(112 A.) the probate proceeding which takes it wholly | estate has been legally committed to the care out of the operation of the rule which makes and custody of the legally appointed execuestoppel apply to only parties and privies. tor, and it legally follows that the will beThat characteristic is found in the fact that comes the law governing its distribution. a decree of probate is in all essentials a judgment in rem, and it is this feature that settles this contention adversely to appellant. Our own cases recognize and allow the distinction. In Miller's Appeal, 166 Pa. 97, 31 Atl. 58, it is said: [4] All the other complaints in the narr. charge dereliction and other failures on the part of the defendant in the discharge of his duties as executor and trustee. If he has been guilty of any of the things charged, as executor or trustee, our various acts of as "The proceeding is in the nature of a proceed-sembly provide appropriate and adequate ing in rem, and when a final decree is reached it is conclusive on all the world," -for which the writer of the opinion cites a number of our own cases, such as Ottinger v. Ottinger, 17 Serg. & R. 142; Folmar's Appeal, 68 Pa. 482; Warfield v. Fox, 53 Pa. 383; Miller's Appeal, 159 Pa. 562, 28 Atl. 441. The same rule obtains generally. We find it thus explained in Woodruff v. Taylor, 20 Vt. 65: "The judgment in rem," says Hall, J., in his opinion, "I understand to be an adjudication, pronounced upon the status of some particular subject-matter, by a tribunal having competent authority for that purpose. It differs from a judgment in personam in this, that the latter judgment is, in form as well as in substance, between the parties claiming the right; and that it is so inter partes appears by the record itself. It is binding only upon the parties appearing to be such by the record and those claiming by them. A judgment in rem is founded on a proceeding instituted, not against the person, as such, but against or upon the thing or subject-matter itself whose state or condition is to be determined. It is a proceeding to determine the state or condition of the thing itself; and the judgment is a solemn declaration upon the status of the thing, and it ipso facto renders it what it declares it to be. "The probate of the will I conceive to be a familiar instance of a proceeding in rem in this state. The proceeding is, in form and substance, upon the will itself. No process is issued against any one; but all persons interested in determining the state or condition of the instrument are constructively notified, by a newspaper publication, to appear and contest the probate; and the judgment is, not that this or that person shall pay a sum of money, or do any particular act, but that the instrument is or is not the will of the testator. It determines the status of the subject-matter of the proceeding. The judgment is upon the thing itself; and when the proper steps required by law are taken, the judgment is conclusive, and makes the instrument, as to all the world (at least so far as the property of the testator within this state is concerned), just what that judgment declares it to be." It is to be noted that in our own state the notification to the parties in interest is to be given in connection with the appeal, if taken, from the register's decree; the difference is without significance. Under all the authorities the probate of the will adjudicates the status of the estate of the decedent, that the remedies therefor, and such remedies must be resorted to. To the orphans' court is given the exclusive jurisdiction when complaints are made as here. The act of 21 March, 1806, provides that "In all cases where a remedy is provided or duty enjoined, or anything directed to be done by any act or acts of assembly in this commonwealth, the directions of the said acts shall be strictly pursued, and no penalty shall be inflicted or anything done agreeably to the provisions of the common law, * shall be necessary for carrying such act or acts into effect." * further than The power of the court to open a default and let the defendant into a defense cannot be doubted, and the Practice Act of 1915 makes no change in this respect. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 1 3. Pleading 154-Affidavit of defense may be filed after time unless default has been entered. An affidavit of defense may be filed after the stated time, unless judgment has been taken for want thereof, under Practice Act 1915, §§ 12, 17, in view of section 22. 