He estimates that the amount of that work that was not done was something much less than $70.

Now, he says that the contractor at that time had done $250 worth of work, at least, more than was required in order to entitle him to his third payment. Now, there is no dispute about this.

Now, he says further, that the amount of variation of which I have spoken is usual-that it is usual to leave the doors off of the front and rear hall and bathroom, and leave off some trim where the plumbers' work is to come in. It is the usual thing that would deceive nobody who is accustomed to being around buildings in course of construction. It would not deceive one of these gentlemen who were entitled to serve notices-the stairmaker, for instance, and the others. They could not be deceived about it, because they would see that was the usual thing to do, and common thing to do.

Now, then, I come to two conclusions-first, that this gentleman (Mr. Clark) had earned his money, and I hold there was no advance payment-there was no intentional advance payment, there was no conscious advance payment. He had earned that much, and if Mrs. Veitch had said to Mr. Clark, or her agent, the architect, had said, "Now, Clark, do not put on this; do not hang this front door; do not hang the vestibule door; do not hang the rear door; do not hang the bathroom door, because you know they will get scratched up; in place of that, go on and do this other work," and by a little contract between them, not to remit anything to Mr. Clark, but to substitute a little work for present convenience, and Mr. Clark had sued Mrs. Veitch for the third payment, there is no doubt he could recover according to law.

But it is said by the counsel that it is not the law. Here is the strict letter of the law-that the payment must be due by the terms of the contract, because the other materialmen and laborers are entitled to go and look at that contract on file, and the specifications on file, and determine just when the thing is due; and if they go in the building and see that it is not due,

they are justified in holding off their notices. I believe I am putting Mr. Rich's argument as strong as it can be put?

Mr. Rich-Yes, sir.

The Court-And the answer to that, I think, is twofold— first, what Mr. Dixon says is the custom of the trade, known to everybody; and second, that these gentlemen, who are accustomed to going around buildings and seeing how things are getting along and watching the time to put in their notices, could not have been deceived by it, if Mr. Dixon's evidence is reliable, and I think it is decidedly reliable.

Then, in considering this, I must bear in mind, as I said before, that to make this lady pay it over again when she has paid it once in good faith, and when Mr. Clark was entitled to it, in justice and equity as between them-to make her do that over again to these people is highly penal. I cannot take any other view of it.

Now, I think that is all the case. I think I have met every point made with great ability and proper industry by my friend, Mr. Rich, and I think the law is against him. I think it would be a reproach to the administration of justice if the law were otherwise. I think the merit of the case, in every aspect, is all with the complainant. No dispute, no complaint, is made of the cost of finishing this-that there was any looseness on the part of Mr. Dixon. He had but $850 to do with to start out, and he did it as cheap as he could. He cut it down to $677, I believe, and as far as he did, he did it to the best advantage. The lady acted in perfect good faith, the architect acted in good faith; there isn't the least reason to believe that he was "laying in," so to speak, with Mr. Clark, to enable him to cheat these people. There is not a particle or glimpse of fraud in the case or of underhanded work, or tickling, as you might say. There isn't anything to lead us to believe that Mr. Dixon did not act in perfectly good faith in giving that certificate. He says he went there to the house and saw it-made a careful inspection-and in his judgment, according to his interpretation as an architect— in his own language, "according to this contract"-the man was

entitled to his $1,000, and what was left out undone was not only what was usually left out undone for the purpose of practically finishing the building without injury to the parts as they went in together, but because he had done $250 worth of work that he need not yet have done.

Now, Mrs. Veitch acted by her architect. She signed the certificate after her architect signed it-no, she did not, in this case, either; she did the other-yes, she did sign it on the back,. because her architect said so. Of course, I do not suppose Mr. Dixon thought he was swearing with a rope around his neck, but if he had misled Mrs. Veitch into endorsing a certificate to be paid by her mortgagee when he ought not to, I don't know where he stands. I don't suppose he thought of it himself; I don't believe he did; but it only shows what traps are laid by a very strict construction of a statute of that kind-a construction that I am unwilling to give it when the parties have acted in perfect good faith. The man that got the money had earned every bit of it and more, too-and nothing was there on the ground to mislead any one of these materialmen and dealers, who are dealing with these plans and specifications and contracts all the time.

