author: Head J.,

text:
    Allen v. Rieder, Appellant.

      Husband and wife — Liability for necessaries — Provision for wife.

    1. Where a husband has separated from his wife and has started proceedings for a divorce, but in the meantime pays over to her for her maintenance one-half of his income of $6,000 to $7,000, and advertises that he will not be liable for her debts, a furrier with whom the husband and wife had no prior dealings cannot charge the husband for a bill of $225 worth of furs purchased by the wife and delivered to her after the separation.
    2. The obligation of the husband for necessaries supplied to the wife during coverture arises from the law regarding her as his agent for that purpose; and hence his assent is implied to all contracts of this kind, made through her during cohabitation. If the husband has separated from his wife and has made ample provision for her, the law will presume that the agency has ceased, and whoever deals with the wife does so at his peril.
    Argued Oct. 5, 1910.
    Appeal, No. 246, Oct. T., 1909, by defendant, from judgment of C. P. No. 5, Phila. Co., June T., 1907, No. 508, on verdict for plaintiff in case of George W. Allen v. Joseph Rieder.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit to recover the price of a Persian lamb coat. Before Ralston, J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    In this case, the defendant’s position and circumstances of life, his income, and so forth, have been shown to you. It was testified before you that Mr. Rieder had never had an account at the plaintiff’s store. It was also testified that no inquiry was made from Mr. Rieder as to whether the ordering of this coat was correct, and whether he would be responsible for it.
    [If you. find that this coat was reasonably necessary for Mrs. Rieder, and that it was sold on the credit of her husband, you might render a verdict in favor of the plaintiff.] [4] If, on the other hand, you should find from the testimony that the plaintiff had notice that the defendant would not be responsible for his wife’s debts, and, notwithstanding that, the plaintiff delivered the goods to the wife, then, Mr. Rieder could not be held liable.
    Mr. Rieder testified that he was in the habit of paying a certain amount to his wife, and that she came to his office and got the money from the bookkeeper. He testified that on one occasion the bookkeeper told him that his wife had informed him, the bookkeeper, of the purchase of this coat. Mr. Rieder then said that he called up the plaintiff’s place of business and spoke to a young lady there, who said she would call the manager to the telephone; that a man came to the ’phone who said that he was the manager, and that he informed this man that he would not be responsible for the bill for the coat, and that if the plaintiff chose to deliver the coat to his wife, they must look to her for payment.
    Mr. Rieder. produced a copy of "The North American” newspapér, published December 14, 1906, and read therefrom a notice that he would not be responsible for articles sold to his wife. [It was not shown that this notice was brought to the attention of the plaintiff, but Mr. Rieder said that the notice, as he recollected, was inserted in the newspaper after he had the conversation with Mr. Allen’s manager, and that then the coat had not been delivered. I think the young lady said that it was not delivered until December 24. If you find that the plaintiff received notice from Mr. Rieder that he would not be responsible for the price of the coat, and received that notice before the coat was delivered, then you should render a verdict for the defendant.] [3] In order to render a verdict for the plaintiff, you must find that this coat was reasonably necessary for Mrs. Rieder in the station of life in which she and her husband were. If you find that, you could render a verdict for the plaintiff, unless you find that the plaintiff had notice from Mr. Rieder that he would not be responsible for his wife’s debts.
    Verdict and judgment for plaintiff for $249.50. Defendant appealed.

      Errors assigned among others were (3, 4) above instructions, quoting them.

      S. Morris Wain, for appellant.
    The instructions were erroneous: Cany v. Patton, 2 Ash. 140; Com. v. Richards, 131 Pa. 209; Alley v. Winn, 134 Mass. 77; Cunningham v. Irwin, 7 S. & R. 247; Breinig v. Meitzler, 23 Pa. 159; Spencer v. Tisue, Add. 316; Walker v. Simpson, 7 W. & S. 83; Graves v. Cole, 19 Pa. 171.
    The rule is, that where a husband and wife parted by mutual consent and such a suitable allowance is furnished the wife, the husband is not bound to pay any bills which she may have contracted as his agent. It is enough that the separation be a matter of common' reputation where he resides. But to this allowance two things are requisite: First, that it shall be really sufficient for the wife; second, that it shall be regularly paid. If either requirement be wanting, a fact which the seller must ascertain at his peril, the wife is not confined to her remedy under the deed of separation, if any, but may pledge her husband’s credit: Calkins v. Long, 22 Barb. 97; Kemp v. Downham, 5 Harrington (Del.), 417; Barker v. Barney, 8 Johns. 72.
    March 3, 1910:
    Where the wife lives separate and apart from her husband, the vendor is put upon inquiry. Under such circumstances the implied agency of the wife to bind her husband for necessaries is revoked: Cany v. Patton, 2 Ash. 140; Spencer v. Tisue, Add. 316; Walker v. Simpson, 7 W. & S. 83; Breinig v. Meitzler, 23 Pa. 159; Cunningham v. Irwin, 7 S. & R. 247; Husbands on Married Women, pp. 43-45.
    The notice published by defendant, December 14, 1906, in the public newspaper of the county, which was ten days before the plaintiff delivered the goods to the defendant’s wife, is sufficient: N. Y. Nat. Exchange Bank v. Crowell, 177 Pa. 313.
    No notice was necessary: Cany v. Patton, 2 Ash. 140.

      G. G. Ladner, of Ladner & Ladner, for appellee.
    Where a husband leaves or abandons his wife without cause, she is entitled to pledge his credit and bind him for such necessaries as she may require, notwithstanding he publishes or gives notice to tradesmen that he will not be responsible for her debts. Giving his wife an allowance will protect him only if the jury finds the allowance is adequate and sufficient for her needs: Husbands on Married Women, sec. 40, p. 44; McGrath v. Donnelly, 131 Pa. 549; Hodgkinson v. Fletcher, 4 Camp. N. P. 70; Schouler on Domestic Relations, sec. 66, p. 103; Harris v. Morris, 4 Esp. 41; Pierpont v. Wilson, 49 Conn. 450; Watkins v. De Armond, 89 Ind. 553; Llewellyn v. Levy, 163 Pa. 647.
   Opinion by

Head J.,

The plaintiff in this action seeks to recover the sum of $225, the price of a fur garment which he made on the order of the wife of the defendant, given in December, 1906. The. coat was delivered to her apartment at the Hotel Lorraine in the city of Philadelphia on or about December 24 of that year. The evidence adduced at the trial, which was brief and practically uncontradicted except as to one point, disclosed the following state of facts:

Some nine months prior to the transaction the defendant and his wife separated and since that time had lived separate and apart. At the time of the separation the family of the defendant consisted of himself, his wife and a daughter. The defendant, who was a pawnbroker, was possessed of an annual income of from $6,000 to $7,000. The evidence does not disclose the causes out of which the separation arose, but it does show that they were of such character that the husband filed a libel in divorce which was pending and awaiting trial at the time of the transaction referred to. At the time of the separation he provided for the maintenance and support of his wife and daughter. He paid regularly $75.00 per month for a suitable apartment for her at the hotel already mentioned. He allowed and regularly paid to her in cash $41.50 per week to enable her to maintain herself. He made a further cash allowance of $10.00 per week for the daughter, and in addition thereto paid such bills as she, the daughter, contracted for her clothing, etc. It will thus be seen that the defendant was turning over to his wife after their separation substantially the full one-half of his income for her support and maintenance. There was never any claim advanced by her that the provision thus made for her was inadequate in proportion to the means of her husband. She filed no libel for divorce. She asked for no alimony pendente lite, and appears to have been satisfied that the provision voluntarily made for her by her husband was fully equal to any demand she could have legally enforced against him.

There had never been any prior dealings between the plaintiff and the defendant or his wife. Whilst there is some dispute in the evidence as to the assertion of the defendant that he telephoned to the manager of the plaintiff’s store a notice that he woúld not be responsible for the payment of the garment ordered, and that such notice was within a day or two after the order was given, there is no dispute that as early as December 14, ten days or more before the coat was delivered, he caused to be published in the Philadelphia "North American” a notice to all persons warning them to sell no goods to his wife on his credit.

With the testimony in this condition, the learned counsel for the defendant presented a point for binding instructions which was refused, and the case was submitted to the jury, resulting in a verdict for the plaintiff. The court thereafter refused a motion for judgment n. o. v. and entered judgment for the plaintiff on the verdict.

The reason on which the law rests the liability of a husband to pay even for necessaries furnished to his wife on her own order was clearly stated as early as Cany v. Patton, 2 Ashmead, 140, by Judge King in the following language:

“ It is a mistaken notion to suppose, that a married woman has, from the marital relation, the right to make contracts, even for necessaries, which shall be binding on her husband. The obligation of the husband for necessaries supplied her during coverture, arises from the law regarding her as his agent for that purpose; and hence his assent is implied to all contracts of this kind, made through her during cohabitation: Clancy on Married Women, 23; 1 Salk. 113. But, when circumstances exist, which render such assent irreconcilable with truth or reason, the law will not infer it. Such cases are presented, .... where, as here, they (necessaries) are furnished after a mutual agreement to live separate, in which an adequate allowance is stipulated to be paid, and actually is paid to the wife by the husband, for her future comfort and support. To infer, under such a state of facts, his assent to her purchases, would be a presumption strained against every just deduction of truth.”

This case has been cited with approval in almost every decision on the subject that has been rendered since that early day.

In Walker v. Simpson, 7 W. & S. 83, Mr. Justice Kennedy, speaking for the court, uses this language:

“All persons supplying either food, lodging or raiment to a married woman living separate from her husband are bound to make inquiries, and they give credit at their peril: 2 Kent’s Com. 146, and the cases there referred to.”

