ed by her husband ought to prevail. They 54; that, in addition, he loaned to defendant lived upon it; he worked it; he was apparently in possession of it; and when the wife set up an exclusive title to it, and to all its products, she started with the presumption against her, and with the duty of overcoming it by clear proof, of two things: First, the existence of an estate of her own, not derived from her husband; second, a bona fide purchase by herself of the farm with, or upon the credit of, such separate estate. She was relieved by the learned judge from making any showing whatever, and the possession of a deed for the land was held to be conclusive proof that the title was actually and in good faith vested in her. In this particular we think the learned judge erred. The judgment is therefore reversed, and a venire facias de novo awarded. RYDER v. JACOBS. (Supreme Court of Pennsylvania. Oct. 11, PLEADING AND PROOF-VARIANCE-PARTNERSHIP 1. In assumpsit to recover an amount alleged to be due plaintiff as salesman, under a contract for a specified monthly compensation, proof that plaintiff's compensation was to be contingent on, and paid from, the profits of the business, will prevent recovery, regardless of any question of partnership. 2. The fact that compensation for services is to be contingent on, and paid from, the profits of the business, does not of itself make the employé a partner. 3. In assumpsit to recover an amount alleged to be due for services as salesman, the court did not abuse its discretion in rejecting the testimony of alleged expert bookkeepers called by defendant to prove that the accounts between the parties (involving only 17 charges, with half a dozen credits) were in the form of partnership accounts. Appeal from court of common pleas, Lancaster county. Assumpsit by Louis E. Ryder against William M. Jacobs for the recovery of money. From a judgment for plaintiff, defendant appeals. Reversed. Brown & Hensel and John E. Malone, for appellant. George Nauman and B. F. Davis, for appellee. DEAN, J. The plaintiff, as appears by his statement filed, brought suit to recover a balance of $2,606.14, with interest from April 1, 1894. He averred in his statement that defendant owed him the greater part of this amount under a verbal contract, by which he was employed as a salesman of tobacco and cigars, of which defendant was a manufacturer; that, by this contract, he was to be paid $200 per month and traveling expenses, the payments to be made monthly; that he served under this contract from January 18, 1893, to April 7, 1894, a period of about 15 months; that, under the contract, the amount payable to him for services and expenses was $2,926. 1 $1,900 in cash,-making, altogether, charges in his favor of $4,826.54. On this he acknowledged payments made by defendant of $2,220.40, leaving the aforesaid balance of $2,606.14 due him. This is the ground on which, in his statement filed, he bases his right to recover. The defendant, in his affidavit of defense, admits that, by verbal contract, he employed plaintiff as salesman at $200 per month in January, 1893, but avers this contract terminated by mutual consent on May 1, 1893; that at that date plaintiff was paid in full; that then a new contract was verbally entered into between them, by which plaintiff agreed to serve as salesman as theretofore, but as compensation was to receive onehalf the net profits of the business, plaintiff agreeing to sell not less than $100,000 worth of the product of the factory annually; and, further, that plaintiff should be permitted to draw from time to time of his share of the profits an amount not exceeding $200 per month; and if it was found at the end of the year that one-half of the net profits exceeded the aggregate amount so drawn, plaintiff was to be paid the balance; that, under this contract, from May 1, 1893, to April, 1894, plaintiff drew in money $1,600. The business was not profitable, and defendant notified plaintiff between July and October, 1893, that he had drawn more than his contract compensation, and thereupon plaintiff repaid $1,000. Plaintiff also claimed payment of $200 as traveling expenses, which was credited to him, making $1,200 of repayments, leaving $400 as payment on account of profits. Defendant further denied the receipt of $700 in cash from plaintiff. He further averred no profits whatever had been made in the business. The $1,200 credit as repayments and the denial of the cash loan of $700 extinguished the claim of plaintiff for $1,900 money loaned; and the payment of the monthly compensation of $200 up to May 1, 1893, the date of the new contract, defendant avers left nothing whatever due plaintiff. On the issue thus made up, there was much testimony on both sides. The learned judge of the court below submitted the