tion, and that the matter in dispute must first be determined in the law side of the court. Should then the bill be dismissed? The act of June 7, 1907, P. L. 440, in relation to equity proceedings wherein it is alleged, or might have been alleged there was an adequate remedy at law, section two, inter alia, provides as follows: "If the court shall decide that the suit should have been brought at law, it shall certify the cause to the law side of the court, at the costs of the plaintiff."

In accordance with the above provisions of the act of 1907, we decide this is a proceeding where a suit should irs, be brought at law, and should, therefore, be certified to the law side of the court, at the costs of the complainant.

Now, September 1922, under the provision of the act of June 7th, 1907, P. L. 440, the court having reached the conclusion a court of equity has no jurisdiet on; it further appearing plaintiff has an adequate remedy at law, and that this suit should have been brought at law, the court certifies the cause to the law side of the court, at the costs of the plaintiff. The Prothonotary to give written notice to all the parties to this proceeding within fifteen days of the filing of this opinion and this certification.

MT. POCONO HOSPITAL v. JENNINGS.
Contract-Sale-Executory Contract.

Where owner of personal property entered into a contract whereby the title to same was to be transferred to another, which contract was placed in escrow, it was held, in an interpleader issue, that there was no sale and delivery, prior to a sheriff's levy, of the property in dispute, the contract remaining executory.

In the Court of Common Pleas of Monroe County. No. 76 February term, 1916. Fi. Fa. No. 12 May term, 1916. Mount Pocono Hospital and Sanitorium, a Corporation v. Clara E. Jennings, now to the use of The Security Trust Company of Stroudsburg, Trustee, Execution Plaintiff, and Albert J. Winebrake, Execution Defendant. Sheriff's Interpleader. Judgment nisi against Plaintiff.

Palmer and Bensinger, for Plaintiff.

F. B. Holmes and J. B. Williams, for Defendants.

Groman, P. J., 31st Jud. Dist., Specially Presiding.
FINDINGS OF FACTS.

1. Clara E. Jennings was the owner of certain mesSuages, tenements and tract or pieces of land situate in the County of Monroe, State of Pennsylvania, whereon was erected Hawthorn Cottage and other buildings. The furniture and other personal property, more fully described in an inventory filed in this proceeding, was found on the premises.

2. Clara E. Jennings and her husband, Ryerson Jennings, on March 15th, 1915, entered into a written agreement to sell, grant or convey to Alfred J. Winebrake, the real estate as well as the personal property hereinbefore referred to, the consideration being $70,000, to be paid as follows: $1,000, March 15th, 1915; $9,000, April 1st, 1915; and the balance to be secured by bond and purchase money mortgage due February 1st, 1917.

3. The agreement was later modified by increasing the purchase money mortgage to $62,000. A bill of sale for all the goods and chattels on said premises in the Inn, cottages and other buildings was executed in favor of Alfred J. Winebrake, under date of April 1st, 1915.

4. The deed, conveying said real estate to Alfred J. Winebrake, from Ryerson W. Jennings and Clara E. Jonnings, his wife, was delivered on or about July 13th, 1915

5. Alfred J. Winebrake at the same time delivered a bond and purchase money mortgage to Clara E. Jennings to secure the sum of $62,000, the balance of the purchase money due.

6. The deed and mortgage above referred to, were duly entered of record in the office for the Recording of Deeds for the County of Monroe.

7. Alfred J. Winebrake took possession of the real estate as well as of the personal property.

8. The aforesaid mortgage and accompanying bond was assigned by Clara E. Jennings to the Security Trust Company of Stroudsburg, Trustee.

9. Alfred J. Winebrake, failing to comply with the terms of the bond and mortgage, judgment was entered on the bond in the Court of Common Pleas of Monroe

County as of No. 76 February Term 1916, and Fi Fa. issued thereon to No. 12 May Term, 1916.

10. The Sheriff levied upon the personal property found on the premises in and about Hawthorn Inn and cottage, and proceeded to advertise the same for sale.

11. The Mount Pocono Hospital and Sanitorium served written notice on the Sheriff that the personal property levied upon, was not the property of Alfred J. Winebrake, but was the property of the aforesaid Sanitorium.

12. A rule to interplead was issued, and finally was made absolute.

13. There was no sale and delivery by Alfred J. Winebrake to the claimant of the personal property in dispute, prior to the levy made by the sheriff.

14. No sale of the said personal property was consummated by a valid delivery of the same by Alfred J. Winebrake to the Mount Pocono Hospital and Sanitorium.

15. The plaintiff is not entitled to recover.

CONCLUSIONS OF LAW.

The outstanding question going to the very marrow of the matter herein involved is, was there or was there not a sale of the personal property to the Sanitorium? From the testimony of J. B. Williams and A. J. Winebrake, it appears A. J. Winebrake, after securing title to the real estate and personal property of Mr. and Mrs. Jennings, entered into an agreement and arrangement whereby the title to the same was to be conveyed to the Sonitorium. The necessary papers, including the bill of sale from Winebrake to the Sanitorium were placed in escrow and are still in escrow so far as the testimony is concerned. The title to the personal property is still in Dr. Winebrake. The transaction, as to the personal property, was in the nature of an executory sale, and title would not pass until the terms of sale were compiled with, or delivery of possession had: Brown v. McCaffrey & Sons, 3 Pa. Sup. Ct., page 431. To constitute a valid delivery, there must be an intent on the part of the vendor to deliver, and an intent on the part of the vendee to receive: Goss Printing Press Co. v. Jordan, 171 Pa. St.. page 474.

Having reached the conclusion that the Sanitorium had no title to the personal property, the other questions raised need not be discussed. The court is of the opinion plaintiff cannot recover, and that a verdict for defendant should be entered.

Now July 1922, it is ordered that the Prothonotary forthwith give written notice to the parties in interest, or their attorneys, of the filing of this decision, and if no exceptions thereto be filed in the Prothonotary's Office within thirty days after the service of said notice, judgment is hereby directed to be entered in favor of the defendant and against the plaintiff for the costs legally taxable in this proceeding.

DIEFENDERFER v. BUTTERWECK.

Contracts-Payment-Application of Payment-Case for Jury.

Plaintiff contracted for the painting of houses at a certain price per house. Besides this, the owner of the houses was otherwise indebted to plaintiff. In settlement of all indebtedness the owner conveyed a house to plaintiff at a certain value, and the owner paid to plaintiff the balance partly in cash and partly by check marked "payable of acct. in full to date." Afterwards it appeared that the property conveyed was subject to an undisclosed mortgage, although represented by owner to be free of all incumbrances.

On scire facias sur mechanics' lien, filed by plaintiff against one of these houses, (the verdict of the jury having determined the fact that plaintiff was deceived by fraudulent representations and was not bound by the receipt on the check), the terre-tenant contended that the lien should be reduced in the proportion that the balance paid plaintiff in cash and by said check bore to the total indebtedness, on the ground that the parties had made an appropriation of the payments.

Held, that, while there was an appropriation of the payments to the account, there was no evidence showing either the nature and character of the items of the account, or the intention of the debtor at the time of payment, and that, therefore, there was not sufficient evidence to submit to a jury upon the question as to what were the terms of the appropriation.

In the Court of Common Pleas of Lehigh County. No. 13 October term, 1921. Earl T. Diefenderfer v. Harry A. Butterweck, owner or reputed owner and contractor, with notice to Michael D. Jones, alleged owner, and with notice to Charles O. Hunsicker, trustee in bankruptcy of Harry A. Butterweck. Sci. Fa. sur Mechanics' Lien. Motion for New Trial and for Judgment, n. o. v. Overruled and Discharged.

Thomas F. Diefenderfer and Oliver W. Frey, for Plaintiff.

Aubrey, Steckel & Senger and John L. Cutshall, for Defendant Terre-tenant.

Reno, J., July 18, 1922. Upon the trial of the scire facias sur mechanics lien defense was made by the terre tenant Jones. At the argument of motions for new trial and for judgment n. o. v. he abandoned all of his numerous contentions except that the claim of plaintiff had been partially paid.

The verdict establishes that plainiff had ten separate contracts with Butterweck for the painting of ten houses comprising a row of houses on South West Street, one of which was purchased by the terre tenant. The contract price was $192 per house or a total of $1,920. On October 13, 1920, Butterweck was indebted to plaintiff in the sum of $4,158.20, consisting of various items for work and materials furnished by plaintiff on a number of buildings which Butterweck had erected on South West Street and elsewhere, included in which was the aforesaid sum of $1,920. In settlement of that indebtedness Butterweck on October 23, 1920, conveyed a house to plaintiff at a valuation of $5,200 against which plaintiff gave a mortgage to Tilghman Newhard for $2,500, the proceeds of which were received and retained by Butterweck, leaving the net return to plaintiff upon that transaction of $2,700, and thereby reducing the indebtedness due plaintiff to $1,458.20. In payment of that balance Butterweck on October 23, 1920, paid plaintiff $200 in cash and $1,258.20 by check dated November 17, 1920, and marked "payment of acct. in full to date." This check plaintiff accepted and Butterweck entered it upon his books as a credit against all of the items of debit. At the trial plaintiff contended that this settlement and the acceptance of the check was induced by fraudulent representations by Butterweck to the effect that the house was free of all incumbrances, when, as a matter of fact, it was subject to a mortgage of $3,000 given by Butterweck and that, therefore, not withstanding the acceptance of the check so marked, plaintiff was entitled to maintain his lien. This question was submited to the jury and its verdict sustains the contention