The following opinion was filed March 6, is to be considered as having been paid to the 1882, by OVER, J., in the court below: It is contended by exceptant that the guardian placed himself in loco parentis to his ward, and is therefore not entitled to charge anything for his maintenance. It appears from the testimony that the guardian had no children, that his wife was the sister of the minor's father, that she went to the minor's grandfather, where he had been taken after his father's death, and requested him to let her have John, stating that the children had nothing and that she would take them for charity's sake. That the minor worked about the house, in the garden, and with the guardian in his blacksmith shop. That the guardian made no charges against him for his maintenance, and had no intention to charge him anything until after he left him in November, 1877. These facts certainly show that the guardian placed himself in loco parentis to his ward. He is, therefore, not entitled to charge for his maintenance: Horton's Appeal, 28 PITTSBURGH LEGAL JOURNAL, 25. It is claimed, however, on the part of the guardian, that this legacy was not a charge on the real estate devised to Mrs. Diamond, that there was not sufficient personal estate to pay it, and that she paid the same to the guardian for the purpose of it being kept by him to pay him for maintaining his ward, and that he can, therefore, apply it to that purpose. "It is well settled that a general devise blending the real and personal estate together, creates the legacies a charge on the realty:" Wertz's Appeal, 69 Pa. St., 173; Davis' Appeal, 83 Id., 353. As the devise to Mrs. Diamond blends both personal and real estate, it follows that this legacy was a charge on the realty. The real and personal estate devised and bequeathed to Mrs. Diamond were sufficient to pay all the legacies in full. The ward, then, was legally entitled to receive this legacy. It belonged to him, and Mrs. Diamond could not control it in any way. It is not necessary, therefore, to pass upon the other questions of law and fact involved in this contention. By the terms of the will the legacy was not payable until the minor became of age in July, 1880. The guardian, however, purchased from Mrs. Diamond the real estate devised to her, and gave her a purchase money mortgage for $9,900 to secure the balance of the, purchase money. It was satisfied on the 8th of April, 1878, and in settling it she allowed him credit for the amount of the legacy. The legacy, then, guardian on the 8th of April, 1878, and he is to be charged with interest from that date. For appellant, Messrs. Barton & Son. Contra, Messrs. John F. Edmundson and Henry T. Watson. PER CURIAM. Filed October 25, 1882. We affirm this decree upon the opinion of the learned court below. Decree affirmed and appeal dismissed at the costs of the appellant. 1. The Act of Assembly of Pennsylvania of May 6, 1863, ("Ticket Scalping" Act), confers no right on the railroad company to question passengers as to where and how they procured tickets. It does not make purchasing and using a ticket from a "scalper" an offense. 2. Plaintiff purchased in New York from a “scalper" a ticket over the Pennsylvania Railroad to Philadelphia, and on its presentation was ejected from the cars at Elizabeth, N. J. Held, that the evidence of title to a passage was vested in such transferee, who thereby became entitled to claim performance of such contract of carriage. Error to the Court of Common Pleas, No. 4, of Philadelphia county. Opinion by TRUNKEY, J. Filed October 2, 1882. The parties agree that this case presents a single question, whether a person purchasing a ticket over the Pennsylvania Railroad, from New York to Philadelphia, from a ticket dealer who is not an authorized agent of the company, can maintain an action in the courts of this State for the refusal of the company to carry him between these points in return for said | ticket. By the Act of May 6, 1863, P. L., 582, it is made the duty of every railroad company to provide each agent authorized to sell tickets entitling the holder to travel upon its road, with a certificate, attested by the corporate seal and the signature of the officer whose name is signed to the tickets. And any person not possessed of such authority, who shall sell, barter or transfer, for any consideration, the whole or any part of a ticket, or other evidence of the holder's title to travel on any railroad, shall be deemed guilty of a misdemeanor, and shall be liable to be punished by fine and imprisonment. The purchasing and using a ticket from a person who has no authority to sell is not made an offense. That the plaintiff's ticket, on its face, entitled him to the rights of a passenger between the points named, is unquestioned. The only reason for denying him such right was that he bought from one who sold in violation of the statute in Pennsylvania. It is not said that the vendor BELL et al. v. KENNEDY. contract for the purchase of lands made with vendor's agent, it was held: 1. That when at the time of such contract the vendor held deeds for the land with the name of the grantee in blank, which fact was unknown to the plaintiff, it follows that the vendor did not have a good and perfect title as represented. 