I therefore pronounce in favor of the complainant, and that she is entitled to be discharged, this money having been paid into court. And I suppose, too, I must hold she is entitled to take her costs out, and, if Mr. McEwan asks it, a small counsel fee$25 counsel fee.

1 Robbins.

Lederer v. Yule.

SAMUEL L. LEDERER

V.

JOHN YULE, SR., et al., surviving executors and trustees under the will of David L. Lederer, deceased, et al.

[Decided January 28th, 1904. Filed July 9th, 1904.]

1. A misrepresentation by a seller of a patent right will not entitle the purchaser to rescind unless it amounts to an untrue statement of some present fact, and a mere promise or prediction is not sufficient.

2. In a suit by the purchaser of a patent right to a burglar alarm to set aside the sale on the ground of misrepresentation, evidence considered, and held sufficient to show that the seller had falsely represented that a device equally reliable with the sample exhibited by him could be made for a certain price, on which representation the purchaser relied.

3. Plaintiff purchased of defendant a patent right, and at the same time assigned it to defendant as part security for a loan, the same being also secured by a mortgage and a life policy on plaintiff's life. By arrangement with the insurance agent, plaintiff was to have a cash rebate on the first premium on the policy, and by arrangement between the parties the rebate was to come to him through defendant.-Held, that plaintiff's subsequent insistence on payment to him of the rebate by defendant did not amount to an affirmance of the contract of sale, which, as a matter of fact, had been induced by false representations of the seller.

4. Where one who had purchased a patent right, in reliance on false representations of the seller, sought, about a month later, to induce him to take back the patent, but he refused to do so, in a subsequent suit by the purchaser for rescission plaintiff should not be compelled to make any compensation for depreciation in the value of the patent owing to lapse of time.

On final hearing on bill, answer and proofs.

Mr. William J. Briody and Mr. William B. Gourley, for the complainant.

Mr. Jacob W. De Yoe, Mr. Gustav A. Hunziker and Mr. Miller (of the Pennsylvania bar), for the defendants.

67 Eq.

Lederer v. Yule.

PITNEY, V. C. (orally).

This cause was argued the day before yesterday, and I have since read the evidence, and I think that I can dispose of it now as well as to hold it.

I do not think there can be any serious dispute about the law applicable to it, and the facts, I think, are sufficiently clear, so that I shall be no more liable to fall into error by deciding it now than I would if I should hold it.

The suit is brought by Samuel L. Lederer, a resident of Paterson, this state, against the trustees of his father's will and against Nellie McCrea.

The contest is between the complainant and Nellie McCrea, who lives with her father, John McCrea, at Chestnut Hill, a suburb of the city of Philadelphia. The real defendant is the father, John McCrea.

The contract which is called in question by the bill was made with John McCrea, and while the obligation from which the complainant seeks to be relieved was made nominally to Nellie McCrea, yet she took it with notice of and is chargeable with every equity complainant has against it, if any. There is no dispute but that the case must be decided according to the merits as they stood and stand between the complainant and John McCrea.

The particular obligation from which the complainant seeks to be relieved is a promissory note (in the shape of a judgment note), dated December 20th, 1900, executed by him to Nellie McCrea, for $9,000, payable in three years, and secured by a mortgage on the complainant's interest in his father's estate, which is a life interest merely, and the effect of the mortgage was to assign in advance his annual income under his father's will arising from the corpus of his father's estate.

As additional security for that obligation the complainant procured to be issued a life insurance policy for $10,000 on his life, payable to Nellie McCrea. He also assigned to her the certain letters-patent which had been at the same time assigned to him by John McCrea.

The consideration of the judgment note was $3,000 in cash,