Court below in refusing to grant a rule to open the decree. The order is, therefore, affirmed."

In this case, as we have said, there is no allegation in the petition, nor is it shown in the testimony, that the respondent has a defense to the charge of desertion contained in the libel. There is nothing, therefore, to lead us to believe that a trial of the case on its merits would lead to a different decree than is now entered, and which we had jurisdiction to enter, as the subpoena was served according to law. It would, therefore, be profitless to open it and permit a re-trial.

July 3, 1915. Opinion by LANDIS, P. J. The undisputed testimony in this case of a house and lot of ground situated in was, that the plaintiff was the owner Warwick Township, this County. On November 9, 1907, she and her husband made a deed of conveyance for the same to the defendant, and at the same time between them out of which this present articles of agreement were entered into controversy arises.

The agreement in question provided that, when the plaintiff paid Eichenberg the sum of $924.59, with all taxes, rates, charges and assessments against the said and taxes and charges of keeping and property hereafter levied and assessed. maintaining an insurance against fire

mitted to defend.

Rule discharged.

The plaintiff conveyed certain real estate to the defendant, and at the same time they executed an agreement providing that when the plaintiff paid a certain sum to the defendant, with rents payable at stated times, the defendant would reconvey the property, the agreement to be void if plaintiff failed to pay, but the defendant might sell the property any time, and pay over to the plaintiff any balance over the principal sum named in the agreement rents, etc., or the amount thereof unpaid, less the defendant's proper charges and costs. The plaintiff failed to pay any part of the stipulated sum and the defendant sold the property. On suit, the verdict was for the plaintiff, although the defendant claimed that the plaintiff had not complied with the contract. On rule for judg

and also paid all rents equal to the interest on said principal sum, or any balance thereof, at six per cent. per annum, then Eichenberg should reconvey the said property to her, her heirs and assigns. It was stated that the principal sum to be paid was $650.59, on or before April 1, 1908, and the balance of $274. was to remain charged on the premises as a dower charge in favor of the heirs and legal representatives of Uriah Carpenter, deceased. There was a further provision, namely: "The rent (which is equal to the interest in said principal sum, as aforesaid, or balance thereof by reason of the advance payments to be made monthly as aforesaid) is to be paid unto the said S. U. Eichenberg, on the first day of each and every month in even sums of Four and 6229 1/2/100 Dollars each, up to April 1, 1908, together with the taxes as aforesaid, and the same shall constitute the rental for the use and occupation of the premises aforesaid. Subject, however, to the condition, and it is hereby agreed by the said Leah M. Sheaffer, that she keeps up at her own proper labor and expense all the repairs of said premises from time to time, as may be directed by the said S. U. Eichenberg, and pay all taxes. rates, charges and assessments against said property hereafter levied and assessed, and all taxes and charges of

against fire upon the buildings of said

premises whenever due, and the same shall be considered due as soon as the proper duplicate for said taxes, etc., shall be in the hands of the collectors of the same. Provided, however, and it is expressly agreed that, if default shall be made at any time by the said Leah M. Sheaffer to pay unto the said S. U. Eichenberg the several amounts whenever due, either of said rental, or said principal sum, as aforesaid, or the taxes as aforesaid, then the foregoing contract of sale shall cease and become absolutely null and void, to all intents and purposes, and payment of the said rent, and taxes as aforesaid, due and unpaid, may at the option of the said S. U. Eichenberg, be enforced and recovered at once, by landlord's warrant to distrain the goods and chattels of the said Leah M. Sheaffer, by distress in the usual manner for the non-payment of rent (or such other proceedings for the collection of the same as may in the discretion of the said S. U. Eichenberg be deemed proper), under all of which processes or proceedings she hereby waives the benefit of all exemption laws, and furthermore, the said S. U. Eichenberg, his executors, administrators or assigns, shall be at liberty, without further notice, to sell and dispose of said premises either at public or private sale, the same as if this agreement had never been made, anything to the contrary notwithstanding."

Mrs. Sheaffer did not pay to Eichenberg $650.59, nor any part of it, nor did she demand a deed for the property. On the other hand, Eichenberg never attempted, by distress or otherwise to collect the amount fixed as rent, and on April 1, 1913, Mrs. Sheaffer moved off the premises. About this time, Eichenberg sold and deeded the property to one. Ervin R. Miller, for the sum of $1,226 in cash, and the dower remained charged upon the land.