2. That the plaintiff was not bound to accept deeds from an insolvent third person, whose name was inserted in the original blank deeds as grantee; but he was entitled to deeds directly from the actual and responsi ble vendor with his covenants of general warranty as stipulated; and on failure to tender such title the plaintiff could recover the money paid. Error to the Court of Common Pleas, No. 3, of Philadelphia county. Opinion by MERCUR, J. Filed October 5, 1882. It is not necessary to discuss separately the various specifications of error. A few general principles rule the case. The money in contention was paid on a parol contract for the purchase of lands. In consequence of having afterwards ascertained the title to be defective, this action was to recover the money thus paid. in New York is actually guilty of the statutory offense, but that the defendant being a corporation in Pennsylvania, and the stipulated right In an action by vendee to recover money paid on a parol of passage being partly in Pennsylvania, her courts will not enforce a contract resting upon acts which the Legislature has declared criminal. The presumption is, that the ticket was properly issued by the company, and that the holder had the right to use it. Such tickets are evidence of the holder's title to travel on the railroad. Prior to the statute in Pennsylvania it was lawful for holders to sell them. The property in them passes by delivery. The Act of 1863 confers no right upon a railroad company to question passengers as to when or where or how they procured tickets, or to eject them from the cars upon suspicion that the tickets were sold to them by a person who was not an agent for the company. At common law, which is deemed in force in absence of evidence to the contrary, the contract made by the plaintiff in New York was valid. It was executed. No part remained to be performed. It vested in him the evidence of title to a passage over the railroad. His act had no savor of illegality or immorality. It was a mere purchase of the obligation of a common carrier to carry the holder according to its terms. The defendant issued the obligation, received the consideration, and became liable for performance at the date of issue. As transferee, the plaintiff claimed performance. This is the contract which is the basis of the cause of action. It is purposely made so as to entitle the bona fide holder to performance, and for breach, to an action in his own name. Let it be assumed that the defendant made the contract in Pennsylvania, it is quite as reasonable to assume that tickets for passengers coming from New York into Pennsylvania were sold in New York. But wherever the contract was made, it is true, as claimed by the defendant, "this action is to enforce not the contract between the ticket scalper and the plaintiff in error, but between the defendant in error and the plaintiff in error." The lands were situate in Missouri and were represented to contain 11,200 acres. Both parties to the contract resided in Pennsylvania. In the making thereof, one Leslie acted as agent for Dilworth. He represented that the latter had a good and perfect title to the lands free from encumbrance, and was a man of wealth and perfectly responsible. Relying on this statement, and the assurance that a clear title should be made to him by good and sufficient deeds, Kennedy agreed to buy the lands, and afterwards paid part of the purchase money. It ap Dilworth was a man of wealth, but, in fact, had no regular paper title to the lands. pears he had in his possession fifty-one patents, issued by the United States to certain patentees therein named, and deeds for the same lands, executed by the patentees, without the names of any grantee therein. After the making of the contract the name The sale of the ticket to the plaintiff in New of Leslie, who was insolvent, was written in York was lawful. That being an executed con- the fifty-one deeds as grantee, and he and his tract, there is no question respecting its enforce- wife executed deeds for the purpose of conveyment. Surely, it is not an exception to the rule ing said lands to Kennedy. Thus there was that contracts, valid by the law of the place no conveyance from Dilworth. The deeds conwhere they are made, are generally valid every-tained no covenant from him. where. Then, as the plaintiff has a valid title to the ticket, the contract between the defendant and himself is valid. When the agreement was made Leslie exhibited “a plan book," which he stated contained a full description of the lands. The de Judgment reversed and procedendo awarded.scriptions in the deeds executed by Leslie did For plaintiff in error, Messrs. J. H. Shoemaker and George Robinson. Contra, Wayne Mac Veagh, Esq. not, in several respects, correspond with those in the "plan book." The number of the township was changed in some few cases; in other cases a different quarter of the section was substituted; in several townships named a portion of the lands was wholly omitted. The deeds were to be deposited in the Commonwealth Bank. Thus defectively executed, they were there deposited, and on a cursory examination of them by Kennedy he made a payment. Afterwards he discovered the title of Dilworth to be defective, and that the deeds were not executed according to the agreement; he therefore refused to accept them, and brought this suit to recover the portion of the purchase money which he had paid. Thus the case involves the validity of the title held by Dilworth, and the sufficiency of the conveyance prepared for Kennedy. It may be conceded, in case a deed, duly executed in other respects, with a blank left therein for the name of the grantee, be put in that condition in the hands of a third person, with verbal authority to fill up the blank in the absence of the grantor, and to deliver the deed to the person whose name is inserted as grantee, and the deed be so filled and delivered, it becomes a valid deed. It is not necessary to consider whether Dilworth held those deeds under an agreement with the grantors which would enable him to perfect the title in himself. If he was so authorized he did not exercise the power. His name never appeared in the deeds as vendee. It appears, however, that he did not acquire his equitable interest directly from the patentees, but from one Davis, for whose benefit it is alleged the lands were located. The jury having found that the deeds from the patentees were held by Dilworth in blank when the agreement was made with Kennedy, and that the latter did not know that fact, it follows that Dilworth did not hold a perfect or legal title to the lands, nor did he hold an equitable title under any conveyance made to him. Not only was Kennedy ignorant of the fact that the deeds from the patentees were in blank, but the jury have further found that Kennedy did not agree that the name of Leslie as vendee should be inserted therein. It is therefore manifest that Dilworth did not have a good or perfect title to the lands at the time of the agreement, nor afterwards. Dealing with him as the owner thereof, Kennedy expected, and had a right to require, a deed directly from him, conveying that perfect title which he alleged was vested in him. Kennedy was entitled to all the security which Dilworth's undoubted wealth would give in case of a breach of the covenants in the deeds. Thus the defective title held by Dilworth, and his refusal to convey according to his agreement, | left his part of the contract wholly unperformed. This gave Kennedy a right to rescind the agreement and recover the money which Dilworth had obtained under a false assertion of a perfect title. If this action were in affirmance of the contract, it would be necessary to show a readiness or willingness on the part of the vendee to perform, but it is in disaffirmance thereof, by reason of the inability and failure of the vendor to perform. His performance was a condition precedent to his right to require any action from the vendee. The latter, therefore, had a right to recover the money which he paid under a misapprehension, and which the vendor was not entitled to receive: Moore v. Shelly, 2 Watts, 356; Tyson v. Robinson, 10 Wright, 286; Cosgrove v. Himmelrick, 4 P. F. Smith, 209. A careful examination of the whole record discloses no sufficient cause for reversing the judgment. Judgment affirmed. For plaintiff in error, Messrs. A. C. Selden, D. W. Sellers and George S. Selden. Contra, Messrs. Rob't H. Hinckley and Henry S. Hagert. MYERS v. BRICE. A qualified receipt signed by an agent is admissible in evidence without preliminary proof of the agent's express authority to execute such receipt. Defendant shipped butter to plaintiff who sold it at a loss. In an action to recover drawbacks or reclamations on advances made by the plaintiff, the defense being that the transaction was a sale and not a consignment, plaintiff offered in evidence two receipts, one "for advances on butter," in which the word "purchased" had been erased, and the other receipt "for advances on butter consigned to W. D. & Co. for sale on my account." These receipts were signed by defendant's book-keeper, as his agent, but were not accompanied with proof of his authority to sign such qualified receipts. Held, that the receipts were admissible in evidence without preliminary proof of the agent's authority to execute them. Defendant in the above case, in order to prove the sale of the butter in question, offered in evidence two papers purporting to be bills of sale thereof to the plaintiff. In order to render them admissible he called his book-keeper, who testified that he took one of two bills, of which those offered in evidence were copies, to the plaintiff and left them with a clerk, whom he did not name. He did not know which of the bills he had thus left. Defendant then called on plaintiff's to produce the bills, who denied that they had ever seen or heard of them. He then offered in evidence the two papers already spoken of. Held, that they were properly excluded. Where a person is himself competent as a witness, and does actually testify as to a certain transaction, contemporaneous book entries