In Com. v. Richards, 131 Pa. 209, Mr. Justice Clark says:

“If a proper provision has been made for a wife, her husband is not liable even for necessaries furnished for her support: Cany v. Patton, 2 Ashmead, 140; Alley v. Winn, 134 Mass. 77.”

In speaking of the liability of a husband for the support of his wife, or necessaries furnished to her, living separately, it is said in Endlich & Richards on the Rights of Married Women, sec. 81:

“If a proper provision is made for the wife, the husband is not liable.”

As already stated-, there is no dispute about the fact that at the time the wife of the defendant gave the order to the plaintiff she was living separate and apart from her husband, and that she had been receiving, during the entire period of that • separation, without objection or complaint, what must be admitted to have been an adequate provision for her support. Under such circumstances her agency ceased when the family relation was broken up and the parties began to live separately, and this leaves the plaintiff in the position of seeking to bind an alleged principal for the undertaking of another when in fact no relation of principal and agent existed at the time.

Even if we regard the verdict of the jury as having established that the plaintiff had no actual notice that the wife was living separate and that her husband disclaimed responsibility for her purchases, his situation is not thereby improved. As we have already seen, the public records of the courts disclosed the fact that the defendant was seeking a divorce. He had caused to be published in the public press of the city a warning to all tradesmen that his wife was not to be regarded as his agent for the purpose of purchasing goods on his credit. ■ If he were required to give actual personal notice to each person with whom his wife might undertake to deal, the long-established principle of law already referred to would afford him no protection whatever. The law casts some duty on the dealer who undertakes to sell goods to one person on -the credit of another. He must know that such a relation still continues to exist between the woman wlio buys arid the man whom she seeks to charge with her purchases as would make the latter legally responsible for her acts. If, in point of fact, no such relation exists, the dealer must look to the alleged agent to whom he sold, and cannot charge the supposed principal.

In treating this phase of the case, Judge King, in the opinion cited, holding that no such notice in fact to a tradesman was necessary to exonerate the husband, says:

“In Chitty on Contracts, 47, the decisions on this point are correctly summed up thus: 'In such cases, the presumed authority of the wife arising from cohabitation, does not exist; and it is incumbent on a tradesman to make inquiries, and if he trusts the wife, he does so at his peril; for no notice to him, that the wife has a separate maintenance, is necessary, unless he has trusted her before, and was not aware of the separation.’ ”

After discussing the English cases on the subject, the learned jurist thus concludes:

“The implied agency created by law, from the marital relation between husband and wife, and the moral obligation of the husband to furnish her necessaries, under such circumstances, terminates; and, when was it supposed, that after an agency has terminated, the principal is liable for acts of the agent, to all the world except to those to whom he can trace notice of such termination?”

The application of these principles of the law to the undisputed facts disclosed by the record before us seem to us to necessarily lead to the conclusion that the plaintiff’s case failed. The learned trial court therefore should have affirmed the point of the defendant for binding instructions, or, failing in that, should have granted the motion for judgment notwithstanding the verdict.

Judgment reversed, and judgment is now entered in favor of the defendant notwithstanding the verdict. The costs of this appeal to be paid by the appellee.


source: Caselaw Access Project

author: Orlady, J.,

license: Public Domain

text:
    Shimp, Appellant, v. Gray.

      Appeals — Practice—Jurisdiction of Superior Court — Affidavit of defense — Supplemental affidavit of defense.

    1. Where the.court below has discharged a rule for judgment for want of a sufficient affidavit of defense and the plaintiff has taken an appeal to the Superior Court, the latter court will not permit the defendant to file a supplemental affidavit of defense, averring certain facts which did not come to his knowledge until after the appeal had been taken, though in fact they happened prior to the institution of the suit.

      Husband and wife — Agreement of separation — Covenants.
    2. A valid agreement may be made which provides for the separation of husband and wife, and for a stipulated allowance for her support where the separation is inevitable and immediate, and the validity of such covenants has been established by repeated decisions. They are to be disposed of as contractual covenants without regard to their sentimental source, and are to be enforced and defended against as any other covenant.
    3. In an action by a wife against her husband to recover a weekly allowance provided for in articles of separation, an affidavit of defense is sufficient which avers that the plaintiff in violation of covenants of the agreement had the defendant arrested for nonsupport, had molested and annoyed him on the street, had threatened him, had circulated untrue stories about him, and had purchased goods and merchandise in his name, and had endeavored to persuade those from whom she had purchased to harass and sue the defendant.
    Argued Oct. 8, 1909.
    Appeal, No. 254, Oct. T., 1908, by plaintiff, from order of O. P. No. 2, Phila. Co., June T., 1908, discharging rule for judgment for want of a sufficient affidavit of defense in case of Thomas Y. Shimp, Trustee for Mabel Brunetta Gray, v. William A. Gray.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit to recover weekly allowance. Before Sulzberger, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in discharging rule for judgment for want of a sufficient affidavit of defense.

      March 3, 1910:

      Edgar W. Lank, of Smithers & Lank, for appellant.

      A. S. L. Shields, for appellee.
   Opinion by

Orlady, J.,

The use plaintiff and the defendant were married in 1889 and thereafter lived together as husband and wife until April 15, 1907, when by reason of disputes and differences, they entered into an agreement to live separate and apart from each other. The defendant covenanted to pay to his wife for support and maintenance the sum of 125.00 per week, during the term of her natural life, or until her divorce from the bonds of matrimony; to permit her to use and occupy a designated house, and the furniture and personal property therein; to furnish free of cost gas and fuel as might be necessary; to keep the property in repair and a number of minor matters fully set forth in the written contract between them. In consideration of these promises, the plaintiffs severally covenanted, promised and agreed to and with the defendant, that the wife would live separate and apart from him, and particularly that she would not claim, demand, sue or prosecute him for her support or maintenance (except that special promise should be broken), and to quote from the contract, “nor shall she at any time hereafte'r molest, disturb or trouble him, for living separate and apart from her, nor any other person or persons for entertaining or associating with him; nor shall she without his written consent visit him or annoy, enter into any house, place or office where he shall dwell and reside or be, nor come near, speak to nor communicate with him, orally or in writing, publicly or privately, directly or indirectly in any manner whatsoever.” She further covenanted that she would not contract debts in his name, and some other matters specifically set forth in the contract.

This action was brought to recover weekly installments which the husband had refused to pay. In the affidavit of defense which he filed it is set forth, that after December 10, 1907, he refused to pay anything under the terms of the agreement, because the wife had violated the covenants contained in the agreement as follows: “She caused the defendant to be arrested, charged with desertion and non-support; that she molested, disturbed and troubled and annoyed him in many ways; that she had threatened persons with whom he associated with bodily harm; that she had frequently stopped him upon the public highway, used vile and opprobrious language to him, and threatened him with bodily harm; that she circulated untrue stories with reference to his character, and visited his friends and business associates for the purpose of injuring his character and reputation; that she had purchased goods and merchandise in his name, and endeavored to persuade those from whom she had purchased to harass and sue the defendant to recover the value of same; and that during the named months she continued to live in adultery with a person therein named,” all of which facts were set out fully and at length and verified by affidavit.

The court below discharged the rule for want of a sufficient affidavit of defense, and the plaintiff brings this appeal. The defendant presented his petition to this court asking leave to file a supplemental affidavit of defense, averring certain facts which did not come to his knowledge until after the appeal had been taken to this court, though in fact they happened prior to the institution of this suit, and he contended that he had the right to file the supplemental affidavit of defense in the appellate court, or at any time prior to the entry of judgment in the action.

The Act of June 24,1895, P. L. 212, by which this court was created, provides, that it shall have no original jurisdiction except that it may issue writs of habeas corpus, but it shall have exclusive and final appellate jurisdiction of all appeals which are now allowed to the Supreme Court, in the class of cases mentioned in the act and including cases of this nature. The record is before us for review, as of the date when the appeal was taken. It has been frequently held that when an amendment is merely formal, and introduces no new or different cause of action depriving the opposite party of no substantial right, and which ought to have been made in the court below, it will be considered in the appellate court as having been made: Patton v. Railway Company, 96 Pa. 169. Where it is apparent that a verdict erroneously includes a definite sum, a judgment may be entered for the correct amount, either in this court or sent back to the court below for such action: Emerson v. Schoonmaker, 135 Pa. 437. In Thornton v. Brinton, 144 Pa. 126, the court held that a merely formal error was amendable, and it appearing that the case had been tried on its merits between the real parties, the amendment was allowed in the Supreme Court under the Act of May 20, 1891, P. L. 101. But this case is quite different; it is sought to make a substantial change in the record, which affects the subject-matter involved and the rights of the parties. In Com. v. Phila., 180 Pa. 12, a petition for reargument was presented for leave to amend the return of the city solicitor, so as to set forth certain reasons for his action in the matter involved, and was verified by the affidavit of the city controller. The court refused to allow the amendment to be made, saying, “If it is intended as an additional and substantive ground of defense, application for leave should have been made to the court below. We prefer disposing of the question which counsel for the city and its controller intended to present for our decision, just as it came to us from the court below.” Such has been the course of practice in this court ever since its organization, and we are not disposed to depart from it. The application to file a supplemental affidavit of defense is refused.

In this state, a valid agreement may be made which provides for the separation of husband and wife, and for a stipulated allowance for her support where the separation is inevitable and immediate, and the validity of such covenants has been established by repeated decisions. They are to be disposed of as contractual covenants without regard to their sentimental source, and are to be enforced and defended ¡against as any other covenant. In Com. v. Richards, 131 Pa. 209; Scott’s Estate, 147 Pa. 102, it was held that if such a deed was not fraudulently procured, and its terms are not unreasonable, it is a bar to a proceeding instituted in the quarter sessions, and whether the conditions exist in a particular case, must always be on all the facts as developed, for the court below, and not for the appellate court: Com. v. Smith, 13 Pa. Superior Ct. 358; s. c., 200 Pa. 363.

