swept from his possession down the stream, and had been wrongfully taken possession of by defendant for the lumber company. The defendant claimed the purchase from Cobb Bros. and Barclay Bros. was made by Dent for the lumber company, he acting as the agent of the company, and that the moment there was a delivery by the vendors under their contract to Dent the right of possession at once vested in the lumber company. Further, that, even if on delivery by Cobb Bros. and Barclay Bros. under their contracts there was a possession in Dent, yet by his alleged verbal contract of sale to the company there was a delivery by him of the logs in the stream to the company. It was claimed by defendant, the logs thus being the property of and in possession of the company, it, on the 24th of December, 1889, made an assignment for the benefit of creditors to one John C. Zeller, who, on March 5, 1890, sold the logs in dispute at public sale to E. A. Irvine, who purchased for himself and G. W. Huntley, the defendant. There was a great deal of evidence bearing on the questions of fact as to whether the purchase was made by Dent for the company, and whether there was an actual delivery by him under his alleged verbal sale. The learned referee found both questions against defendant, and we now have this appeal by him. ty-two errors are assigned to rulings on evidence, findings of fact, and conclusions of law by the referee. It seems to us the case must turn on the question raised by the ninth assigninent, which alleges error in this finding of fact by the referee: "To sustain the defendant's theory, the logs in dispute must have been purchased for the company in the first instance, or else Dent must have delivered the same. Now, we think the weight of the evidence established the fact that Dent bought the logs on his own account, agreeing to sell and deliver the same to the company, but that he made no delivery, and that he did not receive his pay for these logs. Whatever delivery there was, resulted from the Johnstown flood, an extraor

Twen

quent ratification. quent ratification. Dent does not even allege the company had knowledge of a hostile claim under the later contracts. Having full authority to purchase for the company, and having explicitly in writing so purchased, surely, when he sets up a rescission, that he may sustain a sale to himself for the purpose of reselling the same property to his principal, the burden is on him to establish the transaction by the clear preponderance of testimony, and to further clearly show he acted in good faith. The only evidence relating to subsequent knowledge on the part of the company of a claim of property by Dent is that of plaintiff himself, who testifies that "somewhere along in the summer of 1888" he sold these same logs to the company by a verbal contract with the president and superintendent. The president is dead. The superintendent, although called by plaintiff as a witness, is not asked to corroborate him, and says nothing on the subject. The reasonable interpretation of the three writings-that of 29th of May in name of the company, and those of 8th of June in names of Dent and Schwarzenbach-manifestly is that the two later ones were a mere elaboration in detail of the stipulations of the first; that at the time they were not intended by either the Cobb Brothers or Dent to abrogate the first, but to more specifically declare its provisions that they might be more effectually enforced in the interest of both parties. And that this was the purpose is, in substance, positively testified to by two of the Cobb brothers. Further, the plaintiff's subsequent conduct is wholly inconsistent with a rescission of the first agreement. On November 21, 1889, he repurchased from the company, by formal res

olution of the board of directors, and a receipt embodying a contract, all the interest of the company in contracts made by Dent and Schwarzenbach for timber and logs not delivered. The logs delivered by Cobb Bros. are, by clear implication, excepted from this transfer. At the same time there is an im

should lose none of his rights thereby, nor should the defendant Huntley profit by this unusual and unexpected occurrence."

For whom were the logs in dispute purchased? It will be noticed, plaintiff founds his claim to the Cobb logs on the contracts of 8th of June, 1888. But, 10 days before this, on 29th May, he, by written agreement, purchased the same logs for the Consolidated Lumber Company from the same parties, to be delivered in the same stream. That in this first transaction he was acting as the agent for the company, he explicitly declares by the writing itself. He was a director of the company, and authorized by it to act as its purchasing agent. Plaintiff alleges that before he made the contracts of 8th of June following he rescinded this contract made for the company. But from whence came his authority to rescind? There is no evidence that we can discover of precedent power or subse

to all logs already delivered, an assertion assented to by this plaintiff when he became a party to the transaction. There is much other evidence bearing out the same conclusion, and scarcely a scintilla inconsistent with it. As to the Barclay logs, the letter of the superintendent of the company to plaintiff of December 19, 1888, shows clearly he purchased these logs for the company, and that it arranged to pay for them. Other evidence shows they were paid for in part by the company's note, and that on January 2, 1889, it paid directly to Barclay Bros. the last payment of $1,460.95. In connection with this transaction, Dent wrote to the company a letter, in which occurs the following significant paragraph: "As I understood my position with the company, they authorized me to buy logs for them, and are consequently bound by my contracts. If, however, they conclude

that I am not competent, and intend to refuse me the funds to carry on jobs and fulfill said contracts, I would like to know it, and have a settlement at once, and get out of the way." We are of opinion the evidence shows beyond doubt the logs in dispute were purchased from Cobb Bros. and Barclay Bros. for the Consolidated Lumber Company, and were delivered to the company under its contracts; and as, under the assignment and sale, the title and right of possession passed to defendant, plaintiff cannot recover damages in this action.

