assigned for error in the first, second, third and The case was tried before MCMICHAEL, J., and fourth assignments, which we are compelled to the only testimony was that of Paul T. Brown, sustain. The recognized rule as to what repre- one of the plaintiffs, and a deposition of P. M. sentations will avoid a contract was stated by us Loubrie. in Brown v. Eccles, 2 Pa. Super. Ct. 197. The facts appeared as follows: The plaintiffs No points were submitted in the Court below by who were grocers and importers, entered into a the plaintiffs. The criticism of the charge of the contract with the defendants to deliver to them Court, therefore, contained in the fifth assign-one hundred cases of olive oil. Twenty-five cases ment of error as to what is not contained there- were delivered according to agreement, by Sepin is scarcely fair to the Court; and, inasmuch tember, 1894, the balance, according to the order, as it does not seem to have been specially allow-were to be delivered as desired. In February, ed as an exception, it is disregarded. As to the 1895, the plaintiffs wrote to defendants and asked other assignments of error they are sufficiently when they desired the delivery of the balance. passed upon by what we have said as to the first The defendants replied declining to take any of four. the oil. Plaintiffs gave in evidence a written orIt would have been more satisfactory to us, if der sent by them to Talbot Freres, of Bordeaux, the testimony introduced by the defendant had France, for the 100 cases, but did not show that been printed, so that we could have determined same were shipped to them or that they ever had more definitely just what were the issues of fact the possession or right of possession to the goods, presented to and passed upon by the jury. The but, on the contrary, it appeared that the oil was questions for the jury, as we understand the tes- still in France; they gave no evidence that the oil timony, were: Were the representations of Jes-was of any peculiar quality, that it was manufacter, as testified to by the plaintiffs, actually made? tured expressly for defendants or that it had any Were they made for the purpose of securing from market value. them future credit? Were they false? Were they The Court was asked by the defendants to relied upon by the plaintiff? If these were the charge: "If the jury believe that the oil is not the issues passed upon and found for the defendant in property of the plaintiffs, but of some third perthe verdict, it should not be disturbed; but the son in France, or elsewhere, the verdict must be Court being in error in the instruction to the jury for the defendants." This was refused. (Fourth as to the necessity for finding that there was in-assignment of error). Nov. '96, 114. Superior Court. W. C. S. Executory contract-Sale-Delivery. tent on the part of Jester to defraud the plain- The Court, inter alia, charged: "There seems tiffs at the time the representations alleged to be to be no contradiction in the testimony, as it is false were made by him, the case must be re-tried. direct and to the very point of the case, especJudgment reversed and a new venire awarded. ially the testimony that the goods were of a specific character, not only as to the quantity of the oil, but as to the marking of the bottles with the names of these defendants; and that the oil had October 15, 1896. been actually bottled, and the bottles had been marked; that twenty-five cases had been shipped and delivered, and the other seventy-five cases marked and ready for shipment, set apart, and not delivered because of the refusal of the defendants, the McCaffreys, to carry out their part of the contract, and take the goods; but it is for you to say whether the property passed from the seller to the buyer. The seller seems to have done all he could reasonably do, and if you believe that testimony, if you believe Mr. Brown's account of the original agreement to be correct, and these Appeal of James A. McCaffrey, Frank J. Mc- depositions to be correct, you can, and should, Caffrey and Henry L. McCaffrey, trading as find a verdict for the plaintiffs for the price agreed James A. McCaffrey & Sons, from the judgment upon, which, I believe, there is no dispute about, of the Common Pleas No. 3, of Philadelphia amounting to $372.75." In an executory contract of sale title does not pass un: til delivery of the goods, so where an action is brought for the price of the goods ordered by defendants of plaintiff, but which are in the hands of a third party with whom the defendants have no contract, there must be evidence that the goods in question were set apart for the defendants, to warrant a submission to the jury of the question whether a sale has been consummated or not. County, in an action of assumpsit wherein Bern And also, "the testimony was, but is for you, ard T. Brock and Paul T. Brown, trading as J. that the correspondents were the agents of the W. Brown & Co., were plaintiffs. plaintiffs in France; that they represented the 1 plaintiffs in France." (First assignment of error). Verdict for plaintiffs. Defendants appealed. Wliliam M. Stewart, Jr., (John Sparhawk, Jr., with him), for appellant. It was error for the Court to charge that it was for the jury to say whether the property passed from the seller to the buyer. The contract, as disclosed by the evidence, was simply to deliver in Philadelphia, a certain number of cases of a well-known commodity, viz., olive oil, at fixed price when desired by the defendants. There could not well be a better example of an executory contract, and it is hornbook law that in such cases title does not pass until delivery. Benjamin on Sales, sec. 352. Sneathen v. Grubbs, 88 Pa. 147. Bement v. Smith, 15 Wend. 493. The passage of the title to the purchaser is not essential to the legal completeness of the contract of the sale. It is, in fact, no more than the