(N. H..

The defendant had nothing to do with the shown to have been dishonestly acquired, would settlement made between the plaintiffs and disorganize all business operations and entail Otto. He was present when the final settle- an amount of risk and uncertainty which no enment was consummated between them, but he | a sound general policy as well as upon that printerprise could bear. The rule is founded upon made no representations in reference to the ciple of justice which determines as between innumber of blocks on hand, and knew nothing nocent parties upon whom the loss should fall about it. The plaintiffs relied upon the re- Bank, 147 N. Y. 184, 191, 192, 41 N. E. 403; under existing circumstances." Hatch v. Nat. turns and statements of Otto, which were Gammon v. Butler, 48 Me. 344; Lime Rock. honestly made, but turned out to be erroneous Bank v. Plimpton, 17 Pick. (Mass.) 159, 28 Am. The overpayment was made by checks which Dec. 286; Nassau Bank v. Nat. Bank, 159 N. were payable to the defendant in accordance. 456, 54 N. E. 66. with the order given by Otto to plaintiffs no mistake which affects the validity of the "As between the payor and the payee there is when the contract was signed. The checks transaction. One receiving money or negotiable were made to the defendant, but the plain-securities in payment of or as security for an tiffs took a receipt for the checks from Otto. money or securities were obtained. It is better existing debt is not bound to inquire where the In legal effect the money was paid to Otto, that money or a negotiable security, passing and by him to the defendant. Atwell v. Jen- from hand to hand to one who rightly receives it kins, 163 Mass. 362, 40 N. E. 178, 28 L. R. A. for a valuable consideration, should carry on 694, 47 Am. St. Rep. 463; Walker v. Conant, Kendrick, 172 Mass. 71, 72, 51 N. E. 453. its face its own credentials." Spaulding v. 69 Mich. 321, 37 N. W. 292, 13 Am. St. Rep. 391; Southwick v. First Nat. Bank, 84 N. Y. 420, 436.

The checks for the overpayment were rightly received by the defendant, and applied to the payment of Otto's debts and obligations, for some of which the defendant was holden, but the application of some of the money received from the overpayment may have been to pay Otto's pay roll and the running expenses of his business for which the defendant was not holden. For it was the custom | of the defendant, when he received payments from the plaintiffs, to return to Otto enough to pay his help and other current business expenses, and to apply the balance to Otto's debts. About the time the contract was made the defendant sold to Otto one half and leased the other half of his quarry, tools, building and appliances. Otto owed the defendant from the inception of the contract until they settled February 4, 1911, $1,500 directly, and he indorsed notes for Otto at the bank, upon which there was due on the above date some $1,300. When they made a settlement the defendant suffered a loss. The defendant's settlement with Otto of all matters between them was made months before the plaintiffs demanded that he should return to them the overpayment which they had made on account of the mistake between themselves and Otto. Under these circumstances the defendant cannot be compelled to refund to the plaintiffs the amount of the overpayment.

"When a bill is paid to one who holds it in good faith and for value, he should not be called upon afterwards to account for the money paid, perhaps at a distant time or place after the accounts with the drawers have been settled and closed, upon proof that in transactions between the drawees and drawers, of which the holder has no knowledge or means of knowledge, there has been some fraud, or wrong, or mistake, to the injury of the drawees." Southwick v. First Nat. Bank, supra; Justh v. Nat. Bank, 56 N. Y. 478, 484; Goshen Nat. Bank v. State, 141 N. Y. 379, 385, 36 N. E. 316; Rankin v. Chase Nat. Bank, 188 U. S. 557, 565, 23 Sup. Ct. 372, 47 L. Ed. 594.

