Reed v. Palmer, 3 P. F. Smith, 379. Overdeer v. Updegraff. 19 P. F. Smith, 110. Oct. 26, 1874. Judgment affirmed. Per Curiam. O. & N. '74, 99 CLARK V. REED & GILCHRIST to use of J. M. GIL CHRIST. Partnership-Liquidating partner. Error to District Court of Alleghany County. The firm of Reed & Gilchrist having dissolved, it was mutually agreed that J. M. Gilchrist should have the exclusive right to collect all debts due the said firm, and after settling the accounts should pay to Reed any balance coming to him. Clark, one of the debtors of said firm, after having received notice of the dissolution and this agreement, paid part of his debt to Reed's agent, and refused to pay the same to Gilchrist, whereupon this suit was brought. Upou the trial below, Clark offered to prove that on a settlement of the accounts of said firm Reed would be entitled to receive from Gilchrist more than the amount of this claim; the Court rejected this offer, and charged the jury, that, if Clark paid this debt to Reed after notice of the dissolution and agreement, it was no defence to this action. Verdict and judgment for plaintiff. A. M. Brown and S. A. McClung, for defendant. Error to Common Pleas of Venango County. Howarth, one of the defendants, having a claim against the firm of Ludvoice Bros., brought suit thereon, issuing a writ of foreign attachment; to which writ the sheriff made return as follows: "I have attached one house and lot in Cornplanter Township, adjoining the Humboldt Petroleum Company on the south, and fronting on the Penna. R. R., and summoned P. Lent by making contents known to him by giving him a true copy of same." Defendants not appearing, judgment by default was entered Nov. 30, 1866, which was duly liquidated by the prothonotary March 30, 1867. A writ of fi. fa. having been issued and returned nulla bona, the plaintiff waited over a year and then issued an alias fi. fa., under which the above described property was levied upon and condemned, whereupon a vend. ex. was issued and the property sold to S. P. McCalmont, who assigned to Howarths, and they took possession. After the commencement of the above proceedings, and before the sale, Sterrett et al., the plaintiffs, instituted proceedings in foreign attachment, which were duly and regularly prosecuted to judgment and execution, and the lot above described was levied upon and sold a second time by the sheriff, the plaintiffs being the purchasers. This sale was not made until after the sale to McCalmont. Whereupon this action of ejectment was brought, plaintiffs alleging that all the proceedings under the first attachment were irregular and void. The Court below ruled, that, although the proceedings in the first attachment were irregular and could be reversed and set aside, the purchasers at the sheriff's sale thereunder could not be affected thereby. Verdict, judgment for defendant. S. C. T. Dodd and Isaac Ash, for plaintiff in error, cited Hayes v. Gillespie, 11 Casey, 155. Haywood v. Collins, 5 Am. Law Times, 235. C. Hasbrouck and Mc Calmont & Osborn, for defendant in error, cited Martin v. Rex, 6 S. & R. 296. Hazelett v. Ford, 10 Watts, 101. Sloan v. McKinstry, 6 Harris, 121. Pains v. Moorhead, 15 Ohio, 435. Voorhees v. Bank, 10 Peters, 449. Ritter v. Brendlinger, 8 P. F. Smith, 70. Campbell v. Kent, 3 Pa. Reports, 78. Dickerson and Haven's Appeal, 7 Barr 257. Watson v. Willard, 9 Barr, 92. Buehlers v. Buffington, 7 Wright, 293. Wilkinson's Appeal, 15 P. F. Smith, 189. Feger v. Kroh, 6 Watts, 294, and 6 Watts, 297. Oct. 26, 1874. Judgment affirmed. Per Curiam. O. & N. '74, 58. WATERS v. Cooper. Negotiable instrument—Holder for value. Error to Common Pleas of Venango County. Cooper, having agreed to lend Wm. Hubbell a large amount of money on a mortgage, advanced part of the money in cash, and gave him a note payable "in currency" for the balance. This note Hubbell transferred to the plaintiff in this case, to whom he was indebted and who held a judgment against him, the agreement being that the amount when paid should be credited on the judgment. Cooper, claiming that Hubbell had misrepresented