made by him in relation to said transaction are not admissible, because they do not constitute the best evidence. Welsh v. Cooper, 8 Barr, 217, and Welsh v. Speakman, 8 W. & S., 257, distinguished. An agent is not a competent witness to prove that he has had no authority to do an act which he has performed. A violation of the duty of an agent to inform his principal of the sale of goods is negligence. SHARSWOOD, C. J., and TRUNKEY, J., dissent. bought butter off of and buy more in order that we may be in their debt, for if we don't we will never get a cent and we will have to settle the loss ourselves.' Did he not ask you if you did not think that a sharp trick, and did you not Error to the Court of Common Pleas, No. 3, reply 'Yes, but it would work.' Did you not of Philadelphia county. Assumpsit by William Brice, John Allen and Ephraim Brice, copartners, trading as Brice, Allen and Company, against Joseph B. Myers, to recover reclamations, drawbacks on advances made on butter delivered to plaintiffs by defendant in October and November, 1874. The butter was shipped to Watson Dunn & Co., in Liverpool, by whom it was sold at a loss. The narr. contained only the common counts to which defendant pleaded non assumpsit, payment, payment with leave, etc., and set-off. On the trial of the cause plaintiffs offered in evidence the following receipts: Reed. Phila. Octo. 7, '74 of Mess. Brice, Allen & Co. Six Hundred and Ninety 40-100 Dolls, as advance upon butter Octo. 6, '74. $690.40 J. B. MYERS per KAHOE Philadelphia Nov'r. 4, '74. Received from Brice, Allen & Co. proceeds of £ 180. Stg. Say Nine Hundred and fifty-four dollars being advance on 72 Packages Butter consigned to Watson Dunn & Co. for sale on my account. $954.00 tell Allen that the defendant, J. B. Myers, was one of those to whom you had guaranteed advances?" Said question to be followed by proof that more butter was then bought of Myers, namely, $281 worth, set off in this case. Objected to on the ground that nothing this witness can say or do could change in any way the terms of the original contract. Objection sustained as to all of questions except as to whether he said he had guaranteed advances. (3d assignment of error.) Defendant, in order to corroborate his oral testimony that the transaction was a sale, offered in evidence bills of sale for the butter delivered dated October 6, and November 2, 1874, but the witness who took them to plaintiffs' store could only swear that he delivered one-which one he did not know. The offer was objected to. Objection sustained. Evidence rejected. Exception. (5th assignment of error.) Defendant then offered in evidence his book J. B. MYERS per KAHOE of original entries containing contemporaneous The offer was objected to on the ground that entries against the plaintiffs showing sale and there was no proof of Kahoe's authority to sign | delivery to them of the butter in question in such qualified receipts. Objection overruled. October and November, 1874. Objected to. ObEvidence admitted. Exception. (1st assign-jection sustained. Evidence rejected. Excepment of error.) Thomas Hobson, one of plaintiffs' witnesses, who had acted as broker in the transaction, was asked, on cross-examination, the following question: "Did you not tell Mr. John Allen, one of the partners, on one occasion at Fourth and Chestnut, when he blamed you for the losses of the firm on English shipment, did you not tell him not to worry, that you had a guarantee from Watson Dunn & Co. for 22 cents?" Objected to. Objection sustained. Evidence rejected. (2d assignment of error.) Defendant then asked Hobson this question: "Did not Fred M. Allen on one occasion some time about the early part of November, 1875, on your going through his office, ask you why the firm had been so disagreeable all day, if it had anything to do with the English losses coming | in, and did you not reply, 'Yes, it has.' And did you not further say, 'I bought butter to ship to England and guaranteed a price and account sales have come in with a heavy loss showing sales at a less price than I guaranteed. Now I have to go to these parties whom I | tion. (6th assignment of error.) The defendant then asked Kahoe, his bookkeeper, who had signed the receipts, the question: "Had you authority from defendant to sign the receipt in that way?" The question was objected to. Objection sustained. Evidence rejected. Exception. (7th assignment of error.) On cross-examination he stated: "This receipt was written by me under direction of Mr. Shoester (plaintiffs' book-keeper). I objected to sign it the way it now stands. I first wrote the word purchase. Mr. Shoester directed me to strike out that word. He insisted upon having the word purchase stricken out. I raised objections, still I signed it. All that I had to do was to see that the amount I received corresponded with the amount charged on my books. I received that amount. I never told Mr. Myers how I had written the receipt. The second receipt was written by Hobson. He insisted upon my signing it as he had written it. I did not tell Myers anything about it." It appeared from the evidence that the second