As to the second question,-assuming plaintiff had obtained title, was there a delivery by him to the company under the verbal sale alleged by him?-it is unnecessary to answer it, in the view we take of the first. The judgment is reversed, costs to be paid by appellee.

1. A party claiming under a contract made with a firm, one of whose members died before the trial, was competent to rebut the testimony of the surviving partner in reference to the transaction. Act June 11, 1891; P. L. 287.

2. Where an action is tried by a referee, the fact that witness in some of his answers, not responsive to questions, went beyond the statutory limit, and improperly testified to conversations with a decedent, was not reversible error.

Appeal from court of common pleas, Potter county.

Trespass by G. W. Huntley against F. H. & C. W. Goodyear. The referee to whom the cause was referred gave judgment for defendants, and plaintiff appeals. Reversed.

G. A. Jenks, G. W. Huntley, Jr., C. L. Peck, and L. B. Seibert, for appellant. Dornan & Ormerod, N. J. Peck, and Larrabee & Lewis, for appellees.

DEAN, J. This is an action of trespass against defendants to recover damages for the alleged wrongful appropriation of a large lot of hemlock logs put in the South Fork of Sinnemahoning creek, in Potter county. The logs were identified in the trial by the names of "Cobb logs" and "Barclay logs." They are part of the same lot that formed the subject of contention in the case of Dent v. Huntley (in which judgment has been this day entered) 38 Atl. 505. In the opinion filed in this last case a full statement of the facts leading to the controversy is given. The defendants here rely on practically the same evidence to defeat plaintiff's claim as William Dent relied on there to establish a right to recover, and Huntley relies on the same evidence to recover here that he defended on there. It is stated as a fact in appellant's paper book, and not denied by appellee, that, although the Goodyears are nominally of record as defendants

in this case, William Dent appeared and defended for them; so that there is not, in either evidence or real parties, any substantial variance in the two suits. The Goodyears claim title through Dent; the plaintiff, by purchase from the Consolidated Lumber Company. The plaintiff avers the logs in dispute were purchased by Dent, acting as agent for the lumber company, and under this contract they were delivered to him as agent of the company. The defendants allege they were purchased by Dent and Schwarzenbach, delivered to them, and they afterwards contracted to sell them to the company, but never delivered them. T The referee finds as a fact that Dent was not a purchasing agent for the company; on the contrary, that he and Schwarzenbach purchased for themselves; and that, there never having been a delivery to the company, the plaintiff took no title from the company's assignee. As noticed by us in the opinion in Dent v. Huntley, before mentioned, we think this finding is in the face of the most signficant and weighty testimony. Notice the undisputed facts: Dent, on the 29th May, 1888, was a director and stockholder of the company. On that day, by a plain written agreement, he purchased these logs expressly for the company. He admits the genuineness of this writing. From the minutes of the company, duly proven, dated April 16, 1889, a report of the investment or purchasing committee was called for. William Dent Dent reported reported that, among other timber, he had purchased 5,000,000 feet on Sinnemahoning creek. ber 8, 1889, the company delivered directly to Cobb Bros. its note for $1,000 as part payment on these Sinnemahoning logs. The company's marks were put on them, and they were scaled by the company's scaler. The company then paid a large amount of money for driving them. On December 19, 1888, a letter was written by the company to Dent, recognizing him as its purchasing agent, and giving him directions as to marking logs. In answer to this letter, on December 22d, Dent writes: "As I understand my position with the company, they authorized me to buy logs for them, and are consequently bound by my contracts." Then, further, at the request of Dent, on November 21, 1889, in writing, the company assigned to him all its interest in contracts for timber and logs, but not logs already delivered. The logs in dispute had already been delivered, and of course were not included, and the company had no interest to assign except that vested in it by the contract of May 29, 1888. This was a distinct recognition of their right of property under that contract. Could there be a more clearly proven case of agency than this? The evidence is not vague, but is positive and specific. It rests, not in parol, but in writings between the parties made at intervals during the existence of the agency. A careful examination of the whole of this testimony shows no act of the company inconsistent with this agency, and that all its acts