the value of the property mortgaged to him and the amount of liens thereon, refused to pay the note, whereupon this action was brought. The Court below charged the jury, that, if the plaintiff took the note in controversy to collect and apply on his judgment, he was not a holder for value, and that the defendant could set up against him any defence which he could have set up against the payee. Verdict and judgment for defendant. Douglass, McCoy, and Tyler, for plaintiff in error, cited Phelan v. Moss, 17 P. F. Smith, 59. Story on Promissory Notes (3d ed.), 8 195. Wm. R. Bole, for defendant in error, cited- Ashton's Appeal, 23 P. F. Smith, 153. Irwin v. Tabb, 17 S. & R. 419. Hartman v. Dowdel, 1 Rawle, 279. Twelves v. Williams, 3 Wharton, 485. Trotter v. Shippen, 2 Barr, 358. Ludwig v. Highley, 5 Barr, 139. Kirkpatrick v. Muirhead, 4 Harris, 117. That a note payable in currency is not negotiable Wright v. Hart's Adm., 8 Wright, 454. Gray v. Donahue, 4 Watts, 400. McCormick v. Trotter, 10 S. & R. 94. The Court below charged the jury, that the payments and statements made by the defendant to Ball & Colt did not affect the legal rights of the parties. Verdict and judgment for defendant. Geo. W. Lathy & Son, for plaintiff in error, citedEldred v. Haslett's Admr., 9 Casey, 307. Oct. 26, 1874. Judgment affirmed. Per Curiam. O. & N. '73, 40. POWELL et al. v. BREDIN. Condition-Re-entry-Evidence-Declarations. Error to Common Pleas of Crawford County. Action of ejectment for 116 acres of land in Crawford County, formerly belonging to John Walters, who died intestate, leaving the plaintiff's and defendant his heirs-at-law. Hiram Powell et al., the plaintiffs in error, having taken possession, Nancy Bredin, the defendant in error, brought this action. Upon the trial she proved a deed from John Walters to her for the land in dispute, containing the following clause :— "Now the condition of this assignment is such that said John Walters is to have a good and sufficient living out of the foresaid farm his natural life, and all other necessary expenses." That she lived on the land with him for two years, when he consented that she should move away and leave the farm in his hands to work or lease; and that he continued living thereon, receiving the rents and profits until his death. The defendants below having proved that after the plaintiff moved away from the farm, John Walters got David Walters, one of the defendants, to come and live with him, and then offered to prove that John Walters then declared that he had taken October 26, 1874. Waters not being a holder for possession of the land because Nancy Bredin had value, judgment affirmed. Per Curiam. O. & N. '73, 56. KING to the use of BALL & COLT v. MORRIS. Error to Common Pleas of Erie County. King having agreed to sell and deliver to Morris as demanded 2000 bushels of malt, the latter gave him six notes for the price of the malt, each note containing a warrant of attorney to confess judgment. Judgments were entered on two of these notes in favor of King, who afterwards assigned them for a valuable consideration to Ball & Colt. When they came due, Morris paid one of the judgments, and obtained several extensions on the other by paying part at different times and promising to pay the balance: he also wrote a letter to Ball & Colt asking further time, saying that this claim was secure, and that he expected to be able to pay. A sci. fa. post annum et diem, etc., having been issued, Morris defended on the ground that King had not fulfilled his contract for the delivery of the malt, and that, on this contract and on a previous one, he was entitled to receive together over 400 bushels. failed to furnish him with a living. These declarations, made in the absence of the plaintiff, the Court refused to receive, and charged the jury, that, if Nancy Bredin had failed to perform the duties required by the condition of the deed, she could not recover, but if they believed that the change in the possession of the farm, and in the mode of using and managing it, were made as substitute for such duties, then their