evidence to the jury, instructing them, if they found the facts to be as averred by defendant, then a partnership existed between plaintiff and defendant, and there could be no recovery in this form of action; on the other hand, if they found plaintiff's averments were sustained by the evidence, then they should find in his favor for such amount as was due. There was a verdict for plaintiff in the amount of his claim, and defendant brings this appeal, assigning five errors four to charge of the court, and one to the rejection of evidence. The substance of the first four assignments of error is embraced in defendant's first written prayer for instructions and the court's answer thereto, as follows: "(1) If the jury be lieve, from the testimony in the case, that after May 1, 1893, the plaintiff was not to re knowledge, and to be able to form opinions from their own observation. The tendency is to call experts to testify to ready-made opinions for them. Whether the witness be a competent expert, and whether the contention be such as calls for expert testimony, we have more than once held is largely in the discretion of the trial judge. We do not see that the learned judge of the court below erred in his ruling on this testimony. But the first four assignments of error are sustained, the judgment is reversed, and a venire facias de novo is awarded. ceive a compensation of $200 per month for his | jurymen are yet presumed to have some services, but thereafter a share of the profits of the business, there can be no recovery by the plaintiff in this action for any services rendered after May 1, 1893. Answer: We answer that by saying this point is refused unless the jury find from the evidence that there was a partnership existing between the plaintiff and the defendant from and after May 1, 1893, until the time they separated, on March 1, 1894. If the jury find, from the evidence, that a partnership did exist between them during that period, their verdict must be for the defendant, because one partner cannot sue another partner for a partnership transaction except by bill in equity, or by an action of account render." We think manifest error is disclosed in this answer. The court makes the case, as to defendant, turn on the single question as to whether there was a partner ship. If there was a partnership the plaintiff could not recover; but, if there was no such contract as plaintiff averred,-on the other hand, an entirely different one, as defendant averred, and adduced evidence tending to establish, the instruction was erroneous, even though there was no partnership. What facts constitute a partnership has been the theme of endless discussion by courts and text writers, without, by any means, unanimity of opinion. It is not necessary to enter on the subject here. This court, since Miller v. Bartlet, 15 Serg. & R. 137, decided in 1826, and Dunham v. Rogers, 1 Pa. St. 255, decided in 1845, has uniformly held that compensation for services to be paid out of and contingent on profits, does not of itself constitute the employé a partner. The evidence of defendant tended to establish two propositions: First, that plaintiff, from May 1, 1893, was a partner; second, if not a partner, he was to be paid out of profits, and his compensation was contingent on profits. In the last case the contract was radically different from that averred by plaintiff. If the evidence established it, the allegata and probata were fatally at variance, and the defendant's first point should have been affirmed. Putting aside the question of partnership altogether, without amendment of his statement plaintiff cannot recover, if the jury should find that his compensation from May 1, 1893, was, by the contract, to be a share of the profits. The fifth assignment is to the rejection of the testimony of alleged expert bookkeepers, who were called by defendant to testify, that the accounts, as kept in the books, between plaintiff and defendant, were in the form of partnership accounts. It is doubtful if these witnesses were any greater experts in bookkeeping than at least one-half the jury; or whether, in these simple accounts, involving but two persons, and about 17 charges, with half a dozen credits, any such testimony was called for. We do not deprecate the production of expert testimony in sciences and subjects with which the people are not generally familiar, but it must be borne in mind that HART v. BUCHER. (Supreme Court of Pennsylvania. Oct. 11, 1897.) PAYMENT-PRESUMPTION FROM LAPSE OF TIME— REBUTTAL. Where the obligee in a mortgage bond dies more than 20 years after its maturity, the presumption of payment by lapse of time is not rebutted by proof of an indorsement of a credit on the bond in the obligee's handwriting, purporting to be made before the 20 years elapsed; but the proof must show that the indorsement was in fact made before that time. Appeal from court of common pleas, Lancaster county; Brubaker, Judge. Scire facias on a mortgage by John E. Hart, executor of the estate of John Hart, deceased, against John Bucher. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendant appeals. Reversed. A. J. Eberly and Brown & Hensel, for appellant. Wm. D. Weaver and Benj. F. Davis, for appellee. STERRETT, C. J. This scire facias was brought November 29, 1893, by the executor of the mortgagee, who died September 26, 1892, more than 20 years after the maturity of the mortgage debt. For the purpose of rebutting the presumption of payment which had arisen from lapse of time, the plaintiff offered the following indorsement, on the bond recited in the mortgage, under date of April 1, 1885, viz.: "John Bucher paid the interest on the within bond up to April 1, 1885. [Signed] John Hart,"-and attested by B. B. Flickinger. The attesting witness, Flickinger, was called, and testified to the genuineness of John Hart's signature; but no offer was made to prove that the indorsement was actually written on the bond at the time it bears date. Without further evidence on the subject, the learned trial judge charged that the indorsed acknowledgment rebutted the presumption of payment arising from lapse of time, and directed the jury to render a verdict in favor of the plaintiff for the amount of his claim. In this, we think, there was error. If the evidence intended to rebut the presumption of payment was sufficient to go to the jury on the question as to when the indorsement was actually made, it should have been submitted to them with proper instructions, instead of being withdrawn from their consideration by binding instructions to find for the plaintiff. But the evidence was insufficient to even justify submission of that question to the jury. From the fact (doubtless) that the indorsement bore date prior to the time when the presumption of payment would arise, in connection with proof of the genuineness of John Hart's signature, the learned judge erroneously assumed that the payment of interest credited on the bond. was made at the time the indorsement bears date, or, at least, "before the presumption of payment had ripened"; but in a long line of cases, from In re Cremer's Estate, 5 Watts & S. 331, to the present time, it has been held that credits indorsed on a bond in the handwriting of the obligee are not evidence of actual payment, sufficient to rebut the presumption, until they are affirmatively shown to have made within 20 years, and at a time when it was against the interest of the obligee to make them. Runner's Appeal. 121 Pa. St. 649, 15 Atl. 647. Proof of signature alone is not sufficient where the death of the promisee occurred after the presumption arose, but it is otherwise where it occurred before the presumption arose, for that fact shows conclusively that the indorsement of credit was made before the presumption closed on the claim. Addams v. Seitzinger, 1 Watts & S. 243. The death of plaintiff's testator in this case having occurred after the expiration of the 20 years, the evidence relied on by the plaintiff to rebut the presumption of payment, arising from lapse of time, was insufficient, and the judgment cannot be sustained. Judgment reversed, and a venire facias de novo awarded. TRESPASS-WHEN LIES-PAROL EVIDENCE-TORTS -RATIFICATION-INSTRUCTIONS. 1. Where bailors of cattle are authorized, by the agreement under which the bailee received them, to take possession of and sell them whenever they think best, and they afterwards take the cattle without the bailee's consent, and without compensating him for care and feed, as they had engaged to do, his remedy is an action on the agreement for the breach of it, and he can recover nothing in an action of trespass. 2. On an issue whether a transfer of cattle from defendants to plaintiff was an absolute sale, it appeared that at that time plaintiff gave notes to defendants for the price, as he testified; and a memorandum then made by defendants tended to corroborate plaintiff's contention. Held, that parol evidence was admissible in behalf of defendants, who asserted that the transfer was merely a bailment, to explain the memorandum, and the use to be made of the notes, and the terms on which they were given. 