1882, show that all matters in controversy in | from the recovery in that case the three paythis suit are the identical matters in controversy ments that did not fall due until after the suit was in the former suit, the plaintiff is estopped by brought, and that therefore the plea of former the verdict and judgment in that suit. recovery in the present case is not a bar to the To these points the Court answered as fol- recovery of a portion of plaintiff's claim not relows:covered in the former action. It is good as to the first payment and its interest." Verdict for the plaintiff in the sum of $363.76, and judgment thereon. Whereupon defendant took this writ, assigning for error, inter alia, the answer to the above points. Valentine Hay (Colborn & Colborn with him), for plaintiff in error. The recovery upon the first action worked an estoppel to any subsequent action on the same Shenk v. Mingle, 13 S. & R. 29. Where the contract is entire and there is a recovery upon such contract, the party cannot maintain a second suit even on clear proof that no evidence was given in the first as to part of the demand in controversy. Hess v. Heeble, 6 S. & R. 57. "These points all refer to the effect to be given to the recovery in the case between the parties at No. 141, November Term, 1878. The question is wholly for the Court to decide on inspection of the whole record and papers. At first glance at the amended declaration, it appeared to us that it was an action to recover the whole amount due on the agreement in default of payment on notes-but the learned Judge (RowE) who tried the case gave it a different interpreta-contract. tion, saying it was not such an action-and we cannot say that he was wrong in the ruling. The first count which sets out the agreement gives no intimation of any default in regard to the giving of the notes, it is only in the conclusion after the various counts that any such intimation is given. The plea and record evidence set up a complete legal excuse for not giving the stipulated notes, and it is so ruled by the Court on the trial, and it is apparent, to wit, the existing liens. This being the case, the plaintiff could only recover in that suit for the payment that was due when he brought his suit on the 25th September, 1878-there was but one payment so due, to wit, the first of $168.75 with its interest. He could not legally recover even that unless, in addition to it being due, the defendant at the time suit was brought had already cut a sufficient proportion of the whole timber to be cut off the tract, to make the defendant safe against the liens-not only for the $25 cash paid, but for this payment of $168.75 that under the terms of the agreement was due at the institution of the suit. I do not see how under the pleadings and admitted facts in that case plaintiff was entitled to recover any more, or how he could recover for the three payments not due. The learned Judge submitted the question to the jury as to whether or not the defendant had at the time of the bringing of the suit, cut a sufficient portion of the timber to entitle the plaintiff to recover anything. J. O. Kimmel, for defendant in error. A recovery of a part of a claim is no bar to a suit for another part not due at the time of first suit. Kane v. Fisher, 2 Watts, 253. March 3, 1884. THE COURT. By the agree ment Hugus sold to Alcott and Waltz "all the timber growing and being upon a tract of land in Addison Township containing two hundred and twelve acres on Cucumber Run, adjoining land of W. J. Barr, which is suitable for staves, ties, and manufacturing into lumber; in consideration whereof said parties of the second part shall pay presently $25, and give their four negotiable notes at three, six, nine, and twelve months in equal sums, to wit, $168.71." Within what period the timber was to be cut and taken is not "Under this instruction the jury must have stated, but the time and mode of payment are found that the proportion of timber cut at the specified. In the first action the plaintiff could time was sufficient to entitle the plaintiff to nearly have recovered the whole contract price, if none all of the first time payment, but not all, as the of the timber had been cut, on the ground that verdict of $200 is a little less than the principal | the defendant had refused to give the notes. Reand interest of the first payment. It is clear fusal to give the notes was a breach of the conthat the instructions of the Court and the find-tract, and the measure of damages could have ings of the jury excluded everything beyond the been nothing less than the whole sum for which first instalment from consideration in that case. the