"To permit in every case of the payment of a debt an inquiry as to the source from which the debtor derived the money, and a recovery if

The case of Merchants' Insurance Co. v. Abbott, 131 Mass. 397, is very similar to the present action. In that case the plaintiffs had insured Abbott's mill. The mill was burned, and the loss was adjusted; whereupon Abbott assigned to Denny, Rice & Co., who are the real defendants in this action, the amount due upon such adjustment, which amount was paid to Denny, Rice & Co. in payment of debt due to them from Abbott. More than a year afterwards the plaintiffs learned that the mill was burned with the knowledge and at the instigation of Abbott, and that his proofs of loss were false and fraudulent.

knowledge of any fraud, and were wholly inDenny, Rice & Co. had no nocent parties. It was held that the payment made to Denny, Rice & Co. could not be recovered back by the plaintiffs. In his opinion Gray, C. J., said:

In

Abbott, and the only mistake was as between them and him. The money was voluntarily paid "The only contract of the plaintiffs was with by the plaintiffs in discharge of Abbott's supposed claim upon them under their policy, and to these defendants as the persons designated by Abbott to receive it, and was in legal effect defendants received the money, not in satisfac a payment by the plaintiffs to Abbott. These tion of any promise which the plaintiffs had such promise), but under the agreement of Abmade to them (for the plaintiffs had made no bott with these defendants that they might receive it from the plaintiffs and apply it to the other words, the money was paid by the plainsatisfaction of Abbott's debt to themselves. latter were entitled to recover from the plaintiffs to these defendants, not as a sum which the tiffs, but as a sum which the plaintiffs admitted to be due to Abbott, under their own contract with him, and which at his request and in his behalf they paid to these defendants, who at the time of receiving it knew no facts tending to show that it had not in truth become due from the plaintiffs to Abbott. This payment by the plaintiffs to these defendants at Abbott's request was these defendants, and might have been so pleada satisfaction of Abbott's debt to ed by him if sued by them upon that debt. fendants, there was no fraud, concealment, or As between the plaintiffs and these demistake. These defendants had the right to re them. The assignment which they presented to ceive from Abbott the sum which was paid to the plaintiffs was genuine, and was all that it

*

[1, 2] The general rule in Pennsylvania is, and always has been, that the words "survivor" or "surviving," following a prior gift are understood as referring to the death of The assignments of error are all sustained, the testator, unless a contrary intention is the decree of the court below is reversed, apparent. Shallcross' Est., 200 Pa. 122, 49 and the record is remitted, that distribuAtl. 936; Woelpper's App., 126 Pa. 562, 17 tion may be made in accordance with the Atl. 870; Ross v. Drake, 37 Pa. 373. We find report of the auditor.

es

his shop in Arctic, R. I., on August 22, 1916, and bought a lot of rags and junk. Mr. Hortvitz then made out an itemized bill of the transaction which amounted to $375.27 and gave the plaintiff two checks, one for $125.27 dated August 22, 1916, and one for $250 dated August 28, 1916. The plaintiff cashed the check for $125.27 on the following day, and on the 28th day of August, 1916, cashed the check for $250. Several days later the plaintiff was notified by the bank by which the checks had been cashed that payment on the check for $250 had been stopped. The plaintiff then remitted to the bank the sum of $250 and protest fees amounting to $2.04, making a total of $252.04, and subsequently brought this suit against the defendants to recover that sum with interest at 6 per cent.

es-an advantage which we have always | fendants were partners in the junk business; deemed important in passing upon motions that Mr. Hortvitz called on the plaintiff at for a new trial-we readily conclude that his decision was not clearly an error. [2] The attempt by the appellants to distinguish this case from other cited cases decided by this court, among them Heathcote v. Barbour, 36 R. I. 453, 90 Atl. 803, on the ground that in the present case "there was no substantial conflict among the witness** as to the facts," is not successfully maintained. In a case where the question of testamentary capacity at a given time is the issue, it may be the fact that the witnesses are not much in conflict as to particular acts or utterances of the person who is the subject of the inquiry, because the witnesses describe different alleged acts and utterances. But the testimony of the different witnesses, in so far as it is pertinent to the issue, is none the less conflicting when it tends on the one hand to show testamentary capacity and on the other testamentary incapacity. Thus considered, and on the only fact in issue in the present case, the testimony is conflicting, and the question passed on by the jury and trial court was as to how it fairly preponderated.

The appellants' exception is overruled, and the case is remitted to the superior court for a new trial.

LONDON v. GLATSTEIN & HORTVITZ.

(No. 5116.)