3. In trespass for taking from plaintiff cattle received by him from defendants, on an issue whether plaintiff received them as purchaser or as bailee, defendants and five disinterested witnesses testified to declarations of plaintiff, made on different occasions after the seizure, wherein he expressed satisfaction with what defendants had done. Held, that such declarations were strongly corroborative of defendants' contention that the transaction was a bailment, and therefore an instruction that, if plaintiff "ratified" the taking, he could not recover, was not misleading on the ground that a tort cannot be ratified, where, immediately before and immediately after that instruction, the court charged emphatically that, if plaintiff was the owner of the cattle, he might recover, and concluded its charge by an instruction that, if there was an absolute sale, the verdict should be for plaintiff. Appeal from court of common pleas, Lancaster county. Trespass by Jacob F. Schaeffer against George R. Sensenig and Andrew F. Frantz. From a judgment for defendants, plaintiff appeals. Affirmed. The eighth assignment of error is as follows: "(8) The court below erred in its answer to defendants' second point, which point was as follows: If the jury believe that Jacob F. Schaeffer, plaintiff, ratified and confirmed the taking of the cattle and the sale of them by Sensenig & Frantz, the verdict must be for the defendants generally in this case, and the plaintiff cannot recover in this action even the balance that may be due to him,'--the answer to which was: 'Our answer to that is in the affirmative also. He might have a claim against them for the feed, but he could not recover it in this case. There is nothing of the kind charged in his declaration, and the point don't arise in the case.'" B. F. Davis, for appellant. Thos. Whitson and Brown & Hensel, for appellees. MCCOLLUM, J. In this case the defendants are charged with having taken from the plaintiff's stable, and appropriated to their own use, 44 head of his cattle. The defendants admit the taking, but deny that the plaintiff was the owner of the cattle, or that in taking them they were trespassers. It is undisputed that whatever right or interest the plaintiff had in the cattle at the time of the alleged trespass he acquired by the agreement or contract with the defendants, under which they were delivered to him in November, 1888. The defendants allege that the plaintiff received the cattle as their bailee, while he alleges that they were delivered to him as a purchaser of them. The defendants further allege that they were authorized, by their agreement with the plaintiff, to take any or all of the cattle they had delivered to him whenever they saw fit to do so, and were required by it, on their sale of the cattle, to compensate him for feeding and caring for them, in accordance with its terms. A specification of the terms or measure of compensation is unnecessary, because it is not considered of any importance in the decision of the issue made by the pleadings. If the plaintiff was the sole owner of the cattle, the taking of them by the defendants being admitted, he was entitled to recover on this action the full value of them. If, on the other hand, he was merely a bailee of the cattle, and the defendants were authorized, by the agreement under which he received them, to take possession of and sell them whenever they thought best, he was not entitled to recover anything in it. In such case, if the defendants refused to compensate him for care and feed as they ought and had engaged to, his proper remedy was an action on the agreement for the breach of it. This was the view taken of the case by the court below, and in it we concur. It regards the issue between the parties as involving a question of fact determinable by the jury on the evidence in the case. What was the transaction between the parties? Was it a sale or the cattle, or a bailment of them with a right in the defendants to resume possession of them when they pleased to do so? In support of his claim the plaintiff testified distinctly that he bought the cattle from the defendants, and gave to them his notes in payment of the price agreed upon. The testimony of the defendants was equally positive and clear that the plaintiff was a mere bailee under an agreement which acknowledged their ownership of the cattle, and their right to take any or all of them, with their possession, at any time. The notes given by the plaintiff to the defendants at or about the time the cattle were delivered, and the memorandum made by the defendants in connection with the transaction, were, unexplained, corroborative of the plaintiff's claim. But the defendants' explanation of the memorandum, of the use to be made of the notes, and of the terms on which they were given, materially impaired their corroborative force. The testimony explanatory of these matters was competent. It was not intended to, and it did not, modify a written contract. Parol evidence is admissible to explain a receipt, an entry in a bank book or account book, or for the purpose for which a note was given. The defendants testified that the plaintiff on several occasions expressed himself as satisfied with what they had done, and five disinterested