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been paid for them. It is argued that this was a violation of section 39 of the act, hereinafter quoted, and that since there is no right to the exercise of the seller's lien or of stoppage in transit of goods covered by an order bill the act of the shipper is not a lawful excuse. Section 39, follows: "Where an order bill has been issued for goods no seller's lien or right of stoppage in transitu, shall defeat the rights of any purchaser for value in good faith to whom such bill has been negotiated whether such negotiation shall be prior or subsequent to the notification to the carrier who issued such bill of the seller's claim to a lien or right of stoppage in transitu; nor shall the carrier be obliged to deliver or justified in delivering the goods to an unpaid seller unless such bill is first surrendered for cancellation." It will be observed that this section contains two distinct sentences and that the goods not having been delivered by the carrier to the shipper, the second sentence does not apply to the instant case. The first sentence protects the holder against the exercise of the right of stoppage in transitu by providing that the holder's rights shall not be thereby defeated. But what are the rights which shall not be thus defeated? It is easy to answer that the holder has a right to reasonably prompt transportation of the goods covered by the bill. Unquestionably that is his right. But certainly that right can be extinguished or altered by a contract between the shipper and the carrier to which contract the holder becoms a party by purchase of the bill. It may be conceded that the holder has a right as against the carrier to reasonably prompt transportation but this concession cannot alter the fact that the very same document whereby the holder comes into the possession of that right also provides that the carrier should not be held responsible for damages caused by the act of the shipper.

In the consideration of this question we have not been unmindful of the manifest intention of the framers of the act. Undoubtedly its purpose was to afford a large measure of protection to purchasers of and lenders upon this class of securities: See Report of Senate Committee on Interstate Commerce, quoted: 1 Roberts Federal Liabilities of Carriers, section 351. But if it was the intention to give to the holder a right against the carrier superior to the right of the shipper the legislation is, in our

judgment, ineffectual to that end. Indeed it is to be questioned whether that was the end sought; for, following the example of the Supreme Court, (Miles' Estate 272 Pa. 339) we have examined the minutes of the proceedings of the Senate Committee in charge of the legislation and we are pursuaded that the intention of the original draftsman is borne out in the construction which we have given to the act. The following colloquy between Senator Pomerene and Professor Williston is illuminating:

Senator Pomerene: Your position is that in that respect then the transferee of the bill of lading will be essentially different from that of the original consignor? Professor Williston: A bill of lading is both a contract and a symbol of title to the goods. In so far as it is a contract it is a contract of the railroad company and B (the transferee) gets the contract rights which the consignor bargains for against the railroad company.

It has been suggested that the carrier having accepted the goods for transportation at a future time should not have issued a bill of lading, and, in lieu thereof and pending transportation it should have issued a warehouse receipt. Without undertaking to decide this question it is a sufficient answer that the present suit is founded upon the bill of lading. The same answer must be made to the contention that the act of the carrier in holding the goods constituted a conversion of them. The action was in assumpsit. The bill of lading was introduced in evidence by plaintiff. Recovery was sought by virtue of it. The contractual relation between the parties was the basis of the suit. It requires no citation of authorities to support the proposition that a plaintiff, even in an action instituted before a Justice of the Peace, cannot recover damages for a tortious conversion of goods in an action founded upon contract. Our conclusion is that in a suit upon a bill of lading instituted by the holder thereof against the carrier, such holder is bound by the terms thereof and that if the damage complained of was due to the act of the shipper the clause of the bill exempting the carrier for damages caused by the act of the shipper will prevent recovery. Accordingly the rulings of Judge Henninger at the trial were correct, and,

Now May 15, 1922, motions for new trial and for judgment n. o. v. are overruled and dismissed.

LEHIGH VALLEY N. BANK v. CRAIG.

Married Women-Husband and Wife-Principal and Surety.

Judgment-Opening-Evidence.

A married woman seeking to have a judgment against her opened on the ground that she was an accommodation maker is obliged to establish a case by testimony that is clear, precise and indubitable. It is an application addressed to the equitable powers of the court, which may not act at all unless there is more than oath against oath.

The testimony of the petitioner establishing beyond all doubt that she did not receive any part of the proceeds of the promissory note to which the judgment was collateral, and showing that she has repaid to her husband all moneys expended on her behalf and on her property, is not rendered dubitable by other testimony showing her declaration, after the note was given, that it was given to her husband to repay him for money she owed him for improvements on her own property.

In the Court of Common Pleas of Lehigh County. Lehigh Valley National Bank v. Addie I. Craig and J. R. Craig. Rule to open judgment. Rule absolute.

Adams Dodson, for Plaintiff.

Harry C. Cope, for Addie I. Craig, Defendant and Petitioner.