4. Appeal and error ~957(2)—Action of court in refusing to open default reviewable. Under Act May 20, 1891 (P. L. 101), action of trial court in denying an application to open a default, although an appeal to the discretion of the trial court, will be reviewed, where it is expressly based on legal grounds which are untenable. defendant to appear and file an affidavit of defense within 15 days. On August 14, 1919, plaintiff caused judgment to be entered against defendant in default of an affidavit of defense, and liquidated the same at $12,338.26. Six days thereafter, on August 20, 1919, defendant petitioned the court below to open the judgment, and filed therewith an affidavit of defense to the merits. As soon as the summons was served, defendant employed an attorney to defend the suit, and the failure to file an affidavit of defense, within the 15 days, resulted entirely from an oversight on his part. The annual vacation of the Waynesburg Bar Association, of 5. Judgment 139-Abuse of discretion to which counsel on both sides were members, refuse to open default. extended that year from July 15 to August 23, and defendant's attorney was absent from home when the judgment was entered and for some days prior thereto. Noticing that the summons was returnable the first Monday in September, he overlooked the provision of the Practice Act of 1915, P. L. 483, 484, and the notice on plaintiff's statement, and wrote defendant that it would Amendment in name of have until the return day in which to file an defendant after judgment proper. To deprive a party of trial by a jury in a case involving over $12,000 by refusing to open a default because of an oversight of counsel as to the time for filing an action of defense under the Practice Act of 1915, corrected within six days, constitutes an abuse of discretion which will be reviewed on appeal, and the order discharging the rule to open the judgment will be reversed. 6. Parties95(7) Where writ and statement were served upon defendant, but there was a mistake as to defendant's corporate name, trial court properly allowed plaintiff to amend after judgment. 7. Parties 95 (7)-Amendment as to name of defendant after judgment does not necessitate opening of default. Where writ and statement were served upon the defendant, but there was a mistake as to its corporate name, action of the trial court, properly allowing plaintiff to amend after judgment by default, did not necessitate opening the judgment. Appeal from Court of Common Pleas, Greene County; J. W. Ray, President Judge. Action by the Fuel City Manufacturing Company against the Waynesburg Products Corporation. Judgment for plaintiff. From an order discharging rule to open the judgment, defendant appeals. Order reversed, and rule made absolute. Argued before BROWN, C. J., and STEWART, MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. Challen W. Waychoff and Crago & Montgomery, all of Waynesburg, for appellant. Charles H. King, and James J. Purman, both of Waynesburg, for appellee. affidavit of defense. To the petition to open the judgment, setting up, inter alia, the cause of the default as above stated, plaintiff filed a demurrer, which the court below sustained and discharged the rule to open the judgment, whereupon defendant brought this appeal. [1] The rule to open the judgment should have been made absolute. It is well settled in Pennsylvania that, where application is promptly made, a reasonable explanation or excuse for the default offered, and a defense shown upon the merits, relief will be granted from a judgment entered by default as a result of the mistake or oversight of counsel. Our decision, in Beishline v. Kahn et al., 265 Pa. 101, 108 Atl. 404, construing the act of 1915 as permitting judgment to be entered for want of an affidavit of defense, before the return day, had not then been published and defendant's attorney apparently had in mind the former practice. This, under the circumstances, was not such default as should have called down upon the client so drastic a penalty. In Sterling v. Ritchey, 17 Serg. & R. 263, this court opened the judgment, upon facts somewhat similar to the present, Chief Justice Gibson declaring, "A court ought not to enforce its rules so rigidly as to produce injustice." Opening the judgment in such case is the proper practice. See Davidson v. Miller, 204 Pa. 223, 53 Atl. 773; Roth v. Pechin, 260 Pa. 450, 103 Atl. 894; King et al. v. Brooks et al., 72 Pa. 363. We are satisfied from the multitude of decisions of the lower courts, called to our attention, and from our experience, that it is and long has been the WALLING, J. This was an action of assumpsit upon a building contract. The summons was issued and served July 26, 1919, and was returnable the first Monday of the ensuing September. A copy of plaintiff's statement was served with the summons, and thereon was indorsed a notice requiring uniform practice throughout the state to (112 A.) and liable to have judgment entered against him, but not as a prohibition against filing the affidavit after the time limit, where judgment has not been entered or, if entered, upon a rule to open it; and section 22 of said act expressly confers upon