the figure they paid for it in the exchange. I witnesses, but we discover therein no eviSo far as the petition states, the value, based upon net income, therein referred to, may have been "fixed" for "the purpose of said transfer" in the minds of appellants alone, with the desire to derive a certain percentage of income therefrom, in no way contemplated by appellee; and, moreover, the actual value of the property may be fully up to that contemplated at the time of the trade, so far as any mutual understanding on this point is averred.

(106 A.)

no error is apparent in the instructions complained of.

[5] Finally, appellants contend that, because of alleged confusion on the trial under review regarding the proper measure of damages, they in all fairness, are entitled to another chance; but, as said by counsel for appellee, in their printed argument, "if there was confusion on the trial as to the proper theory of the measure of damages, it was made by appellants," through an endeavor to enforce a standard, or measure of damages, they were not able to sustain. For this, appellee will not be penalized.

The assignments of error are overruled, and the judgment is affirmed.

WALLING, J. This appeal by defendant is from a judgment for want of a sufficient affidavit of defense in an action of assumpsit on promissory notes. The firm of R. D. Wood & Co. of Philadelphia had been in business for many years and in 1911 was composed of three brothers, Walter Wood, Stuart Wood, and George Wood, the defendant. It was then engaged extensively in various enterprises in said city and elsewhere, and owned land and other property in several states. However, differences had arisen between the defendant and his brothers resulting in some litigation; and, through the help of counsel, an adjustment was effected, in the nature of a family settlement, embracing, inter alia, the firm's entire business and the joint interests of the brothers. This was reduced to a written agreement of twelve sections which was executed July 11, 1911. Thereby defendant retired from the firm and signed his interest therein and its enterprises to his brothers, who released him from further liability in connection therewith, and all pending litigation was discontinued. This settlement included the conveyances of land in different states, the transfer of bonds, stocks, Where partnership dissolution agreement covered a transfer to retiring partner of bonds etc., in various corporations, and the payand shares of a corporation in considerationment of money, releases from personal liafor his notes, he could not defend action on unpaid notes on ground that value of bonds, etc., had been fraudulently diminished by conduct of other parties, where, after discovering fraud, he did not for several years offer to rescind settlement, and where his affidavit of defense did not aver amount of his injury from such fraud. 2. PARTNERSHIP 311(4) DISSOLUTIONRESCISSION OF AGREEMENT-LACHES.

(263 Pa. 521)

WOOD v. WOOD.

(Supreme Court of Pennsylvania. Feb. 10, 1919.)

1. PARTNERSHIP 311(4) LACHES.

SETTLEMENT

A party desiring to rescind a partnership settlement on ground of mistake or fraud must on discovery of the facts at once announce his purpose and adhere to it, and, if he remains silent and treats property as his own, he will be held to have waived the objection and will be conclusively bound by the agreement.

bility on account of divers business enterprises, etc. In fact, it was about as exhaustive as it could well be written.

The firm was interested in the Camden Iron Works, and as a part of this settlement defendant received $90,000 of the bonds and $44,000 of the preferred stock of the iron works, for which he gave the firm 26 nonnegotiable promissory notes of $5,000 each and a like note of $4,000. The notes were drawn so that one would mature each 60 days, beginning January 1, 1914, and were placed in escrow to be delivered on receipt of the bonds and stock. The bonds in question were a part of an issue of $800,000, and the mort

gage to secure them, as first drawn, embraced the real estate but not the personal proper

Appeal from Court of Common Pleas, ty, of the Camden Iron Works. Under the Philadelphia County.

Assumpsit on 11 promissory notes for $5,000 each by Walter Wood, surviving and liquidating partner of R. D. Wood & Co., to the use of M. Hampton Todd and Walter Wood, receivers of said firm in liquidation, against George Wood. From an order making absolute a rule for judgment for want of a sufficient affidavit of defense, defendant appeals. Affirmed.

Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, and KEPHART, JJ.

advice of counsel it was redrawn so as to embrace both, and attached thereto was a certain affidavit required by the statutes of New Jersey, where the plant was located, in order to be valid as against the personal property. On information that such had been done, the defendant in 1913 accepted the bonds and stock and authorized the delivery of the notes, the first ten of which he paid on or before maturity. It is averred in his affidavit of defense that he learned for the first time in

1915 that prior to the recording of the redrawn mortgage said affidavit had been removed therefrom by Walter and Stuart Wood, and,

J. Wilson Bayard and M. B. Saul, both of although recorded as a mortgage upon both Philadelphia, for appellant.

real and personal property, it was not effec

J. H. Brinton and William F. Norris, both tive as to the latter as against creditors, purof Philadelphia, for appellee. chasers, and subsequent mortgagees, and that