verdict must be for the plaintiff. Verdict and judgment for plaintiff. F. P. Rea and D. M. Farrelly, for plaintiff in error, cited— Watters v. Bredin, 20 P. F. Smith, 235. Altemus v. Campbell, 8 Watts, 28. William R. Bole, for defendant in error, cited- Dickey v. McCullough, 2 W. & S. 100 Dumpor's Case, 1 Smith's Leading Cases, 107. Oct. 26, 1874. Judgment affirmed. Per Curiam. Henry v. Reimann, 1 Casey, 354. Rings et al. v. Binns et al., 10 Peters, 269. Congregation v. Miles, 4 Watts, 146. Hersey v. Turbett, 3 Casey, 424. Nerhooth v. Althouse, 8 Watts, 427. Bear v. Whisler, 7 Watts, 144. Hamilton v. Elliott, 5 S. & R. 374. Love v. Jones, 4 Watts, 465. Canon v. Campbell, 10 Casey, 309. Oct. 26, 1874. Judgment affirmed. Per Curiam. between them. Within the year Sayers sold part of the land to Andrews, Bey, and McMullin, and then, these parties consenting, sold several tracts, including this one. to Foreman, Vandergrift, and Satterfield, at a gross price, and they took possession. Moorehead, being advised of this by Foreman, assented to the arrangement, and consented to accept the $3300 00 and execute a deed to the purchasers; but, being advised not to do this without written in structions from Sayers, concluded not to make the deed then, but promised to do it in a few days. Afterwards, however, he refused to execute the deed at all, and conveyed the land for $4000 00 to Hannah and Blackman, who had full knowledge of the foregoing facts, and who brought this action of ejectment to recover the land The defendants below having duly tendered the $3300 00, paid the money into court to abide the result of the action Upon the trial, the plaintiffs introduced evidence tending to show that the contract with Sayers was obtained from Moorehead by fraud, and that the sale of this, with other tracts, at a gross price was made for the purpose of concealing the real price at which it was sold. The Court below charged the jury, that, if they found that Sayers actually got more than $3300 00, Moorehead was not bound to execute a deed on payment of that sum, unless they found that he had full knowledge of this fact when he promised Foreman to do so. Verdict for plaintiff, to be released on payment to plaintiff of $5849 75, and judgment thereon. Ash & Sterrett and C. Haydrick, for plaintiff in érror, cited Kerr v. Day, 2 Harris, 112. Napier v. Darlington, 20 P. F. Smith, 64. Wm. McNair and A. B. Mc Calmant, for defendant in error, cited Laner v. Lee, 6 Wright, 165. Cadwalader v. Berkheiser, 8 Casey, 43. executors to erect a gothic monument of Italian By his last will and testament he directed his marble, with granite base 20 inches thick, and to employ J. W. Kerr to design, and Joseph Strudders to build it, "the cost thereof, with the granite base and constituted his brother William Ingles sole reaforesaid, to be five thousand dollars or thereabouts," siduary legatee. count showing a balance of $5866 65, whereupon The executors, after paying debts, filed their action of the sum; one report having been made and the Court appointed an auditor to report a distribuset aside, the auditor finally made a report directing the executors to appropriate $3500 to erecting a monument according to a design prepared by J. W. Kerr, who testified that he believed that it was such an one as would have pleased James Ingles in his lifetime, and as he himself would have erected under the will To the order of Court confirming this report and awarding distribution accordingly, the sisters of the decedent excepted. Marshall & Patterson, for appellants. November 2, 1874. SHARSWOOD, J., delivered the opinion of the Court; holding that the opinion of the architect selected by the testator is binding on the Court in the absence of bad faith (Williams' Appeal, 23 P. F. Smith, 249); but, as the expenses may ex ceed the estimate, the decree must be reversed, and the executors ordered to retain $5000 in their hands ated either in whole or in part to the payment thereof. until completion of the monument, to be appropri HOWE et al. v. MCVAY, WALKER, & Co. Delivery of chattels-Shipment over