witnesses testified that he made statements or declarations to them, or in their presence, of the same nature, and to the same effect. Whether the statements and declarations so made be regarded as evidence of ratification of or acquiescence in what the defendants had done, they were clearly and strongly corroborative of the defendants' claim respecting the agreement under which the cattle were received by the plaintiff. The answer of the learned judge to the defendants' second point must be read in connection with the general charge. Before and after the answer in question the jury were positively and emphatically instructed that, if the plaintiff was the owner of the cattle, he was entitled to their verdict for the value of them. The concluding words of the charge were: "If you find there was an absolute sale of the property to Jacob F. Schaeffer in November, that he was the sole owner of these cattle when they were taken, then you should find a verdict in his favor for the amount claimed. If you find they were not sold absolutely, but let on feed, and that the defendants, Sensenig & Frantz, had a right to take and remove them, under their contract, when they chose, and they did so remove them, your verdict must be for the defendants." Assuming that the answer to the defendants' second point admits of the construction contended for by the plaintiff, there is no reason to believe that the jury were misled by it. We are clearly of the opinion that, in the light of the general instructions to the jury, we ought not to reverse the judgment on the eighth assignment.. The material questions raised by the specifications of error have been duly considered by us. and our conclusions respecting them are adverse to the contention of the plaintiff. The other matters complained of need not be specifically discussed or noticed. Judgment affirmed. SCHAEFFER et al. v. SCHAEFFER et al. (Supreme Court of Pennsylvania. Oct. 11, 1897.) SALE OF MORTGAGED PREMISES-LIABILITY OF PURCHASER. Premises mortgaged to secure the payment. of $240 annually to A.'s widow during her life,. and on her death $800 to each of four children, were sold subject to the mortgage. After the Widow's death, her aunuity having been fully paid, scire facias was issued, and plaintiffs. sought to recover, not only the sums secured to the four children, but also an additional sum of $800 for the use of one B.; alleging that the mortgage represented $4,000 bequeathed by A. in equal shares to his five children, and that the mortgagor, who was one of said children, had assigned his interest to B. Held, that the purchaser of the premises, who acquired title without notice of such claim, which was not disclosed by the mortgage, nor alleged to have been. omitted therefrom by accident or mistake, wasnot liable for the additional sum. Appeal from court of common pleas, Lancaster county. Scire facias on a mortgage by Eliza Schaeffer, widow of Emanuel Schaeffer, and others, to the use of Catherine H. Long and others, against Edwin M. Schaeffer, defendant, and B. Frank Eshleman, terre-tenant. From a judgment in favor of Chares L. Schaeffer, one one of the equitable plaintiffs, the terre-tenant appeals. Reversed. W. T. Brown and Brown & Hensel, for appellant. Wm. R. Wilson and W. R. Roland,. for appellees. STERRETT, C. J. This scire facias is on a mortgage given by Edwin M. Schaeffer to Eliza Schaeffer, widow of Emanuel Schaeffer,. deceased, to secure the payment of five obligations (one in favor of each of said mortgagees),. viz.: One in the penal sum of $1,000, conditioned for the payment of $240 annually to said widow during her natural life, and the otherseach in the penal sum of $1,600, conditioned for the payment of $800 to one of said children, respectively, upon the decease of said widow. After specifically reciting the annuity of $240 to the widow and $800 to each of said four children as the consideration of the mortgage, etc., that instrument contains the usual defeasance clause, to the effect that upon the payment of the sums thus secured the said mortgage, as well "as the said five recited obligations, shall become void and of no effect," etc. The first-mentioned obligation accordingly became "void and of no effect" by payment in full of said annuity to the widow to the date of her decease. In their statement the plaintiffs aver, among other things, that the mortgage represents $4,000 of the estate of Emanuel Schaeffer, which by his will he divided equally among his five children, of whom Edwin M., the mortgagor, was one, and that his interest is claimed by his assignee, Charles L. Schaeffer, one of the equitable plaintiffs; but this averment derives no support whatever from the mortgage in suit. It discloses no interest thereunder in either the mortgagor or his assignee. The only mortgage debt