the court the power to extend the time for filing any pleadings. grant relief under such circumstances. This [ defense within the 15 days, is in default is well stated in the following opinion by the late Judge Warren J. Woodward, in Hinton v. Hart et al., 1 Woodw. Dec. 97; "The application on the part of the defendants for relief has been made with reasonable promptness. The neglect to file an affidavit in proper time is proved to have been the result of accident and mistake. There has been no fault chargeable to the account of the party, and the oversight of his counsel ought not to prejudice him. The affidavit now filed sets out a defense on which a jury ought to pass. The uniform practice of the courts is to open judgments by default where the defendant comes in promptly, excuses his default, and shows that he has a defense. The rule to show cause is made absolute." [2] In fact, the power of the court to open a judgment, entered by default and let the defendant into a defense, cannot be doubted, and the Practice Act of 1915, makes no change in that respect. The case of Work v. Adams, 72 Pa. Super. Ct. 262, when its facts are examined, is not an authority to the contrary. However, in the language of our Brother Kephart, in Rothkugel v. Smith, 70 Pa. Super. Ct. 590, 591: "To have a judgment opened that has been taken by default, there must be sufficient reasons to move the conscience of the judge who sits as a chancellor and convince him that an injustice has been done." [3] The court below relied upon the principle stated in Ward v. Letzkus, 152 Pa. 318, 25 Atl. 778, and in Houk v. Knop, 2 Watts (Pa.) 72, to the effect that the default of the attorney is visited upon the client, on the ground of agency and affords no ground for relief. However, those cases refer to the neglect of counsel to file transcripts for appeals from justices of the peace within the time allowed by statute. That principle has not been extended to judgments entered by default. The cases are not parallel. The statute requires the transcript for appeal to be filed on or before a certain date, and it cannot be filed thereafter, while an affidavit of defense may be filed after the stated time, unless judgment has been taken for want thereof. Bordentown Banking Co. v. Restein, 214 Pa. 30, 63 Atl. 451. True, section 12 of the Practice Act of 1915 (P. L. 485) says: "The defendant shall file an affidavit of defense to the statement of claim within fifteen days from the day when the statement was served upon him" -and section 17, P. L. 486, provides that: "In actions of assumpsit the prothonotary may enter judgment for want of an affidavit of defense." We construe the above to mean that a [4, 5] The act of May 20, 1891 (P. L. 101), authorizes an appeal from the decision of the court upon an application to open judgment. While such application is an appeal to the discretion of the court, its action thereon will be reviewed where, as here, it is expressly based upon legal grounds which are untenable (Danboro & P. T. R. D. Co. v. Bucks County, 258 Pa. 392, 102 Atl. 171; First National Bank of Birmingham V. Fidelity Title & Tr. Co., Adm'r, 251 Pa. 536, 97 Atl. 77; Gemass' License, 169 Pa. 43, 32 Atl. 88; Knoblauch's License, 28 Pa. Super. Ct. 323; Windber Brewing Co. No. 2's License, 54 Pa. Super. Ct. 287), as it also will when, as in this case it is a deduction from admitted facts (Woodward v. Carson, 208 Pa. 144, 57 Atl. 342). Action of the court in such case will also be reviewed whenever it amounts to an abuse of discretion, Comth v. Titman, 148 Pa. 168, 23 Atl. 1120; Kelber v. Plow Co., 146 Pa. 485, 23 Atl. 335; Ilyus v. Buch, 34 Pa. Super. Ct. 43. To deprive a party of trial by jury in a case involving over $12,000, because of an honest oversight of counsel, corrected within six days, constitutes an abuse of discretion. See The alleged agreement among the members of the bar association to the effect that judgment should not be taken for default in vacation time, not being in writing, might not justify disturbing the judgment, but at least tends to mitigate the mistake of counsel. [6, 7] The writ and statement were served upon the defendant, but there was a mistake as to its corporate name. This the trial court properly allowed plaintiff to amend after judgment. New York & Pa. Co. v. N. Y. Cent. R. R., 267 Pa. 65, 76, 110 Atl. 286; Fitzgerald's Estate (No. 1) 252 Pa. 568, 573, 97 Atl. 935; Pittsburgh, etc., R. R. Co. v. Evans, 53 Pa. 250, 255; Smith v. Hood & Co., 25 Pa. 218, 64 Am. Dec. 692; Meitzner v. Balt. & Ohio R. R. Co., 224 Pa. 352, 73 Atl. 434, and such amendment did not necessitate opening the judgment. The act allowing amendments contains no restrictions as to the time of making them. Ward v. Stevenson, 15 Pa. 21. The technical irregularities in appellant's paper book, called to our attention by appellee, are