Harris's Appeal

Opinion by

Me. . Justice Paxson :

This case has been twice argued, the second time upon our 'motion, and has been carefully considered. The amount in controversy is large and the testimony voluminous. It occupies over 2,000 printed pages.

There-are sixty-nine assignments of error. The greater portions of-them are to questions of fact. The court below sustained the master, substantially, in his findings of the facts, ■but differed from him in some of his conclusions therefrom. With such a mass of testimony as we have in this case, it is not to be expected that we shall reverse the master upon the facts, concurred in as they are by the court below, unless clear error has been pointed out. This has not been done, and we cannot do otherwise than give the findings of fact the same weight and conclusiveness as if they had been found by a jury. The value, wisdom, and necessity of this rule becomes daily more apparent in consequence of the growing partiality of the profession for equity practice. ' The enforcement of this rule disposes of all the questions of fact in the case.

The facts as established present two leading questions, — viz. .- (a) the liability of Welles for the payment of damages for the right of way where the railroad diverges from the canal; and (b) whether the $250,000 of capital stock was pledged to the Lehigh Valley Railroad Company under the agreement of September 12, 1866. The other questions in the case are, in the' main, subdivisions of these two, which are the pivotal ones upon which it.must be decided. It would consume much time and serve no good purpose for me to enter upon their discussion. If discussed at all they must be discussed separately. The opinion ■of the learned and able judge of the court below renders this unnecessary. His views upon both questions are well considered and are entirely satisfactory. His opinion sufficiently vindicates his' decree. Nor have we any doubt that his decree fully meets the justice of the case. I am not aware of anything to show that Colonel Welles, during his lifetime, ever made any demand or claim upon the Lehigh Valley Railroad Company for this large amount of money. It seems almost incredible that he should not have done so had he believed that the company was his debtor. It was a solvent corporation, fully able to. respond to any such demand, and this was well known to Colonel Welles. That he did not make such claim was probably owing to the fact that he owed the company a large amount of money which he would have to pay before he could lift the stock which the company held in pledge, and that the stock was of little or no value. It was, perhaps, his misfortune that the stock was worthless, if the fact be so, yet it was what he bargained for, and those who have acquired his interests have no just cause to complain that they do not get something else. Had Colonel Welles lived, I do not believe that this bill or any other bill of a similar nature would have been filed. It is perhaps natural that the appellants who bought this claim of his administrator at an orphans’ court sale, and knowing less about the facts, should file a bill and press it to a final decree.

It was urged, however, that even if the rulings of the learned judge below upon the law are correct, he has fallen into error in his decree. The matter complained of is the 215 shares of the North Branch Canal stock which Colonel Welles failed to deliver. Both the master and the court below charged him with this stock at par, amounting to $21,500. Upon the reargument the attention of counsel was particularly called to this matter, and it was alleged by appellants’ counsel: (a) That this sum of $21,500 should not be deducted from the amount due Welles under the contract with Packer; (b) that in the alternative decree it is twice deducted; and (c) that if the 215 shares are to be deducted at all, it should only be deducted at their actual value.

I am unable to find, after a somewhat laborious examination of the figures, that these shares are twice deducted in the alternative decree. Nor does it matter if they are, as no question touching the alternative decree is now before the court, and a mistake therein is harmless. The claim that these shares should not be deducted at all is not well founded. It was a part of the contract entered into by Colonel Welles that he was to deliver these shares; a portion of the consideration for which he was to receive $1,050,000. Having failed to deliver them they must necessarily be charged to his account. The only remaining question is, At what price í Prima facie they must be charged at par, $100 per share. The appellants contend, however, as before stated, that if charged at all, it should only be at their market value. The burden of proof upon this point is upon the appellants. It Is alleged in a note to their paper book upon the reargument that the market value of this stock was only $30 per share. No evideuce has been pointed out to us bearing upon this point, and it is too much to ask us to go through 2,000 pages of testimony to search for what may not be found. I do not understand the master or the court below to say anything about it. Desiring, however, that no injustice may be done, if before this record goes down, the learned counsel will call my attention to any facts which would justify us so to do. I will gladly, with the assent of my colleagues, amend the decree to conform to such facts.

The decree is affirmed and the appeal dismissed, at the costs of the appellants.

Thereafter, on February 6, 1888, the decree herein was modified by the following opinion of the court, delivered by Mr. Justice Paxson:

In the decree of the court below, the appellants are charged with the 215 shares of North Branch Canal stock at par, viz., $100 — $21,500. This stock Colonel Welles failed to deliver under his contract, and for his failure to do so the appellees were entitled to damages. We do not think, however, the appellants should be charged with it at its par value. It is proper to say also that I can find no evidence of its having been twice charged as contended by appellants.

We have but little evidence of the value of this stock. It was conceded by appellants, however, that it was worth $30 per share, and in the amendment of the decree, which is now made, it is placed at that figure, with the proper allowance of interest

The practical effect is to reduce the amount which the appellants must pay to redeem, to $13,329.73; and with this modification of our order of January 3, 1888, the decree is affirmed and it is ordered that the record be remitted.