railroad-Partnership-Responsibility of firm for act of a member-Adoption by firm of act of one. Error to Common Pleas of Venango County. Action of assumpsit to recover amount of a promissory note given by Howe et al., defendants below, to McVay, Walker, & Co., plaintiffs below, for the price of five coal cars sold and delivered by the latter to the former. One of the members of defendant firm having become involved, and the others wishing to dissolve the partnership, W. C. Howe, acting for the firm, entered into an arrangement with McVay, Walker, & Co, by which they agreed to take back the cars and surrender the notes given for the price. In pursuance of this agreement and plaintiffs' instructions, Howe shipped the cars to them at Oil City, but on their arrival at that point J. C. McCollum, another member of defendant firm, received them from the railroad company and converted them to his own use. The Court below charged the jury, that, if McCollum took the cars without plaintiffs' consent, and in pursuance of an agreement with the other members of defendant firm, or that his action was afterwards consented to by them, the agreement and the shipment of cars to plaintiffs in pursuance thereof was Do defence. Verdict and judgment for plaintiffs. Miller v. Building Association, 14 Wright, 32. Haydrick, for defendant. November 2, 1874. Judgment affirmed. Curiam. O. & N. '74, 37. WOODS v. QUEEN. the executors, having filed two accounts, whereby it appeared that they had paid the particular bequests, and distributed to the heirs $35,609 09 on account of the amount bequeathed to the university, and had expended $5000 in the improvement of the burial lot, filed a final account, claiming credit for $6500 set apart for the erection of a monument, towards which nothing had yet been done, and reporting a balance for distribution of $27,451 57. After a reference to an auditor, the Court below, being of the opinion, that, after deducting the $5000 expended in the burial lot, the heirs were entitled to receive the full amount bequeathed to the university and library before any further sum was expended thereon, and that the balance of the fund, after paying expenses, should be distributed between said lot and the heirs, in the proportion which these respective amounts sustained to each other, and that, in fixing the proportion in which this balance should be divided, the proceeds of the lots devised to be sold for the university and library should be added to the amount of the pecuniary bequests, surcharged said account with the amount set aside by the executors for the monument, and distributed the balance as follows: Per To heirs, in full of balance of university Oct. New Constitution— Validity of call of convention. To heirs, proportionate share of $8331 54 $22,952 16 9,072 82 From this decree the executors appealed. S. A. and W. S. Purviance, for appellants. Marshall and Brown, for appellees. November 2, 1874. THE COURT, being of opinion that the residuary estate should be divided in the proportion of the specific pecuniary bequests, and that the proceeds arising from the sale of the lots should not be added to the amount so bequeathed to the university and library in order to determine this proportion, and also that, in the absence of any improper conduct on the part of the executors in expending $5000 in improving the burial lot, it was November 2, 1874. Judgment affirmed and appeal their duty to set aside a sufficient sum in addition in dismissed. O. & N. '74, 200. APPEAL OF PORTER'S EXECUTORS. order to erect a suitable monument, according to the direction of the will, independent of any specific direction to do so (McGlinsey's Appeal, 14 S. & R. 64), reversed the decree, and directed distribution Oct. accordingly. Failure of charitable bequest-Scheme of distribution-Duty to erect monument. Certiorari to Supreme Court of Alleghany Co. John M. Porter, by his last will and testament, made within thirty days before his death, devised from $3000 to $5000 to the improvement of his burial lot in Prospect Cemetery, and the erection of a monument; $50,000 in cash to founding