that remained after payment in full of the annuity to the widow was the $800 to each of said four children, aggregating the sum of $3,200, with interest from that date. These claims, as we understand, are not disputed by the terre-tenant, appellant, but that of Edwin M. Schaeffer is denied; and we fail to find in the instrument sued on anything upon which he or his assignee can possibly base any claim against the terre-tenant, who became such by purchase of the mortgaged premises subject to the mortgage only, and, so far as appears, without notice of any other claim than those specified therein. In his affidavit of defense the terre-tenant distinctly avers "that Edwin M. Schaeffer never had any interest as a mortgagee in said mortgage, either in law or in fact, but, on the contrary, he was the mortgagor therein; that he neither created nor reserved for himself any interest or share therein at the time of the execution of said mortgage." In the face of this averment, and in the absence of anything in the mortgage itself on which to base any claim in favor of Edwin M. Schaeffer, it is impossible to sustain the court below in holding that the affidavit of defense was not sufficient to prevent judgment for the full amount claimed by the plaintiffs. The conveyances in the terre-tenant's chain of title "subject to the mortgage" gave him no notice of anything not set forth in the mortgage. we have seen, all that the latter-including the bonds therein recited-provided for was the payment of the annuity to the widow, and, upon her decease, $800 to each of the four children. On the payment of these sums the mortgage, as well as the obligations recited therein, were, in the language of the former, to become "void and of no effect." The claim set up by the plaintiffs for the additional sum of $800 is in conflict with the plain terms of the written instrument. As clearly appears, it contains no intimation of any such claim or interest in Edwin M. Schaeffer as is asserted in plaintiffs' statement, nor is it averred that the terre-tenant had any notice of such claim prior to his purchase of the mortgage premises. It is not even suggested that any such provi As sion in favor of the mortgagor was omitted from that instrument by accident or mistake, and hence no effort has been made to reform the instrument on which the scire facias was issued. Nothing can be recovered in this proceeding except so much of the several sums secured thereby as remains unpaid. The $800 sought to be recovered to the use of Edwin M. Schaeffer's assignee is clearly not one of them. The court below therefore erred in embracing that sum, with interest, in the judgment. Judgment reversed and procedendo awarded. DERR v. ACKERMAN et al. (Supreme Court of Pennsylvania. Oct. 11, 1897.) STATUTE OF FRAUDS-SALE OF LANDS. No such equity is established as to take a parol sale of land by a father to his children out of the statute of frauds, where the evidence fails to show a change of possession or management of the property in pursuance of the contract, or part performance of it by them which cannot be compensated in damages. Appeal from court of common pleas, Lancaster county. Action by John H. Derr against Ella D. Ackerman and others. Judgment for defendants. Plaintiff appeals. Reversed. Chas. I. Landis and A. H. Fritchey, for appellant. G. Ross Eshleman and Brown & Hensel, for appellees. MCCOLLUM, J. In 1892 Simon Ackerman resided upon, and had an estate by the curtesy in, the land in question. He was then indebted to Catherine Derr in the sum of $1,400, for which judgment was entered against him on the 25th of April, 1892. On this judgment his estate in the land was sold to John H. Derr, who, having received from the sheriff a deed of it, instituted proceedings to obtain possession. The defendants, claiming that there was a parol sale of the estate to them prior to the entry of the Derr judgment, were allowed to intervene for the protection of their interests in it. On the trial the defendants presented their evidence of a parol sale, and of what they had done in pursuance of it. The court submitted the evidence to the jury, with instructions to the effect that, if they credited it, they should find for the defendants. The verdict was in their favor, and from the judgment entered upon it this appeal was taken by the plaintiff, whose contention is that the evidence was insufficient to clothe the defendants with a legal or equitable title to the life estate. The witnesses to establish the sale were Simon Ackerman, his son Irvin, and his daughter Ella. They testified that the fo:mer, some time between the 1st of January and the 1st of April, 1892, offered to transfer his estate in the land to his children if they would assume and pay his indebtedness to Zimmerman for money expended in improv |