The defendants by their several pleas claimed a set-off of $180, principally for money loaned by them to the plaintiff, also that a tender of $70 had been made by an agreement between the counsel which was filed with the plea of tender. It appears that the plaintiff's counsel had received the amount tendered, and that this amount of $70 was "to be considered with pleas, as if filed in the above Fourth judicial district court, in the clerk's office."

The jury was instructed by the court that the plaintiff was entitled to a verdict for at least $70, as the defendants by their plea of

(Supreme Court of Rhode Island. Nov. 30, tender had admitted that this amount was

1917.)

REVIEW

APPEAL AND ERROR 1005(2)
DENIAL OF NEW TRIAL.
Where the issue presented was a simple
question of fact, and the verdict was warranted
by the testimony, the trial court's refusal to
grant a new trial will not be disturbed.

Exceptions from Superior Court, Providence and Bristol Counties; John W. Sweeney, Judge.

Action by Max London against Glatstein & Hortvitz. There was a verdict for plaintiff, and defendants bring exceptions. Exceptions overruled, and case remitted, with directions. Archambault & Archambault, of Providence, for plaintiff. Leonard N. Zisman, of Providence, for defendants.

PER CURIAM. This is an action on book account to recover a balance due, as the plaintiff claims, from the defendants for rags and junk sold to the defendants. The action was begun in the district court and decision was rendered therein for the plaintiff for the amount claimed, $250, and costs. The de fendants claimed a jury trial and in the superior court, after a trial by jury, a verdict was rendered for the plaintiff for $260.79, the full amount of his claim.

due, and suitable instructions were given in regard to the defendants' claim of a set-off. At the conclusion of the charge the attention of the court was called by counsel for the defendants to the fact that the tender of $70 had been received by the plaintiff. The court stated that this amount would be deducted from the amount of any verdict rendered by the jury and the case was left to the jury with this understanding, by consent of both parties, and no exception was taken to the charge.

Subsequently the parties agreed that the sum of $70, which had been received by the plaintiff, should be deducted from the amount of the verdict returned by the jury, and this agreement was approved by the trial court, who then, after hearing the parties on the motion for a new trial, decided that the verdict of the jury, as thus reduced, was a proper finding, and the defendants' petition for a new trial was denied.

The case now comes to this court on defendants' bill of exceptions to the refusal of the trial court to grant a new trial, and is based upon the customary grounds. We have read the transcript of evidence, and it is apparent that the issue presented to the jury

From the testimony it appears that the de- was a simple question of fact. The defend

ants do not claim that they were not indebt- | an injunction restraining the defendants from ed to the plaintiff, but claim that their set- mining and taking coal away from the leased off against such amount should be allowed. premises. The trial judge, Newcomb, J., The trial court has approved the verdict of found as follows: the jury, which in our opinion is warranted by the testimony.

The defendants' exceptions are therefore overruled, and the case is remitted to the superior court, with direction to enter judgment on the verdict as reduced by agreement.

(259 Pa. 8)

DRAKE et al. v. BERRY et al.

Conclusions of Fact.

(1) The bill was filed April 6, 1912, by George K. Drake, now deceased, who sued in his rights as successor in title upon the death of his father, Charles Drake, called the lessor in the instru ments hereinafter mentioned. He had succeeded, however, as one of four brothers who became equal tenants in common. His cotenants, not joining in the bill, are for technical reasons made parties defendant. After the death of the original plaintiff substitution was made, as ap

(Supreme Court of Pennsylvania. June 30, pears by the above caption.

1917.)

1. MINES AND MINERALS 70(2)-LEASE CONSTRUCTION "MINER'S WEIGHT" COUNTING FOR ROYALTIES.

Ac

Under a coal lease providing that miner's weight was to be the standard of each ton of coal mined, the court, in the lessors' bill in equity for an accounting for coal mined, properly determined that the accounting should be on the basis of the miner's weight as fixed upon by the operators and miners during the accounting period, and not upon the basis as it existed when the lease was executed; "miner's weight" not being a fixed unvarying quantity of mine-run material, but such quantity as operators and miners may, from time to time, agree as being necessary or sufficient to produce a ton of prepared coal.

