for one thousand dollars, shall be surrendered v. Bushley, 19 Ves. 381; Doe v. Huthwaite, 3 and cancelled by the trustees, thus making the legacy to that college $5000.' The will was dated May 13, 1875, and there was a codicil, referring to its provisions, dated May 22, 1877. The testator held no bond of the Washington College, nor did he, so far as the evidence shows, ever hold a bond of any college at Lexington, Virginia, for $1000. But he did hold, and continued to hold until the time of his death, the two bonds of the Virginia Military Institute amounting to $1000, and there can be no doubt that these were the bonds referred to. He had acquired them, not as an investment, but for the purpose of aiding a school needing assistance. To a man of his large fortune, the amount given was but a trifle. The bonds were evidently not before him when the will was made; and it is not at all surprising that he should refer to them inaccurately, and, under the circumstances, even make a mistake in the name of the institution from which he had received them. B. & Ald. 632; Blundell v. Gladstone, 1 Phil. 279; S. C., 1 H. L. Cas. 778; Wagner's Appeal, 7 Wright, 102.) And there is no presumption in favor of the name more than of the description. (Per Lord CAMPBELL, in Drake v. Drake, 8 H. L. Cas. 179.) The testator knew that he had befriended a struggling school in Lexington, Virginia, and that he held its bonds. Its officers regarded him as a benefactor, and had invited him to be their guest. He had expressed an interest in its welfare, and had intimated that what he had done was less than he desired to do. The name was forgotten or mistaken, but the direction to surrender and cancel the bonds could only apply to it, and the identity of the intended beneficiary was thus unmistakably indicated. The mistake as to the name was naturally accounted for by the application made to him in 1873 by the Washington and Lee University for aid by donation or bequest. He had had no previous communication with this institution, but it was in Lexington, Virginia, and he would be apt to take it for granted that it was the one As the case was presented at the argument which had already been the recipient of his our impression was that the name should govern, generosity, not knowing that this small town and that the award should have been to the contained two institutions of learning. "WashWashington and Lee University, whose corpo- ington" was a name which would remain in his rate title, until 1871, was Washington College-memory, but the name was not the important now its popular designation. But a more careful feature; the college whose bonds he held was consideration has led us to a different conclusion, present in his mind. The case thus falls within the reasons for which may be briefly stated. the principle of the maxim, "Præsentia It is clear that the testator intended to benefit corporis tollit errorem nominis." If a legacy but a single institution, and the money cannot is given "to John Smith, the tenant of my farm be given to one and the bonds to another. He at A.," the tenant might take if his name should declares, after directing the surrender of the be Thomas Robinson, even if the legacy should bonds, that there will thus be a "legacy to that be claimed by a John Smith, the latter never college of $5000." having been my tenant at all. How is the difficulty to be solved? It is equally clear that the bonds cannot be That the testator labored under a mistake as given to the Washington and Lee University. to the name of the college whose bonds he held They can only be "surrendered" to the obligor; is shown affirmatively by the testimony of Gen. and their cancellation" would prevent the Lilley, who called upon him on behalf of the gift to the Washington and Lee University, if it Washington and Lee University, in 1876 (after was intended as "that college," from being the execution of the will), and to whom he $5000. A construction which will defeat any declared, in spite of the assurances that it could part of the will is not to be adopted if one is not be, as none had been issued, that he possible which will sustain it as an entirety. "already held some of its bonds;" an impresIt is well settled that while a mistake in the sion no doubt strengthened by the singular name of a legatee (except in certain very rare circumstance that the gentlemen calling upon instances), cannot, where any one having the him on behalf of each institution, were or had name was known to testator, be corrected, if the been officers in the Confederate service, both of name alone is employed in the will, it is otherwise where both name and description are given, for in that case the context furnishes the means of making the correction, and whatever is found to be erroneous is simply rejected. The maxim is Falsa demonstratio non nocet, and the falsity may be shown to be either in the name or in the description. (Ryall v. Hannam, to Beav. 536; In re Rickett, 11 Har. 299; Stockdale whom had lost an arm, and having names so near alike (Lyell and Lilley) that he might naturally believe they were the same individual. Upon the whole, we are of opinion that the conclusion reached by the Auditing Judge was the correct one, and the exceptions are, therefore, dismissed. Opinion by Penrose, J. W. L. S. WEEKLY NOTES OF CASES. husband, the said William Fenstermacher. The youngest of the Fenstermacher children was about eight years old at the time of the decease of their mother. All the minors