Plumer v. Guthrie
(No. 14, October and November Term, 1873)

Originally heard in the Court of Common Pleas of Clarion County.

This was an ejectment brought January 28th 1870 by Margaret Plumer against James W. Guthrie for three tracts of land, and a large number of town-lots.  The case was tried August 28th 1872.

The land had belonged to the defendant and on the 25th of July 1849, he executed a mortgage on the whole of it to the trustees of the estate of William Bingham, deceased, to secure the payment of $16,500.  A scire facias was issued on this mortgage by Samuel M. Lane and others, trustees and assignees of the estate of William Bingham, deceased, in which judgment was confessed by the defendant, September 4th 1846, for $22,959.77.  Under a pluries levari facias on this judgment, the land was sold by the sheriff to Samuel M. Lane and A. N. Meylert for $10,106, and the sheriff's deed to them acknowledged September 10th 1857.  Through a number of mesne conveyances the whole property became vested in Samuel M. Lane, February 23d 1859.

On the 14th of May 1859, Lane and wife by indenture, for the consideration of $9500, conveyed to Arnold Plumer all the real estate included in the mortgage, describing it.  In this deed it is further contained as follows:

"And the parties of the first part hereto, for the considerations aforesaid, do hereby assign, transfer and set over unto the said Arnold Plumer, without recourse to them, the judgment obtained by a scire facias on said mortgage, also a judgment in the Common Pleas of Clarion county, wherein S. M. Lane and A. N. Meylert, trustees, are plaintiffs, and J. W. Guthrie is defendant.  Being a judgment taken for the same debt for which the mortgage of J. W. Guthrie above stated was given and collateral thereto.  And the said parties of the first part do further grant, &c., unto the said Arnold Plumer, his heirs or assigns, all the interest, &c., of the parties of the first part hereto, of, in and to all the lands, tenements and hereditaments included in a certain article of agreement between S. M. Lane and A. N. Meylert, trustees, of the first part, and J. W. Guthrie of the second part, dated the 10th day of May, A. D. 1852

Witnesses and others named in testimony:
R. Allison
W. H. Lowry, son of N. A. Lowry
C. B. Curtis
C. R. Burdick
S. P. Johnson
Judge Bredin
Samuel A. Purviance

Judgment reversed, and a venire facias de novo awarded.

[This case report is full of information, only a small portion of which is transcribed here.]

Arnold Plumer died leaving a will, dated April 18th 1869, and proved May 10th 1869, by which he devised all his property real and personal to his wife Margaret Plumer the plaintiff.

The defendants gave in evidence record of a suit, trustees of the Bingham Estate against J. W. Guthrie, and judgment July 5th 1850 for defendant for $18,000, assigned November 14th 1850 to N. A. Lowry, of Jamestown, New York, assigned by Lowry to Arnold Plumer October 29th 1852, and receipt February 9th 1853 to sheriff by A. Plumer for the debt and interest $19,564.09.

Also a record of judgment J. W. Guthrie against William McKinley for $109.  Also of judgment same against same for $100, both assigned December 5th 1851 to N. A. Lowry, and by him assigned December 3d 1852 to Arnold Plumer.  Also judgment J. W. Guthrie for use of N. A. Lowry against Clarion township for $574.53, assigned December 5th 1851 to Arnold Plumer and paid to him.