There appeared in the agreement another provision, to wit: "Provided, however, in case the said Leah M. Sheaffer shall have made advance payments on said principal sum of Nine Hundred and Twenty-four and 59/100 Dollars at any time as aforesaid, and the said S. U. Eichenberg should sell the said property

for more than the balance of said principal sum and all taxes, rents, etc., due, the said S. U. Eichenberg, after satisfying and deducting all his claims, demands, costs and expenses, including all attorneys' fees paid by him,-against the said Leah M. Sheaffer, agrees to pay over unto her, the said Leah M. Sheaffer, the balance of money, if any, so remaining from such sale. And in case of such sale as aforesaid, the said Leah M. Sheaffer hereby agrees to surrender the said premises peacefully and quietly, and she hereby authorizes and empowers any attorney-at-law of any Court of Record in the State of Pennsylvania or elsewhere, to appear in said Court and confess a judgment, or judgments, in ejectment for the premises above described, with costs of suit and ten per cent. attorney's commission, or fees, and process issued on such judgment for the recovery of said premises under such writ forthwith, and she hereby waives all rights that she may have against such writ, and further waives all rights to claim any damages for or by reason of the issuing and executing of said writ." Under this agreement, it was claimed that the defendant was liable to pay to the plaintiff the excess amount over and above the several items due and stipulated to be due to the defendant under and by virtue of the said agreement. This question was, under the evidence, submitted to the jury, and upon a balancing of the accounts by them, it was concluded that the plaintiff was entitled to a verdict.

The plaintiff testified upon the trial that she paid the rent, taxes, repairs and insurance required by the agreement. She also stated that the sale was made by Eichenberg to Miller without notice to her. It is true that the testimony was somewhat confused, and the defendant denied that the plaintiff had complied with her contract. But it seems to me that all these matters were questions of fact for the jury, and as the jury found that, under another provision of the contract, the agreement had not been nullified by notice, whether or not any amount on the settlement was due to the plaintiff seems to me to have been

properly left for their determination. In my opinion, the proper interpretation of the agreement was that, in case Eichenberg sold the property for an amount over and above sufficient to pay the sums due and owing to him, Mrs. Sheaffer, as one of the grantors in the deed, was to receive from him the over plus; that is, that they were to make good to him anything that was due and owing. The parties seem to me to have all along recognized the agreement as in full force, and even though, by its strict terms, it might have been terminated at a certain specified time, by their own acts they appear to have waived that provision of the contract and permitted. everything to run along after just as it did before. As I have said before, I think the whole question was one of fact to be determined by the jury, and as they have performed that duty, I see no reason why their conclusion should be set aside.

The rule for a new trial is, therefore, discharged.

Rule discharged.

Judgment on note-Opening of-Parol

agreements-Irregularities.

A judgment entered by the transferee of a judgment note will be opened where complications and irregularities are shown which a jury should straighten out, as where the petitioner avers that he was induced to give the note by fraudulent and untrue representations, without consideration, and the payee promised not to use or transfer it, and the transferee avers that he was not aware of such fraud or promise but understood that the note was given for stock in the payee company, and the defendant had refused to accept a registered letter presumably containing the stock; the note had "no discount" written on it and there was no written transfer to the use plaintiff,

and another note of the same amount was at the same time given to the defendant.

Rule to open judgment. C. P. of Lancaster County, January Term 1915, No. 189.

Charles W. Eaby, for rule.

C. Reese Eaby, contra.

July 3, 1915. Opinion of LANDIS, P. J. J. H. Hornafius made and delivered

On

J. H. Hornafius (SEAL). It was transferred by that company to Brinton Walter, and, on March 5, March 27, 1915, the defendant presented it was entered in this Court. 1915, his petition, asking to have the judg ment opened, and he alleged therein that the judgment note was obtained from resentations; that he received no considhim by false, fraudulent and untrue reperation for it; that the plaintiff in the judgment note promised not to use or transfer said note, promised never to collect said note, and assured the petitioner that the said judgment note was being given merely as a matter of form and would be returned to the petitioner.

An answer was filed by Brinton Walter, in which he alleged that he was informed by S. R. Hippel, of the Simplex Surface Contact Company, that the defendant had purchased twenty-five shares of the stock of that company, and had given the judgment note in payment for it, and that he was not notified by any person that the note had been obtained by false, fraudulent and untrue representations, and was not aware of any promise made by plaintiff at the time of the giving of the said judgment note, and that he purchased the same in good faith.

this note in controversy was obtained It is admitted by all the parties that from the defendant by one. M. G. Schoenly. Schoenly states that he was. at that time, employed by the Simplex Surface Contact Company. When the defendant gave the note, Schoenly made to Hornafius his (Schoenly's) note for