awarded.

Opinion by WILLIAMS, J.

GORDON, C. J., and TRUNKEY and CLARK, JJ., absent.

8. H. T.

our rule of Court the defendant admits that the Judgment reversed, and venire facias de novo piece of land in dispute is embraced within the deeds set forth in the plaintiff's brief of title and that the plaintiff has a proper title to the same. Therefore any evidence disputing the fact that the piece of land is within the plaintiff's abstract is not proper under our rule of Court. The defendant's abstract of title sets forth his title as against the plaintiff by adverse possession and Oct. '87, 97. the evidence must be limited to that question."

But the defendant had to show the lines to which his possession extended. Without definite boundaries his possession was rambling, uncertain, and of no avail as a defence to the plaintiff's action.

were.

October 27, 1887.

Springer v. Groom.
Trover-Practice-Demand-Evidence.

When property is taken from a party in disregard of his claim of ownership, by another who claims the property as his own, and subsequently the former brings trover against the latter, in such a case a formal demand and refusal need not be proved by the plaintiff.

In the present case the evidence was conflicting as to the circumstances under which the plaintiff had taken the property from the defendant, and the Court properly left the case to the jury under instructions that the law was as above stated.

Error to the Common Pleas No. 2, of Allegheny County.

Trover, by S. T. Groom against W. A. Springer, for the conversion of certain sheep, ten in number, valued at $35.

If, as the Court held, "the evidence must be limited to the question of adverse possession," it was nevertheless absolutely necessary to show within whose inclosure the premises in dispute The defendant offered to show that whatever the plaintiff's paper title might cover, the lines on the ground by which his possession was bounded did not include this land. The evidence was not offered to show the general location of the lands covered by plaintiff's deeds, but to limit his actual possession. For this purpose it was both competent and important evidence. The admission of the defendant under his abstract and the rule of Court did not cover the On the trial, before MAGEE, J., the following possession of the small piece of land in contro-facts appeared: On May 12, 1886, W. A. Sprinversy, for he set out distinctly his title by virtue ger missed ten sheep from his flock. In searchof the Statute of Limitations. The Court be-ing for them the same day he found in the field low so held, yet refused the offer to show that of his neighbor, Groom, ten freshly shorn sheep, the lines of the defendant's inclosure actually embraced the land in controversy, while those of the plaintiff did not. This offer should have been admitted. If the proof proposed had been made and it had appeared that the lines of the plaintiff's inclosure did not include the land in controversy, but that the actual inclosures of the defendant did include it, and that the defendant had been in the actual visible hostile possession up to the lines of his inclosure for more than twenty-one years before suit brought, it will not be doubted that his defence was sufficient to defeat the plaintiff's paper title. This is in sub-sible to let those men settle the matter between stance what the defendant proposed to prove, but which was excluded. As the case stood it was narrowed by the abstracts and the rule of Court to the single question of title by possession. The exact limits of the possession of the parties so far as those limits affected the land in controversy were important. If the line to which the plaintiff claimed did not include this land so as to give him the aetual exclusive hostile possession of it and the lines of the defendant's possession did include it, the defendant had a right to make the proof, and his offer to do so should have been admitted. The other assignments of error are not sustained.

which, from marks he recognized on some of them, he believed to be the ten missing from his flock. Both parties live in Findlay Township. On the same evening he went to Squire Byers of the said township, related to him the facts, whereupon the justice prepared an affidavit or information which was sworn to by Springer, and a warrant was issued and placed in Springer's possession, who gave it the next morning to Wilson, the constable of the township, who was sent by the justice to meet Springer at Groom's house. The justice requested the constable before he went, "if pos

themselves." On the morning of the 13th Springer, Wilson, and Groom met at Groom's house, and went together to look at the sheep claimed by Springer. The warrant was not produced nor referred to in any way except in answer to a question by Groom to Springer, whether he would swear to the sheep before Squire Byers, he replied that he had already done so, and had the documents to take them. The constable acted as a peace-maker, and advised an amicable adjustment of the matter. Both parties asserted that they owned the sheep, but after considerable talk it was finally arranged that Springer should take the sheep and the wool that had been shorn from

them, and that Groom should have until the following Tuesday to prove that the sheep belonged to him, he asserting that he would prove that fact by a man named McGauge, from whom he had purchased at least a part of them. Groom sent his hired man to haul the wool home to Springer's house, and assisted in driving the sheep to a field on Springer's farm. On the 31st of the same month Groom commenced this action before another justice, without any demand upon Springer to return the property, and without notice to or communication with him of any kind whatever. Judgment was entered by the justice against Springer, the defendant, for $35.00, the value of the property, and the defendant appealed.