shipment was sold by Watson Dunn & Co., on February 10, 1875, and the first was sold August 20, 1875, and they rendered account of sales to Brice, Allen & Co., in the month following the | sale in each case, but no notice of either sale was given to the defendant until November 23, 1875. It also appeared that the delay in the sale was owing to the depressed state of the market and the poor quality of the butter. Defendant requested the court to charge : (2.) That if the jury believe that plaintiffs neglected for an unreasonable time to give defendant notice of loss on sale and of Watson Dunn & Co.'s delay in selling, which justified the defendant in concluding that the butter had been disposed of without loss, the plaintiffs cannot recover, even if the price paid had been subject to reclamation. Refused. (10th assign- | ment of error.) that the defendant's agent had express authority to sign receipts containing the matter appearing on the face of these papers, has no weight. In actual fact, he did sign them, and the plaintiffs were entitled to the benefit of that fact. Of course they were not conclusive upon the defendant. If the contract between the parties was a sale and not a consignment, the defendant was at perfect liberty to prove it notwithstanding the receipts. He did give such testimony by himself and other witnesses, without any objection, and the case went to the jury mainly on that question. Second assignment.-The question put to Hobson and rejected, on cross-examination, was not cross-examination and was entirely immaterial. It could not have affected the case, whether he answered affirmatively or negatively and was subsequently contradicted. It did not, and could not, illustrate the question, What was the actual contract between these parties? The same is true of the question rejected under the (3.) That an agent or factor is liable for any loss arising from his neglect to keep his principal informed. The burden of proving extent of loss is upon the plaintiffs, and if the jury be-third assignment. lieve that the plaintiffs neglected for a whole year to communicate with defendant as to operations of Watson Dunn & Co., they became insurers for amount advanced, and cannot recover in this suit. And this is the law, even if plaintiffs were originally entitled to make reclamation. Refused, because no evidence of loss from neglect. (11th assignment of error.) Verdict and judgment for plaintiffs for $510.81. Defendant thereupon took this writ, assigning for error, inter alia, the rulings of the court on the admission of evidence and the answers to defendant's points above set forth. For plaintiff in error, Wm. D. Wetherill, Esq. Contra, Benjamin F. Tolson and H. B. & C. D. Freeman. Fourth assignment.-The witness, Dunn, testified positively to the receipt of butter from the plaintiffs, giving dates and particulars of the shipments. He nowhere said that his knowledge on this subject was derived from hearsay. What he said about his understanding that the butter was the property of Myers, was rejected from the deposition by the court on the objection of defendant's counsel. Fifth and sixth assignments.-The defendant offered in evidence two papers purporting to be bills of sale of the butter in question by the defendant to the plaintiffs. To make them admissible, he called Kahoe, his book-keeper, who testified that he took bills, of which they were copies, to the plaintiffs' store before the checks were given and left them with a clerk. He imOpinion by GREEN, J. Filed May 1, 1882. mediately added, however, that he took one of There is no merit whatever in the first as- them, but did not know which. He did not signment of error. Certainly, the court should name the clerk with whom he left the bills. not have rejected the receipts on the assumption The defendant then called upon the plaintiffs that Kahoe, the agent, had no authority to sign to produce the bills and they responded by testhem. Admittedly, Kahoe was the agent of the tifying together with Hobson and Shoester, the defendant, sent by him to the plaintiffs for the latter of whom had taken the receipts, that transaction of this particular business. He did they knew nothing of such bills and had never receive the money, which was accepted and re- seen or heard of them. Then the defendant tained by the defendant. The money was paid offered the two bills in evidence, which were by the plaintiffs upon account of the transaction very properly rejected. The offer was a unit of in question, and the selected agent of the de- both bills. But the testimony in support of the fendant having full power to receive the money, offer was, that only one of them was left, and and in the transaction, gave receipts for it in which one that was the witness could not state. the name of his principal at the times it was In no view of the case were the two bills admispaid. Upon no principle would it have been sible, and therefore there was no error in rejectproper to absolutely reject them. The objectioning the offer as made. As to the defendant's that proof was not first given by the plaintiffs books of account, they were not the best evi |