[Ed. Note.-For other definitions, see Words and Phrases, Miner's Weight.] 2. MINES AND MINERALS

122-COAL MINING LEASE-REMOVAL OF PILLARS-INJURY TO SURFACE.

A provision in a coal mining lease that sufficient pillars of coal should be left to support the roof over the gangways and for the usual protection of the mines generally was for the protection of the colliery, and not of the surface, so that the lessors' successor owning the surface was not entitled to enjoin the removal of coal from the pillars, especially after any reason to apprehend a surface disturbance from the removal of the coal had ceased. 3. MINES AND MINERALS

PILLARS-USAGE.

62(1)-LEASE

Where a lease granted all the coal in a mine, the lessors' successor was not entitled to restrain the removal of pillar coal on the ground of a usage that the owner of the surface was entitled to one-third of all the pillar coal, or to forfeit the lease on account of such removal. Appeal from Court of Common Pleas, Lackawanna County.

Bill in equity for an accounting by George
K. Drake, continued after his death by
George Drake, executor, and Sarah E. Drake
and Caroline E. Stewart, executrices, against
John W. Berry, trustee, and others.
From a
decree, plaintiffs and defendants
Appeals dismissed.

The firm of Jermyn & Co., by its surviving partner, is a sublessee. The other defendants represent the interest of the lessees next herein

after mentioned.

(2) The subject-matter is the amount of royalty bearing coal mined from several veins underlying a tract of 70-odd acres of land in what is now Old Forge township, this county, of which Drake, the lessor, was owner in fee. In 1863 and 1865, respectively, he made two indentures under seal, commonly called "coal leases." The one granted to R. D. Lacoe and J. B. Shifferboth now dead-their heirs, assigns, etc., all the coal in the tract, excepting the upper or Marcy vein; the other granted to the Massachusetts Coal Company, its successors and assigns, all the coal so excepted. The first was for a term of ten years and such further time as lessees should continue to pay the royalty, subject to forfeiture for default of payment for the period of six months. A yearly minimum of $500 was to be paid in half yearly installments on the 1st of April and October, collectable at lessor's option by distraint. In consideration thereof lessees were to have the right to mine and carry away 5,000 tons of coal yearly at ten cents a ton "miner's weight to be the standard." The same price was to be paid for all coal mined in excess of the minimum which was to be paid whether mined or not, subject, in case of deficit in mining or payment in any one year, to have credit for any excess thereof in any preceding year, with the privilege of making up in any subsequent year such deficit of coal as may have been paid for, though not mined in any preceding year. The lease conferred the usual mining rights for purpose of shafts and other structures, with the use of so much surface as might be deemed necessary or expedient, inter alia, for roads and wasting grounds. There was a covenant for workmanlike mining, and that "sufficient pillars of coal shall be left to support the roof over the gangways, and the usual protection of the mines generally."

(3) While the second lease passed all the coal in the Marcy, the obligation to mine was limited to the "merchantable coal," the exhaustion of which was the only thing to define the term. There was no minimum, but the royalty was 10 cents a ton "miner's weight on all the merchantable coal mined from said vein," etc., payable semiannually. Lessee was to have the right of appeal. way over or under the demised premises after the expiration of the term for the conveyance of coal taken from the corresponding vein on an adjoining tract. It was further stipulated that the lease was "subject to the provision of" the Lacoe and Shiffer lease "so far as relates to its continuance, the payment of taxes and the inspection of books as well as the conduct of mining operations in a workmanlike manner." In addition to the royalty, it called for the annual delivery to Drake or his successors of "fifty tons rights in the premises should continue to be of lump or prepared coal" so long as lessee's exercised. The lease changed hands and eventu

See, also, 157 Pa. 17, 27 Atl. 538. The principal relief asked for in the bill was for an accounting for coal royalties payable to plaintiffs under two coal leases, exe cuted in 1863 and 1865. The main question was the tonnage basis upon which the royalties are to be paid. In addition to the prayer for an accounting, a decree was asked for, declaring the leases to be forfeited and for

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes