the plaintiff announced to the bystanders | what he considered to be the bad qualities of the horse. The price obtained The price obtained might therefore have been slight evidence of the actual value. The defendant's evidence was quite impressive in support of his claim that the horse was sound at the time he sold him and this might have had some bearing on the case if the rule as to the measure of damages had been clearly stated. The appellee brings to our notice the cases of Sondheimer v. Hoover, 144 Pa., 221; Toner v. Zell, 149 Pa., 458, and Brinser v. Longenecker & Bausman, 169 Pa., 51, as authorities supporting the charge, but the question of the measure of damages did not arise in any one of these cases. Each of them turned on an entirely different proposition. They are only authorities for what was decided by the Supreme Court. We are all of the opinion that the instruction on the measure of damages was not adequately given and that for this reason the judgment must be reversed.

The judgment is reversed and the record remitted to the court below with a v. f. d. n.

A judgment on a note for the price of a hay-press sold and delivered on a written contract will not be opened on the ground that the press did not give satisfaction, where

the defendant saw the machine work before

giving the note and kept and used the machine nearly a year without complaint, and the contract provided that if upon trial the machine failed to work properly the vendor company was to be notified immediately and would make it do so or take it back, and that keeping and continuing to use the machine without giving such notice constituted an acceptance and a satisfaction of the warranty.

made between the agents of the selling company and the buyer before signing the considered in defense against a note for the purchase price where the contract stipulates that no dealer has authority to change or modify this warranty and agreement."

tract of sale of a machine can not be con

Rule to open judgment and let defendant into a defense. C. P. of Lancaster Co. November Term, 1913, No. 27, Ex. Doc.

Amos E. Burkholder and John E. Malone, for rule.

Chas. F. Hager, contra.

March 28, 1914. Opinion by LANDIS, P. J.

On September 26, 1912, the defendant. delivered to the plaintiff, in payment for a motor hay press, a judgment note for $470.00, payable on or before September 1, 1913, with interest. This note was, on October 2, 1913, entered in this court, and execution was issued upon it to the above number and term. On October 24, 1913, the defendant presented his petition, asking that it be opened in order that he might be let into a defense. As has been said, the note was given for a motor hay press, the contract being in writing, and the following is a copy:

"Order (to Dealer) for International Sales Goods.

To J. H. Reitz Town Millway State Pa.

Twp. Millway P. O. County Lancaster The undersigned of R. R. No. State Pa. hereby orders, subject to your approval and to all conditions of agreement and warranty printed on the back hereof, to be shipped to C. D. Leeking on or about 191 One International 17 x 22 I. H. C. Hay Press with self feed and 6 Horse power Eng.; and agrees to pay freight on same from Chicago, Ill., and to settle for said machine by payment of Five Hundred dollars Dollars as follows:

Approved at

By J. H. Reitz, Dealer.

C. S. LEEKING.
Order taken by J. W. Sueuder."

The conditions of agreement and warranty, printed on the back, are as follows:

Warranty and Agreement.

The seller hereby warrants the International machine herein ordered to be well made, of good material, durable with proper care, and when properly operated to perform successfully the work for which it is designed. If, within one year from date of purchase, a part proves defective, the new part to replace defective one will be furnished at factory on receipt of part showing defect.

Keeping and continuing to use the machine without giving any notice of an alleged defect, or if defect has been remedied, shall constitute an unconditional acceptance of the machine and operate as full satisfaction of the warranty herein given.

If, upon trial with proper care, the machine fails to work properly, the purchaser shall immediately give written notice to the seller, stating wherein the machine fails, shall allow reasonable time for a competent man to be sent to put it in good order, and render necessary and friendly assistance to operate it. If the machine cannot then be made to work well, the purchaser shall immediately return it to said seller and the price paid shall be refunded, which shall constitute a settlement in full of the

transaction.

This express warranty excludes all implied warranties, and no dealer has authority to charge or modify this warranty and agreement. This order is not subject to countermand and the receipt of a copy of the entire agreement is hereby acknowledged by the purchaser. It is expressly agreed that the title to the property herein ordered shall not pass to the purchaser until full payment therefor shall have been made, whether notes have been given for the purchase price thereof or not.

The machine came to Leeking's place in September, 1912. The date is fixed by one of the witnesses as September 26th. After it was set up and some hay was baled, he gave the note in controversy. No communication was had by him with the company until the summer of 1913, when complaint was made, and thereupon several employees of the plaintiff were sent to try the machine. The defendant declares that it did not give satisfaction, and, for that reason, he refuses to pay for it.

We do not think that the testimony as to the conversations had between the agents of the company and the defendant, before the sale and before the signing of the agreement and note, is evidence in this case; nor could they be admitted upon a trial if the judgment was opened. The written agreement expressly stipulates that "no dealer has authority to change or modify this warranty and agreement," and all the terms of the contract are, therefore, set forth in the writing.

In Delaware Mercantile Company v. Knight, 20 Lanc. Law Review, 141, in a suit on a written contract, it was held that an affidavit is insufficient which avers that the defendant was induced to sign the contract by the false representations of the plaintiff's agent that certain other parties had signed or were about to sign similar contracts, the alleged misrepresentations not entering into the elements of the contract itself; and that false representations of an agent in procuring a contract are not a defense thereto unless authorized by the principal. In Quaker City Car Advertising Company v. Meyers, 20 Weekly Notes of Cases, 388, in a contract for advertising, a notice was appended that all agreements not written on it would not be recognized, and it was held that allegations of verbal alterations by the agent of the plaintiff with whom the contract was made could not be considered. In International Harvester Company of America v. Moyer, 17 Luz. Leg. Reg. Reports, 67, it was decided that, "where B buys from A, a manufacturing company, an auto truck on written contract which recites inter alia that A

warrants the vehicle well made, of good materials, and agrees to replace any parts found defective, except tires,' if defects are revealed in sixty days' use, and that' said express warranty includes all implied warranty and no agent has authority to change or modify it or to change or vary in any manner any of the terms or conditions of the contract of purchase and sale,' B cannot set up, as defense to note given in part payment, the failure of auto vehicle to meet oral warrant of C, A's agent, that said truck will carry a ton load anywhere and on good roads a ton and a half.'' In J. B. Colt Company v. Diffenbach, 31 Lanc. Law Review, 75, this Court lately held that, "in a suit for the price of machinery sold and delivered, it is no defense that the plaintiff's agent who made the sale agreed to put up the plant and guaranteed that it was to act or operate satisfactorily before it was to be paid for, where this was not embodied in a written contract signed by the defendant which set forth that it covered all agreements and no agent or representative of the company has made any statements or verbal agreements modifying or adding to the terms and conditions herein set forth.'" The authorities upon this subject are in the last case collated, and it is, therefore, unnecessary to set them forth again at length.

If

The contract does not allege that the hay press would bale twenty-five to forty tons of hay or straw in ten hours. any such statement was made, it was made by the agent, before the signing of the contract, and as there is no allegation of fraud, accident or mistake in the signing of either the contract or the note, it is clear to us that any such representations form no part of the agreement, and, therefore, cannot be considered at this time.

What was sold to the plaintiff was "One International 17 x 22 I. H. C. hay press with self feed and 6 horse power eng. It is alleged by the witnesses called for the plaintiff that the machine which the defendant received is what is called for by the contract, and there is no testimony presented on the part of the petitioner that it is not. While wit

nesses for the petitioner say they do not consider it a self feeder, such opinion has nothing to do with the case. If the defendant got what he bought and what is described in the contract, and retained it without question from September until the following summer, then he is not in a position to complain of it, except as to such parts as have proven defective. The contract says that "keeping and continuing to use the machine without giving any notice of an alleged defect, or if defect has been remedied, shall constitute an unconditional acceptance of the machine and operate as | full satisfaction of the warranty herein given." In addition, the agreement is, that, "if, within one year from date of purchase, a part proves defective, the new part to replace defective one will be furnished at factory on receipt of part showing defect," and as it is not alleged that any part was defective and sent to the factory, it follows that this provision of the contract does not apply to the existing situation, and would not, therefore, be a defense to any part of the note. One witness testified that, according to his knowledge, the machine was not a self feeder; but he stated that he never handled this machine, and that the day before his deposition was taken he for the first time saw a self feeder, which was made by the J. I. Case Company a few years ago, and that they took it back, as it never gave satisfaction.

There is a provision in the agreement that, if, upon trial with proper care, the machine fails to work properly, the purchaser shall immediately give written notice to the seller, stating wherein the machine fails, shall allow reasonable time for a competent man to be sent to put it in good order, and render necessary and friendly assistance to operate it. If the machine cannot then be made to work well, the purchaser shall immediately return it to said seller and the price paid shall be refunded, which shall constitute a settlement in full of the transaction." Now, in this case, it is admitted that the machine was set up and tried, and that, after it was tried. the defendant gave his note. There is

no pretense that he ever gave written notice to the seller that the machine had failed and wherein it had failed, before at least the summer of 1913. Nor has he at any time returned the machine to the seller because it did not work well. There was no condition that the defendant should notify the company that the machine was at its disposal and to come and take the same, or to send directions as to where to ship it. The purchaser was to immediately return it to the seller, and there is no pretense that he ever did this. Even now, it would seem, from the record, to be in his possession and under his control.

The weight of the evidence is strongly in favor of the position that the machine furnished is what is designated in the contract as an I. H. C. hay press with self feed, and as that is what the defendant bought, we cannot see why, after this length of time, he should not pay the bill according to his agreement. We do not think that he has set forth sufficient facts to warrant us in opening the judgment, and, because of this, we direct the rule to be discharged. Rule discharged.

C. K. Witmer & Co. v. Chas. S. Killian.

Fraudulent debtor's attachment-Lien of levy -Interpleader-Issue-Pending prior issue on same goods-Acts of March 17, 1869, May 24, 1887, and March 26, 1897.

The Acts of March 17, 1869, P. L. 9, May 24, 1887, P. L. 197 and March 26, 1897, P. L. 95 do not fix any time for the expiration of the lien on goods levied on, or within which the sheriff must ask for an issue, and an issue may be awarded ten and a half months after judgment, to determine the ownership of goods levied on under a fraudulent debtor's attachment, although the goods in question have since been levied on under an execution as the property of a third person, with whom

and the claimant an issue to determine the ownership is already pending.

The failure of the sheriff to take possession of the property levied upon under a fraudulent debtor's attachment when capable of manual seizure under Sec. 3 of the Act of March 17, 1869 does not affect the validity of the lien of the levy.

Rule to award an issue. C. P. of Lancaster County. June Term, 1912, No. 21.

B. F. Davis, for rule.

John E. Malone, contra.

March 28, 1914. Opinion by HASSLER, J.

The facts, material for a proper disposition of the question involved here, are not in dispute, and are as follows: The plaintiff issude a fraudulent debtor's attachment against the defendant on May 24, 1912, by virtue of which the sheriff levied upon certain goods and chattels claimed by Joseph Haefner and Bessie Phillips. On August 9, 1912, the plaintiff obtained judgment in this proceeding against the defendant, Charles S. Killian. Nothing further was done on the claim of Joseph Haefner and Bessie Phillips until June 23, 1913, when the plaintiff obtained a rule on them to appear and maintain or relinquish their respective claims to the goods and chattels levied on under this attachment. Joseph Haefner resists the granting of an issue upon this rule, for the reason that there has been too much delay in entering the rule, and that the goods and chattels in question have since been levied on under an execution issued against Bessie Phillips, and claimed by Joseph Haefner, and that an issue is now pending in this Court to decide the validity of his title to them under that claim.

The Act of May 26, 1897, P. L., 95, requires the sheriff to ask for a rule on the claimant of goods and chattels levied upon under an execution or attachment, requiring him to come into Court and maintain or relinquish his claim, but does not fix any time within which the sheriff must do this. It seems reasonable to assume that he can do it at any time while the goods and chattels are bound by the lien of the levy. In executions such liens are lost at the expiration of the term to which they are issued, but no such rule applies to attachments, as the lien on the property to be effective, must continue until after a

judgment is obtained, for, until then, it cannot be sold, except under circumstances which do not exist here.

The Acts of March 17, 1869, P. L., 9, and May 24, 1807, P. L., 197, under which the attachment in this case was issued, do not fix any time for the expiration of the lien, and we cannot assume that it expires at any time. Here the rule upon the claimants was not asked for until ten and a half months after the judgment was obtained against the defendant, which seems to be an unreasonable delay, but in the absence of anything in the statute, or any fixed rule on the subject, we cannot say that the application was made too late.

Nor do we think that the fact that the goods and chattels claimed here. have since been levied on as the property of another, and that an issue has been granted to try the validity of the title of the person so claiming them, will prevent the plaintiff in this attachment from having the validity of the title of the claimants to the property, bound by his attachment, tried before a jury. He cannot be deprived of his rights in the property levied on by his attachment, by the act of a third party in levying upon it as the property of some one else: Taylor v. Bonaffon, 17 W. N. 425.

It was also urged at the argument of this rule that there was no lien on the property because the sheriff did not take possession of it as required by the third section of the Act of March 17, 1869, P. L., 9. This failure on the sheriff's part does not affect the validity of the lien of the levy: Dreisbach v. The Bank, 113 Pa., 554.

We, therefore, make absolute the rule upon the defendant to maintain or relinquish their claim upon the property claimed by them, which has been levied on by virtue of this attachment.

Rule made absolute.

Franklin Grocery Co. v. Chas. S. Killian. Fraudulent debtor's attachment -Lien of levy-Interpleader issue-Pending prior issue-Acts of March 17, 1869, May 24, 1887, and March 26, 1897.

(See preceding case.)

Rule to award issue. C. P. of Lancaster County. June Term, 1912, No. 54.

B. F. Davis, for rule.

John E. Malone, contra.

March 28, 1914. Opinion by HASSLER, J.

For the reasons given in an opinion. filed this day in the case of C. K. Witmer & Co. v. Charles S. Killian, to June Term, 1912, No. 21, we make absolute the rule in this case.

Legal Miscellany.

Literay Interpretation.

"I've got the very thing you want,' said the stableman to a ruralist in search of a horse: "a thorough-going road horse. Five years old, sound as a quail, $175 cash down, and he goes 10 miles without stopping."

66

The purchaser threw his hands skyward. Not for me," he said, "not for me. I vouldn't gif you vive cent for him. I lif 8 mile out in de country, und I'd haf to valk pack 2 miles."

Another Definition "Negative Pregnant."

An applicant for admission to the Oklahoma bar last June was required to define a "negative pregnant." His answer was: "A negative pregnant is a false conception." Literally, if not technically, the answer was not half bad. -Law Notes.