Considerable stress has been laid upon the proposition that the plaintiff’s right is conditioned upon the question whether the covenants are dependent or independent, but to our mind it is not material in this case, and the subtle distinctions that are at times given between dependent and independent covenants are not of any significance in this case. As said by the court below, “If dependent, the plaintiff cannot recover; if independent, the defendant has a right to set off against the plaintiff’s claim the damages he has suffered by the breach of his covenant against molestation. There is therefore nothing, either in the state of the law or in the particular facts of the case, which could in any way modify the general law of set-off. The defendant has averred that, which if proved before a jury, will entitle him to damages for the wife’s breach of her covenant against molestation. This is a question which must be tried by a jury.” Whether covenants are dependent, concurrent or mutual depends on the intention of the parties ascertained by the application to the context of rules of interpretation, from which alone the fact is to be extracted: Bredin v. Agnew, 3 W. & S. 300; Lippincott v. Low, 68 Pa. 314; Lehman v. Given, 177 Pa. 580; and as was said in Keeler v. Schmertz, 46 Pa. 139: “ It is the duty of a party seeking to enforce performance by the other party to make performance on his part a condition precedent, and tender or offer performance of it when he demands performance by the other side.”

The record further discloses that the wife has resorted to the court of quarter sessions to compel the defendant to contribute to her support, and further that an .action in divorce is now pending in common pleas No. 5, and an allowance for alimony has been granted for the same amount per week as is stipulated in this contract.

The judgment is affirmed.


author: Porter, J.,

text:
    Schalcher v. Bergdoll, Appellant.

      Principal and agent — Liability of agent — Covenants.
    1. An agent does not become bound personally by the covenants into which he enters on behalf of his principal. When it is sought to compel an agent to perform the covenants of a contract made on behalf of his principal by an action on the contract, it must be shown that he covenanted to be bound individually, or it must be averred and proved that in making the contract he acted without the authority of his principal.

      Set-off — Contract—Assumpsit—Action ex delicto — Partners.

      2. The defendant in an action of assumpsit may set off a claim for damages arising out of the breach of an independent contract, but the terms of such contract must be sufficiently averred.
    3. The defendant in an action of assumpsit cannot set off a claim for damages arising out of an independent transaction for which he would have to bring an action ex delicto.
    4. Where the plaintiff in an action of assumpsit sues for a debt due him as an individual, the defendant cannot, without the consent of all the parties, set off a claim against a firm of which the plaintiff was a member.
    Argued Oct. 12, 1909.
    Appeal, No. 106, Oct. T., 1909, by defendant, from order of C. P. No. 3, Phila. Co., Dec. T., 1908, No. 4,524, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Harry Schalcher v. EmmaC. Bergdoll.
    Before Rige, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit to recover compensation of personal services.
    The facts appear by the opinion of the Superior Court.

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

      David J. Myers, with him Arno P. Mowitz, for appellant,
    cited : McKelvy v. Wilson, 9 Pa. 183; Blanchard v. Hunter, 7 Pa. C. C. Rep. 552; Benjamin v. Zell, 100 Pa. 33; Everhart’s App., 106 Pa. 349; Howell v. Kelly, 149 Pa. 473.

      March 3, 1910:

      Jay Rich Grier, with him Harry Schahher, for appellee,
    cited: Charlton v. Allegheny, 1 Grant, 208; Ahl v. Rhoads, 84 Pa. 319; Stuart v. Com., 8 Watts, 74; Bentz v. Bentz, 95 Pa. 216; Longafelt v. Bartsher, 3 P. & W. 492; Jarecki Mfg. Co. v. Haymaker, 138 Pa. 541; Martin v. Berens, 67 Pa. 459; Greenawalt v. Kohne, 85 Pa. 369.
   Opinion by

Porter, J.,

The plaintiff brought an action of assumpsit, in his individual right, to recover of the defendant for personal services, as an attorney at law. The defendant filed an affidavit of defense admitting the validity of several items of the claim aggregating $512.60, but attempting to assert, by way of set-off, a claim for the sum of $1,000, and averring her right to a certificate for a balance of $487.40. The court below held that the affidavit of defense did not allege such a contract between the plaintiff and the defendant as would entitle the defendant to set off in this action the $1,000 damages asserted to have arisen from the breach thereof, and made absolute a rule for judgment for want of a sufficient affidavit of defense, as to the undisputed items of plaintiffs claim, viz., $512.60, with leave to proceed to trial for the balance.

The affidavit of defense states the claim which the defendant averred the right to set off as follows: “The defendant avers that on or before the 30th day of April, 1908, the plaintiff, acting as a real estate broker and.agent for one Richard S. Van Cleave, the alleged owner of the premises covering the aforesaid nineteen houses, induced the defendant to sign an agreement of sale for said houses with said Van Cleave, by representing to her that he would be able to sell, and so agreed to sell, said houses before the time limit mentioned in the agreement of sale for settlement had expired, and that defendant would never have to take title to same, and further agreed to procure for her such price or prices for said houses as would enable him to return to her the amount paid down at the time of signing the said agreement of sale, a copy of which is hereto annexed, and marked exhibit ‘A,’ together with a reasonable profit thereon, as a result of which representations the defendant signed said agreement of sale on the 30th day of April, 1908, and then and there deposited with said plaintiff the sum of $1,000, as earnest money, the defendant fully • believing the representations of the plaintiff that he would sell said houses before she would be called upon to take title under the said agreement, otherwise she would never have entered into said agreement of sale nor deposited said $1,000 nor any other sum; but notwithstanding his said agreement, the plaintiff wholly neglected and failed to procure said purchaser or purchasers, and has since wholly failed and neglected to procure such purchaser or purchasers; that defendant never took title to said houses nor obtained the same, and that by reason of the said agreement of plaintiff and his failure and neglect to perform same the defendant has lost the said deposit of $1,000.” The agreement of sale, attached to the affidavit of defense and marked exhibit “A,” specifically states that it was made on April 30, 1908, “between Schalcher & Company, agents for Richard S. Van Cleave, party of the first part and Emma C. Bergdoll, party of the second part.” It is signed “Schalcher & Company, agents, per Harry Schalcher” and by the defendant; and it was approved in writing by Van Cleave, the owner for whom Schalcher & Company were acting as agents. None of the covenants, with regard to a resale of the property in the interest of this defendant, averred in the affidavit of defense appear in this written agreement, and it is to be observed that the affidavit states that all the alleged representations and the agreement to resell in her interest were made prior to the execution of the written agreement.

The averment of the affidavit that, “the plaintiff, acting as a real estate broker and agent for one Richard S. Van Cleave, .... induced the defendant to sign an agreement of sale for said houses with said Van Cleave, by representing to her that he would be able to sell, and so agreed to sell, said houses before the time limit mentioned in the agreement of sale had expired;” if it means anything, means that this plaintiff made the representations and agreement, “acting as the agent for one Richard S. Van Cleave.” This is not an averment that the plaintiff made the contract in his own behalf, but as the agent for Van Cleave. The contract stated is the contract of Van Cleave, acting through the plaintiff as his agent. An agent does not become bound personally by the covenants into which he enters on behalf of his principal. When' it is sought to compel an agent to perform the covenants of a contract made on behalf of his principal by an action on the contract, it must be shown that he has covenanted to be bound individually, or it must be averred and proved that in making the contract he acted without the authority of his principal. This affidavit fails to allege that Van Cleave had not authorized the plaintiff to make the representations and agreement which the affidavit avers he made for Van Cleave. The judgment might properly be affirmed upon the ground above stated, without further discussion. The averment of the claim attempted to be set off is, however, fatally defective for two additional reasons: 1. If it be assumed that the plaintiff was not the agent of Van Cleave and, also, that he was acting in his individual capacity and not as a member of the firm of Schalcher & Company, then, the only breach of duty upon his part alleged in the affidavit is- that he had failed to sell real estate, which the plaintiff was about to enter into a contract to purchase; but the affidavit entirely fails to aver that the defendant had authorized and empowered the plaintiff to make sale of the property on her behalf. The allegation that the plaintiff agreed to sell the property is entirely insufficient, in the absence of an averment that the defendant entered into a contract with him to sell the property, and a statement of the terms of that contract. .What authority had the plaintiff to sell that property, upon what terms and at what price? The transaction out of which the alleged claim which the defendant attempts to set off arose was entirely independent of the matters upon which the claim of the plaintiff is founded. The defendant might set off a claim for damages arising out of the breach of an independent contract, but she must sufficiently aver the terms of that contract. She cannot in this action set off a claim for damages arising out of an independent transaction for which she would have to bring an action ex delicto. 2. The averments of the affidavit of defense are to be construed in connection with the written agreement exhibit “A” thereto attached and made part thereof. The affidavit avers that the plaintiff was acting as the agent of Van Cleave, but the written agreement shows that the agents of Van Cleave in the transaction were Schalcher & Company, a firm of which this plaintiff was a member. The agreement and representations, or misrepresentations, are averred to have been made in the dealings with Van Cleave by the agent who was acting for Van Cleave, and the written agreement shows that Schalcher & Company were those agents. The claim of this defendant, therefore, if she has any claim, is against Schalcher & Company, the firm of which this plaintiff is a member. The action of the plaintiff is for a debt due him as an individual, and the defendant cannot, without the consent of all the parties, set off a claim against the firm of which he is a member: McDowell v. Tyson, 14 S. & R. 300; Milliken & Co. v. Gardner, 37 Pa. 456; Jackson et al. v. Clymer, 43 Pa. 79; Bentz v. Bentz, 95 Pa. 216; Blair, Administrator, v. Wood, 108 Pa. 278; Jarecki Manufacturing Co. v. Haymaker, 138 Pa. 541; Jenkins v. Rush Brook Coal Co., 205 Pa. 166.

