It seems clear to us that the offer was prop erly rejected. Specifically all the coal previously delivered up to June, 1892, was paid for in full by the plaintiff. Beyond all question, this was a voluntary payment, which could not be recovered back, under all the authorities; and this proposition is not controverted by the appellants. On the contrary, appellants' counsel admit that one who pays a bill cannot recover back the amount paid because it was paid with a protest that it was unjust, or declared to the creditor that he would set it off against the next transaction he had with him. But appellants argue that this is not such a case, because the contract is a continuing one, and the payment made did not close the transaction. We do not perceive the force of this contention. As we said before, the contract specifically provided that there should be settlements on the 15th of every month for all coal delivered up to the 1st of the month; so that it cannot be said that the contract left open, or intended to leave open, all the transactions under it until the end of the business done under its terms. There were to be settlements, and they were to occur every month, and they were to include all coal delivered before the 1st of the month. We can only understand this to mean that the amounts owing by the defendants to the plaintiff were to be fixed, determined, adjusted, settled, at the middle of the month,

for all coal delivered before the 1st of the month. We cannot hold that these parties, having used such language, meant really its opposite; that is, that although these monthly settlements were actually made, and the amounts to be paid definitely ascertained and actually paid, those preceding deliveries still remained open, subject to any kind of controversy which either party might choose to set up subsequently, throwing open the whole subject of the deliveries, which would necessarily include the amount and quality of the coal delivered, the prices to be paid, and all matters affecting those questions. We could not possibly so hold without disregarding the plain meaning of the words of the contract, and also its manifest spirit and purpose. The subject seems really too plain for argument. There was no element of duress about such payinents, and there was no pretense of any mistake or fraud in the settlement. It seems unnecessary to pursue the subject further. The assignments of error are dismissed. Judgment affirmed.

VINCENT v. WOODLAND OIL CO. (Supreme Court of Pennsylvania. Jan. 7, 1895.)

BROKERS CHANGE OF PRICE BY PRINCIPAL
COMMISSIONS-COMPENSATION.

Defendant authorized plaintiff to sell certain oil property at a "present price" of $150,000, which authority was shown by plain

tiff to E., to whom plaintiff offered the property on a Monday. On Wednesday plaintiff telegraphed defendant that E. would go on the property Friday, and defendant, on the same Wednesday, telegraphed back, "Must have an answer before to-night." On Thursday defendant told plaintiff that a new well had come in, and the price had been advanced. When the property was offered to E. on Monday he said if the property was as represented he would purchase, and he testified that he sent his superintendent to investigate the property, and concluded to buy it at the price of $150,000. Held, that as E. was not entitled to any time in which to accept or reject the offer, and as it was not accepted absolutely before plaintiff was notified of the change of price, there was no sale, and plaintiff was entitled to no commissions; though, if there was no agreement that his services were to be paid for on the contingency of his making a sale before his authority was revoked, he was entitled to proper compensation for his time, labor, and expenses.

Appeal from court of common pleas, Allegheny county.

Action by James W. Vincent against the Woodland Oil Company for commissions for sale of oil property. Judgment for plaintiff. Defendant appeals. Reversed.

Walter Lyon, Charles H. McKee, and John F. Sanderson, for appellant. A. Leo. Weil, for appellee.

MITCHELL, J. The learned judge left to the jury whether any sale was made by the plaintiff before notification of the change of price, and in doing so he charged them, by affirming plaintiff's third point, that the Eastern Oil Company, as purchasers, "were entitled to a reasonable time in which to accept or reject the proposition, and what was such reasonable time is a question of fact for the jury." The same principle runs through the charge as pointed out in the assignments of error, and it is plain that the finding of the jury was based upon that view of the case. But the direction was erroneous, and the undisputed facts show that there was no such sale. An offer, without more, is an offer in the present, to be accepted or refused when made. There is no time which a jury may consider reasonable or otherwise for the other party to consider it, except by the agreement or concession of the party making it. Until it is accepted, it may be withdrawn, though that be at the next instant after it is made, and a subsequent acceptance will be of no avail. The circumstances here show conclusively that the defendant's offer was not an open or continuing one. Time was not only of the essence of it, but was intended to be urgent. The nature of the property, as oil, producing, made it liable to fluctuations in value which raise a presumption that time was of the essence of transactions concerning it; and the facts in regard to the wells in the immediate vicinity then going down show that a new development at any hour might materially affect its value, and that this was understood by the parties. The written au thority to the plaintiff was to offer it at a "present price," and this was shown to the intended purchasers, and was notice to the

