Receipt—Evidence.
    1. A written agreement dated November 1, 1893, for the sale of real estate provided that the purchase money, $1,000 should be paid, $100 in one year from date of the agreement and $100 each and every year thereafter until the full amount was paid. It was provided that if there should be a default, the whole unpaid balance should become due, and the vendor might enter judgment for the same under a warrant of attorney contained in the agreement. Indorsed on the agreement were two receipts, one for the payment of $100 on November 1, 1893, and the second dated November 4, 1893, for $200 “it being the last two payments on the within agreement.” Both receipts were signed by the vendor, who died in 1906; the vendee died in 1907. Held, that the court below was not in error in finding that the purchase money had been paid.
    2. In such a case whether all the purchase money had been paid was a question of fact to be determined by the court below under all the evidence presented in view of the relations of the parties to each other and of the property involved.
    3. A legal presumption of payment docs not arise short of twenty years; but a less period in connection with persuasive circumstances may be considered by a jury or by a judge sitting as a chancellor as ground for presumption of fact of payment.
    Argued Oct. 28, 1909.
    Appeal, No. 34, Oct. T., 1909, by Walter C. Stephens, Executor of O. L. Schoonover, deceased, from decree of O. C. Clearfield Co., No. 4,751, awarding specific performance in Estate of O. L. Schoonover, deceased.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Petition for specific performance. Before A. O. Smith, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree awarding specific performance.

      Singleton Bell, with him Americus II. Woodward and Howard B. Hartswick, for appellant,
    cited: Phila. v. River Front R. R. Co., 133 Pa. 134; Sennett v. Johnson, 9 Pa. 335; Mut. Fire Ins. Co. v. Shoe Factory, 80 Pa. 407; Shrewsbury Savings Institution’s App., 94 Pa. 309; Redman’s App., 173 Pa. 59.

      John B. McGrath and A. M. Liveright, for appellee,
    cited: Diamond v. Tobias, 12 Pa. 312; Webb v. Dean, 21 Pa. 29; Ross v. McJunkin, 14 S. & R. 364; Tilghman v. Fisher, 9 Watts, 441; Hughes v. Hughes, 54 Pa. 240.
    October 10, 1910:
   Opinion by

Porter, J.,

Mary J. Flegal, the appellee, presented her petition to the court below praying for the specific performance of a written contract for the sale of land entered into, on November 1, 1893, between Orín L. Schoonover, the decedent, .and M. F. Flegal, also deceased. Schoonover died on September 4, 1906, and M. F. Flegal in May, 1907. The interest of M. F. Flegal, in the land, had by sundry conveyances from his heirs become vested in Mary J. Flegal, the petitioner. The execution of the written agreement was duly proved and the description of the land therein contained was full and accurate. It was an admitted fact that possession of the land was delivered by Schoonover to M. F. Flegal on November 3, 1893, that the latter had continued in possession of the property until his death in May, 1907, and that possession since that time had been in the heirs of Flegal and in this petitioner who acquired their title. The only question upon which there was any dispute was as to whether all the purchase money had been paid. The court below after hearing found that the purchase money had all been paid and decreed the specific performance of the contract. Walter C. Stephens, executor of O. L. Schoonover, deceased, appeals from that decree.

The written agreement of November 1, 1893, required Flegal to pay, as purchase money: “One thousand dollars with interest semi-annually at six per cent annum; one hundred dollars in one year from this date and one hundred dollars each and every year until the amount of one thousand dollars is paid with interest from this date, interest to be paid on the first day of May and November of each year, and upon payment of the said sum the said party of the first part, at his own expense, execute and deliver to the party of the second part a good and sufficient deed.” The agreement also provided that in case of default of payment of any sum of principal or interest agreed to be paid, for the space of thirty days after the same became due and payable, then the whole of said principal sum should become due, and contained a warrant of attorney authorizing the entry of a judgment for the entire amount, with the usual waivers; and also expressly gave the vendor, Schoonover, at his option, the right to proceed by ejectment and contained a warrant of attorney authorizing the entry of a judgment against Flegal in such action of ejectment, for the land in question, upon any default in payment. There were indorsed upon this agreement two receipts, admittedly in the handwriting of Schoonover, as follows:

“Received November 1st, 1893 of M. F. Flegal, one hundred ($100) dollars, the first payment on the within agreement.
“O. L. Schoonover.”
“Received November' 4th, 1893 of M. F. Flegal, the sum of two hundred ($200) dollars, it being the last two payments on the within agreement.
“O. L. Schoonover.”

These receipts constitute the only written evidence of the course of dealing of these parties with regard to the purchase money, after they had entered into their written agreement for the sale and pinchase of this land. These receipts conclusively establish that the parties, immediately after the agreement was executed, departed from the terms of the agreement as to the time when the purchase money should be paid. The payment which, according to the terms of the written agreement, would not have become due until November 1, 1894, was paid the same day that the agreement was executed, and three days later the sum of $200 was paid and, in the receipt, Schoonover declared that this was “the last two payments on the within agreement.” Thus the matter rested for almost fifteen years when, on June 9, 1908, the appellee presented her petition averring that the purchase money had all been paid and praying for the specific performance of the contract. Schoonover, under the stringent terms of the written agreement, had it in his power for over eleven years to enter judgment by confession against Flegal for any part of the purchase money that remained unpaid or, at his option, to enter a summary judgment of ejectment and take possession of the land, if Flegal had failed to make the payments when due. He took no such steps, never made any demand of payment, and, so far as disclosed by . the evidence in this case, never asserted that any balance of purchase money remained unpaid. Flegal remained in possession of the land and his right to do so was never questioned. The receipt dated November 4, 1893, is the writing of Schoonover, and if it is ambiguous, it must be given that reasonable construction which is unfavorable to him, in the absence of other evidence upon the subject. That receipt plainly states that “the last two payments on the within agreement” have been paid; and says nothing about any installments which remained unpaid. The subsequent conduct of the parties, during the period of thirteen years which elapsed before the death of Schoonover was in entire harmony with the conclusion that all the purchase money had been paid. Whether all the purchase money had been paid was a question of fact, to be determined by the court below under all the evidence presented, in view of the relations of the parties to each other and the property involved. That no presumption of law arose that the purchase money had been paid is true, for the period of twenty years had not elapsed from the time it became due. A shorter period than twenty years aided by circumstances which contribute to strengthen the presumption of payment from lapse of time may, however, afford a sufficient foundation for the presumption of the fact of payment. In other words, a legal presumption of payment does not arise short of twenty years; but a less period in connection with persuasive circumstances may be submitted to the jury as ground for presumption of fact: Diamond v. Tobias, 12 Pa. 312; Tilghman v. Fisher, 9 Watts, 441; Ross v. McJunkin, 14 S. & R. 364; Webb v. Dean, 21 Pa. 29; Hughes v. Hughes, 54 Pa. 240; Hummel v. Lilly, 188 Pa. 463. Had this case involved a trial by jury the court would have been required to submit to the jury the question whether, as a matter of fact, the purchase money had been paid. The question having been presented as it was, the judge below sitting as a chancellor was required to pass upon this question of fact. The court below after considering the evidence presented arrived at the conclusion that the purchase money had been paid, and we do not feel warranted in holding that that conclusion was so clearly erroneous as to warrant a reversal.

The decree of the court below is affirmed and the appeal dismissed at the cost of appellant.