The supplemental affidavit of defense, which counsel for the appellant have discussed in their brief, was not filed in the court below until after the judgment had been entered by that court, and it necessarily follows that we cannot consider it upon this appeal.

The judgment is affirmed.


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    Lowenstein, Appellant, v. Bache.

      Account stated — Broker—Protest against overcharge.

    1. Where a customer of a broker protests against overcharges of interest whenever accounts are rendered to him, such accounts rendered will not be presumed to have become accounts stated.

      Payment — Involuntary payment — Duress—Protest.

      2. When a party is compelled by duress of his person, deeds, papers, or personal property and the evidence of title thereto, to pay money illegally demanded, from which the party making the payment has no other means of immediate and adequate relief, it is not voluntary but compulsory; and he may rescue himself from such duress by payment of the money under protest, and afterwards, on proof of the fact, recover it back.
    3. A broker agreed to make advances to a customer at five per cent interest and to hold the stocks and securities purchased as security for the loans. The broker charged more than five per cent interest, and when the customer closed his account, the broker refused to give up the securities unless the amount of the disputed interest was paid. The customer thereupon paid the broker this amount under protest and with notice that he intended to bring an action to recover it back. His statement of claim averred that the stocks and securities and the certificates which represented title thereto had been in possession of the defendants who kept the same at their office in the city of New York, and that the plaintiff did not know the certificate number, nor could he identify the stock. Held, (1) that the payment was under duress, and therefore involuntary; (2) that the plaintiff was not obliged to tender the amount and then bring an action of trover to recover the securities, and (3) that he could maintain an action of assumpsit to recover back the money involuntarily paid.
    Submitted Oct. 12, 1909.
    Appeal, No. 126, Oct. T., 1909, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1907, No. 291, sustaining demurrer to statement of claim in suit of E. Lowenstein v. J. S. Bache et al., Copartners, trading as J. S. Bache & Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit to recover back money paid under duress.
    Demurrer to statement of claim. Before McMichael, P. J.

      The facts are stated in the opinion of the Superior Court.

      Error assigned was the judgment of the court sustaining •demurrer to statement of claim.

      Benjamin F. Glazer, with him Maurice J. Speiser, for appellant.
    The maxim that the law does not compel one to do a useless thing applies to the case of tender of performance of an obligation; hence a tender is not necessary when it appears that, if made, it would have been fruitless. This point has been settled in Pennsylvania, as well as in other states, beyond dispute: Gas Company v. DeWitt, 130 Pa. 235; Appleton v. Donaldson, 3 Pa. 381; Hampton v. Speckenagle, 9 S. & R. 212; Hanna v. Phillips, 1 Grant, 253; Schayer v. Com. Loan Co., 163 Mass. 322 (39 N. E. Repr. 1110); Hoyt v. Sprague, 61 Barb. 497.
    The payment of money by the owner of goods in order to redeem them from the hands of a person who unlawfully withholds them and demands such money may be treated as a compulsory payment, so that the amount is recoverable as having-been obtained by oppressive means. The owner of goods may have so urgent occasion for them that the ordinary action affords very imperfect redress: Gould v. McFall, 118 Pa. 455; Thomas v. R. R. Co., 1 W. N. C. 621; Union Ins. Co. v. Allegheny, 101 Pa. 250; Harvey v. Bank, 119 Pa. 212; De la Cuesta v. Ins. Co., 136 Pa. 62; White v. Heylman, 34 Pa. 142; Motz v. Mitchell, 91 Pa. 114; Grammes v. Erney, 7 Lanc. Law Reps. 85; Joannin v. Ogilvie, 49 Minn. 564 (52 N. W. Repr. 217); Stenton v. Jerome, 54 N. Y. 480; Lehigh Coal & Navigation Co. v. Brown, 100 Pa. 338; Doolittle v. Luzerne County, 6 Kulp, 495; Steamship Co. v. Young, 89 Pa. 186.

      Samuel K. Louchheim, for appellees.
    Statements of accounts made in a pass book and acquiesced in are conclusive, unless fraud or mistake is established: Ruch v. Fricke, 28 Pa. 241; Tassey v. Church, 4 W. & S. 141; Payne v. Nicholas, 2 Phila. 220; Lodge v. Heron, 3 Phila. 356; Colket v. Ellis, 10 Phila. 375.
    Where money is paid voluntarily, with knowledge of or méans of knowing all the facts, or after neglect to take advantage of legal remedies, it cannot be recovered back on the theory of an implied promise from the payee who received it in good faith and may in equity and good conscience retain it: Morris v. Tarin, 1 Dall. 147; Natcher v. Natcher, 47 Pa. 496; Coon v. Penna. Canal Co., 3 Kulp, 488; Mattes v. Jamison, 1 North County, 280; Gould v. McFall, 118 Pa. 455; Thomas v. Phila. & Reading R. R. Co., 1 W. N. C. 621; Union Ins. Co. v. Allegheny, 101 Pa. 250; Peebles v. Pittsburg, 101 Pa. 304; Colwell v. Peden, 3 Watts, 327; Espy v. Allison, 9 Watts, 462; Carson v. McFarland, 2 Rawle, 118; Hinkle v. Eichelberger, 2, Pa. 483; Boas v. Updegrove, 5 Pa. 516; Edgar v. Shields, 1 Grant, 361; Taylor v. Board of Health, 31 Pa. 73; Union Nat. Bank v. Dersham, 15 W. N. C. 541; Harvey v. Bank, 119 Pa. 212; De la Cuesta v. Ins. Co., 136 Pa. 62; Murphy v. Cawley, 7 Kulp, 128; Sheredine v. Gaul, 2 Dall. 190; Cass v. Higenbotam, 27 Hun, 406; Holton v. Brown, 18 Vt. 224.
    March 3, 1910:
   Opinion by

Porter, J.,

The court below entered judgment in favor of the defend-i ants upon a demurrer to the statement filed by the plaintiff in this action of assumpsit. The plaintiff’s statement averred that in the year 1902 he entered into an agreement with the defendants to act as his bankers, brokers and agents in the buying and selling of stocks on his behalf and in the advancing of sums of money on his behalf, in the making of such purchases, and to hold as collateral security for such loans and advances the stock of plaintiff so purchased; that at the time plaintiff so engaged the defendants to act as his brokers and agents it was orally agreed on behalf of the defendant firm that they would furnish said advances or loans at a fixed rate of five per cent interest, irrespective of the market rate of interest; and said agreement to exist and continue so long as the defendants should be permitted to act as the plaintiff’s bankers, brokers and agents; that defendants continued to act as plaintiff’s bankers, brokers and agents until June 21, 1907, purchasing and selling stocks and other securities from time to time and making advances upon account of such purchases, holding the stocks and bonds as security for the advances, as set forth in detail in the exhibits attached to the statement; that at several dates specified, from December, 1905, to March, 1907, the .defendants rendered to the plaintiff statements of the purchases and sales of securities made for him and the sums advanced by the defendants on account thereof and of the interest charged him for said advances; that upon certain dates these statements charged the plaintiff with interest at a rate in excess of five per cent, the amount of such excess being in each instance specifically set forth in the plaintiff’s statement filed in this case, and aggregating $832.84; that plaintiff repeatedly protested to the defendants against these overcharges of interest and demanded that the same be stricken from the account, and that Walter C. Louchheim, one of the defendants, on behalf of the defendant firm promised and assured the plaintiff that the matter would be made right and the total amount of overcharge would be credited and allowed the plaintiff whenever he desired to withdraw his account; that on June 21,1907, the plaintiff notified the defendant firm that he desired to close his account; that the defendants then had in their possession certain stocks and securities, enumerated in the statement, belonging to the plaintiff which they held as collateral security for the sums which they had advanced, which stocks and securities were kept by the defendants in their New York office and the plaintiff did not know the certificate. numbers nor could he identify said stock; that plaintiff then demanded that the total amount of the interest overcharges be stricken from his account, in accordance with the agreement between him and the defendants, and offered to pay the defendants the balance justly due them, to wit: the amount which the defendants claimed less $832.84, the total amount of excessive charges for interest, and demanded the return of the stocks and certificates which the defendants held as collateral. The statement further averred that the defendant firm, through one of its members,'declared that they would not accept the sum which the plaintiff offered, declined to deduct any part of the excessive interest charges, demanded the full sum of $4,209.74 and refused to deliver to plaintiff the stocks and securities held by the defendants as collateral until the said sum was paid; that plaintiff protested that the sum of $4,209.74 was not justly due, and he informed the defendants that he would pay said sum because they refused, without such payment, to surrender the stocks and securities which they held as collateral, and that he would bring suit against them to recover the amount which he was thus compelled to overpay; and that he did on June 21, 1907, because the defendants refused to surrender to him his stock without such payment, cause to be paid to the said defendants the sum of $4,209.74 and his stock was thereupon surrendered to him.

The statement sufficiently avers the date upon which the plaintiff’s cause of action rose, if upon the facts stated he is entitled to recover, and the first ground of demurrer is not well taken. The agreement as to the rate at which interest on the advances was to be charged is in the statement set forth in exact terms, the rate was to be five per centum, and the second ground of demurrer cannot be sustained. The exhibits attached to plaintiff’s statement were accounts rendered, but the averment of the statement, that the plaintiff protested to the defendants against the overcharges of interest and that the defendants agreed that they would correct the same, negatives any presumption that any one of the accounts rendered ever became an account stated between the parties; and the third ground of demurrer is without foundation. The court below, as indicated by the opinion filed, did not consider the statement defective for any of the reasons above suggested, but decided against the plaintiff’s right to recover upon the question raised by the last three grounds of demurrer, which squarely raise the question of the right of the plaintiff to recover the money which he paid to the defendants in order to obtain possession of his bonds and stocks and the certificates which were the evidence of title to the same. The court below held that under the facts averred in the statement the payment which the plaintiff made to. the defendants in order to obtain possession of his property was a voluntary payment and could not be recovered back.

The general principle that money voluntarily paid with full knowledge of the facts, in the absence of fraud, cannot be recovered back, is well settled. Is a payment of money made under the facts and circumstances averred in this statement a voluntary payment, in contemplation of law? In one sense it may be said to be voluntary, for there is no physical compulsion upon him who pays. The person of the plaintiff was under no duress, but his property and all evidence of title thereto was in the possession of the defendants, held by them as security for a debt. The defendants had taken that property and the evidence of title thereto into their possession as security for a debt and had contracted to redeliver it to the plaintiff upon payment of the debt, with interest at the rate of five per centum. The plaintiff offered to pay the defendants the amount due and demanded his property in their possession; defendants declared that they would not accept the sum due and demanded $832,84 more than was due and refused to deliver the property of plaintiff, unless he complied with their excessive demand; and plaintiff, in order to obtain possession of his own property, paid the amount unlawfully demanded, protesting against the same and notifying them that he would bring an action to recover it.

The only effect of a protest is to show the involuntary character of. a payment procured by duress, and the intention to reclaim the money. There must be compulsion, actual, present and potential, inducing the payment by force of conditions which render the person or property subject to the control of the party demanding payment, when the party so paying may give notice of the illegality of the demand, his involuntary payment and intention to reclaim. When the element of coercion is lacking, a mere protest or notice will not change the character of the payment or confer of itself a right to recover, although it may be necessary in some cases, where the element of coercion is present, to pay under protest, that is, with notice of an intention to reclaim, in order to repel the implication, of an assent: Peebles v. Pittsburg, 101 Pa. 304; Borough of Allentown v. Saeger, 20 Pa. 421; McCrickart v. Pittsburg, 88 Pa. 133; Harvey v. Girard National Bank, 119 Pa. 212; De la Cuesta v. Insurance Company, 136 Pa. 62.

That a" contract may be rendered void or a payment of money become involuntary because it is constrained by duress of goods has long been well settled. To constitute the coercion which the law will recognize as sufficient to render a payment involuntary there must be some actual or threatened exercise of power possessed, or supposed to be possessed, by the party exacting payment, from which the party making the payment has no other means of immediate and adequate relief. The threat of a distress for rent, when there is no rent due, is not such duress, because the party may replevy the goods dis-trained, and try the question of liability at law. The threat of legal process is not such duress, for the party may plead and make proof, and show that he is not liable. But when there is neither suit nor legal process of any kind, and the goods of a party are unlawfully detained until he pays a sum illegally demanded, he may pay under protest and maintain an action to recover the money. The general rule may be thus stated: when a party is compelled, by duress of his person,' deeds, papers, or personal property and the evidence of title thereto, to pay money illegally demanded, from which the party making the payment has no other means of immediate and adequate relief, it is not voluntary but compulsory; and he may rescue himself from such duress by payment of the money under protest, and afterwards, on proof of the fact, recover it back: Hospital v. Philadelphia County, 24 Pa. 229; White v. Heylman, 34 Pa. 142; Motz v. Mitchell, 91 Pa. 114; Lehigh Coal & Navigation Co. v. Brown, 100 Pa. 338; Union Insurance Co. v. City of Allegheny, 101 Pa. 250; Shaw v. City of Allegheny, 115 Pa. 46; Railroad Co. v. Commissioners, 98 U. S. 541; Harmony v. Bingham, 2 Kernan, 99; Stenton v. Jerome et al., 54 N. Y. 480.

The statement averred that the stocks and securities and the certificates which represented title thereto had been in possession of the defendants, who kept the same at their office in the city of New York, and that the plaintiff did not'know the certificate numbers nor could he identify the stock. It is, therefore, manifest that the plaintiff could not have maintained replevin for the stock or the certificates which were the evidence of title thereto. The relief to which he was entitled was the immediate possession of his property upon payment of the amount for which it was pledged. He was compelled to pay to the defendants $832.84 more than they were lawfully entitled to claim from him in order to .obtain possession of his property which they held as a pledge, and he had no other means of immediate, adequate relief; he paid under protest, notifying them that he would bring an action to recover it back. We are constrained by the weight of authority to hold that this was an involuntary payment and that plaintiff is entitled to recover. The case of De la Cuesta v. Insurance Co., 136 Pa. 62, is clearly distinguishable from the one with which we are now dealing; there was in that case no property of the plaintiff in the hands of the insurance company at the time he made the payment; the question was as to the rate at which he should agree to pay for stock to be issued in the future. The stock was to be issued in the future, no certificates for the stock were in existence, and the question Upon which the parties differed was one of law; the price at which the law required the company to issue the new stock to the old stockholders. The opinion of Mr. Chief Justice Paxson thus states the view which was taken of that case by the court: “The dilemma was the uncertainty of the law. There was no other pressure or duress that caused the payment. However great the uncertainity of the law may be in a particular case, it has never been supposed to amount to duress of either person or goods.” It has been argued in the present case that the plaintiff after tendering the amount which he admitted to be due had a remedy in an action of trover against the defendants, and he might have recovered the value of his securities; that he was put to his election between this course and voluntarily paying the money; and that, having paid the money, he cannot recover. An action of trover would not have afforded the plaintiff the relief to which he was entitled, the immediate possession of his property; he would have been compelled to exchange his property for a right of action against these defendants. The case of Astley v. Reynolds, 2 Strange, 916, has been repeatedly referred to with approval in the opinions in the cases hereinbefore cited. In that case the plaintiff had pawned a lot of plate as security for a loan of twenty pounds. When he offered to redeem the pledge he tendered in addition to the principal a sum more than sufficient to cover the interest to which the defendant was entitled; but the latter demanded ten pounds interest. The plaintiff finally paid the exorbitant demand of defendant, and after securing possession of his property brought suit to recover the excess over the amount to which the defendant was entitled. It was contended that the payment being made with full knowledge of all the facts, was voluntary; and that the plaintiff having made a sufficient tender might have maintained an action of trover and conversion, but the court in entering judgment in favor of the plaintiff said: “The plaintiff might have such immediate want of his goods that an action of trover would not do his business. Where the rule, volenti non fit injuria, is applied, it must be where the party had his freedom of exercising his will, which this man had not. We must take it that he paid the money, relying on his legal remedy to get it back again.” The plaintiff’s statement in the present case, set forth a sufficient cause of action to recover a specific sum of money, and for that amount he is entitled to judgment, upon the demurrer filed by the defendants.

The judgment is reversed and judgment is entered in favor of the plaintiff and against the defendants for $832.84, with interest on said sum from June 21, 1907, and costs.


text:
    J. S. Strafford Publishing Company v. N. Stetson & Company, Appellant.

      Contracts — Construction-—Ambiguous terms — Evidence—Custom.
    1. In the interpretation of a contract words are to be given their plain, ordinary and popular meaning, unless they have acquired a peculiar sense in respect to the particular subject-matter, or unless the contract shows that the parties used them in some other and peculiar sense.

      2. The meaning of the terms of art and technical phrases when employed in a contract may be proved by extrinsic evidence, and in so doing the rule which prohibits the introduction of evidence to alter, vary or explain a written contract is not violated. In receiving such evidence the court does no more than when it refers to a lexicon to ascertain the meaning of a word. It is the only means of ascertaining the intention of the parties when they enter into the agreement and use an ambiguous expression, and when its meaning can be thus ascertained it must control.
    3. Where a contract for the insertion of an advertisement in the programme of a vaudeville theater states that the insertion is “for the theatrical season of 1902 and 1903,” parol evidence is admissible to show what was understood in the profession by the words “theatrical season,” as applicable to vaudeville theaters, but evidence as to the signification of the words in connection with theaters of a different kind or class is not admissible.
    Argued Oct. 12, 1909.
    Appeal, No. 139, Oct. T., 1909, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1903, No. 3,401, on verdict for plaintiff in case of J., S. Strafford Publishing.Company v. N. Stetson & Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Appeal from judgment of magistrate.
    The material portion of the contract upon which suit was • brought was as follows:
    “Philadelphia, Nov. 8, 1902.
    “The publishers reserve the right to refuse any advertisement of an objectionable character.
    “Privilege weekly change.
    “Keith’s New Chestnut Street Theatre.
    “Insert our advertisement in the Keith’s Chestnut Street Theatre programme for the (no other piano house Ad. but Blasius & Sons) theatrical season of 1902 and 1903, to occupy space of opposite page 4, one page, for which we agree to pay ten dollars per week payable every four weeks.”
    At the trial the defendant asked one of his own witnesses the following question:
    “Q. (Contract dated August 27, 1902, between defendant and Joseph T. Maculley for advertising defendant’s business in the theatrical programme of the Academy of Music for the season of 1902 and 1903, shown to witness.) What was the duration of the season named in that contract? ”
    Objected to. Objection sustained. Exception allowed defendant. [1]
    “Q. (Similar contracts shown witness for advertising defendant’s business in theatrical programmes for the theatrical season of 1902 and 1903, or thereabouts in the following theaters, namely, Broad Street Theater, Chestnut Street Theater, Chestnut Street Opera House, Park Theater, Walnut Street Theater, Garrick Theater and Girard Avenue Theater, shown to witness), and witness is asked to state the duration of the theatrical season in connection with said contracts.”
    Objected to. Objection sustained. Exception allowed defendant. [2]
    Defendant presented these points:
    2. If you find from the evidence that Keith’s New Chestnut Street Theater was open continuously throughout the years 1902 and 1903, from and after the date of the contract between the plaintiffs and the defendant, and had no “season,” then the contract is void for uncertainty, and you will find a verdict for the defendant. Answer: Refused. [6]

      3. Under all the evidence in this case the jury is directed to find a verdict for the defendant. Answer: Refused. [7]
    Verdict and judgment for plaintiff for $53.72. Defendant appealed.

      Errors assigned among others were (1, 2) rulings on evidence, quoting the bill of exceptions; and (6, 7) above instructions, quoting them.

      Owen B. Jenlcins, for appellant.
    The defendant should have been permitted to show by its contracts for advertising for “the theatrical season of 1902 and 1903” with the Academy of Music, the Broad Street Theater, Chestnut Street Theater, Chestnut Street Opera House, Park Theater, Walnut Street Theater, Garrick Theater, and Girard Avenue Theater, the duration of the theatrical season for that year as under-. stood at these theaters: Gratz v. Hoover, 16 Pa. 232; Meighen v. Bank, 25 Pa. 288.
    March 3, 1910:
    The contention of the plaintiff that “season” means a year, contradicts all meaning of the word found in either law reports or common speech: Lovering v. Miller, 218 Pa. 212; Canary v. Russell, 9 N. Y. Misc. Reps. 558.
    The testimony shows that the minds of the parties never met. Each was contracting, if hot for the general season, for a different thing, and the contract is void for uncertainty: Hall v. Woolen Co., 187 Pa. 18.
    If the contract was for “Keith’s New Chestnut Street Theater theatrical season,” it was a contract regarding something nonexistent, and the contract is void: Riegel v. Ins. Co., 153 Pa. 134.

      Charles S. Wood, for appellee.
    Oral evidence was admissible: Montague v. Flockton, L. R. 16 Eq. 189; Myers v. Walker, 24 Ill. 133; Leavitt v. Kennicott, 157 Ill. 235 (41 N. E. Repr. 737); Lovering v. Miller, 218 Pa. 212.
   Opinion by

Orlady, J.,

The plaintiff was a publisher of theatrical programmes, and secured an order from the defendant in writing, the substance of which is: “ Insert our advertisement in'the Keith’s Chestnut Street Theatre program for the theatrical season of 1902 and 1903,” and the sole controversy in this case turns on the interpretation to be given to the expression “theatrical season of 1902 and 1903.”

On the trial the defendant offered to prove, as shown by contracts made by him with advertisers in theatrical programmes, the duration of the theatrical season for 1902 and 1903, in the Broad street, Chestnut street, Park, Walnut street, Garrick and other theaters, and had the offer been coupled with the proposition that they were similar in kind or class to the new Keith’s Chestnut Street theater, the testimony should have been received, but lacking this, the objection thereto was properly sustained. Nor was the contract void for uncertainty, as urged by appellant, the effect to be given the term “theatrical season for 1902 and 1903” having been properly submitted to the jury as follows: “They made a contract with reference to Keith’s new Chestnut Street Theater, and they made a contract which had in it a latent ambiguity, that is, they did not specify, as they might have done, the number of weeks during which the contract was to be performed, but that must be explained by outside evidence. What is the common understanding of the term theatrical season in the business, looked at from the point of view of the parties at the time they made the contract in relation to Keith’s new Chestnut Street Theater.”

In the interpretation of a contract words are to be given their plain, ordinary and popular meaning, unless they have acquired a peculiar sense in respect to the particular subject-matter, or unless the contract shows that the parties used them in some other and peculiar sense. While the new Keith’s theater had been opened for but a few days at the time of making this contract, it was not pretended by the defendant that the general character of the théater was not known to him, nor is it claimed that it was not properly designated as a vaudeville theater, nor that the theatrical season for this particular theater was any different from that of the usual vaudeville theater. It appears from the evidence that the term “theatrical season,” has no general significance in the profession, but it has a special meaning when applied to different grades of amusement places, and that the word “theater” may refer to what is popularly known as standard or legitimate, to the opera, or to vaudeville entertainments. It is practically conceded by the defendant that there is a marked difference among the theaters in regard to the duration of their season, and that the “theatrical season” as applied to vaudeville theaters consists of continuous performances for the whole year, while the length of the season of grand opera and some standard theaters may and frequently does depend- upon whether there is a stock or permanent company, whether a particular building is used by companies staying for a period of time longer or shorter as may depend upon the popularity of the performance, or upon the particular time the exhibition is given, such as the holiday season, the spring season, the fall season. While the proof is not as satisfactory as it might have been made, there was sufficient in the record for the court below to submit to the jury the one controlling question. The meaning of the terms of art and technical phrases when employed in a contract may be proved by extrinsic evidence, and in so doing the rule which prohibits the introduction of evidence to alter, vary or explain a written contract is not violated. In receiving such evidence the court does no more than when it refers to a lexicon to ascertain the meaning of a word. It is the only means of ascertaining the intention of the parties when they enter into the agreement and use an ambiguous expression, and when its meaning can be thus ascertained it must control: Hostetter v. Park, 137 U. S. 30; 34 L. Ed. 568. In McWilliams v. Martin, 12 S. & R. 269, the words were held to be doubtful, and the point to be inquired into was to ascertain the intent of the parties. The court held that if the intent be as doubtful as the words, inquiry will not aid in the matter; but if inquiry will make it plain, we ought to put the construction on it which will best answer the intention even though the words be doubtful. In Lovering v. Miller, 218 Pa. 212, a theatrical contract in writing provided for an engagement for the regular season, but the contract did not disclose what was intended by the words “regular season,” it was held to be proper to receive parol evidence to show the common understanding in the theatrical business as to what that term included, and that with this evidence, the case should go to a jury to find the exact terms of the contract. See also Yost v. Anchor Fire Ins. Co., 38 Pa. Superior Ct. 594.

The length of the season at other theaters in the city was not material, unless they were of the same class as this particular theater, it being clearly shown that the theaters differ so radically in regard to their season that what was a custom in one, did not bind a person contracting in relation to another theater of an entirely different class or type. The case was fully and carefully tried in the court below, and we find no reversible error in the record presented to us.

The judgment is affirmed.


author: Rice, P. J.,

text:
    Wilson v. Sale, Appellant.

      Landlord and tenant — Covenant for quiet enjoyment — Eviction.
    1. The implied covenant for quiet enjoyment in a lease is broken, where the lessee, without fraud or collusion after a suit has be¡en brought against him by a third person asserting a paramount title, yields possession to such person, and on the trial of an issue between him and the landlord proves that the third person had title paramount.
    2. Where a lessee is evicted from a portion of the land demised, he may in an action against him by the landlord to recover rent which had accrued after the eviction set up the eviction as a defense, although the deeds of both the lessor and the person having the paramount title to the portion of the land from which the lessee was evicted are of record. In such a case the lessee has a right to rely upon the lessor’s representations as to the location of the demised premises and the covenant of quiet enjoyment, and is under no duty to search the records to ascertain whether the lessor had" good title.

      Landlord and tenant — Parol evidence — Evidence—Location of land.

    3. Parol evidence may be given to explain a written lease so far as to give locality and identity to the subject-matter, and apply the contract to it.

      Principal and agent — Scope of authority — Misrepresentations.
    4. In determining whether a principal is responsible to third persons for the misrepresentations of his agent, it is the apparent scope of the agent’s authority, and not his actual instructions, that must govern. This rule applies where an agent' of a lessor gives a wrong description of the land to the lessee.

      Landlord and tenant — Eviction—Rent.
    5. Where a lessee is evicted from the most valuable portion of the land demised, he cannot subsequently be compelled to pay any portion of a quarter’s rent, .where it appears that distraint had been made for the entire quarter’s rent, and the lessor offers no evidence from which the jury could ascertain the proportionate rental value of the premises retained by the lessee.
    Argued Oct. 13, 1909.
    Appeal, No. 145, Oct. T., 1909, by defendants, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1908, No. 2,869, on verdict for plaintiff in case of William B. Wilson v. George T. Sale, Agent for Alma V. Anderson, Landlord, and Maurice Levy, Constable.
    Before Rige, P. J., Henderson, Morrison, Orladt, Head, Beaver and Porter, JJ.
    Affirmed.
    Replevin for goods distrained for rent. Before Carr, J.
    The facts are stated in the opinion of the Superior Court.
    At the trial plaintiff was asked the following question:
    “ Q. Before you went into possession, please tell the court and jury whether Sale pointed out to you the land you were leasing? ”
    Mr. Edwards: That is objected to as immaterial and irrelevant.
    Objection overruled. Exception noted for defendants by direction of the court. [4]
    The Court: “Q. What happened? What did Sale do? Did he take you on the ground and show you the place? A. He went right on the ground and pointed the ground out to me at the place. He had to be there anyhow, he was maldng alterations, and he came around and pointed out to me the ground. We lived next to it, and I wanted to know where the ground was, because I knew they had divided it up, and he went over the ground and pointed it out to me.”
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for six cents damages. Defendants appealed.

      Errors assigned among others were (3) in giving binding instructions for plaintiff, and (4) ruling on evidence, quoting the bill of exceptions.

      George J. Edwards, Jr., for appellants.
    Wilson had constructive notice of the Anderson and Kindred titles: Hill v. Epley, 31 Pa. 331; Ogden v. Porterfield, 34 Pa. 191; Maul v. Rider, 59 Pa. 167; Shepheard v. Beetham, L. R. 6 Ch. Div. 597; Hackett v. School Dist., 150 Pa. 220.
    This is an attempted action of deceit under the guise of replevin and no evidence has been offered connecting Alma. V. Anderson with any representation made by Sale: Keefe v. Sholl, 181 Pa. 90; Freyer v. McCord, 165 Pa. 539; Grauel v. Wolfe, 185 Pa. 83; Cox v. Highley, 100 Pa. 249.