that the price was likely at any moment to be changed. The plaintiff made the offer to the Eastern Company on Monday. On Wednesday plaintiff telegraphed defendant that the purchaser would "go on the property on Friday," and the same day (Wednesday) defendant telegraphed back to plaintiff, "Must have an answer before to-night." On Thurs day plaintiff returned to Pittsburgh, and was told by defendant that in the meantime an other well had come in, and the price of the property had been advanced. Was there any evidence on which the jury should have been allowed to find that there had been a sale made previous to this notice to plaintiff of the change in price? We do not find any. There had been no present acceptance of the offer by the Eastern Oil Company. Plaintiff testified: "They said if the property was as it was represented they would purchase;" and Forman, the president of the Eastern Company, said: "We sent our superintendent to investigate the property, and concluded to buy it at the price of $150,000 named." This is substantially all there is on the subject, and it shows that at no time previous to the examination of the property had the Eastern Company accepted the offer, or given anything but a conditional promise to accept thereafter, if in their judgment the property came up to the description. Before they had done so the defendant withdrew the offer. There never was the essential basis of a contract of sale,-the concurrence of the two minds at the same time. There is nothing in the case of Middleton v. Thompson, 163 Pa. St. 112, 29 Atl. 796, which conflicts with these views. It was there held that a broker has certain implied authority in regard to representations as to the title of his principal, and as to the examination of it by the intending purchaser. So it may be freely conceded here that plaintiff had authority to stipulate that the property should be as it was described, and if the Eastern Company had accepted the offer, subject to such condition, the contract would have been complete, although conditional, and no new conditions could have been added, except by consent of both. But, as already seen, there was no acceptance at all prior to the withdrawal of the offer. In Middleton v. Thompson there was no question of revocation of the agent's authority. Here the whole case turns on the effect of such revocation by the alteration of the terms on which he was authorized to sell. There having been no performance of the plaintiff's undertaking to sell, nor what would, for the purposes of this case, be equivalent, the procuring of a purchaser on the stipulated terms while they were in force,the plaintiff cannot recover commissions as such; but, so far as at present appears, there was no agreement that his services were to be rendered on a mere contingency, and, his authority having been revoked for no fault of his. he may be entitled to proper compen sation for his time, labor, and expenses in

GARNISHMENT-RIGHTS OF GARNISHEE.

Where C., with knowledge that a debt of his to O. had been attached by H. as creditor of O., paid over money to O., and took an indemnity bond reciting that C. had in his hands such amount of money, retained by him under a claim for forfeiture; that he proposed to release such claim, and pay the money to O.. on condition that O. apply it to payment of claims against him on account of the work O. had done for C., and save C. harmless from any attachment, especially that of H.; and reciting that O. agreed to accept the money on account of his claim against C. and on such condition,

C. cannot claim, as against H., that he did not have in his hands, subject to the attachment, the amount paid to O. Sterrett, C. J., dissenting.

Appeal from court of common pleas, Allegheny county.

Action by Rachel Humphrey against R. O'Donnell and another, defendants, and the Crescent Pipe-Line Company, garnishee. Judgment for plaintiff, and garnishee ap peals. Affirmed.

J. McF. Carpenter, for appellant. G. W. McLean and J. M. Shields, for appellee.

GREEN, J. The bond of indemnity given by the defendant O'Donnell, with surety, to the Crescent Pipe-Line Company, contains the following recital: "And whereas, the said the Crescent Pipe-Line Company has in its hands certain moneys, amounting to twenty-four hundred forty-seven dollars and fiftyeight cents, retained by it in its hands under a claim for forfeiture, which claim it now proposes to release, and pay over said money to said O'Donnell, upon the condition that he shall forthwith apply the same to the payment of claims against him along the line of said work so far as said money will go." It is simply impossible to regard this recital as anything less than an absolute assertion that at the date of the bond, April 17, 1893, the Crescent Pipe-Line Company had in its hands $2,447.58 under a claim for forfeiture, which claim that company proposed to release, and pay over the money to O'Donnell, upon condition that he would pay it over at once in payment of claims against him along the line of the work he had been doing for the company on a contract which was previously recited in the bond. In the next clause of the bond O'Donnell agreed to accept the money for the purpose mentiɔned.