a uni versity, and $6000 to purchasing a library therefor; and he directed the proceeds of certain lots, which realized $11,643 42, to be appropriated to extending the university buildings and enlarging the library; after several particular bequests, he directed that the residue of his estate be devoted proportionately to the improvement of his burial lot and the university. The devise to the university and library having ben set aside, and the money awarded to the heirs; Opinion by SHARSWOOD, J. SNYDER et al. v. CAROTHErs. Mechanic's lien-Act of April 8, 1868-Affidavit verifying claim. Error to Common Pleas of Clarion County. Snyder et al., plaintiffs, entered a mechanic's lien, under act of April 8. 1868, against an oil tank built by them for the defendant but did not file therewith a statement of their claim verified by affidavit as required by the act, whereupon the latter entered a rule to show cause why the same should not be quashed on that account. Rule absolute and lien quashed. A. M. Brown, Thos. S. Wilson, and Geo. A. Jenks, | O. & N. 74, 222. Oct. for plaintiff, argued that the provision of act requir- PRODUCERS' AND MANUFACTURERS' BANK v. RICKETTS. ing affidavit is merely directory, and cited— Bouvier's Law Dictionary, p. 424. Sedgwick on State and Com. Law. pp. 368, 369. Calhoun & Lyons v. Mahon, 2 Harris, 56. Dame, Seymour, & Co.'s Appeal, 12 P. F. Smith, 417. Lybrandt v. Eberly, 12 Casey, 347. Howell v. Phila, 2 Wright, 471. W. L. Corbett, for defendant. Note-Special endorsement - Agent Notice of agency-Affidavit of defence-Waiver of right to affidavit of defence. Error to Common Pleas of Crawford County. Action of assumpsit to recover proceeds of a draft collected by the Producers' and Manufacturers' Bank, the order of Th. C. Ricketts, plaintiff below, who dedefendant below. This draft was drawn payable to livered it to Ira B. McVay & Co. with the following special endorsement: "Pay Ira B. McVay & Co. or order for collection, and credit account of Thomas Nov. 2, 1874. Judgment affirmed. Per Curiam. C. Ricketts." McVay & Co. failed, after having members. The plaintiff having filed a copy of the note, the defendants filed separate affidavits of defence, setting forth the fact that it was so endorsed; that the firm had no interest in the note, and never received any consideration for the endorsement thereof, and that it was not endorsed in the regular course of their business. Two of the members swore that they never received any notice of protest, but the third did not. Upon a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence, the Court entered judgment for plaintiff. Douglass, McCoy, and Tyler, for plaintiff in error, cited Tanner v. Hall & Easton, 1 Barr. 417. Savings Fund Society v. Bank, 12 Casey, 498. endorsed and forwarded the draft to the defendant Bank for collection and credit on their account. The draft having been paid, the Bank refused to pay the proceeds to Ricketts, and credited the amount to McVay & Co., who were largely indebted to it, claiming that such was the arrangement with them. The plaintiff filed a Narr., and ruled the defendant to plead, and, after the pleas had been entered, filed an affidavit of claim under rule of Court, to which defendant filed an affidavit of defence, setting forth the foregoing facts. Upon a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence, the Court below made the rule absolute, and entered judgment for plaintiff. F. B. Guthrie and Byles, for plaintiff, cited, as to waiver of right to require affidavit of defenceO'Neal v. Rupp, 10 Harris, 395. As to sufficiency of affidavit Bank of Metropolis v. New England Bank. 1 Howard, 234, and same case 6 Howard, 212. McBride v. Farmers' Bank, 25 Barb. 657. Overton v. Tyler, 3 Barr, 348. Hoffman v. Miller, 1 Am. Law Reg., N. S., 676. Sheffer v. Montgomery, 15 P. F. Smith, 329. O. & N. '74, 245. Per Curiam. Oct. PRODUCERS' AND MANUFACTURERS' BANK V. BLEAKLEY et al. See Bank v. Ricketts, supra. Error to Common Pleas of Crawford County. F. B. Guthrie and Byles, for plaintiff in error. Nov. 2, 1874. Judgment affirmed. Per Curiam. |