F. B. Guthrie, a son of defendant, testified as to Plumer furnishing money to his father, of their joint transactions in timber, &c.; he further testified:  "Plumer resided at Franklin and did not see to the business only to take the money; my recollection is that my father sold the mill property to Burnell & Wheeler, in 1854 or 1855, think in 1855; in 1866 and 1867, I was living in Titusville and practising law there; I had an interview with Mr. Plumer at his house, but can't remember the time; it was in cold weather; it was after the death of Burnell; in January or April 1867, I had frequently urged my father to get this matter settled up; Mr. Burnell had died; I went to Mr. Plumer's house; went in and sat down; said to Mr. Plumer that I wanted that thing settled up; that my mother and brother were dead and I wanted it settled during the lifetime of my father; that I cared nothing about it myself as I could take care of myself, but that I had a sister whose interest I thought I should look after; I told him that I understood that he held the title to my father's property or a large portion of it, in him; he said that he did; I told him that my father alleged that he had paid him for all the money that he had ever advanced to run the mills and buy the lands, the title to which he had; I told him that if that was the case, that the matter should be settled up during the lifetime of both of them; that my father was getting old as well as he; that Mr. Burnell and Mr. Davis, two of the men that knew most about the matter, were dead; I asked him then about the state of the accounts between them, and he said, You know, Mr. Guthrie, that I will have to charge for my time, trouble and the risk I had to run; I said certainly; he said that he did not think there was a great deal of difference in the money or accounts, either way; he said he did not know exactly how they did stand; that he had received moneys from judgments and from notes, and had advanced money to run the mills and to buy the mills; had been talking about the old homestead at Strattanville, and the old farm that I did not like to see go away; he said, I will see that these things are fixed up before I die, and that the property should be reconveyed if my father had got out of his financial difficulties, so that he could hold it; I heard the conversation at Strattanville, 1st June 1853, at the time the money and notes were delivered to Plumer; Plumer said, You know, Mr. Guthrie, that I want to hold collaterals enough to keep me safe, and that he would advance money to Mr. Davis as he would need it."

Originally heard in the Court of Common Pleas of Clarion County.

This was an action of assumpsit commenced May 15th 1872, by Thomas Reed against David Gilmore and others, partners as Gilmore & Sons.

According to the plaintiff's history of the case, the action was for a balance alleged by the plaintiff to be due him by the defendants on a settlement. Neither the history of the case nor the evidence contained on the paper-book show the settlement nor give the amount alleged to be due.

On the trial, February 5th 1874, the plaintiff gave in evidence a settlement of the 5th of April 1867 and items of an account for work in 1868 and 1869.

The defendants gave in evidence an account of Samuel Gilmore, one of the partners, against plaintiff beginning August 8th 1867, and ending April 4th 1868; also an account of David Gilmore beginning December 1864 and ending May 20th 1867; also an account of Robert Gilmore, one of the partners, beginning December 3d 1868 and ending April 18th 1870. There was evidence of other claims by defendants against plaintiff for cash and lumber in 1868 and 1869, of which there was no book account.

A copy of these book accounts of defendants, with affidavit as required by the rule of court, was filed by the defendants on the 20th of December 1873, with notice of the filing to the plaintiff's attorney, who argued that all individual accounts of David Gilmore, Samuel Gilmore, Robert Gilmore and Miles Gilmore, alleged to have been obtained before the 5th day of February 1868, were barred by the Statute of Limitations, and the jury should not allow any such accounts as set-off to the plaintiff's claim.

Judgment affirmed.

Originally heard in the Court of Common Pleas of Clarion County.

This was an action of assumpsit, brought March 7th 1872, by Thomas Leffel, Henry Barnett and Samuel McPherson, partners, &c., against George Seigworth, who survived
John G. Seigworth, to recover the price of three "Leffel's Improved Turbine Wheels."  The pleas were:  "Non assumpsit and payment with leave, &c."  The defence was that
the wheels had been warranted to do a certain amount of work, and that upon a test they did not come up to the warranty.  The defendant had made a payment at the time of the contract, and had also been at some expense in putting them in; he refused to pay the remainder of the contract price, and claimed damages also for the expense which he had incurred.

Defendant bought from plaintiff water-wheels for a mill under a warranty, that they would do specified work or the defendant might rescind the contract, and plaintiff would refund the money paid, pay all expenses and damages.  The defendant alleged the warranty had been broken; he did not rescind the contract, but continued to use the wheels.

The defendant further testified that the wheel worked well, but took too much water; that another mill with less water than their mill did more work; that after the wheels were put in, McPherson said the head was the cause of the failure, and he would put in the other wheel at his own expense; it still did not do, and John Seigworth said he would not pay another cent; that McPherson should take the wheels, and pay all the damages.

On cross-examination he testified that he had taken one wheel out and put it into a saw-mill, and it ran very well when there was water; that they were still running the grist-mill with the two wheels, and when there was plenty of water they did "splendidly."  The wheels did everything they had been represented to do, except that they took too much water.

Judgment affirmed.