notes were to have been given. Judgment "On an examination of the whole voluminous upon the contract for default in giving the notes record I am of the opinion that the pleadings would have discharged the obligation; it could and the record evidence necessarily excluded not be split into several actions. (Shenk v. Mingle, 13 S. & R. 29.) Had the timber all where a contract is entire and not severable, but been cut before the beginning of that action, one action can be maintained thereon. The the plaintiff could have recovered the contract plaintiff was utterly mistaken if he supposed he price, although had the notes been given only could sustain suits on this contract, from time to one would have been due, for the defendant time during the cutting of the timber by the decould not have time for payment of the money fendant, for such sums as the timber cut was after the breach of contract to give notes. worth measured proportionately to the price of the whole. When he claimed all the purchasemoney on the ground that all the timber had been cut and the notes had been refused, if he proved the claim, he was entitled to a verdict for the whole. After a trial on the merits, the judgment bars another suit for the same thing. The subject of sale consisted of the entire lot of standing timber of a specified quality, and the price to be paid was not apportioned to any item or part thereof, and therefore the contract is entire. (Lucesco Oil Co. v. Brewer, 66 Pa. St. 351.) À gross sum was to be paid for the timber, and the divisible nature of the payment had no effect upon its entirety. The consideration was cash and negotiable notes, presently to be paid and delivered. Although the notes were to become due at different dates, the vendor was entitled to them immediately. This is unlike a case where the first action was defeated by a mere technical objection. Where the merits of the second suit were necessarily excluded from the first, the plaintiff ought not to be barred, as where the judgment set up did not spring from the foundation of the action, but was the consequence of an objection that touched only the plaintiff's then right to sue. (Carmony v. Hoober, 5 Pa. St. 305.) And in covenant where the plaintiff declared for instalments not due as well as those that were due, and the jury expressly found for those due, the recovery was not a bar to an action for an instalment not due at the institution of the first suit. (Kane v. Fisher, 2 Watts, 246.) The plaintiff filed in his first suit a narr. containing common counts, and a special count upon the written contract, averring that the defendant had not paid the several sums of money, nor given said negotiable notes as he had promised to do, or any or either of them, or any part thereof. He filed a statement of claim for the whole amount for which the timber was sold. But the Court instructed the jury that the narr. was not for refusing to give the notes, but for Unfortunately for this plaintiff, his first suit timber actually taken by the defendant, under was not brought for an instalment of purchasethe agreement, prior to September 25, 1878; money, payable at a certain date; it was for the that if the defendant had cut all the timber prior purchase money on an entire contract, and the to that date he must pay the whole considera- judgment for a small fraction of his demand distion; and if the defendant cut the trees on this charged the obligation. Even where a demand Hugus land both before and after the 25th Sep-orignally consisted of distinct parts and the tember, 1878, he is to pay for what he cut before plaintiff chose to have it tried as if entire, but that date, and according to the price fixed in the recovered only a part, he is barred from recoveragreement." Neither the pleadings nor instruc-ing the other in a second action. (Hess v. tions of the Court show that the plaintiff claimed Heeble, 6 S. & R. 57.) We conclude with the a specific part of the consideration for which the final remark of Justice GIBSON in that case: "I note at three months was to be given; on the am aware that this decision may bear hard on the contrary, both show that he claimed the whole. justice of the cause, and I regret it: but it is The plaintiff presented his allegations and proofs peculiarly the province of a court of error to in his own way; whether the ruling of the Court hold the rule steady and see that the particular was right or wrong is not now a question, for the equity of a case does not prevail over the law." judgment stands unimpeached. Judgment reversed. Opinion by TRUNKEY, J. CLARK, J., absent. Here the narr. contains common counts, and a special count upon the same