      March 3, 1910:

      William, H. Peace, for appellee.
    Appellant’s effort to denominate this case, as based upon Sale’s deceit, is also a misapprehension of the lessee’s legal rights, even though Sale’s principal had no knowledge of his false representation: Griswold v. Gebbie, 126 Pa. 353.
    A lease is an entire contract, and if a tenant be evicted from a portion of the demised premises the entire lease is suspended: McClurg v. Price, 59 Pa. 420; Hoeveler v. Fleming, 91 Pa. 322; Seabrook v. Moyer, 88 Pa. 417.
    Physical expulsion is not now considered necessary to constitute an eviction: Ross v. Dysart, 33 Pa. 452; Gallagher v. Burke, 13 Pa. Superior Ct. 244; Hamilton v. Cutts, 4 Mass. 349; Greenvault v. Davis, 4 Hill (N. Y.), 643.
   Opinion by

Rice, P. J.,

In this action of replevin the defendant Sale filed an affidavit of defense on behalf of the other defendant as well as himself, in which he admitted the taking of the goods by virtue of a warrant of distress issued by him to the other defendant, a constable, for the collection of rent alleged to be in arrear under a lease to the plaintiff, in which George T. Sale, agent for Alma V. Anderson, owner, was described as lessor. The premises were described as “all that certain piece of ground consisting of about fifty acres and having thereon dwelling and out-dwellings, situate at the corner of Cottman Street and Castor Road, the same being a portion of the Ward farm.” On the trial of the case the plaintiff testified, under objection and exception, that prior to the execution of the lease Sale, at his request, went with him to the land at the corner of Cottman street and Castor road and pointed out to him the bounds of the Anderson portion of the Ward farm intended to be embraced in the lease. The plaintiff was corroborated by other witnesses who were present at the execution of the lease. Indeed it is an undisputed fact that the land which the plaintiff went into possession of under the lease was the land which Sale pointed out and represented to him before and at the execution of the lease as the land he was leasing. The plaintiff continued in the occupancy of the premises and paid the rent for two years and more, when one Charles F. Kindred notified him that sixteen acres of the tract belonged to him, charged the plaintiff with being a trespasser and brought an action of trespass against him. The defendant being notified by the plaintiff of Kindred’s claim and suit replied: “To tell you the truth I do not know where Anderson's ground is myself.” Thereupon the plaintiff vacated the land claimed by Kindred, and on the trial of this case the fact of Kindred’s paramount title to the sixteen acres was conclusively established. It was also shown .that this was the most valuable part of the demised premises, but no evidence was introduced by the defendant from which the proportionate relative value of the premises of which the plaintiff retained possession could be ascertained. The distress was for an entire quarter’s rent which by the terms of the lease accrued subsequently to the plaintiff’s vacation of the sixteen acres under the circumstances above stated.

One instance of a breach on the part of a lessor of the implied covenant for quiet enjoyment is where the lessee is lawfully evicted through a defect in the lessor’s title by one having title paramount to the lease. Physical expulsion by force or legal process is not always necessary to enable the lessee to'plead the breach. In Brown v. Dickerson, 12 Pa. 372, it was held that a covenant for quiet enjoyment is broken by a sheriff’s sale under a paramount legal incumbrance, although one of the assignees of the covenantee purchases the property and there is no other ouster. So in Ross v. Dysart, 33 Pa. 452, it was declared: “ Nor is it necessary for the tenant to be actually removed from the premises to give him a good defense against rent. Writs of habere facias possessionem are well executed when the tenant attorns to the plaintiff therein. And the taking of a lease or contract of purchase under pressure of such writ, where there is no fraud or collusion, is an actual eviction in law, which dissolves the relation between the tenant and his original landlord.” It requires no undue extension of the principle of these cases to apply it where, after hostile assertion by a third person of a paramount title, particularly by suit brought, the lessee without fraud or collusion yields thereto and on the trial of the issue between him and the landlord proves that the third person had title paramount : Jackson & Gross on Landlord and Tenant, sec. 1009, citing Greenvault v. Davis, 4 Hill (N. Y.), 643; Hamilton v. Cutts, 4 Mass. 349.

But it is argued that the plaintiff could not set up the eviction as a defense to the rent or any part of it because the Anderson and Kindred deeds were on record, and many cases are cited to show that a recorded deed is constructive notice to those who are bound to search for it. The principle would be. applicable in a dispute between the plaintiff and Kindred,. but not to annul the lessor’s positive representations as to the location of the demised premises and the covenant of quiet enjoyment. The lessee had a right to rely upon these and was not in duty bound to search the record to ascertain whether the lessor had a good title. If the evidence would have justified a finding that the lessee accepted the lease with actual knowledge of the title and at his own risk the.case might have been different: Kemble Coal & Iron Co. v. Scott, 90 Pa. 332; Same v. Same, 15 W. N. C. 220. But there was no evidence which would have warranted the submission of that question to the jury. .

Complaint is made of the admission of evidence of what took place between the parties immediately before and at the execution of the lease, but there is no well-founded objection to this evidence. Upon reading the description in the lease it will be seen that the evidence did not contradict or alter the written agreement between .the parties, and it was admissible under the well-established rule that parol evidence may be given to explain a written agreement, so far as to give locality and identity to the subject-matter, and apply the contract to it: Bertsch v. Lehigh Coal & Navigation Co., 4 Rawle, 130; Ranney v. Byers, 219 Pa. 332; Boice v. Zimmerman, 3 Pa. Superior Ct. 181. Many other cases wherein the principle has been recognized and applied might be cited, but it is unnecessary. Nor was the evidence inadmissible upon the ground that it was not preceded or followed by evidence that Mrs. Anderson authorized or knew of the representations made by Sale. “The. general rule that a principal ig responsible for the misrepresentations of his agent within his authority, is beyond question, and the better opinion is that as to third persons, affected by his acts or words, it is the apparent scope of his authority, and not his actual instructions, that must govern. That is the. basis on which the business of the world in the present day is transacted, and the rule should be enforced in a liberal spirit, with regard to the actual habits of the community. That an agent who is empowered to engage a real estate broker to make sale of a country seat, is thereby authorized to give the broker a description of the place, including its acreage, is so clear, that the learned judge would have been justified in submitting the point to the jury in terms much stronger against the defendant below than he did:” Griswold v. Gebbie, 126 Pa. 353. The principle of that case is applicable here. Moreover, there was payment and acceptance of rent for a considerable length of time, while the plaintiff was in the open and visible occupancy of the land he had been put in possession of. The contention that the plaintiff must go on paying the entire rent reserved, notwithstanding he was evicted from the most valuable portion of the land demised, and that his only remedy is by an action of deceit against Sale, cannot be sustained in view of all the evidence.

It might be said, although the point has not been argued by appellant’s counsel, that as the- plaintiff retained possession of a portion of the demised premises he would be liable for a proportionate part of the rent at least. This might be so in an action for use and occupancy, but we think such liability cannot be enforced in this action where distraint was made for the entire quarter’s rent, and where it appears that the plaintiff has been evicted from the most valuable part of the demised premises by a paramount title, and where there is no evidence furnished by the lessor from which the jury could ascertain the proportionate rental value of the premises retained by the plaintiff.

Upon the whole case we are of opinion that the judgment was properly entered for the plaintiff. The assignments of error are overruled and the judgment is affirmed,


author: Head, J.,

text:
    Byrne v. Elfreth, Appellant.

      Contract — Breach of warranty — Evidence—Measure of damages.

    1. In an action to recover back money paid for a water filter purchased under a warranty that it would give clear and sparkling water, the defendant will not be permitted to show that other filters furnished to them by other persons did good service.
    2. Where there has been a breach of a warranty of goods sold, the purchaser may retain the goods warranted, sue in affirmance of the contract and recover as damages the difference between the value of the goods if they had been as warranted and as they actually were on delivery, but he is not bound to do so. He may return or offer to return the goods and sue in rescission of the contract, in which case the measure of his damages is the amount of the purchase money paid.

      Evidence — Parol evidence — Contract—Confirmation of phone order.

    3. Where a letter from a purchaser of a filter to the seller states that the letter is to confirm phone orders of a previous date, and requests delivery of the filter at a particular place “ as per your quotation of the 17th,” parol evidence is admissible to show the price quoted over the phone, but not set forth in the letter.
    Argued Oct. 13, 1909.
    Appeal, No. 160, Oct. T., 1909, by defendants, from judgment of C. P. No. 5,'Phila. Co., June T., 1905, No. 2,553, on verdict for plaintiff in case of John J. Byrne v. Jacob R. Elfreth and Churchill Hungerford, trading as The Philadelphia Water Purification Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for breach of warranty for sale of a water filter.
    On December 17, 1903, plaintiff and defendants had a conversation over the telephone relating to the purchase of a filter. On December 22, plaintiff ordered a twenty-four-inch filter. This order was as follows:
    “Please deliver one of your 24" pressure water filters to Strawbridge & Clothier store rear of 825 Market street, as per your quotation of the 17th instant. Bill to undersigned. To confirm ’phone order.
    “Yours truly,
    “John J. Byrne.”