"and on account of his claim against said company," but reserving the question as to the amount of moneys coming to him, in the hands of the company, until settlement was made, and agreed to pay all other claims against him for or on account of the work done for him under the contract. The condition of the bond was that if O'Donnell paid, "out of the said moneys now paid to him," all claims against him along the line of the work, "and shall also save and keep harmless the said company from any attachments against it, and especially one in the name of Rachel Humphrey, issued out of the court of common pleas No. 3 of Allegheny county, Pennsylvania, at No. 386 of February term, 1892, then this obligation to be void; otherwise to be and remain in full force and virtue." The bond was delivered to the company, and the $2,447.58 paid to O'Donnell, and on the same day an agreement in writing was executed between O'Donnell and the company to refer to five persons the question as to how much was coming to O'Donnell for extra work on his contract with the company. These persons subsequently made their report, the precise result of which does not appear in the paper books. But the president of the company, W. L. Mellon, being examined, testified that, in addition to the $2,447.58, the company owed O'Donnell "about $395," on the basis of the report of the referees; or, if a certain sum of $125.85 was allowed as extra work, the amount still owing would be $521.52. Now, the attachment in Now, the attachment in execution in this case had been issued and served in January, 1893, and the president, Mr. Mellon, testified that he knew of the attachment at the time of its service, and that the money, $2,447.58, was paid after the attachment was served, and while it was pending.

In addition to that, when the company paid that money, they took a bond of indemnity from O'Donnell, indemnifying them against this very attachment. So that it appears of record that, after the attachment was served, and with a full knowledge of it, the company, having in its hands $2,447.58 for the account of O'Donnell for work done under his contract, unless it was forfeited,but which claim of forfeiture they released, -paid him that money, accepting his agreement to pay it out in a certain way, and a bond of indemnity against this particular writ of attachment in consequence of their payment to him of this money. As to these fundamental facts there was no dispute. The offers of testimony which were rejected could not possibly have mitigated the force or the legal effect of these facts. If the company made a wrong payment or an overpayment to O'Donnell, they can resort to their bond of indemnity, but they cannot defeat the effect of the attachment by paying out money accruing under their contract with him after the service of the writ. Nor can they engage this plaintiff in a contest over the whole merits of their controversy with v.30A.no.21-63

O'Donnell in view of the undisputed fact that they paid to O'Donnell much more money than the whole amount claimed in the attachment, after the writ was issued and served. Whether they chose to regard it as a gift is a matter of no moment. It was money in their hands on account of their contract with O'Donnell, held only under a claim of forfeiture, which they released, and as such it was unquestionably subject to the attachment of his creditor. The assignments of error are all dismissed. Judgment affirmed.

STERRETT, C. J., dissents.

JOHNSON et al. v. GLENN et al. (Court of Appeals of Maryland. Jan. 31, 1895.) MORTGAGE SALE-RIGHT TO COMMISSIONS.

A mortgage containing a power of sale, and authorizing the mortgagee to pay out of the proceeds "all expenses incident to such sale," does not entitle the mortgagee to commissions on the sale.

Appeal from circuit court of Baltimore city. Bill by Bradish W. Johnson and another against John Glenn, Jr., and another. From a decree for defendants, plaintiffs appeal. Reversed.

Argued before ROBINSON, C. J., and BRYAN, McSHERRY, FOWLER, BRISCOE, PAGE, and BOYD, JJ.

F. C. Slingluff, for appellants. Carey & Glenn and Schmucker & Whitelock, for appellees.

BRYAN, J. A mortgage was made in the year 1879, by Helen W. Johnson to John C. Bachus, to secure the payment of $11,000. By mesne conveyances, in course of time, it became vested in John Glenn, Jr., and George Whitelock, the appellees. The assignees have made sale of the mortgaged property, and the only question in this case is whether they are entitled to commissions for making the sale. In case of default, the mortgagee, or John Glenn, his attorney, was authorized by the terms of the mortgage to sell the property, and apply the proceeds of sale, in the first place, "to the payment of all expenses incident to such sale," and afterwards to the money due on the mortgage, etc. The power to sell is derived exclusively from the agreement and contract of the parties to the mortgage. It is made effectual by section 6 of article 66 of the Code of Public General Laws; and by the same enactment it passes to the assignees of the mortgage. Whatever rights the mortgagee or his assignees have in the premises arise from and depend upon the stipulations contained in the mortgage. We must look to that instrument to ascertain their character and extent. If, therefore, the words "all expenses incident to such sale" include commissions, the assignees are entitled to receive them; but not otherwise. The assignees, in making the sale, were acting for their own in

It

terest. But they are, nevertheless, entitled to all expenses which were reasonably necessary and proper to enable them to make an advantageous sale. For instance, they ought to be allowed the services of an auctioneer, and the cost of advertising, and of other reasonable methods of obtaining an adequate price for the property. Such expenses as these may be justly considered as incident to the sale. But the payment of commissions to the assignees for attending to their own business could have no influence in promoting the sale, or in enhancing the price of the property. It would not in any way be accessory to the successful prosecution of the business in hand. would simply be a gratuity for the personal benefit of the assignees. In Rappanier v. Bannon (decided at January term, 1887, but not officially reported) 8 Atl. 555, this court had occasion to consider a claim for commissions made by a mortgagee who had sold the property under a power of sale contained in the mortgage. There was no stipulation between the parties for the payment of commissions, and it was held that they could not be allowed. It was said: "This deed contained the agreement between the parties, and there is no provision in it giving the mortgagee a right to be allowed commissions, nor any language which seems to leave that question with the court. If it had been the purpose of the contracting parties that the mortgagee should be paid the usual trustee's commissions, in the discretion of the court, it was very easy to have so provided." The court below allowed commissions to the assignees. We think that it committed an error, and we must therefore reverse its order. Reversed and remanded.

KIRKLEY v. LACEY, Sheriff. (Superior Court of Delaware. May 6, 1885.) MARRIED WOMEN-PROPERTY RIGHTS-STATUTORY ENACTMENTS-HUSBAND AS AGENT.

1. Under Act April 9, 1873 (c. 550), § 1, as amended by Laws 1875, c. 165, providing "that the real and personal property of any married woman," acquired from a person other than her husband, "shall be her sole and separate property, and the rents, issues, and profits thereof" shall not be liable for his debts, and, by section 4, authorizing her to contract "with respect to her own property" as may be necessary, and to maintain suits "on such contracts as though ***a feme sole," a married woman may engage in mercantile pursuits on her own account, and operate therein through agents.

2. The husband of a married woman engaged in business as a feme sole may act as her agent therein.

3. Where a married woman continued her husband's business with her own or borrowed capital after he became insolvent, the fact that she employed him as her agent shows no intention on their part of defrauding his creditors.

4. The measure of damages, in an action to recover from a sheriff for his wrongful seizure of property on execution, and its sale thereunder, is the amount for which it was sold, with interest thereon from the date of sale.

Action of trespass by Allabeda B. Kirkley against Thomas T. Lacey, as sheriff, to re

cover for his seizure of certain of plaintiff's personal property on executions issued at the suit of creditors of James Kirkley, her husband.

The plaintiff testified that she was engaged in business, her husband, James Kirkley, acting as her agent; that the personal property, consisting of salt hay, taken by the defendant, was her property, bought with her money; and that she had received money at different times from her mother, and had on several occasions borrowed from other parties. There was also evidence of her doing business through her husband as agent, and of the several loans made to her, one of which was by the National Bank of Dover by discount of the indorsed note of "James Kirkley, Agent," the proceeds being placed to his credit in the same style, and checked out in like manner. Other witnesses testified that they had transacted business with James Kirkley during the time in question, and had heard nothing of his acting as agent for his wife; and it was in evidence that the plaintiff was never engaged in business before, and had no means before her marriage with James Kirkley. James Kirkley. Several deeds were offered in evidence of the purchase of real estate by the plaintiff, the prices therefor aggregating several thousand dollars, and more than the sums of money borrowed by her. James Kirkley had been in the business of buying hay for several years, when he failed, and was sold out by the sheriff, after which time the business was claimed to be carried on in the name of and for the plaintiff, but it was, to all appearances, carried on just as before.

John P. Saulsbury and George V. Massey, for plaintiff. J. Alexander Fulton, Edward Ridgely, and James L. Wolcott, for defendant.

WHITELEY, J. (charging jury): This is an action of trespass by plaintiff against Sheriff Lacey for levying on and selling her goods, hay, etc., on executions against her husband and another. Her claim is, as she declares under oath, that the hay levied and sold was hers, her property; and gave account of how she obtained money to buy it after her husband's failure. She borrowed money from Seward-$100-at two different times, from bank, on Swane & Pickering's indorsement, $700; and money from her mother, and rent of farm, sale of wood and rails and posts. S. J. Fowler proves that he was sent by Kirkley to Mrs. Kirkley, the plaintiff, several times, to get money to pay for hay bought by him. Then his declaration to several persons-to all from whom he bought-that he was buying for his wife. Proof of agency by parol and power of attorney. The defendant contends, on the other hand, that the hay was the property of James Kirkley; that the plaintiff's claim is a sham, and a fraud upon James Kirkley's