ordinary case of a contract of sale, wherein the seller tenders delivery at the time and place of delivery agreed upon, but the purchaser refuses performIn such case it is perfectly familiar law that the purchaser is legally liable to pay the price of the goods, although in point of fact he has never had them. ance. Commonwealth v. Fleming, 130 Pa. 138. January 18, 1897. REEDER, J. The plaintiffs If it appears, in the contract or ab extra, that are wholesale grocers, importers, among other the vendor did not own the article contracted for, things, of French table delicacies-oils and olives. They obtained from the defendants a contract for or that it was not then in existence, or not yet manufactured or not selected, then the subject one hundred cases of olive oil. Twenty-five cases matter of the contract remains undefined, at least, to some degree, and it is incompatible in the very nature of things to call it a perfect sale. Winslow v. Leonard, 24 Pa. 14. Keeler v. Schott, 1 Pa. Super. Ct. 467. The selection of goods by one party and the White v. Reynolds, 3 P. & W. 96. Andrews v. Hoover, 8 Watts, 239. Rinehart v. Olwine, 5 W. & S. 159. Unexcelled Fireworks Co. v. Polites, 130 Id. 536. A. W. Horton, for appellees. were shipped and delivered to the defendants, for which they paid. Seventy-five cases were never actually delivered to the defendants, and never paid for by them. The suit is brought to recover for those seventy-five cases which were never actually received by the defendants, and which the plaintiffs claim were set apart to their order, and never paid for, the amount of the claim being $372. The goods were to be packed in France by Talbot Brothers, of Bordeaux, France, and were to be shipped in 25-case lots, in reasonable time, as ordered by the defendants. They were packed in bottles, with the name of "McCaffrey & Sons" blown in the glass. At the time of the trial, they were still at Bordeaux, in the possession of Talbot Brothers, and had never been shipped to the plaintiffs, by whom they were sold to the defendants, but are held by Talbot Brothers, to be shipped whenever ordered to do so by the plaintiffs, the firm of J. W. Brown & Co. Was this such constructive delivery of the goods as would entitle the plaintiffs to recover in this action? There is no principle of law more thoroughly settled than that, in all executory contracts of sale, title does not pass until delivery. The vendor may store or retain the property If the goods contracted for were not then in exfor the vendee and sue him for the entire purchase istence, or not yet manufactured, or not yet seprice, or he may sell the property, acting as the lected out of a lot of similar articles, then the subagent for the purpose of the vendee, and recover ject matter of the contract is undefined, and rethe difference between the contract price and the mains so until there is some setting apart of the price obtained on such resale; or he may keep goods to the vendees' order, as in the absence of the property as his own, and recover the differ- actual delivery will constitute a legal delivery to ence between the contract price and the value at them. This contract was not a contract to which a reasonable time after a final demand for the Talbot Brothers were ever a party. It was a convendee to take them. tract on the part of the plaintiffs to sell to the defendants an article which they did not have, recognized in cases where ordinary remedies would be which they never yet have had, and yet which wholly inadequate. they seek to recover for because of a setting Appeal of the Commonwealth ex rel. Henry apart by a third party (with whom the defendants F. Menges and Camilla Menges, from the decree had no contract) to the plaintiffs' order. of the Common Pleas of Northampton County, quashing a writ of mandamus. There is no case to be found in the books which will make this a constructive delivery of the goods The petition of the relators set forth that on to the vendees so as to entitle the vendors to re- September 26, 1896, E. Laufer's Sons, issued a cover their value. Unless this property passed landlord's warrant against Henry F. Menges for in some way from the plaintiffs to the defendants, the recovery of an alleged claim for rent of $200; there could be no recovery in this action. Tal- that said warrant was placed in the hands of C. bot Brothers were no party to this sale. The W. Huttel, constable, and he then distrained the contract of sale as testified to was between the following personal property: One black horse, plaintiffs and the defendants. The only evidence buggy, two-horse wagon, sleigh, spring wagon, in this case discloses that the goods may have four hogs, four cows, one heifer, single harness been set apart to the order of the plaintiffs. There and fly-net. is no evidence that they were set apart to the defendants so as to warrant the submission of that fact to the jury by the Court below. The plaintiffs might be entitled to recover from the defendants upon this state of facts for whatever injury had been sustained by them by reason of the defendants' failure to comply with the contract of sale and their refusal to receive the oil. As the pleadings were not printed in the paper books submitted to us, we are not prepared to say whether they were entitled to so recover in this case or not. They are certainly not entitled to recover the full amount of the value of the oil upon the theory upon which the case was tried and submitted to the jury in the Court below. The first, second, third and fourth assignments of error must, therefore, be sustained. Judgment reversed and a venire facias de novo awarded. Nov. '96, 161. Superior Court. W. D. N. December 9, 1896. Commonwealth ex rel. v. Huttel. That Camilla Menges is the owner of the horse, buggy, four cows, hogs, heifer, harness, and flynet; that Henry F. Menges owns the two-horse wagon and