that they have the right to remedy the wrong, permitting an appeal to be entered nunc pro tunc. But, where he has knowledge that the judgment was entered against him, and delay is attributable solely to his own fault, it cannot be held that the court should interfere for his benefit. Here, the defendant states that he was informed by the justice of the entry of the judgment, and the justice tells us that he distinctly told Mr. Dornbach that he had twenty days to appeal. He had, therefore, ample opportunity to follow this course, if he felt that he had been injured by the judgment, and he can blame himself alone if the present situation is not to his liking. The justice had jurisdiction of the subject matter of the suit, and he was only exercising a legal authority by passing upon the claim. Under the circumstances, we feel that we have neither the right, nor should we have the disposition, at this time, to interfere with the result."

It may be added that the defendant was guilty of laches in making this application. The case was decided against it and judgment entered by the Justice of the Peace on December 11th, 1919, and the defendant by its agent attended the hearing and had knowledge then of the entry of judgment. The application of an appeal nunc pro tune was not made to the court until April 5th, 1920.

And now, November 15 A. D. 1920, the rule granted on April 5, 1920 on the plaintiff to show cause why an appeal should not be granted nunc pro tunc of the judgment entered by Robert L. Schiffert in the case of Milton Newman against the American Railway Express Company and entered on the 11th day of December, 1919, is discharged at the cost of the defendant.

EHRHART v. KUFFMAN (No. 2.)

Wrongful Taking and Withholding of Goods-Implied Sale. Assumsit For Value

While the owner cannot recover, in an action of assumpsit, the price or value of personal property wrongfully taken by another and remaining in his possession, the owner can so recover where the defendant has sold the goods or put if out of his power to respond in an action against him for the recovery of the goods themselves.

A plaintiff who farmed tobacco on the halves for the defendant but was prevented by the latter from selling or obtaining his half of the crop, may recover the value thereof in assumpsit where the defendant is not shown to have sold the tobacco but admits that he no longer has it.

In the Court of Common Pleas of Lancaster County. Rules for a new trial and for judgment for plaintiff n. o. v. August Term, 1919, No. 26.

Charles E. Workman and John A. Coyle, for rules.
B. F. Davis, contra.

Appril 16, 1921. Opinion by Hassler, J.

It appeared at the trial in this case that the plaintiff farmed three acres of tobacco for the defendant on the shares, during the season of 1919. It was harvested and prepared for market, but the defendant, through her agent, Eli M. Kauffman, who is her husband, refused to permit the plaintiff to sell it, or to divide it, and give the plaintiff his half when requested to do so. He gave as his excuse for such refusal the fact that the paintiff was indebted to the defendant in the sum of $26.35, and, in addition, that the defendant lost a considerable amount because of the plaintiff's failure to properly prepare the tobacco for market. The jury found that the plaintiff was not indebted to the defendant on either of these claims, and found a verdict in his favor for one-half of what the testimony showed the tobacco was worth. We are now asked to grant a new trial.

Fifteen reasons have been filed to show why this should be done. The first four are general and need no consideration, as we are of the opinion the verdict is not excessive and is not against the law and the evidence, or either of them. The next seven reasons are our refusal to affirm points submitted by the defendant at the trial. We do not think any error was committed in answering any of these points. Some of the matters embraced in them were fully covered in our general charge. Others of the points assume that the jury might find as facts some things which there was no testimony to justify their finding.

In the third point we are asked to say that if the jury believe there has been no express agency shown by which Minnie Kauffman authorized her husband Eli

Kauffman to act and contract for her as her agent in the management of the farm in question, no such contract will be implied, and so on. Now we could not have permitted "the jury to believe" that there was no express agency shown because there was testimony that Eli Kauffman was her agent, he having testified to that fact himself, and his whole course of dealing showed that he was attending to the business of the farm for his wife. Another point is that if the jury believe the plaintiff failed to demand a division, and so on. The only testimony on the subject was that the plaintiff did demand a division of the tobacco and it was refused. The second point asked us to tell the jury to disregard the testimony of an alleged contract between the plaintiff and Clayton Buckwalter for the purchase of the tobacco, as that did not prove the market value of the same. We refused this point because we had clearly instructed the jury what testimony they should consider in arriving at the market value of the tobacco. The testimony of Buckwalter as to the purchase of it was simply to confirm his estimate of what it was worth. He testified that it was worth what he had offered for it, and then proceeded to say what that offer was. We are satisfied that no error was committed in answering these points.