On Octo

are confirmatory of it. Nor is there any act of Dent's really inconsistent with such agency, until after the insolvency of the company. On the 8th of June, 10 days after the purchase of the company on the 29th of May, 1888, Dent and Schwarzenbach entered Into two contracts with Cobb Bros. for the purchase of the same logs, but, as stated in the case of Dent v. Huntley, these agreements, of themselves, are not destructive of the first agreement, but only an amplification of its provisions. They provided for the purchase and delivery of the same timber, with more specific stipulations of sizes and times of delivery. And unless Dent, the agent of the company, who joined in the first agreement, undertook to set up the second in hostility to the company, the title of the company and the liability of Cobb Bros. were unaffected by them. Two of the Cobb brothers positively testify it was not the intention of either party to abrogate the first by the second agreements. Dent now testifies, it was his intention to cancel the company's agreement by these second ones. He does not pretend the company gave him any authority to do so. He is asked this question: "Q. Who did you make your last contract for? A. For myself and Mr. Schwarzenbach. Q. Did the Consolidated Lumber Company have anything to do with that contract? A. No, sir; they never knew of it. Nothing was ever said to them about it,-not to my knowledge." From whence came the authority to thus cancel the company's written contracts? Assume that Dent was not expressly authorized to act as purchasing agent for the company; he was a director of it; he did act as agent, and purchased in writing this timber, having at the time in his pocket $2,000 of the company's money, which either then or afterwards-it is not clear which-he applied in payment of the hand money. The moment the contract was executed for the company, its property right vested, and could not be devested without express authority. It is It is not necessary to cite authorities to show that a director acting for the stockholders, for whom he is trustee, cannot, of his mere motion, destroy their rights to property, then purchase himself, with the object of reselling to his cestuis que trustent at a profit. Certainly, the burden is on him, when he avers such a transaction, to show by clear proof, not only authority, but extreme good faith. There is not a spark of evidence of such authority. None is alleged. The only explanation by Dent of the admission of agency in the letter of December 22, 1888, is that when he wrote it he was in a "roaring temper." As to the Barclay logs, the evidence is almost uncontradicted not only that they were purchased for the company, but paid for by the company's money,

As to the eighth assignment of error, it raises a question as to the competency of Dent as a witness to conversations with L. H. Cobb, deceased, one of the partners of

Cobb Bros.

The witness was not competent

to testify to declarations of the deceased partner, who was a party to the contract. But, although to a slight extent his testimony was inadmissible, he was not called to testify to declarations of the deceased, but to rebut the testimony of D. H. Cobb, one of the surviving partners; and to this his testimony almost wholly related. To this extent the witness was competent, under the enabling act of June 11, 1891 (P. L. 287). That in some of his answers, not responsive to the question, he went beyond the statutory limit, is no error of the court, which, we doubt not, disregarded that which was incompetent. We are of opinion that William Dent, in the purchase of both the Cobb and Barclay logs, was the agent of the Consolidated Lumber Company, through whom plaintiff claims; that the delivery of these logs to William Dent, and to Dent and Schwarzenbach, was a delivery to said company; and that plaintiff had a clear title and right to possession of those in dispute in this issue. The judgment of the court below is therefore reversed, and it is directed that the record be remitted to the court below, that an account may be taken, and plaintiff's damages be assessed according to law by the referee; costs of this appeal to be paid by appellee.

"The defendant seeks to have sale of his land set aside, and, as reasons therefor, alleges inadequacy of price, want of proper notice of sale, improper description, and conduct of plaintiffs which deterred bidders. Inadequacy of price is not of itself sufficient to warrant the setting aside a sheriff's sale. The land consisted of 176 acres, more or less. The plaintiffs in the writ became the purchasers at a bid of $700. chasers at a bid of $700. This would appear to be grossly inadequate, but when you consider that the land was sold subject to the lien of a mortgage, upon which there is to be paid to the widow of the predecessor in title the annual interest of $206.73, and upon her death, to the heirs, the principal, viz. $3,