      The filter was delivered January 9, 1904, set up and used, and on May 2,1904, was paid for by the plaintiff.
    At the trial the plaintiff was asked this question:
    “Q. Prior to writing your letter of December 22, and after your letter of December 17, did you have any conversation with any of the defendants in this case? A. I had; yes, sir. Q. What were the conversations which you had with the defendants or either of them in reference to the purpose of this filter between the 17th of December and the 22d of December when you ordered the filter?”
    Objected to. Objection overruled. Exception for defendants. [1]
    “A. Mr. Hungerford called at my place. Q. On what date? A. At my request, I think it was about the eighteenth day I received their estimate.”
    The Court: “Q. He called on the eighteenth? A. About the eighteenth at my request, I telephoned him so as to come there. Q. Come down to the conversation? A. I had a conversation with him in relation to the filter. Q. What did you say and what did he say? A. He said he would furnish a sand filter that would — if I would give the order for that filter to them, he would furnish me with a sand filter that would give clear and sparkling water. Q. What was said by Mr. Elfreth?”
    Objected to. Objection overruled. Exception for defendants. [2]
    “Q. What was said by Mr. Elfreth? A. Mr. Elfreth said that he would guarantee the filter that should anything happen to it — that is of course — he said he guaranteed-”
    The Court: “ Q. You were asked what was said at this time? A. He said he would guarantee the filter to give clear and sparkling water at all times.”
    Mr. Saul: “Q. He said that again at the time the money was paid? A. Yes, sir.”
    Jacob R. Elfreth was asked this question:
    “Q. Where have you put in filters in the .city of Philadelphia?”
    Objected to.
    Mr. Gorman: “I offer to prove by this witness that there are precisely similar filters of the same construction erected in Philadelphia and elsewhere. That these are at the Bingham House, St. James Hotel, Hotel Walton, Dooner’s Hotel and the P. J. Walsh Estate, to be followed by testimony of the engineers of the places named that said filters are working properly and giving clear and sparkling water wherever they are attended to.
    Objected to. Objection sustained.' Exception for defendants. [3]
    Mr. Gorman: I offer to prove by the engineers of the Bingham House, St. James Hotel, Hotel Walton, Dooner’s Hotel and the P. J. Walsh Estate that the filters erected at these places are giving entire satisfaction, following the offer heretofore made, to prove that by Mr. Elfreth.
    Objected to. Objection sustained. Exception for defendants. [4]
    Verdict and judgment for plaintiff for $404.55. Defendants appealed.

      Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions; (5) in refusing binding instructions for defendants; (6) in refusing motion for judgment n. o. v.; (7) in making absolute plaintiff’s rule to amend statement of claim.

      John F. Gorman, with him Arthur G. Dickson, for appellants.
    There is good authority for the proposition that if the contract of sale is in writing and contains no warranty, parol evidence is not admissible to add a warranty: Van Ostrand v. Reed, 1 Wend. 424; Lamb v. Crafts, 53 Mass. 353; Dean v. Mason, 4 Conn. 428, 432; Reed v. Wood, 9 Vt. 285.
    The warranty must be upon the sale, and any subsequent or collateral contract of warranty must arise from an express promise to warrant and that upon a new consideration distinct from that of the sale itself: Hogins v. Plympton, 28 Mass. 97; Summers v. Vaughan, 35 Ind. 323; Joseph v. Richardson, 2 Pa. Superior Ct. 208.
    Evidence as to the other filters should have been received: Vietti v. Nesbitt, 22 Nev. 390 (41 Pac. Repr. 151); Baber v. Rickart, 52 Ind. 594; Ames v. Quimby, 106 U. S. 342 (1 Sup. Ct. Repr. 116); Com. v. Goodman, 97 Mass. 117; Jupitz v. People, 34 Ill. 516; Lotz v. Scott, 103 Ind. 155 (2 N. E. Repr. 560); Evans v. Keystone Gas Co., 148 N. Y. 112 (42 N. E. Repr. 513); 30 L. R. A. 651; Sabine v. Johnson, 35 Wis. 185.
    March 3, 1910:

      Maurice Bower Saul, with him John G. Johnson, for appellee.
    Where parties have made a verbal contract partially reducing it to writing and the writing evidencing it is not a complete and final statement of the entire transaction, parol evidence, consistent with the written instrument, is admissible to show the full agreement: Schwab v. Ginkinger, 181 Pa. 8; Selig v. Rehfuss, 195 Pa. 200; Holt v. Pie, 120 Pa. 425; Way v. Martin, 140 Pa. 499.
    The contract with the plaintiff was clear and precise; the filter was warranted to give clear and sparkling water, and the jury were limited in their inquiry to the character of the water furnished by the filter in question: Shelly v. R. R. Co., 211 Pa. 160; Jewell Filter Co. v. Kirk, 65 N. E. Repr. 698; Erie Ry. Co. v. Decker, 78 Pa. 293.
   Opinion by

Head, J.,

The argument of the learned counsel for appellants, in support of the first assignment of error, rests on these propositions: that the agreement of the parties concerning the sale and purchase of the filter was in writing; that there was neither averment nor proof that any material part of that agreement had been omitted from the writing by fraud, accident or mistake; that in such cases the law conclusively presumes that all earlier representations, proposals, etc., are merged in the writing; that the latter contained no warranty by the seller and therefore it was error to admit the evidence complained of to prove that such warranty had been made in parol. Had we, in this record, a written agreement of the character contemplated by the many decisions cited to sustain the conclusion thus reached, the correctness of the conclusion would be conceded.

When, however, we turn to the record and examine the writing referred to, we at once discover that it does not even purport to be the complete agreement of the parties. Indeed, it declares in terms that it was not the original order for the filter, but that such order had been previously given in parol over the telephone, and that the letter was merely confirmatory of the prior parol order. We quote it in full:

“Please deliver one of your 24" pressure water filters to Strawbridge & Clothier store, rear of 825 Market Street, as per your quotation of the 17th inst. Bill to undersigned to confirm phone order.”

To determine what price was to be paid it is plain that resort must be had to the previous negotiations. It was not intended that this brief memorandum was to change the earlier “phone order” or to be a substitute for it, but simply to confirm it according to common commercial usage and provide record evidence that such a parol order had been given. The cases of Holt v. Pie, 120 Pa. 425, and Selig v. Rehfuss, 195 Pa. 200, are so similar in facts and so identical in principle with the one before us that when we apply to it the doctrine enunciated in those cases, there seems to be no room for any other conclusion than that the learned trial court was right in receiving the evidence complained of in the first assignment, which is accordingly overruled.

The existence of the warranty relied on by the plaintiff does not depend on his evidence that it was again made when he paid for the filter some time after it was installed. Such evidence might be properly received as corroborative of that previously offered tending to’ prove a warranty at or preceding the sale. When, however, the defendants voluntarily went upon the stand and unequivocally admitted they had “guaranteed the filter would give clear and sparkling water,” the evidence offered by the plaintiff in corroboration of his like assertion was rendered unimportant, and the warranty became an established fact in the case.

To concede then the soundness of the general proposition relied on by the appellant, viz.: “A warranty must be upon the sale, and any subsequent or collateral contract of warranty must arise from an express promise to warrant, and that upon a new consideration distinct from that of the sale itself,” does not convict the learned court of error. When the learned court came to charge the jury he was clearly correct in stating, as the result of the evidence, “that much is undisputed, so that under that agreement, before the plaintiff was obliged to pay for the filter, it must have been one that gave clear sparkling water — of course properly handled and properly managed.” The second assignment therefore cannot be sustained.

The real defense, as shown by the testimony of the defendants themselves, was not to deny the making of the warranty set up by the plaintiff, but to maintain that the filter, did in fact meet every demand of the warranty, and that bad results, if there were any, were to be attributed, not to the filter furnished by the defendants, but to the tank or system of circulating pipes in connection with which it was used. It was perfectly proper for them to make out as far as they could such a defense, but the verdict of the jury has determined that their efforts in this respect were unavailing.

The issue then being whether or not this particular filter was up to the standard of the warranty, how could it be pertinent for the defendants to prove, as they undertook to do, that other filters furnished by them to other persons did good service. Their efforts to prove this were rejected by the learned trial court and this ruling is the subject of the third and fourth assignments of error. It seems clear to us that the admission of such testimony would not only have raised issues entirely collateral to the subject under investigation, but that it could not in the nature of things have tended to make out a defense. If because the defendants had made and sold one or two or a dozen mechanically perfect filters, it • necessarily followed that every other one they made was perfect, the evidence might have been relevant, but as no such conclusion necessarily followed from the fact that they had furnished good filters to other people, it seems reasonably clear that this evidence was properly rejected. The third and fourth assignments must therefore be dismissed.

Argument is advanced in the printed brief to show that even if the plaintiff was entitled to recover for a breach of the warranty, the measure of damages adopted by the learned trial court was wrong. It is elementary in such a case that the plaintiff may retain the goods warranted, sue in affirmance of the contract, and recover as damages the difference between the value of the goods if they had been as warranted and as they actually were on delivery, but he is not bound to do so. He. may return or offer to return the goods and sue in rescission of the contract, in which case the measure of his damages is the amount of the purchase money paid. The latter course was adopted in the present case. It appears by the record, however, that the action of the court in this respect has not been assigned for error, and we need not consider this question further.

From what has been said it must be apparent that there was a question of fact to be submitted to the jury, and therefore the learned trial court could not have properly affirmed the defendants' point for binding instructions, nor could it have entered judgment non obstante veredicto, unless we can conclude that the court committed reversible error in making absolute the plaintiff's rule to amend his statement of claim, and this action of the court constitutes the seventh and remaining assignment of error. In the original statement filed the plaintiff claimed to recover the sum of money he had paid to the defendants for the filter on the theory “that said defendants stated verbally to the plaintiff that the filter would give clear and sparkling water. Said representations were made at the time the contract was entered into between the plaintiff and the defendants, and without said representations the plaintiff would not have entered into said contract for the filter.” We can see nothing in the amendment offered and allowed to be made which could fairly be said to have changed the cause of action originally sued on. The allowance of it was therefore within the discretion of the trial court, and it has not been made to appear that there was any abuse of this discretion.

Judgment affirmed.