and all of his property, personal and real, was sold, and he was left indebted thousands of dollars, and that he continued his business the same as he did before the failure, only adding to his name the word "Agent"; that the plaintiff had no means of her own to engage in business, and only derived from loans small sums of money, which were insufficient to carry on such large purchases of hay as were handled by her husband; that the sums she borrowed from the bank and different persons were all absorbed in purchases of real estate which she made; that Kirkley being agent for his wife was unknown to most of the citizens of the neighborhood; that portions of hay bought at the time he alleged he was agent for his wife were sent to Philadelphia to commission merchants, and charged by them against his old debts, or otherwise went to his credit; that Mrs. Kirkley admitted to one of the witnesses that the property was put in her name to keep off husband's creditors.

The point of the case is, is this engagement in business by the plaintiff, Mrs. Kirkley, a real bona fide engagement in business, or is it, as is contended by defendant, a sham and fraud upon her husband's, James Kirkley's, creditors? As you find this fact will determine for which party your verdict should be. be. The law of the case is this: Prior to certain acts of assembly, beginning in 1865, and running up to this time, a married woman could have no property distinct and separate from her husband. It was as limited and controlled exactly as it was at common law. A married woman had really no legal rights of property. But in 1865, and in several succeeding legislatures, the general assembly has passed laws releasing and emancipating married women from this marital bondage. They began first by releasing certain property from the control of her husband, relieving it from liability for her husband's debts, etc. Then, in 1871, they released certain money and other personal and real property from liability for her husband's debts, leaving it liable for her own debts. Then, in 1873, they passed a more enlarged act, amended 1 in 1875, protecting her property from her husband's debts, and releasing it from his control, and putting it altogether under her own control and management. These two acts gave her power to sue, and made her liable to be sued, and made it lawful to make any and all contracts necessary to be made with respect to her own property; and suits by

1Amendment of act of 1873 by chapter 165 of 1875 is in following words: "That the real and personal property of any married woman, which has been heretofore acquired, is now held, or which she may hereafter acquire in any manner whatever, from any person, other than her husband, shall be her sole and separate property, and the rents, issues and profits thereof shall not be subject to the disposal of her husband, nor liable for his debts.'

as though she was a "feme sole,"-i. e. a single woman. The effect of this amended act is that she can, with her own money or property, become a trader, merchant, or in fact follow any of the occupations or business of life, and with the same rights, powers, and liabilities as though she were a single woman, or as though she were a man. The plaintiff therefore had, under our law, the right, with her own money, to enter into the business of buying and selling hay. Though a married woman, she was a feme sole hay merchant, and we say, in the language of Judge Cooley in the case of Rankin v. West, reported in 25 Mich. 195, that "the fact that the husband, by reason of financial embarrassments, is unable to carry on business and support the family in his own name is no impediment to the wife's engaging in business for that purpose. It would seem, on the other hand, to constitute a very sufficient and laudable motive for her doing so." If she, then, can carry on business for herself, she certainly can carry on her business through an agent. But it is objected that her husband cannot be her agent, or, being so, it is a fraud upon his creditors. We do not think so. What is more natural or more safe for the wife than that her husband should be the agent in the management of her property or her business. He is bound by greater obligations for the careful and prudent management of it than would bind a stranger. legal capacity of the husband to be such agent has been recognized and admitted by all text writers upon the subject, and by the decisions of most of the states where they have what is called a "married woman's act," and where the question has been raised. Nor, in our judgment, is a business of the wife's, thus carried on through the agency of the husband, any evidence in itself in law of a fraud upon the creditors of such husband, even if its purpose was to keep the property from the reach of such creditors. If the entire capital was contributed by her from her separate estate, or by loans made by herself, and by profits in the business, how are the husband's creditors defrauded? They have every remedy which they had before, and it is no cause of complaint that the wife chooses to make her own arrangements so that her husband's debts shall not be enforced against her purchases. And such arrangement, if the property was hers, is not fraudulent in law or fact. If the money, however, with which the hay was bought, was the husband's, or came from him, that would be a badge of fraud. This you are to determine and decide accordingly.

The

Now, as to what constitutes fraud, and how it is to be proven. The law will not suffer or permit it to be inferred. It must be proven. Actual fraud, or fraud in the ordinary sense and meaning of the term, is never presumed by law to exist. It is a matter of fact to be proved to the satisfac