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

other liens had been placed upon such per- | tinue to treat the property as his own, he will sonal property by Walter and Stuart Wood, be held to have waived the objection, and will which greatly impaired the value and marbe conclusively bound by the contract, as if ketability of the bonds The mortgage with- the mistake or fraud had not occurred. He is not permitted to play fast and loose. Delay and vacillation are fatal to the right which had before subsisted."

out the affidavit was recorded in May, 1913. Plaintiff admits his knowledge thereof in 1915, and avers that thereafter he declined to pay the notes as they matured; but he took no steps to disaffirm the settlement agreement or any part of it until he filed an affidavit of defense to this suit in January, 1918. Therein he asks that so much of the agreement as relates to his purchase of the bonds and stock of the Camden Iron Works be set aside, and also sets up as a counterclaim the amount of the 10 notes paid by him prior to the fall of 1915. Meantime Stuart Wood had died, and R. D. Wood & Co. had passed into the hands of receivers, who brought this suit on 11 of the notes maturing after September, 1915.

[1, 2] Without adopting all of the statements and conclusions in the elaborate opinion of the court below, we are satisfied that judgment was properly entered for want of a sufficient affidavit of defense. The agree ment of 1911 was manifestly intended by the parties as an entire contract embracing an adjustment of all matters between them; and their intention is the controlling factor in such case. Being an entire contract, it must stand or fall as a whole, and defendant cannot set aside one feature while affirming the balance. The purchase of the bonds and stock of the Camden Iron Works was a part of the entire transaction and must be so con

To like effect are Muehlhof v. Boltz, 215 Pa. 124, 64 Atl. 427; Dunn v. Columbia Nat. Bank, 204 Pa. 53, 53 Atl. 519; Hilliard v. Allegheny, etc., Woodcarving Co., 173 Pa. 1, 34 Atl. 231; Andriessen's Appeal, 123 Pa. 303, 16 Atl. 840; Acetylene Light, etc., Co. v. Smith, 10 Pa. Super. Ct. 61.

Both the original and supplemental affidavits of defense are also insufficient on the question of defendant's damages. There is no averment as to the amount he was injured by the alleged fraud. His bonds are secured by a mortgage on the reality, and as between the parties also on the personalty, of the Camden Iron Works, and for all that appears they are well secured. And, while there is an averment that subsequent liens have been placed upon the personalty, neither the amount thereof nor to whom payable is stated. So there is nothing to show to what extent if at all the defendant has been damaged. The assignments of error are overruled, and the judgment is affirmed.

HEISER v. REYNOLDS.

(263 Pa. 434)

sidered. The settlement as a whole must be (Supreme Court of Pennsylvania. Feb. 3, 1919.) regarded as the real consideration for the covenants of each. The facts in the cases 1. BROKERS cited for appellant, where contracts have

ING.

38(3)-NEGLIGENCE-PLEAD

been treated as severable, are not similar to A statement of claim against a broker which those here presented. But, even if the agree-avers breach of contract to invest safely sounds ment might have been so treated at its incep- in negligence and not in deceit.

BELOW-REVIEW.

be reviewed on appeal.
An objection not made at the trial cannot

BROKERS

3.
Where statement of claim against broker
for failure to invest safely alleged that no loan
and that name of a borrower was not known to
was to be made, unless secured by first lien,
plaintiff, and that property securing loan was
heavily incumbered, evidence that borrower was
known to plaintiff was immaterial variance.

38(3)-PLEADING-VARIANCE.

tion, it is now too late to repudiate the pur-2. APPEAL AND ERROR 181-OBJECTION chase of the bonds and stock in question. The notes were two years in escrow and the mortgage became a matter of public record in 1913, and thereafter defendant paid ten of the notes, and admittedly had personal knowledge of the alleged fraud in 1915, and yet took no steps to repudiate the transaction until 1918, long after all other branches of the settlement had been consummated. Under all the authorities his application comes too late; for on discovery of the fraud the vendee must promptly elect to rescind the contract, or he will be presumed to have waived the fraud and be bound accordingly. A leading case upon this question is Grymes v. Sanders, 93 U. S. 55, 62 (23 L. Ed. 798),

which holds that

"Where a party desires to rescind upon the ground of mistake or fraud, he must, upon the discovery of the facts, at once announce his purpose, and adhere to it. If he be silent, and con

4. RELEASE 31-CONSTRUCTION-GENERAL RELEASE.

A receipt specifically referring to certain matters followed by general words which, if standing by themselves, might operate as a general release, will not be so construed unless, upon the consideration of whole of the evidence, it appears to have been so intended; the maxim, "Verba generalia restringuntur ad habilitatem rei vel personam," applying.