sleigh, and Wm. Adams owns the spring wagon. That neither of said Henry F. Menges nor Camilla Menges signed any lease, or waived the exemption to which they are entitled under the laws of this Commonwealth; that they immediately claimed the benefit of the exemption law and informed said constable in writing of their said claim. That said constable declared that he would refuse to allow the exemption, and that he was indemnified by the plaintiffs, and upon the expiration of five days he would appraise and sell said property. That if said C. W. Huttel, constable, sells said property it will cause the petitioners great damage; that said constable has removed all of said goods from the premises and retains forcible possession of the same to their great injury and damage. That they are advised that under section two of the Act of April 9, 1849, upon demand made by them, it became the duty of said constable to Practice― Mandamus - How prosecuted-When appraise the exemption they are entitled to out of it will lie. Two or more persons having separate interests seeking redress by mandamus, cannot join in one and the same writ. Since the Act of June 8, 1893, sec. 4, writs of mandamus sould be prosecuted in the name of the party instituting it as plaintiff and not in the name of the Commonwealth unless the object sought is to enforce a public duty or a duty affecting a particular public interest of the State. said property, and they are further advised that the constable cannot be indemnified to sell their exempted property. That they are without other adequate and specific remedy at law, and therefore pray for a peremptory mandamus directing said C. W. Huttel, constable, to make the said exempted property so that they may retain what is exempted to each under the provisions of the Act of April 9, 1849. The defendant moved to quash the writ for the following reasons: It seems that a mandamus will not lie to compel a constable, charged with the execution of a landlord's warrant, to have an appraisement made of goods elected to be retained by the tenant under the $300 exemption The application for mandamus includes two law, as such a proceeding would result in manifest in- separate and distinct cases, without a joint interconvenience. Possibly this remedy, however, would be est. The writ only issues where there is a clear and second section of the Act of April 9, 1849, P. L. specific right to be enforced, and the record does 533, and not the appraisement contemplated by not show what right the wife had, she being a the landlord and tenant Act of March 21, 1772, stranger. I Sm. L. 370. The record must show a right to have the thing done, but the thing sought to be done is that the constable shall give each of the relators his and her exemption, which is an absurdity. The petition must show on its face that the relators or either of them has a remedy by an action of trespass or replevin. No precedent, in Pennsylvania, has been cited, and we have been able to find none, where the remedy by mandamus has been appplied in such a case. This is not a conclusive argument against it, but it is not without weight. The manifest inconvenience which would result if it were to be held an appropriate proceeding against a mère bailiff for the determination of the manifold disputes arising out of claims for exemption on distress for rent is a still stronger argument why The writ must show that it was within the power of defendant to do the act in question, but the petition fails to show that the defendant did not disclaim ownership of the goods, and further it should not be recognized, except, possibly, in to show that the goods levied on were not the goods of a stranger so as to put it in the power of the constable to appraise the exemption. The constable acting under a landlord's warrant cannot be compelled to allow the exemption by mandamus. cases where the ordinary remedies would be wholly inadequate. No facts are alleged in the petition which make this case exceptional. But aside from this, the general rule is, that two or more persons having separate interests seeking redress by mandamus cannot join in one The Court, SCHUYLER, P. J., quashed the writ, and the same writ, but should have separate writs filng the following opinion: according to their several interests: 14 A. & E. "On the relators' own showing they have an Enc. of L. 219. Where the distinct rights of two adequate remedy at law by writ of replevin or or more persons are improperly joined, the writ action of trespass and their petition should be is liable to be either superseded or quashed: Tapdismissed for that reason alone. If there are ping on Mandamus, 324. In this case the landany peculiar facts in their case which would lord's warrant issued against Henry F. Menges. render these remedies ineffectual, such facts be- Camilla claimed part of the goods distrained, and ing jurisdictional, should have been set forth in joined in the petition praying for a mandamus their petition. Nor can we see upon what prin- directing the defendant to proceed to make the ciple the wife is joined as co-relator. The land- appraisement "so that your petitioners may relord's warrant was against the husband alone, and tain what is exempted to each of them," etc. he alone would be entitled to an exemption on the Even if she had a standing to demand an aptheory that a portion of the property levied upon¦praisement and setting apart to her of the goods belonged to her, still, her rights being separate claimed by her, she asserts a separate and disand distinct from those of her husband would tinct right. It may be that she has no such right, call for a separate and distinct remedy for their but it is enough for us to know that she asserts enforcement. it, and according to the rule above stated should Writ of mandamus quash- have prosecuted it in a separate suit. As the objection was made promptly the