The twelfth reason is that we erred in instructing the jury that their verdict must be for the plaintiff in some amount. As the set-off as proven by the defendant was not as large as the value of the tobacco was shown to be, the plaintiff was entitled to a verdict for something, unless, of course, he was not entitled to recover at all. This question we will consider in a motion for judgment n. o. v. It is sufficient for us to say here that we are satisfied that the plaintiff was entitled to recover. The thirteenth reason is that we erred in instructing the jury that the defendant wrongfully refused to divide the crop of tobacco. The testimony shows that she did refuse to divide it, and as she had no reason for dong this, it was wrongful. The fourteenth reason is that we erred in admitting the testimony of Clayton Buckwalter and Hyman Ehrhart regarding the alleged sale of the tobacco to Buckwalter. There was no objection to the admission of this testimony. It was not admitted, however, to show the value of the tobacco, but simply to confirm the

opinion expressed by at least one of the witnesses as to what the tobacco was worth. As we have said, Clayton Buckwalter, who was an experienced tobacco buyer, testified that it was worth what he offered for it, and stated what that offer was. The fifteenth reason is that we erred in not admitting the testimony of Harry Steinman and Wayne Stauffer regarding the loss in value of the tobacco by reason of defective stripping on the part of the plaintiff. We admitted the testimony of Steinman on this subject. Stauffer, we do not find was asked the question. We did, however, refuse to permit the witnesses to testify what some prospective purchaser of the tobacco told them as to its not having been properly stripped and prepared for market. This was hearsay, and clearly not admissible. We are satisfied that there is nothing in the reasons for a new trial that would justify our granting it, and therefore discharge the rule to show cause why it should not be granted.

The defendant has also filed a motion for judgment for the defendant n. o. v. The reason alleged in support of this rule is that the plaintiff was not entitled to recover in an action of assumpsit, as there was no conversion of the tobacco by the defendant. Judge Head, in Rees & Sons Co. v. Exposition Society, 44 Sup. 381, says: "There can be no doubt of the existence of a general rule which in substance declares that where the personal property of one has been wrongfully taken by another and remains in his possession, the owner cannot recover its price or value in an action of assumpsit. The able coun sel for appellant has cited a long list of cases in this and other jurisdictions in which the rule has been formulated and its application discussed by eminent jurists. Deysher v. Triebel, 64 Pa. 383; Satterlee v. Melick, 76 Pa. 62; Bethlehem Borough v. Fire Co., 81 Pa. 445; Balliet v. Brown, 103 Pa. 546, are all on this subject and will suf ficiently point the way to the earlier precedents which have long since placed the existence of this rule beyond question.

been long a number widely and as comThus where it could

"There are, however, and have of exceptions to the general rule as pletely recognized as the rule itself. be shown that the goods wrongfully converted had been sold. it has been held that the owner might waive the

tort and maintain an action of assumpsit for their price. The principle on which the exception appears to rest is that the wrongdoer has by selling the goods asserted in the strongest manner his title to and right of dominion over them. He has put it out of his power to respond in an action against him for the recovery of the goods themselves. He has voluntarily placed himself in the attitude of one who had bought the goods, and although he did not in fact promise or intend to promise to pay for them, the law makes such promise for him, and it is upon the promise thus raised by the law the plaintiff's right to maintain assumpsit rests. Even where no such sale has been in fact shown, the law has under certain circumstances presumed such a sale and again raised the promise on the part of the defendant to pay just as if the sale had been proven. Such was the case long ago decided by Lord Mansfield where one who had wrongfully gotten possession of ticket for a masquerade party refused to account for it to the lawful owner of it. In delivering the opinion of the court in that case that famous judge said: 'If he sold the ticket and received the value of it, it was for the plaintiff's use because the ticket was his. Now, as the defendant has not produced the ticket, it is a fair presumption that the defendant had actually received the money for the ticket.' The plaintiff was permitted to recover." In support of these views Judge Head refers to Studdy v. Sanders, 5 B. & C. 628, where casks belonging to the plaintiff were seized in possession of the vendee for a breach of the excise laws, it was held that the vendor might recover the price of the casks as for goods sold. Also to Balliett v. Brown, 103 Pa. 546, in which Justice Clark says, that "where there is a conversion, there is an implied sale, and, waiving the tort, an action of assumpsit for goods sold and delivered can be maintained upon the contract implied; the value is regarded as a debt due." " In the case of Rees & Sons v. The Western Exposition Society, cited above, the defendant leased a gravity railway then on his land, and it was held that he thus put it out of his power to respond in an action against him for the recovery of the goods themselves.

In the case at bar, Eli M. Kauffman, acting as agent for the defendant, testified on page 36: "Have you