445.53, and that there is due and unpaid of this interest $1,400, according to plaintiffs' statement, and admitted by defendant to be over $500 yet unpaid, and the further fact that the judgment upon which the property was sold called for the payment of $1,718.69, with interest from March 7, 1891, the price or sum bid was not inadequate. Therefore in disposing of the exceptions the question of price will not be considered. The evidence shows that a handbill was placed upon the premises by the sheriff, and upon argument the exception as to that fact was abandoned. The defendant admits in his testimony that he had notice of the sale, and the evidence shows that he was apprised of the fact that the execution was going to be issued, and sought to have it prevented, and, after it was issued, continued in his efforts to get the matter arranged with the plaintiffs so that the land would not be sold. The exception as to proper description cannot be sustained. The fact that sheriff did not mention that the land lay in gas territory is not any reason why the sale should be set aside. The sherThe sheriff is not called upon to make conjectures in his advertisements. They should contain and set forth verity, not speculation. There is not anything in the evidence to show that plaintiffs or their attorney did anything to deter bidders, and it is unnecessary to comment thereon. And now, March 20, 1896, rule is discharged, at the costs of the defendant."

Assignments of Error.

"First. The court erred in his opinion, in this: 'But when you consider that the land was sold subject to the lien of a mortgage upon which *** there is due and unpaid of this interest about $1,400, * * * and the further fact that the judgment upon which the property was sold called for the payment of $1,718.69, with interest from March 7, 1891, the price or sum bid was not inadequate.' Second. The court erred in finding as a fact that the defendant admits in his testimony that he had notice of the sale.' Third. The court, in his opinion, erred in this: The exception as to lack of proper description cannot be sustained.' Fourth. The opinion of the court is in error in stating, "There is not anything in the evidence to show that plaintiff's or their attorney did any thing to deter bidders.' Fifth. The court erred in not deciding that the sheriff's advertisement of such sale was illegal, and in not setting the sale aside for that reason." McCain & Christy and Findlay P. Wolff, for appellant. Barclay Nulton, for appellees.

PER CURIAM. No sufficient reason for setting aside the sheriff's sale in this case has been shown either in the court below or here. The discretion vested in the court was wisely exercised in discharging the rule to show cause. There is nothing in either of the spec

In the common pleas, plaintiff, in his statement, claimed over $1,000. The jury rendered ment, claimed over $1,000. a verdict for him for $800, subject to the opinion of the court on a question of law reserved, and the court entered judgment for defendant non obstante. Plaintiff appealed to the supreme Court, and assigned as error the refusal to enter judgment for the amount found by the jury. Held, that the supreme court had no jurisdiction, under Act June 24, 1895, giving the superior court original and exclusive and final appellate jurisdiction "if the value of the real estate or personal property or the amount of money really in controversy in any single action or claim is not greater than $1,000, exclusive of costs."

Appeal from court of common pleas, Butler county.

Action by one Peters against one Carner and others. From a judgment in favor of defendants notwithstanding a verdict in favor of plaintiff, he appeals. Remitted to superior court.

W. H. Lusk and McJunkin & Galbreath, for appellant.

PER CURIAM. Section 7 of the act of June 24, 1895, provides, inter alia, that the superior court shall have exclusive and final appellate jurisdiction of all appeals which are now allowed to the supreme court in the five classes of cases respectively designated "a," "b," "c," "d," and "e." Class "c" embraces "all other actions, claims or disputes of every kind, including distributions in the common pleas, at law or equity, whether originating therein or reaching that court by appeal or certiorari from a justice of the peace or alderman or magistrate, if the value of the real estate or personal property or the amount of money really in controversy in any single action or claim is not greater than one thousand dollars, exclusive of costs." In addition to this, two other exceptions are specified in the clause, but they have no bearing on the present case, and need not be quoted. If "the amount of money really in controversy in" the case under consideration "is not greater than one thousand dollars, exclusive of costs," the superior court clearly has jurisdiction. The record shows that while the plaintiff, in his statement, claimed more than $1,000, his claim in this appeal is less than $1,000. On the trial the learned judge submitted to the jury the question as to the amount of the plaintiff's claim, and they rendered a verdict in his favor for $800, subject to the opinion of the court on the question of law reserved; and afterwards the court disposed of that question by entering judgment for the defendant non obstante vere

dicto. From that judgment plaintiff took this appeal, and assigns for error the refusal of the court to enter judgment on the verdict for the amount ($800) found by the jury. He thus, by his pleading, limits his claim to that sum, and it follows that we have no jurisdiction. It is therefore ordered that this appeal be remitted to the superior court, at the costs of the appellant, for hearing and decision.