contract. The foundation for recovery in the former suit was the same as it is in this, and that judgment is a conclusive bar to another recovery. (Corbet v. Evans, 25 Pa. St. 310.) Whether the former claim was based on the breach for not giving the notes, or on the price of the timber according to the agreement, it was upon the contract. If for the default in not giving the notes, and it were clear that the verdict was only for one of them, he could not recover the amount of the others in a second suit. (Logan v. Caffrey, 30 Pa. St. 196.) No principle is better settled than that W. M. S., Jr. Bill in equity, wherein David Brown and fifteen others, members of King Solomon's Tabernacle, No. 6, United Order of Brothers and Sisters of Love and Charity, suing for themselves and such others as are or may become C. P. No. 3. members of said Tabernacle, the complainants, and James Griffin, Sarah Gordon, and the Western Saving Fund Society, were respondents. For the allegations of the bill see the report of the proceedings had on the demurrer thereto. The demurrer was overruled. (13 WEEKLY NOTES, 91.) The respondents, save Griffin, by their answers submitted themselves to the Court. Griffin by his answer in substance, inter alia, alleged, and by proof or admission established, that the said association, in June, 1876, united itself and became subject to the Union Grand Tabernacle of the Order of Brothers and Sisters of Love and Charity, whose constitution provided it should "have the sole government and superintendence of all subordinate tabernacles." The other facts, as admitted by the answer or established by the proofs, were, inter alia, that in pursuance of a rule of the Western Saving Fund Society, the King Solomon's Tabernacle No. 6, etc., an unincorporated association, not a charity, composed of the complainants and respondents Griffin and Gordon, had appointed the said Griffin and Gordon trustees for itself of I. T. M. March 22, 1884. Spielman v. Oil Co. Costs in equity-Injunction affidavits. In equity. Sur defendant's appeal from prothonotary's taxation of costs. The Master had reported a decree placing the costs upon the defendant. The prothonotary's taxation of costs, among other items, contained allowances for two injunction affidavits as follows: 66 66 66 .90. "Injunction affidavit 1st page, 32 lines @ 10 cents, $3.20. Quay v. Quay, I Chester Co. Rep. 489. THE COURT. Let the costs allowed for the its deposits in said fund. They subsequently, injunction affidavits be struck out. at a meeting duly held in 1881, discharged the said trustees, and elected one Shire and one Young in their stead; but Griffin and Gordon, nevertheless, refused to deliver the depositbook to the complainants, and to transfer the said deposits to the new trustees, Shire and Young. The second prayer of the bill was, "that the said . . . Griffin and . . . Gordon be decreed to return the said deposit-book to your A. M. B. Affidavit of defence law-What is a proper copy of book entries. Sur rule for judgment for want of a sufficient affidavit of defence. The copy of book entries filed contained "1883, May 2d, Fowler & Yarnall. Deceit Trespass on the case for-Pleading- In the first count of the declaration it was in substance alleged, that for five hundred dollars, on the 17th of February, 1882, and for one thousand dollars, on the 22d of September, 1882, paid S. by W., the said S., on the last-mentioned day, purported to assign and agreed to deliver to W., out of the first issue to S., certain bonds of the G. Company, and represented that said bonds were then due him from said company, and that he had no doubt they would be deliverable within ten days; that W. paid said money on the faith of said representations, and demanded, etc., but never received any of the said bonds; that none of the said bonds are, or ever were, due S.; that he knew this fact when he made the said representation, and that he intended to and did defraud, etc., W. of the said fifteen hundred dollars. 5 Boxes Rudy Soap 5-100.. 