Reno, J., May 15, 1922. Judgment was entered by virtue of a warrant of confession contained in a note signed by Addie I. Craig and her husband, J. R. Craig in the sum of $600.00. The wife prays that the judgment may be opened as to her, alleging that she is an accommodation maker of the judgment note which was given to the Lehigh Valley National Bank as collateral security for a promissory note of like amount payable to Joseph R. Craig, her husband, at the Lehigh Valley National Bank and signed by Addie I. Craig; that she signed the said notes at his importunity, for his sole benefit, without consideration and that no part of the proceeds thereof was paid or given or intended to be paid to the petitioner nor used in any trade or business in which she was engaged nor in the improvement of her separate estate nor for necessaries furnished to her. The answer of the Lehigh Valley National Bank avers that the money realized from the discount of said note was used in the improvement of the separate estate of Addie I. Craig whereby the rental value of the same was increased and a part of her estate which was improved by the expenditure of the money realized from the discount of said note was after the en

dorsement thereof rented for a far greater sum than had been previously realized therefor.

The law of the case is comparatively free from difficulty. It is no longer the exception, but the rule that the contract of a married woman is valid. Hence when she alleges that the contract is invalid the burden of establishing her incapacity is upon her: Atkins v. Grist, 44 Pa. Superior Ct. R. 310; Good Hope Building and Loan Association v. Amweg, 22 Id., 143; Humphreys v. Logan, 242 Pa. 427; Farmers and Merchants Bank v. Donnelly, 247 Pa. 518. When judgment has been entered upon her engagement and she seeks to have it opened because of her incapacity she is obliged to establish a case within the exemptive provisions of the law by testimony that is clear, precise and indubitable: Cloud v. Markle, 185 Pa. Pa. 614. The application is addressed to the equitable powers of the court: Kneedler's Appeal, 92 Pa. 428; Wise's Appeal, 99 Pa. 193; the judge acts as chancellor and may not act at all unless there is more than oath against oath: Jenkintown National Bank's Appeal, 124 Pa. 337: and this rule remains unaltered by the act of May 28, 1913 (P. L. 358): Shaub v. Shaub, 71 Pa. Superior Ct. R. 456.

But the facts are not so clear. Depositions have been taken but the testimony is in hopeless conflict. Not only is there conflict between the witnesses themselves, but also between various answers of the same witnesses. But the petitioner has established beyond all doubt that she did not receive any part of the proceeds of the promissary note to which the judgment note was collateral. Indeed, no effort was made by the plaintiff to show that fact. But it did endeavor to show that when the note was signed by petitioner she was indebted to her husband for sums of money which he had previously expended in the improve. ment of her real estate, and the whole controversy revolves about the truth of that assertion. Unquestionably the wife's real estate was improved but the petitioner claims that she has repaid to her husband all of the moneys which he expended for that purpose, and with respect to that fact her testimony is positive, exact and apparently truthful. On the other hand, her husband who was called on her behalf, testifies that she was indebted to him but his testimony is entitled to little credence. At

one point he testifies that she owed him $237.00; at another point he swears that "the $600.00 did not pay what she owed" him; and at another point he asserted that the indebtedness amounted to $2340; and still further on that she "owed 2340.00 plus 237.00." Manifestly such testimony is not helpful in determining the question before us; especially so, since the witness admitted that before taking the oath as witness he had informed petitioner's counsel that his wife owed him nothing. The testimony of plaintiff's cashier cannot be so readily swept aside. Called on behalf of the petitioner he swears positively, on examination for plaintiff, that the petitioner stated to him at the plaintiff's banking house, sometime after the making of the original note and after it had been several times renewed, that the note was given to her husband "to repay him for money that she owed him for changing the stable into a dwelling house." Here is an unequivocal acknowledgment by the wife that the note was in payment of debts due for the improvement of her separate estate. But what effect is to be given to this testimony? Are we required to hold that it constitutes "an oath against the oath" of the petitioner and leaves us powerless to act? At first blush, the impression created by the testimony is precisely that. But in view of the doctrine of Murray v. McDonald, 236 Pa. 26, we doubt whether we may so hold. There the judgment note contained these words: "And I, Martha McDonald, do hereby certify that this note is given for my personal use and benefit and for the improvement of my separate estate and that I do not make it as accommodation endorser, maker, guarantor or surety for any other person." It having been shown that the husband received the proceeds of the note and applied them to his own purposes, that no portion was expended for the benefit of the wife or in the improvement of her estate and that it was signed at his request, the judgment was opened. In other words, the solemn written certificate of the wife counted for nothing as against the positive proof that she received no consideration for her signature. If such a certificate avails nothing how can testimony of an oral statement made after the loan had been consummated weigh against her positive evidence that she received none of the proceeds? In the one instance it is easy to suppose that the loan was made, partially at least,

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