not such as to justify dismissing the appeal. The order discharging the rule to open the judgment is reversed, the rule is reinstated and now made absolute, with a pro BARTOE v. BIXLER COAL & COKE CO. (Supreme Court of Pennsylvania. Dec. 31, 1920.) Sales 98-Contract to furnish buyer's requirements held broken by buyer. Assuming that a contract to furnish a coal dealer's entire requirements of coal was valid and enforceable, it was broken by the dealer by buying all of his coal requirements for some time from other sellers, and he could not recover for the seller's refusal to perform. G. B. HURT, Inc., v. FULLER CAN- (Supreme Court of Pennsylvania. Dec. 31, 1. Sales 89-Evidence held insufficient to show modification of contract respecting terms of payment. Evidence held insufficient to show parol modification of a contract for the sale of goods to be delivered in installments which required payment for each installment within 10 days so as to permit payment at any time before the Appeal from Court of Common Pleas, Al- end of the seller's fiscal year. legheny County; Stephen Stone, Judge. Action by W. F. Bartoe against the Bixler H. V. Blaxter, of Pittsburgh, and Wm. A. 2. Sales 89-Offer of extended credit made to prevent cancellation not binding when cancellation was made. Where a buyer of goods to be delivered in installments asked leave to cancel part of the That a seller of goods to be delivered in MOSCHZISKER, J. On April 27, 1916, it was agreed between defendant coal company and plaintiff dealer that the former would furnish the latter his "entire require-installments received several payments after ments" of coal "from date to April 1, 1917"; other terms of sale, with which we are not now concerned, being set forth in the written contract. Plaintiff, alleging that defendant had refused to perform, brought an action for damages, the court below entered a nonsuit, which it declined to remove, and this appeal followed. In support of the judgment appealed from defendant contends that the contract in suit is too indefinite to be enforced-plaintiff's "requirements" being neither fixed nor capable of establishment by any standard-and that it lacks mutuality; but, without passing upon these grounds (which, if correct, would be sufficient in themselves to sustain the nonsuit), and assuming, for present purposes, that the contract is valid and enforceable, plaintiff's own testimony shows that he himself breached its obligations during the summer months of 1916 by buying all of his coal requirements from companies other than defendant. Plaintiff offered no evidence of waiver, nor Idid he show that defendant had any knowledge of these purchases from others. The breach of contract was fatal to plaintiff's right of recovery, and, on this ground the nonsuit was properly entered; therefore it is unnecessary to discuss the other reasons given by the court below in support of its action. the date when they should have been made did not abrogate the obligation, or waive strict compliance with its terms as to amounts falling due thereafter, where there was no long course of indulgence followed by sudden cancellation for nonperformance. 4. Sales 99 Seller entitled to cancel for buyer's delay in making payments. Where a buyer failed to make payments for goods deliverable in installments as required by the contract, the seller had a right to cancel the contract. Appeal from Court of Common Pleas, Allegheny County; A. B. Reid, Judge. Action by G. B. Hurt, Incorporated, against the Fuller Canneries Company. Judgment for plaintiff, and defendant appeals. Reversed, and judgment entered for defendant. Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, and KEPHART, JJ. McCreery & Wolf and Robbin B. Wolf, all of Pittsburgh, for appellants. A. Seder and John Murray Redden, all of Pittsburgh, for appellee. MOSCHZISKER, J. G. B. Hurt, Incorporated, sued the Fuller Canneries Company, a corporation, to recover damages for an alleged breach of contract. The jury rendered a verdict in favor of plaintiff, upon which The assignments of error are overruled, judgment was entered, and defendant has and the judgment is affirmed. appealed. (112 A.) The contract in question was for the sale the fiscal year," and, when asked why, if by defendant to plaintiff of certain canned this was so, he signed a contract containgoods, to be delivered in installments, and the latter therein agreed to pay for each installment "10 days from date of shipment." The contract also had a provision that "no agreement, expressed or implied, not stated on each copy of this order, shall govern." Plaintiff, in the presentation of its case, showed the contract, containing, inter alla, the above-stated provisions, and admitted it had failed to comply with the terms of payment, in that a certain shipment of goods, amounting to more than $1,400 in