had guardians. On June 4, 1881, the said John Peters died intestate, VOL. XV.] THURSDAY, MARCH 12, 1885. [No. 31. leaving to survive him Philip Peters, a son by his Supreme Court. Jan. '84, 385. first wife. On June 13, 1881, letters of administration upon the estate of the said John Peters were issued to Philip Peters. On July 29, 1882, the final account of Philip Peters, administrator, was filed and subsequently confirmed, showing a balApril 15, 1884. ance for distribution of $2424.02. Peters's Appeal. Husband and wife-Gift-Decedent's estatePresumption of payment - Laches - Evi dence. Stale claims against dead men's estates should be closely scrutinized. Presumption of payment arises after twenty years, and cannot be rebutted but by clear evidence. What is such evidence is a question of law for the Court. In 1851 a widow married having a separate estate. Shortly afterwards she paid thereout certain debts of her husband at his request. She died in 1855, intestate. In 1858 her husband, without first administering, collected a certain note due to her before marriage. In 1881 the said husband also died, intestate. In 1883, letters of administration were first granted upon the estate of the said wife, and claim was made by such administrator upon the personal estate of the said husband for allowance of said payments so made and received. No demand was made by the wife during her lifetime upon her husband for this Appeal of Philip Peters, from a decree of the Orphans' Court of Luzerne County, distributing a fund in his hands, as administrator of the estate of his father, John Peters, deceased. At the audit of said administrator's account, Daniel Bloss, administrator of the estate of Rebecca Peters, deceased, wife of the said John Peters, deceased, claimed $583.33, paid by Mrs. Peters during her lifetime out of her separate estate in liquidation of a certain indebtedness of her husband, the said John Peters, said indebtedness having been contracted prior to the marriage of the said John and Rebecca Peters; and also the further sum of $150, paid by a creditor of the said Mrs. Peters to the said John Peters, after her decease. The Auditing Judge (RHONE, P. J.) found the facts to be as follows: In 1851 John Peters, the decedent, a widower, married Rebecca Fenstermacher, a widow, with several children, and possessed of an estate in her own right, left to her by her first husband, Wm. Fenstermacher. In March, 1855, Mrs. Peters died intestate, leaving to survive her, her husband, and several children by her first On March 22, 1882, letters of administration upon the estate of the said Rebecca Peters, formerly Fenstermacher, were granted to Daniel Bloss. Soon after the marriage of Mrs. Fenstermacher with the said John Peters she paid certain debtsin amount now unknown-of her husband, the said John Peters, at his request, with money received from her former husband's estate. Nothing was said at the time or afterwards to indicate whether she intended the payment to be a gift or loan. In 1850 Mrs. Fenstermacher loaned her brother $250. He returned $100 to her; and in 1858 paid the balance of $150 to her husband, the said John Peters. The Auditing Judge allowed both claims with interest, and accordingly awarded the sum of $1045.61 to the said John Bloss, administrator. Exceptions filed by Philip Peters to the report of audit and distribution were dismissed by the Court, and a decree of distribution entered as reported. Philip Peters thereupon took this appeal, assigning for error the decree of the Court. Q. A. Gates (A. R. Brundage with him), for the appellant. Where the questions decided are inferences from other facts, or conclusions from reasoning, the Supreme Court may review the findings of the Court below. Hindman's Appeal, 4 Norris, 467. Thirty-two years having elapsed since the money was alleged to have been loaned, payment thereof is presumed. Foulk v. Brown, 2 Watts, 214. Eckert's Appeal, 6 WEEKLY NOTES, 21. from death, coverture, infancy, and the like disAnd this presumption suffers no interruption. abilities. Unangst v. Kraumer, 8 W. & S. 391. The Statute of Limitations runs on a debt demandable, not from the time of demand actually made, but from the time when it might have been made. Milne's Appeal, 3 Out. 483. Andress's Appeal, Id. 421. John McGahren and John T. Lenahan, for appellee. Since the Act of 1848 money received by the husband from his wife's estate is presumed to have been received for her. Gochenaur's Estate, 11 Harris, 460. It having been decided by the Court below as a question of fact that the transaction was a loan, the Supreme Court will not reverse unless a clear mistake be shown. Brua's Appeal, 5 Smith, 294. the appellee's case. This leaves the claim wholly uncertain in amount. The learned Court below fixed it at $583.33. I have looked in vain through the evidence for anything which would lead to this result; but conceding its correctness, we are left without any finding in the "Report of audit and distribution" as to the nature of this transaction. Was it intended as a loan of money by the wife to the husband, or as a gift? Upon this vital question of fact we are not enlightened. That the learned Judge felt the strain of this part of the case is apparent from his opinion in which he says: "Aside from the proof of actual payment of the husband's note by the wife, with her separate funds, the testi A wife cannot sue her husband for a loan from mony consists almost entirely of statements her separate estate. Ritter