500 at 434, 23.75" The defendant's affidavit set forth that the copy filed was not such a copy of book of original entries as would entitle the plaintiff to judgment. Broadhurst showed cause. This was not such an entry as would entitle the plaintiffs to judgment for want of an affidavit of defence. There is no charge made. Fowler and Yarnall are not charged. Judge MITCHELL, in Farrell v. Baxter (11 WEEKLY NOTES, 400), says, that it is well settled that a copy of book entries must charge the defendant. Uhler v. Kohler, 2 WEEKLY NOTES, 67. In Farrell v. Barber no names were mentioned in the entry. Here Fowler & Yarnall distinctly appear. THE COURT. Rule absolute. The second count differed in substance from the first only in alleging that W. paid S. all of the fifteen hundred dollars on the 22d of Sep- C. P. No. 3. tember, 1882. The defendant demurred, assigning as cause thereof, inter alia, and in substance: (1) That the alleged fraudulent representations were merely promises for future conduct; and (2) that part of the consideration is stated to have been paid before said representations were made. Diehl, for the demurrer. In analogy to cheating by false pretences the misrepresentation must be of existing facts. [HARE, P. J. A promise may be so worded. as to amount to such a misrepresentation.] As part of the consideration was paid before the misrepresentation, there is no injury therefrom. Michener, contra. We aver an agreement to sell bonds, accompanied by a false representation that the seller was then entitled to said bonds. The second count avers paying all our money at the time of the representation. The demurrer is general, and falls if either count is good. THE COURT. Demurrer overruled. I. T. M. A. B. W. Feb. 9, 1884. Atkinson & Co. v. Harper. Affidavit of defence law-Sufficiency of copy filed-Book entries unintelligible to the defendant Charges stated in the customary manner. Rule for judgment for want of a sufficient affidavit of defence. The copy of book entries filed was as follows: H. Harper, July 7, 1883. To Atkinson & Co., Providence, R. I. % doz. 6006 Tail Pin, $5.50 per doz., $0.913. 66 66 6007 66 6008 9123. 912/3. correctly stated against deponent, and that the v. Hettrick, 5 P. F. S. 292; Sipes v. Mann, 3 same is unintelligible to him." Josiah R. Adams, for rule. De Forest Ballou, contra. THE COURT. There is no allegation that the charges are not stated in the manner customary among jewellers. That is all that can be required. Rule absolute. A. M. B. Wr. 416.) In deference to the knowledge on their part of the special relief which their situation calls for, a liberal choice is accorded to the beneficiaries; where the estate will permit it, they may select either goods or money or land. But their option lies between these species of property in the shape in which they passed from the hands of the decedent, and it is in no sense a lien which will attach to the proceeds arising from their sale. The choice must be specific, and the property chosen must be identified and valued by an appraisement. Where these formalities, or more correctly, these requisites, have been disregarded, no considerations of hardship have as yet relaxed the rigidity of the rule. (Williams's Appeal, 10 Nor. 69.) In that instance, the decedent's personal property was sold within two months after his death, and before a guardian was appointed for his children. The latter, a few days after he had qualified, applied for the exemption on behalf of his wards, and February 19, 1884. his claim was declared to be too late. The Act of 4th of June, 1883 (P. L. 74), now compels Decedent's estate-Petition for exemption-Ap-under fourteen years of age, by the guardian or the selection of property for the use of minors plication for by executor and guardian, who has sold testator's effects shortly after his death, without taking any inventory, when the rights of creditors may have intervened, is too late, but he is answerable to the minors for any loss his neglect has caused—Act of June 4, 1883. Orphans' Court. Schada's Estate. Sur petition for exemption. The petition of Frank, Ernst, and Carl, minor children of Oscar Schada, the decedent, by their testamentary guardian, Richard Snyder, who was also executor of the estate, represented that the said Oscar, their father, died in October, 1883, leaving no widow. The prayer of the petition was that the said minors might retain personal property amounting to fifty dollars and cash amounting to two hundred and fifty in accordance with the Act of April 14, 1851 (Purd. 416, pl. 60). To this petition exceptions were filed on behalf of certain creditors of the decedent, the substance of which is given in full in the opinion of the Court (infra). John Dolman, for the minors. Reed & Pettit, for the creditors, exceptants. March, 1884. THE COURT. The decisions under the Acts granting exemption out of the estate of a decedent, to the widow or children, have left in no uncertainty the purpose of the Legislature or the methods of securing the benefits which they intended. The purpose was to provide for the immediate needs of a family which had lost its protector by death. (Hettrick under fourteen years of age, by the guardian or [The practice under the Act of June 4, 1883 (P. L. 74), is indicated in Welsh's Estate, 14 WEEKLY NOTES, 175.] W. L. S. |