(106 A.)

5. WITNESSES 268(1)
TION-CONSTRUCTION OF RELEASE.
One who drew and executed a receipt, and
who testifies on direct examination that it was
one of settlement, may be asked on cross-exami-
nation whether the matter in litigation was in-

Icluded in the settlement.

CROSS-EXAMINA- time he agreed to advance the money, to whom it was to be loaned; whereas the evi dence shows the borrower's name was stated at that time; and hence, for this reason also, the allegata and probata do not agree. Inasmuch, however, as plaintiff averred and the jury found the agreement was that no loan was to be made, whether to a named or unnamed person, unless secured as a first lien on real estate, the variance, if it is such, is an unimportant one; and, as no specific objection was made thereto at the time the testimony was taken, it cannot be made now. It is true a general objection was made, at the beginning of the trial, to plaintiff's offer of proof, but the admission thereof is not assigned as error, and, moreover, the objection did not refer specifically to this matter.

Appeal from Court of Common Pleas, Philadelphia County.

Trespass by Theodore Heiser against Alfred E. Reynolds for negligence in investing money. Verdict and judgment for plaintiff for $2,106.90, and defendant appeals. Affirmed.

Argued before BROWN, C. J., and ZER, WALLING, SIMPSON, and HART, JJ.

FRA-
KEP-

B. D. Oliensis, of Philadelphia, for appellant.

C. S. Eastwick, of Philadelphia, for appellee.

SIMPSON, J. Plaintiff sued defendant to recover the sum of $2,000 intrusted to him, as a broker, for investment. The verdict and judgment were for plaintiff, and defendant appeals.

The evidence shows that defendant was engaged in the business of loaning money for others; that he obtained money at various times from plaintiff to loan to other people, and on this particular occasion he obtained the sum of $2,000. Plaintiff says defendant expressly agreed that the money would be loaned only upon securities which were a first lien upon real estate. Defendant says the money was advanced to loan specifically to a named person at a large bonus, that plaintiff knew the property was heavily incumbered, and took the risk of the result. The jury having found the fact in favor of plaintiff, we must accept his statement as true.

[1-3] The principal complaint made by the defendant is that the allegata and probata do not agree. He avers the statement of claim is in deceit, whereas the evidence at most showed negligence, upon which ground the case was submitted to the jury. We cannot agree with his contention. The statement avers a contract to loan only upon first liens, that the money was loaned on a third incumbrance, and was all lost by reason thereof. The averment, therefore, is one of negligence growing out of a wrongful breach of the contract. Defendant also alleges the statement is so drawn as to lead to the conclusion that plaintiff did not know, at the

[4] Defendant also complains because the court did not give binding instructions in his favor, on account of a receipt given by plaintiff's counsel to defendant at the time of the payment of a sum of money stated therein. It would perhaps be sufficient to say in regard thereto, that the court was not asked to construe the paper; and no assignment of error sets forth a failure to construe it properly. Moreover, the paper is only a receipt; it deals with several claims, but not with the one in this litigation, and then contains general language which, if dissevered from the context, might be held to operate as a release of the present claim. It does not say it is a release of the claims specified and other claims, but is merely a receipt for the amount paid in settlement of the claims specified and provides for a general release in the future; and the maxim "Verba generalia restringuntur ad habilitatem rei vel personam," may well be applied thereto. The attorney who drew and signed the receipt was called as a witness for defendant, and testified that it was only intended to cover the matters specifically referred to therein. The defendant testified otherwise, and the court, in a charge of which no complaint is made on this point, left it to the jury to say whether or not it was intended to cover the present claim. The jury have found that it was not.

[5] The only other assignment of error is because plaintiff, in cross-examination of the witness who testified to the receipt, was permitted to ask him "Did the Spears $2,000 enter into this settlement at all?" The objection was a general one, and cannot now avail the defendant, especially as the witness was asked in chief if "the paper was a settlement paper," and plaintiff was therefore entitled on cross-examination to have the jury know of what it was a "settlement." The judgment of the court below is affirmed.

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

MEMORANDUM DECISIONS

BLAU v. PUBLIC SERVICE TIRE & RUBBER CO. et al. (Court of Errors and Appeals of New Jersey. Feb. 6, 1919.) Appeal from Court of Chancery. Suit by Edward Blau against the Public Service Tire & Rubber Company and others. From a decree of the Court of Chancery, dismissing bill, plaintiff appeals. Affirmed. Stein, Stein & Hannoch, of Newark, for appellant. Riker & Riker, of Newark, for respondents.

PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Stevens. 102 Atl. 664.

In re COOK'S GUARDIANS. (No. 50.) (Court of Errors and Appeals of New Jersey. Feb. 6, 1919.) Appeal from Prerogative Court. In the matter of the commissions to be allowed to Henry Palmer and another, as guardians of Ruth Joyce Cook and others, minors, on the discharge of Henry Palmer as one of the guardians. From a decree (105 Atl. 792) dismissing an appeal from an order fixing compensation, Margaret P. Hewitt, remaining guardian, appeals. Affirmed. William B. Gourley, of Paterson, for appellant. Linton Satterthwait and Frank S. Katzenbach, Jr., both of Trenton, for respondent.

PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the BOARD OF CHOSEN FREEHOLDERS opinion filed in the court below by Vice OrdiOF MIDDLESEX COUNTY v. BOARD OFnary Backes. PUBLIC UTILITY COM'RS et al. (No. 101.) (Court of Errors and Appeals of New Jersey. March 31, 1919.) Appeal from Supreme Court. Petition by the Board of Chosen Freeholders of the County of Middlesex for writ of certiorari to the Board of Public Utility Commissioners and others to review a determination of the Board. From a judgment of the Supreme Court, upholding determination, petitioners appeal. Affirmed. Frederick F. Richardson and Edmund A. Hayes, both of New Brunswick, for appellant. Alan H. Strong, of New Brunswick, for respondents.

PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Minturn in the Supreme Court. 102 Atl. 1.

CONOVER v. GUARANTEE TRUST CO. et al. (No. 39.) (Court of Errors and Appeals of New Jersey. Oct. 11, 1918.) Appeal from Court of Chancery. Action by George Conover against the Guarantee Trust Company and others. Decree advised in conformity with opinion, from which defendants appeal. Affirmed. C. L. Cole, of Atlantic City, for appellants. William M. Clevenger, of Atlantic City, for respondent.

PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Leaming. 88 N. J. Eq. 450, 102 Atl. 844.

CONOVER v. GUARANTEE TRUST CO. et al. (No. 88.) (Court of Errors and Appeals of New Jersey. Oct. 11, 1918.) Appeal from Court of Chancery. Suit between George Conover and the Guarantee Trust Company and others. From the decree (88 N. J. Eq. 450, 102 Atl. 844) rendered, the former appeals. Affirmed. See, also, 106 Atl. 890. William M. Clevenger, of Atlantic City, for appellant. C. L. Cole, of Atlantic City, for respondents.

PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the Court below by Vice Chancellor Leaming. 88 N. J. Eq. 450, 102 Atl. 844. WILLIAMS, TAYLOR and GARDNER, JJ.,

DE ROGATIS v. MEGARO et al. (No. 45.) (Court of Errors and Appeals of New Jersey. Oct. 11, 1918.) Appeal from Court of Chancery. Bill by Giovanna De Rogatis against William A. Megaro and others. cree in favor of plaintiff, defendants appeal. AfFrom a defirmed. Anthony R. Finelli, of Newark,, for appellants. William Greenfield, of Newark, for respondent.

PER CURIAM. The decree appealed from opinion filed in the court below by Vice Chanwill be affirmed, for the reasons stated in the

cellor Stevens.

(No. 22.)

DUNLAP v. CHENOWETH et al. (Court of Errors and Appeals of New Jersey. May 8, 1919.) Appeal from Court of Chancery. Bill for foreclosure by James M. Dunlap against Emma L. Chenoweth and others, in which defendants object to confirmation of sale of lands under decree. Objections overruled, and defendants appeal. Affirmed. T. J. Middleton and Herbert A. Drake, both of Camden. for appellants. David O. Watkins, of Woodbury, for respondent.

PER CURIAM. The order appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Backes. 105 Atl. 592.

ELLIS v. PENNSYLVANIA R. CO. (Court of Errors and Appeals of New Jersey. Nov. 22, 1917.) Appeal from Supreme Court. Action by Alfred H. Ellis, administrator, against the Pennsylvania Railroad Company. From a judgment of the Supreme Court, entering without costs the rule of non pros., defendant appeals. Affirmed. Warren Dixon, of Jersey City, for respondent. Vredenburgh, Wall & Carey, of Jersey City, for appellant.

PER CURIAM. The judgment under review herein should be affirmed, for the reasons_expressed in the opinion delivered by Mr. Justice Garrison in the Supreme Court. 90 N. J.