v. Ritter, 7 Casey, 396. The Statute of Limitations does not run against such a claim until the death of the husband. Tower v. Hagner, 3 Wharton, 48. Kutz's Appeal, 4 Wright, 90. Marsteller v. Marsteller, 12 Norris, 350. It is a conclusive answer to the presumption of payment relied upon by appellant, that as late as the year 1880 the debtor admitted and recognized the existence of the debt. Wharton's Ev., 1364. Eby v. Eby, 5 Barr, 435. Reed v. Reed, 10 Wright, 242. April 28, 1884. THE COURT. Stale claims against dead men's estates should always be scrutinized. Especially so where the claim might have been brought against the decedent in his lifetime, but has been delayed until death has sealed his lips, and placed it beyond the power of his legal representatives to defend with a full knowledge of the facts. The claims, the allowance of which forms the subject of the two assignments of error, belong to this class. One of them was allowed to sleep for over thirty years, and the other for about twenty-five years before any one was called upon for payment. The first claim was for the sum of $583.33, which it was alleged Mrs. Peters paid at the request of her husband, and on his account, in 1851. There was evidence that Mrs. Peters had this amount of money, and that she did pay Jacob Weiss and Wm. Hess some money on account of notes they held against her husband. But as to the amount of the notes, or the amount Mrs. Peters paid at that time there is not a word of testimony. It is true one witness speaks of an admission of the decedent that he received something like $600 from his wife, but the admission was coupled with the further statement that the money was given to him by his wife to enable him to keep their home. The admission, taken as a whole, does not strengthen made by this decedent to his neighbors since his wife's death, the substance of which leaves it in some doubt whether the first transaction was a gift, a loan, or an agreement that his heirs and his wife's heirs should share equally in their estates. The whole testimony, however, leaves no doubt of the decedent's indebtedness to the Fenstermacher heirs for something, and of his acknowledgment of the same down to a short period before his death. "But one witness speaks of an acknowledgment by decedent of an indebtedness to the Fenstermacher heirs. This was Henry Gruber, who had borrowed money of decedent. When the latter called upon Gruber about this money this is what occurred, according to Gruber's testimony: 'He said by right he should not loan the money; that he had money; that by right he should take the money and pay off the Fenstermacher heirs, but then a couple of them had offended him and he would put the money on interest.' Of another interview the witness said: About three years ago John Peters got me to take him down to Black Creek, and in conversation he said he was getting old, and said that if I could give him this money he would pay off the Fenstermacher heirs. I asked him how much he owed them, he said he did not know how much. He said he owed them, and that if he, Peters, had the money I owed he would try to settle with them.'" This is indefinite. No amount is fixed, nor are the Fenstermacher heirs designated. It was fairly off-set by the decedent's declarations before referred to that his wife gave him the money to help pay for the farm, and prevent its being taken from him. We regard this evidence as insufficient to rebut the presumption of payment. After a lapse of twenty years mortgages, judgments, and all evidences of debt are presumed to be paid (Foulk v. Brown, 2 Watts, 209); and a recognizance in the Orphans Court (Beule v. Kirk, 3 Norris, 415); and in less than twenty years, with November 7, 1884. West Republic Mining Co. v. Jones & circumstances, payment may be presumed. Oct. & Nov. '84, 177. which such debt is evidenced. And such pre- Whether the presumption of payment is sufficiently rebutted is a question of law for the Court. (Beale v. Krib, supra.) In holding, as we do in this case, that the presumption was not overcome, we do not overturn any of the findings of fact in the report of audit. The second claim is in no better position as respects the presumption. It is not as old as the first claim by several years, but it is quite old enough for the presumption of payment to attach in the absence of stronger proof to rebut it. Aside from this it is at least doubtful whether it was not included in the first claim. There is no evidence that Mrs. Peters had at any time more than the sum of $583.33 as her separate estate. It is probable therefore that the $150 was a part of that sum. As both claims must be disallowed, any further reference to this matter is unneces Representations prior to a contract-Sale by sample coupled with stipulation - Severable or entire contract-Testimony-Determination of market price-Damages-Interest. Prior correspondence and conversations may be introduced in evidence to explain a contract, but not to modify its terms. Although a sale by sample does not constitute a warranty in Pennsylvania, a stipulation that future deliveries will equal the sample is enforceable, and it is immaterial to determine whether such stipulation is a warranty or condition. Wetherill v. Neilson, 8 Harris, 448, distinguished. A contract to deliver ore of a certain weight, and of a certain price per ton-but where no time is fixed for the completion of the contract, nor any amount as a monthly delivery, and where a payment is made before any