McPherson, one of the plaintiffs, testified that in June 1869, he sold to the Seigworths three turbine wheels, at $260 each, and guarantied that they would "grind under 24 feet head as much as an overshot using about the same amount of water;" $350 were paid when the wheels were sold; the balance was to be paid as soon as the wheels were started; the wheels were furnished about May 1st 1870, and by agreement with Seigworth, another wheel, at $300, was substituted in place of one of those sent.  After the wheels were put in, they were tested, on the 13th of May, in the presence of the defendant, George Seigworth, and others, and "went off to satisfaction of all present."  They postponed further test until the next morning, that John Seigworth might be present; the next morning the water was almost all gone, there not being enough to make the stream a test, and John Seigworth condemned the wheel at once without making any test.  Plaintiff also testified that the streams did not afford the amount of water which Seigworth had said when the contract was made, that they would; that when the test was made on 13th of May, the wheels did all that he had agreed they should.

There was other evidence corroborating McPherson's testimony; also that Seigworth interfered with the workmen in carrying out McPherson's directions.

The defendant testified that McPherson guarantied that his wheels would take less water than a 24-feet overshot, give better power and more regular motion; if they did not, he was to take them away and pay all expenses and damages, the number of wheels was left to McPherson's option; Jaynes put up the wheels; plaintiffs sent him; the Seigworths were to pay him; they did pay him.

The defendant proposed to prove "that they paid Gabriel Jaynes $313 for putting these wheels in the mill.  This for the purpose, in connection with other evidence, of showing
damages sustained by the defendants in consequence of the wheels not performing as guaranteed by plaintiffs."

Originally heard in the Court of Common Pleas of Clarion County.

In the distribution of the proceeds of the sheriff's sale of the property of James L. Johnson.

Johnson was the owner of thirteen-sixteenths of a leasehold on what was known as the land of "Dittman's heirs," in Richland township, Clarion county.  On the 15th of November 1873, the Titusville Novelty Iron Works issued a fi. fa. on a judgment held by them against him and E. D. Hamilton for $1351.

On the same day, the sheriff went on the leasehold, stopped at the house on it, in which the defendant Johnson resided; he examined the house and oil-well on the leasehold, with the intention of levying on it if he did not get the money, and after looking over the leasehold and inquiring for Johnson, he went to St. Petersburg, about a mile and a half from the leasehold, and then met Johnson; he showed him the writ and told him he wanted the money; Johnson said he could not pay it; the sheriff told him if it was not paid he would have to make a levy.  He then levied on the leasehold and endorsed it on the writ that night in St. Petersburg and not in view of the property.

The sheriff's return to the fi. fa., made November 24th, was as follows:  "By virtue of the within writ I have levied on all the right, title, interest and claim, of the defendants, of, in and to a certain leasehold estate, situated on 'D. Shoup farm,' Richland township, Clarion county, Pa.; lease of 6 acres, bounded east by public road; south, west and north by D. Shoup farm; together with the oil-wells, engines, boilers, engine-houses, derricks, walking-beams, casing, tubing, rods, tanks and all the machinery and fixtures belonging to said wells and lease; also one frame dwelling-house on said lease, one set of drilling-tools and one buggy.  So answers S. Johnson, Sheriff."

According to this view of the case the auditor erred in not giving precedence to the writ of the Titusville Novelty Iron Works.  The decree of the court is therefore reversed, and it is ordered that the record be remitted for redistribution, and that the appellees pay the costs of this appeal.

On the same day, P. Graham & Co. issued a fi. fa. on a judgment in their favor against Johnson.

Previously to the return-day of these two writs, the term of the office of the then sheriff, S. Johnson, expired and the writs went into the hands of his successor, A. H. Beck.

To the venditioni he returned, "No property found in my bailiwick to answer the within levy."

To Graham's fi. fa. he returned:  "By virtue of within writ I have levied on the following property, to wit:  Derrick 20x20 base, 72 feet high, engine and boiler house 18x24 feet, engine, boiler 12 horse power, casing tubing and rods; said leasehold situated on lands owned by Dittman's heirs, in Richland township, Clarion county, Pa. Bounded north by Dittman's, east by D. Shoup farm, west by Dittman's and land leased to Vensel, situated on the south-east corner of said farm; also one house 18x16 feet, one and a half stories high, on said lease."

He further returned: "December 17th, after due and public notice being given, property cried and sold for $1820 to John Shoup."  Shoup was one of the firm of P. Graham & Co.

There were a number of other executions on mechanics' liens, &c., issued about the same time.  The above-mentioned executions had priority of all except those on the mechanics' liens.

The proceeds of sale were brought into court and referred to David Lawson, Esquire, as auditor, for distribution.  Before him the Titusville Novelty Iron Works and P. Graham & Co. were the contesting claimants for the balance of the fund after the payment of the mechanics' liens.

J. M. Guffey testified that the leasehold levied on was on the land of the Dittman heirs; the Shoup land lies on the east and south of it, and was the same property described by the sheriff in his levy; that he as agent of the Novelty Iron Works gave notice at the sheriff's sale that the property was the same that had been levied on by Sheriff Johnson; that the sheriff cried the sale on the writ of the Novelty Iron Works and named no other writ.

Originally heard in the Court of Common Pleas of Clarion County.

The bill in this case was filed July 1st 1872 by J. W. Allison and A. Evans, against R. W. Porterfield and M. C. Treat.

Defendants' appeal dismissed.

Originally heard in the Court of Common Pleas of Clarion County.

This was an action of ejectment, brought July 24th 1871, by John F. Orne and Morris R. Stroud against John Keating and others, for a lot of land in Richland township, containing 9 acres 48 perches.  The case was tried, September 1st 1873.

The plaintiffs gave in evidence a patent for the lot dated June 12th 1866, to John H. Vensel and David Vensel; they sold to Barney Vensel, and from him through intermediate sales their title vested in the plaintiffs.

The defendants gave in evidence title from the Commonwealth to Jared Ingersoll and others by warrant, December 31st 1874, and survey thereon April 3d 1800, for a body of land (No. 5793), including the premises in controversy, and chain of title from them to the defendants.

In rebuttal the plaintiff gave in evidence articles of agreement, dated February 6th 1865, between Barney Vensel and R. B. Brown, by which Vensel agreed to convey the land to Brown on the payment of $100 at the date of the articles, and $1400 on or before the 10th of March 1865, when a deed would be made; it being agreed that if the $1400 should not be paid at the time specified, the contract should be determined and the $100 forfeited.

Barney Vensel testified:  "I had a talk with Mr. Keating about the title before I bought the title; David wanted me to buy, and the report was Keating claimed part of the upper end of it, and I would not buy until I saw Keating.  I saw him, and asked him if he claimed any of the land.  He said he thought he claimed part of the upper end; said it did not amount to much, and he did not calculate to make David trouble about it; some time after I bought the land from David; from what Keating told me, I thought the title was all right, and David was poor, I bought it, and was to pay one hundred and fifty dollars, and did pay fifty dollars at the time; subsequently paid the whole amount; bought the whole thing from David; I am a brother of David Vensel; David moved on the land in 1862 or 1863; he built a house on it, and had a garden and potato patch; the cleared ground was enclosed."

Judgment reversed, and a venire facias de novo awarded.

Originally heard in the Court of Common Pleas of Clarion County.

This was an action of assumpsit brought March 2d 1875, by John Gregg and John Richardson, trading as D. Gregg & Co., against the First National Bank of Clarion County.

The plaintiffs' affidavit of claim was as follows:
"For money received by defendant from C. B. Weber on or about September 25th 1873, on a note payable to plaintiffs, and by them endorsed and sent through James T. Brady & Co., then bankers in Pittsburg, to the First National Bank of Clarion, for collection and
for no other purpose, $422.60
Interest from September 25th 1873, to February 10th 1875, $34.86
Total, $457.46"

Originally heard in the Court of Common Pleas of Clarion County.

This was an action of assumpsit, brought by M. A. K. Weidner against William T. Alexander, to recover one-half the amount of a note made by Brown and Galey to the order of Alexander.

On the trial, the defendant submitted two points, both of which the court affirmed, but the first with a qualification.

To these answers of the court the plaintiff excepted, but the defendant did not.  The verdict was for the plaintiff, and judgment was entered thereon.

The defendant took this writ, and the error assigned was the qualification in the affirmance of his first point.

It appeared that the points of defendant and the answers thereto were filed with the record, but there was nothing contained therein to show that they were filed at the request of either party to the action.

Judgment affirmed.