BASCOM v. DANVILLE STOVE &
MANUFACTURING CO.

(Supreme Court of Pennsylvania. Oct. 11, 1897.)

SALE-ACTION FOR PRICE-REFUSAL TO ACCEPTINSTRUCTIONS-WAIVER OF ERROR.

1. Defendant, in an action for the purchase price of goods, cannot complain of a statement in the charge that, if they were injured in transportation, the fault was that of the carrier, and not of either of the parties, there being no question of delivery as between the parties, and the statement being in the abstract, and, as such, correct.

2. Statement in letter of purchasers of patterns, to the seller: "We fear we cannot use them at all. We must either be paid for the extra cost, or will return the patterns. Please advise us what to do in the matter,"-is not an absolute refusal to accept.

3. It is not error to refuse defendant's point, in an action for purchase price of patterns, that plaintiff cannot recover if there is a total or partial failure of performance of the contract in the kind or quality of the workmanship, so as to render the patterns unfit for the uses intended, and unprofitable to defendant; as it was too broad, there being evidence that defendant received the patterns during a considerable time, made changes in them, and retained and used them for several months, without specific offer to return.

4. There is no error in the affirmance of plaintiff's point, in an action for price of patterns, in which there was evidence of alterations and changes in the patterns after they were received by defendant, that acts of that kind done by defendant after receipt of the patterns would be an assertion of ownership; the proposition of the point being abstract, and in that sense strictly true.

5. Assignment of error to admission of testimony disclosing offer of compromise cannot be sustained, the testimony having been voluntarily given, without objection or exception or motion to rule out.

Appeal from court of common pleas, Montour county.

Action by H. Clay Bascom against the Danville Stove & Manufacturing Company for price of patterns sold. Judgment for plaintiff, and defendant appeals. Affirmed.

Defendant's third point, the refusal of which was complained of by the fifth assignment of error, was as follows: "That if there is a total or partial failure of the performance of the contract, in the kind or quality of the workmanship, so as to render the patterns unfit for the uses intended, and unprofitable to the defendant company, and the jury so find from all the evidence, there can be no recovery by the plaintiff in this case."

James Scarlet and Charles Chalfant, for appellant. C. G. Voris and H. M. Hinckley, for appellee.

GREEN, J. We discover nothing wrong in the first assignment of error in this case. There certainly was no express warranty established on the trial, but the learned court below charged that the patterns should be reasonably fit and suitable for the purpose for which they were designed, and added: "If they were not, and the defendant, by reason thereof, has sustained damage, to an amount equal to or greater than the contract price, then you must find for the defendant." Certainly, this is all the defendant could ask. When the court further said that, if the jury found that the damage was less than the contract price, "then if the patterns have any value for any purpose, notwithstanding their unfitness for the use for which they were intended, the plaintiff might be entitled to recover such value," the connection in which this was said must be considered. The whole subject had been gone over in the immediately preceding part of the charge, as to whether there had been an acceptance or a refusal to accept, and whether the patterns had been retained and used, or changes had been made in them by the defendant; and. these subjects were carefully and correctly submitted to the jury. In that connection. the court used the language complained of in the first assignment. The court had just previously said: "If you find from the evidence that they [the patterns] were not in full compliance with the contract and specifications, then the plaintiff is not entitled to recover the full amount named in his contract, unless you further find that the defendant company accepted and held the patterns for such length of time and in such manner as thereby to make them so liable." The learned: judge then said: "Or, if the purchaser keeps the property when sued for the price, he may set up the breach of implied warranty, and. set off his damage, if any, against the plaintiff's claim, even to the full or equal amount of the price or sum agreed to be paid for the same. Whether the defendant accepted and used or changed or undertook to change these patterns, and retained them for an unreasonable time, exercising acts of ownership over them, we leave to you, under all the evidence in the case." It was in this direct connection that the court used the language in question. That there was evidence enough to leave these questions to the jury is beyond all doubt. There was so much of it that it is not at all necessary to recapitulate it. It was the alternative of the defendant's having retained the patterns and used them that the judge was speaking of when he said: "Then, if the patterns have. any value for any purpose, notwithstanding their unfitness for the use for which they were intended, the plaintiff might recover such value." Understood in this way, there was no error in the charge.

We cannot possibly see any error in the matter contained in the second assignment. The gist of the alleged error is that the court'