delivery is an entire contract. Chemical analysis of ore received under the terms of a contract may be admitted in evidence, although no chemical analysis of the sample has been made, which the ore was stipulated to equal.' To determine the value of ore which has been found unfit for the uses for which it was sold, evidence is admissible to show its unfitness for other purposes. The legal measure of damages when inferior ore has been furnished is the difference between the contract price of the ore and the market value. Where shipments have been received without any protest by the buyer, or inducements by the seller, the dates for estimating the market price are the dates when the ship ments were received. Interest should be allowed in all cases of contract where it is the duty of the debtor to pay money without a previous demand by the creditor; the debtor can only relieve himself of liability by tendering payment of the debt. Under the circumstances of this case it was error to admit in evidence exhibits taken from an unculled pile of ore more than a year after the last delivery under the con tract. Error to the Common Pleas No. 2, of Allegheny County. This was an action of assumpsit brought by the West Republic Mining Company, a corporation of the State of Ohio, acting throughout by its agents, Rhodes and Co., against Jones & Laughlins, upon a contract for the sale of iron ore. Pleas, non-assumpsit, payment, etc. The history of the formation of the contract and its terms are found in the opinion of the Supreme Court, infra. On the trial, before WHITE, J., it appeared that the contract was assigned to Laughlin & Co., and the first payment on account in pursuance with the conditions of the contract was made in May, 1882, before any shipment of ore was received. The ore first delivered was inferior to the be delivered. Suit was finally brought to recover sample car load, and defendants ordered the the contract price of the ore delivered and for shipments to cease until further advised, and which no settlement had been made and for formally protested against the quality sent. damages sustained by the failure to complete the But upon the explanations and assurances of contract; the market price of ore having fallen. the plaintiffs, the shipments were ordered to be At the trial of the cause below defendants resumed until 500 tons were delivered, the offered to prove by James Laughlin "that the amount paid for in advance by the May instal-plaintiffs proposed to have the firm to which ment. The second delivery of ore which witness belonged become a purchaser of the ore balanced the payment was also inferior, and reasonable notice thereof was given to the plaintiff. During the summer no ore was shipped, owing to a strike at the works of Laughlin & Co., and when the June and July payments were demanded, defendants refused to meet them, defining their position by their letter dated July 31, 1882, as follows: "While Laughlin & Co. do not decline to receive the ore contracted for, they are justified under the circumstances in declining to make payment for it, until it has been received and found to be equal to the best Republic Iron Co.'s ore, as contemplated, and in having it understood that no more will be received or taken off the cars which is not fully up to this standard." The remainder of the correspondence during the summer consisted on the side of the plaintiffs in demands for payments and assurances of the good quality of the ore and refusals by the defendants to pay until the ore had been received and inspected. was accordingly delivered in October and November, and the shipments paid for respectively on November 7 and December 7. From the time when delivery was resumed early in October till January 9, 1883, no complaint was made of the ore received, but plaintiffs were repeatedly urged to "forward their shipments before freezing weather." On the latter date, after making a trial of the ore defendants write, "We have been making the West Republic ore for the past month and find that the yield of iron is very unsatisfactory. . Instead of being a first-class ore as represented, it does not yield in the furnace equal to second class ores previously worked in the same furnace. You will therefore stop all shipments of ore. . . We cannot use the ore here unless price is reduced to correspond with quality." At this time December and January shipments amounting to about $5000 were not paid for, and about 1700 tons contracted for were yet to of the plaintiff company; that, in order to in- Objected to by the plaintiffs. First. Because all negotiations, representations, expressions of opinion and the like, preceding the making of a written contract, such as that sued on, are merged in the contract, and are not competent to be shown to vary its terms. Second. Because the plaintiffs' obligations, whatever they may be under the contract, cannot be enlarged by parol. Third. Because representations or expressions of opinion constitute no defence to an action to recover the price of goods sold and delivered in the absence of an express warranty. Fourth. Express warranty cannot be added to a contract in writing by parole. It must be found in the contract itself, and there is none such in the contract sued on. Fifth. So much of the offer as relates to ore furnished prior to December 1, 1882, is inadmissible, it being conceded that all ore delivered prior to that time was accepted and paid for by the defendants. It is too late after such accept |