Answer. “Affirmed with this qualification: That you find as a fact that Mr. Groom delivered up the property and conceded title in Mr. Springer, unless he would satisfy Mr. Springer of his (Groom's) title to the same. It is not a conversion if Mr. Groom, upon demand, gave up the title to this property, and said, if I cannot establish to you and do not establish by a certain day that it is my property, I yield the property to you; I do not set up any claim unless I can do that.' That would not be a wrongful appropriation of the property of another, because it is an agreed thing that it is to remain with him on that condition. I mean if you find that to be the state of facts in the case. Not that the defendant The plaintiff testified that he had not voluntarily came there and to avoid a controversy with the given over the possession of the sheep, but that officer of the law, or in deference to a search in ignorance of the law and supposing that he had warrant and a claim presented, he yielded it up. no remedy, he had surrendered the sheep to the I do not say that that would not be a conversion constable; and that when he went with his wit-in law." Exception. (Second assignment of ness before the magistrate to prove the property error.) to be his, he found the case had been disposed of

(2.) "If the jury find from the evidence that and was marked settled. The defendant, on the it was agreed between the parties that the deother hand, claimed that when the sheep were fendant should take and keep possession of the put in his possession by the plaintiff, it was under-property in question until the following Tuesday, stood that unless the plaintiff proved his title by Tuesday, he was to keep the sheep, and that it was a complete surrender to him of the property, only to be defeated by a proof of title within the time agreed on, in which case he was to return them to the plaintiff.

The Court charged the jury, inter alia, as follows: "I take it to be the law that where the property is taken from the plaintiff, in disregard of his claim to ownership, by the defendant claiming the property as his own property, that in such case a formal demand and refusal need not be made before suit wil lie. The question to be determined by you is the ownership of the property in dispute. If you find as a fact from the evidence, that the property taken, or any part of it, belongs to the plaintiff, your verdict will be for the value of the property so taken. If you find that the property belongs to the defendant, your verdict will be simply for the defendant." Exception. (First assignment of error.)

The defendant requested the Court to charge, inter alia, as follows:

(1)“ If the jury believe from the evidence that at the time the sheep and wool in question were claimed by the defendant and given into his possession by the plaintiff, it was agreed between the parties, that the plaintiff should have until the following Tuesday to prove that the property in question belonged to him, and that on such proof being made the said property should be delivered back to the plaintiff, such claim of ownership by defendant, and the taking of said property into his possession, does not constitute a conversion."

and that the question of the title was to be settled in the meantime by the production by the plaintiff of proof of ownership, such an arrangement constituted the defendant bailee of the property in dispute, and in the absence of proof of actual conversion of the property, a demand and refusal must be proved, in order to maintain this action."

Answer. "Affirmed; that is if you find that he put the property into the hands of Mr. Springer as a bailment; then before he would be entitled to bring suit he would have to make a demand for the property in conformity with the stipulations and conditions of that bailment. Exception. (Third assignment of error.)

(3) The plaintiff cannot recover in this action unless proof be made that he made a demand before this suit was brought for the delivery of the sheep and wool in question, and the defendant refused to deliver them. In the absence of such proof your verdict should be for the defendant.

Answer. Refused. I submit the case upon the whole of the facts as to a conversion; if there was a conversion of the property shown by the evidence, aside from a demand, then a formal demand is not necessary. Exception. (Fourth assignment of error.)

(4) Under all the evidence in the case, the verdict should be for the defendant. Refused. Exception. (Fifth assignment of error.)

Verdict for plaintiff and judgment thereon; whereupon the defendant took this writ, assigning for error the refusal of his points and the portion of the Judge's charge above cited.