value, made by defendant on November 4, 1916, had remained unpaid for 130 days prior to March 26, 1917, when plaintiffs received notice from defendant of the latter's cancellation of the contract because of such nonpayment. There was no controversy whatever as to the facts thus far stated; but plaintiff contended that the long delay in payment of the shipment in question was not a breach of contract on its part, since the written agreement had been "later modified by parol." It contended that "The time of payment term, to wit, '10 days from date of shipment,' was modified [by an express oral agreement between the parties] so as to allow [plaintiff] to pay for merchandise shipped in 1916 in installments at its convenience, the whole amount to be paid April 1, 1917-the end of [defendant's] fiscal year." De The trial judge submitted to the jury the evidence of this alleged parol modification, together with other issues in the case. fendant, in its assignments of error, criticizes the manner in which this was done. It also contends, on several grounds, that in the first instance it was entitled to binding Instructions, and, these having been refused, to judgment n. o. v. For present purposes the case may be re duced to this question: Was there sufficient evidence to warrant the trial judge in submitting to the jury the issue as to the alleged parol modification of the written contract, or was it the duty of the court to rule that the evidence adduced to prove such modification was legally inadequate? ing contrary terms, a statement that "such course was often pursued." (4) Finally, a statement by Hurt that in the summer of 1916 he had a conversation with J. D. Fuller, president of defendant company, in which he (Hurt) asked leave to cancel part of his contract of purchase; that in this conversation Fuller asked Hurt, "Why are you canceling?" and the latter replied, "Because I don't think I can pay for them by the end of the fiscal year in March," whereupon Fuller said there was no necessity for canceling on account of "not having the money to pay all at one time *** as long as it was paid at the end of the fiscal year" (but the cancellation in question did in fact take place). The above is a brief, but sufficiently full, statement of all the proofs on the point under discussion, except the written correspondence between the parties, which does not help plaintiff, and the fact of certain delays in past payments, both of which latter items of evidence will be considered after further discussion of the testimony. [1, 2] It is apparent that the first item of testimony is no evidence at all of the alleged parol modification of the contract in suit, since all that is there related occurred before any written contract was signed. The next two items simply represent declarations relative to Hurt's understanding of what occurred, not statements of what actually took place, from which a judicial conclusion might be made. As to the fourth item, plaintiff's own evidence proves that the cancellation which Hurt and Fuller were then discussing was in fact made; hence the alleged inducement of extended credit to prevent such cancellation, not having been accepted, could not be subsequently called into effect for plaintiff's benefit. The testimony on the side of defendant did not help plaintiff in this regard, for Fuller denied ever having agreed to any change in the stipulated terms of payment, so far as the contract in suit is con cerned. The correspondence shows constant dunning on the part of defendant and in reply a series of broken promises to pay on behalf of plaintiff, with the final cancellation of the contract by the former because of default of the latter. As before said, it does not help plaintiff, but rather the contrary. [3] In Shilanski v. Farrell, 57 Pa. Super. Ct. 137, 143, President Judge Rice said: The evidence was as follows: (1) An oral statement by G. B. Hurt, president of plaintiff company, that, when he started to purchase from defendant corporation, the president of that concern said to him, "If you pay for this stuff by the end of the fiscal year, it will be all right." This was accompanied, however, by an admission that immediately after the conversation in which the above several payments, after the dates when the "The mere fact of receiving a payment, or quoted declaration was made a written con- purchaser was bound to make them," would tract was signed containing the terms of pay-not operate as an abrogation of a written conment as herein before recited. (2) A state-tract, nor would it be "a waiver of strict comment by Hurt that it was his "understand-pliance with its terms as to the amounts falling" that his concern was to pay by the end ing due thereafter." of defendant's fiscal year. (3) Another statement by Hurt that he "understood every This statement fits the present case, for, |