Court committed "1896, October 12. ed and petition dismissed." This appeal was then taken and the above ac- no error in sustaining it. tion of the Court assigned as error. William C. Loos, for appellants. We remark, although we do not at all rest the judgment on that ground, that except where the writ is sought to enforce a public duty or a duty affecting a particular public interest of the State March 17, 1897. RICE, P. J. The first question the proceeding, like an ordinary action, is prosein this case is, whether mandamus will lie to cuted in the name of the party instituting it as compel a constable, charged with the execution of plaintiff, and not in the name of the Commona landlord's warrant, to have an appraisement made of goods elected to be retained by the tenant under the three hundred dollar exemption law. It should be noticed that the appraisement The decree is affirmed, and the appellants are sought to be enforced is that provided for by the directed to pay the costs. W. M. S., Jr. wealth as formerly: Act of June 8, 1893, P. L. 345, sec. 4. This provision was overlooked in the present case. fraud can rest. All of the persons who in 1869 took part in the transaction now under investigation, except the plaintiff, are dead, and her knowledge of it is limited to the signing of a transfer of the policy. We are left mainly to in[No. 4. ference in determining the intentions of the parties and the means employed to carry them out. The transaction in its inception was not an unusual one, and there is nothing in the manner in which it was subsequently carried out to give rise to a suspicion of unfair dealing or of intentional wrong. Jan. '96, 259, 274. Supreme Court, January 5, 1897. et al. Life insurance-Application of profits to premiums. An insurance company cannot forfeit a policy for nonpayment of premiums when there is due to the insured an amount of reversionary interest greater than the amount of premium due. If we confine our view to the occurrences of April 18, 1869, when the plaintiff's policy was surrendered and a new policy issued to her husband and assigned by him to the bank, there is ground for the conclusion of the learned master. This, however, is only a partial view of the transaction, and a very imperfect one. We should start with the occurrences of February 16, when the assignWhere a husband has a policy non-assignable by its ment from her was procured. On that day the terms, made in favor of his wife, and, after procuring from Seventh National Bank held the note of her husher an assignment thereof to a creditor, makes default in payment of premium, at a time when the reversionary in- band, George D. G. Matlack, for $1278.83, dated terest due him is greater than the amount of premium due, January 28, 1869, at four months, and he induced and takes from the insurance company an assignable policy her to assign to the bank as collateral a policy bearing the same number and for the same amount as the old policy, which policy is assigned to the creditor, who of insurance on his life for her benefit issued by pays the premiums thereon for a great number of years, the Mutual Life Insurance Company of New the wife is, on the death of the insured, entitled to claim York. The purpose of the assignment was evias under the first policy, and to receive the amount of the dently to secure his note held by the bank and to insurance money less the amount of premiums paid by the creditor, whose payments were made in good faith and in enable him to obtain additional loans. the belief that he held the policy as collateral and for the 19th of February the bank discounted for him a joint benefit of the holder and beneficiary: note for $500. The entry in his bank book shows that collateral was given with this note. What was done by him and the officers of the bank with reMatlack v. Mutual Life Insurance Co. et al., 37 ference to the assignment could not be shown, WEEKLY NOTFS, 526. because of the death of all the parties. The polAppeals of the Seventh National Bank of Phil- icy had been delivered to him by the plaintiff on adelphia, and the Mutual Life Insurance Com- February 16, and it was afterward with his papers pany of New York, defendants, from the decree at the bank. The most reasonable supposition, of the Common Pleas No. 4, of Philadelphia and one entirely consistent with the established County, in a proceeding in equity in which Theo- facts is that the bank discounted the last note dosia Matlack was plaintiff. under the belief that the assignment was valid, R versed as to law and finding of facts, but decree made in favor of plaintiff on other grounds. On the The facts as found by the master and the opin- and returned the assigned policy to him when it ion and decree of the Court of Common Pleas, was learned that it was ineffectual to transfer his are fully reported in 37 WEEKLY NOTES, 526. Both defendants took appeals. David W. Sellers, for The Seventh National Bank, appellant. Charles P. Sherman, for The Mutual Life Insurance Co., of New York, appellant. Francis J. Alison, for appellee. wife's interest. When the next quarterly premium on the policy fell due, April 18, 1869, it was not paid, and the policy lapsed. A new policy was issued, payable to the executors, administrators or assigns of Matlack, and this policy he assign ed to the bank. The strongest assumption against the defendants which it is possible to draw from the testiMarch 22, 1897. FELL, J. We find nothing in mony is that the premium due April 18, was left the testimony in this case to sustain the conclu- unpaid with the design that the policy should sion that there was a conspiracy to deprive the lapse and a new policy which could be transferplaintiff of the benefit of the insurance on her red should be issued. We cannot leap from this husband's life, and nothing on which a finding of assumption to the conclusion that a moral wrong |