S. A. Johnston (M. Johnston with him), for plaintiff in error.

Where any authority is conferred upon a per- he kept them as his own; that they were always son by contract, to take or dispose of property, his. The plaintiff testified that he gave them up he cannot be charged with its conversion for any act done by him in reference thereto, while the contract is in force, and what is done is warranted by it. Before a person under such circumstances can be charged for a conversion, his authority must be abrogated.

Finch v. Clarke, Phillips Rep. (N. C.) 335.
Clark v. Whitaker, 18 Conn. 543.

E. Edgar Galbreth, for defendant in error. This case differs materially from that of Finch v. Clarke, supra, cited by the plaintiff. For in that case it was agreed that a certain time should be given defendant, and suit was commenced before the expiration of the time given.

Of

because he thought he had to in consequence of there being a writ against him, and that in point of fact he did agree to make proof of his title, but that when he went to the justice with his witnesses for that purpose, he found the case was marked settled, and he had no opportunity to submit his proof. All this is on the merits, but it shows that there was good reason for the Court stating the law on the subject and how it should be applied to the facts. The answers to the first and second points being without error, and there being conflicting evidence as to just what was agreed to by the plaintiff in regard to the defendant taking possession of the sheep and wool, it follows that the Court was right in refusing the third point and in refusing to take the case from the jury.

Judgment affirmed.
Opinion by GREEN, J.

TRUNKEY and CLARK, JJ., absent.

S. H. T.

November 1, 1887.

Schlitz Brewing Co. v. McCann.

Practice.

A. leased a room for the sale of liquors from a brew

January 3, 1888. THE COURT. The verdict has established that the sheep in question were the property of Groom, the plaintiff. The only question for us to consider is whether the learned Court below was in error in qualifying the answers to the defendant's first and second points and in refusing the third and fourth points. We think there was sufficient evidence to justify the qualifications of the first and second points, and Oct. '87, 157. hence there was no error in the answers. course, if the facts were undisputed, or if they were found by the jury as stated in these two Contracts-Breach of Damage for-Evidence points, the legal conclusions of the points were correct. But it was the right of the Court, when affirming the points, as they did, to add the explanations or qualifications which appear in the ing company, he agreeing to purchase his beer from answers, if there was evidence to support them. the sale of liquor in an adjoining room controlled by the company, and the company agreeing not to permit These qualifications were simply a more precise them. Liquors were sold by the tenant of the adjoinexplanation of the facts presented in the points-ing room during the continuance of A.'s lease. In an the very same facts-so as to bring them fully within the comprehension of the jury. There was undoubtedly evidence in the plaintiff's own testimony that he did not absolutely and voluntarily give over the possession of the sheep and wool to the defendant and agree that the defendant should keep them till the following Tuesday; and that in the meantime he, the plaintiff, should prove his title to the sheep. The learned Court only said that if the testimony came up to such a standard, and if such were the real facts, then there was no conversion in the mere taking, and there must be a demand made before suit brought. In this, of course, there was no error. So also in the general charge, where the Court said: "I take it to be the law that when the property is On the trial, before WHITE, J., it appeared taken from the plaintiff, in disregard of his claim that the plaintiff had leased a room for saloon of ownership, by the defendant claiming the prop- purposes from the defendant. The lease conerty as his own property, that in such case a tained the provision that all beer sold on the formal demand and refusal need not be made before suit will lie." Certainly there was no error in this. And as to the fact, the defendant himself testified that he took possession of the sheep and wool under a claim of title in himself; that

action by A. against the brewing company for damages therefor, the evidence for the plaintiff proved the fact of those sales, and a falling of in his business during their continuance. The defendants offered no evidence, and the Court instructed the jury substantially that there was evidence to go beyond nominal damages, and that it was the jury's duty to ascertain, damage had been done A. by reason of the defendants' as correctly as they could under the evidence, what breach of their agreement:

Held, not to be error.

Error to the Common Pleas No. 2, of Allegheny County.

Assumpsit, by John McCann against the J. Schlitz Brewing Company to recover damages for breach of contract.

demised premises by the plaintiff should be purchased from the defendant company. The defendant company on their part agreed to prohibit the sale of liquors in the room adjoining this saloon, over which the company had control.

The plaintiff introduced evidence to prove the entrance to the Academy of Music. During most breach of this latter contract by the defendant. of the last year of his lease, liquors were sold This evidence is set out at length in the opinion openly and regularly in the adjoining store occuof the Supreme Court, infra. The defendant pied by Mrs. Reineman, a tenant of the Brewing company offered no evidence. No question as to Company. The plaintiff alleged that his busithe right of action was raised in the proceeding. ness was sensibly diminished by the sales made On the question of damages the Court charged by Mrs. Reineman, and this action was brought the jury: To what extent that injured his to recover damages for the breach in this particubusiness you must ascertain in the best way you lar of the contract between himself and the Brewcan from the evidence. This is a violation of the ing Company. He testified that his business duragreement made by the defendant company, if ing the last fifteen months of his lease fell below you find the agreement as I have indicated, and that of the preceding fifteen months by $5041.85, even if there was no damage shown, the plaintiff and that his profits, after deducting all expenses, would be entitled to nominal damages for that would be one-half his gross sales. He says that violation [but there is evidence to go beyond he noticed a material decrease in his sales of nominal damages.] We have this testimony on liquors after the sale began in the store of Mrs. the part of the plaintiff, that about one-half of Reineman. As to the quantity sold by her his all the money realized from the sale of beer is testimony is as follows:clear profit. The brewer gets the big profit, and then the saloon keeper gets a clear profit of onehalf the money he takes in. [It is for the jury to make an estimate as best you can under the evidence, as to what damage the plaintiff sustained through that violation of the arrangement.]

Verdict for the plaintiff for $391 and judgment thereon, whereupon the defendant took this writ, assigning for error the portions of the charge of the Court inclosed in brackets.

C. C. Montooth (E. A. Montooth with him), for the plaintiff in error.

The charge of the Court was erroneous under the evidence. See

Gilmore v. Hunt's Admr., 16 Smith, 321.

T. H. Davis, for the defendant in error.
The plaintiff was entitled to damages, and no
fixed, inflexible rule can be given by which his
damages are to be estimated.

Hoy v. Gronoble, 10 Casey, 10.
Billmeyer v Wagner, 10 Norris, 92.

Where a wrong has been committed, the wrongdoer must suffer from the impossibility of accurately ascertaining the amount of damage.

Leeds v. Amherst, 20 Beav. 239.

January 3, 1888. THE COURT. The plaintiff in error admits its liability for nominal damages for its breach of contract with McCann, but denies that there was evidence to justify the sub. mission by the Court to the jury of the question of damages beyond a nominal sum. As the assignments of error relate to this subject, it is necessary to examine the testimony in order to determine whether the Court was guilty of error in this particular or not.

"I have seen them deliver kegs of beer there to Mrs. Reineman.

"Ques. More than one keg of beer?

"Ans. Yes, sir; I have seen them deliver it there time and again."

Thos. B. Clark testified as follows:

"Ques. You saw beer being sold in there; how do you know it?

"Ans. I drank it there myself.

"Ques. See any other person do it?

"Ans. Yes, sir; I did.

"Ques. How often.

"Ans. I don't know how often; it was a common occurrence for people to drink there in the dining-room.

"Ques. Was it frequently?

"Ans. Yes, sir; often when I would be up at the show; sometimes I would take a meal there in the house.

"Ques. Were there other persons there from the show doing the same thing?

"Ans. Oh, yes, sir; it was handy to go in there nearer than any other place.

"Ques. Do you know how long that continued -the sale of beer there?

"Ans. Over a year, I know."

Mrs. Reineman was also examined, and testified that she took out a license on the first of May and sold all that year.

M. J. Rafferty testified that he was often in Mrs. Reineman's to drink; went in between acts and after the show, and took beer with other parties.

Jacob Harris worked as a waiter for Mrs. Reineman. He testified that he served customers with drinks very frequently; that it was his duty to serve them drinks, and he did it.

This testimony showed the open and continu

McCann leased a room for the sale of liquors from the defendant company, with the agreement that he should purchase his beer from the com-ous sale of liquors by Mrs. Reineman to all pany, and that the company should not permit the sale of liquors in the adjoining store controlled by them and situated between his store and the

comers, and that many persons went in there to drink because it was nearer to the theatre than McCann's place. It showed also a steady falling