of the timber, claiming he had a right to do so. Mrs. Martha Rafferty, who was the mother of James, was tenant for life of the land, and paid the taxes on it, testified that it was timber land, part of which had been cut off before her husband bought it, and that she consented to the sale of the timber by Danver to T. L. Rafferty. the plaintiff. Danver took a judgment note as trustee from T. L. Rafferty for $1,100, the whole of the purchase-money of the timber, and entered it on record at once. None of the cotenants ever made objection to the sale or set up any title to the timber against either D. L. Ferguson or the defendant. We think it clear from these facts that the plaintiff must be regarded as seeking to recover upon the whole title to the logs, with evidence of consent of the other parties in interest,especially of his mother, who, quite possibly, had a legal right as tenant for life to cut off all the timber, that being the main profit of the land. Williard v. Williard, 56 Pa. 119.

This being so, his right to recover cannot be disposed of upon the assumption that he is simply one of several tenants in common seeking to recover his undivided interest only, and authorities to the effect that no recovery can be had upon such a title do not determine the case. It seems to us quite plain that, as between him

It is admissible to show a clerical error in drawing the writing. McNulty v. Prentice, 25 Barb. 204; Leggett v. Burkhalter, 30 Miss. 421.

So a scrivener may show a mistake that would vitiate a will. Dunlap's App. 8 Cent. Rep. 846, 116 Pa. 500.

Parol evidence is admissible to prove a mistake in the name of the grantee in a deed (Louisville, N. A. & C. R. Co. v. Power, 119 Ind. 269); the identity of a legatee or mistake in his name. Evans v. Hays, 3 N. J. Eq. 204.

Parol evidence contradicting the date of a writing is admissible. Gately v. Irvine, 51 Cal. 172; Clauss v. Burgess, 12 La. Ann. 142.

A purchaser may show by parol that the date in the power of attorney was a clerical error. Finney's App. 59 Pa. 398.

self and D. L. Ferguson, or the defendant with notice, he had the right to the possession for the security of the purchase money, and at least a qualified title to the logs. In such circumstances the authorities are plain that there may be a recovery.

In Harlan v. Harlan, 15 Pa. 507, we said: "It is well settled, as a general principle, that in Pennsylvania replevin lies wherever one man claims goods in the possession of another, and this whether the claimant has ever had possession or not, and whether his property in the goods be absolute or qualified, provided he has the right of possession."

The same doctrine is repeated in Miller v. Warden, 111 Pa. 300, 1 Cent. Rep. 873, and in other cases.

The case of Reinheimer v. Hemingway, 35 Pa. 432, is not in point, as it presents a different question growing out of entirely different facts. The defendant here sets up no adverse title to the logs, whether derived from a stranger or from any of the co-tenants. He literally claims upon the very title which he derived from the plaintiff, and seeks to impeach it for the mere purpose of avoiding payment of the purchase money, which he certainly cannot do. He never has been evicted from his possession which the plaintiff gave him, nor has his title

equity, that an instrument produced in evidence was never executed by the person whose signature it bears. Marsh v. Nichols, 128 U. S. 605 (32 L. ed. 538).

It may be shown that a patent for an invention was never signed by the officers whose names are attached to it. Ibid.

It is admissible to vary or contradict a written document introduced to support a usurious contract (Fenwick' v. Ratliff, 6 T. B. Mon. 154); or to show that a written act contravenes the law passed in the interest of public morals. Fletcher's Succession, 11 La. Ann. 59.

Testimony to contradict a deed by denying that any consideration was paid is admissible. McCampbell v. Durst (Tex.) 11 S. W. Rep. 380.

The rule which excludes parol evidence is inapThe true date of a misdated note may be shown plicable to evidence of failure of consideration. by parol. Biggs v. Piper, 86 Tenn. 589.

A mistake in the date of a letter may be established and corrected by parol. Stockham v. Stockham, 32 Md. 196.

So a mistake in a date of advertisement of execution sale. Arberry v. Noland, 2 J. J. Marsh. 421. In cases of illegal contracts.

Parol evidence is admissible whenever the contract is in fraud of law. Lazare v. Jacques, 15 La. Ann. 599.

It is admissible to prove the instrument void, or inefficacious, or that the consideration has failed (Corbin v. Sistrunk, 19 Ala. 203); or to show that the instrument was void, or that it never had any legal existence or binding force, for want of due delivery and acceptance (Leppoc v. National Union Bank, 32 Md. 136); or void because made in furtherance of an illegal object. Martin v. Clarke, 8 R. I. 389.

It is admissible to show that the contract never existed, where its existence is the immediate issue (Kalamazoo Novelty Mfg. Works v. Macalister, 40 Mich. 84); or that it never existed because induced by fraudulent representations (Jamison v. Ludlow, 3 La. Ann. 492); or to show that a signature to the writing was obtained by fraud. Lull v. Cass, 43 N. H. 62.

Meyer v. Casey, 57 Miss. 615.

Parol evidence is admissible to show want, failure or illegality of consideration of a contract (Waymack v. Heilman, 26 Ark. 449); as that the seller agreed to take confederate money in payment, although nothing appeared upon the face of the contract. Donley v. Tindall, 32 Tex. 43.

Parol evidence to show trust.

Oral or written testimony showing the circumstances of a transaction and the intention of the parties, is admissible to prove or disprove an implied trust. Moore v. Stinson, 4 New Eng. Rep. 654, 144 Mass. 594.

Or resulting trusts. lbid.; Beck v. Beck, 8 Cent. Rep. 548, 43 N. J. Eq. 39; Jackson v. Jackson (Pa.) 7 Cent. Rep. 850.

Or to show that the grantee in an absolute conveyance agreed to hold the land in trust for the grantor's benefit. Morrall v. Waterson, 7 Kan. 199.

Or to show that an unwritten declaration of trust was made contemporaneously with the making of the title under which it is declared. McVay v. McVay, 8 Cent. Rep. 596, 43 N. J. Eq. 47.

It is admissible to prove that a note executed to one as guardian was merely intended as a means of securing a trust for the support of the minor. Col

It can always be shown, in a suit at law or in lins v. Gilson, 29 Iowa. 61.

even been threatened, yet he proposes to keep both the logs and their purchase money, upon the mere allegation that others are interested in the logs with the plaintiff, although there is satisfactory evidence of their assent to the plaintiff's action and claim of title.

Before any property in goods sold can pass, they must be ascertained, designated and separated from the stock or quantity with which they are mixed.

Haldeman v. Duncan, 51 Pa. 66; Schmertz v Dwyer, 53 Pa. 335.

Mr. John G. Johnson, for defendants in error:

Title was vested in defendants after vendors at Para had sold to La Roque, Da Costa & Company, acting for defendants, and after vendors had been paid for them and had de

These several assignments of error are not sustained. The remaining assignments are without merit and are dismissed. The case was tried with much care, and an extremely lucid and able charge was delivered to the jury. It has been argued in this court with great force and ability by the learned counsel on both sides.livered them. It seems to us substantial justice has been done, and we are not convinced that any error occurred on the trial. Judgment affirmed.

Robert L. BROWNFIELD, Plff. in Err.,

V.

Lawrence JOHNSON et al.

(....Pa.....)

1. Where the article is uniform in bulk burden on the buyer, a tender of too much, from which the buyer is to take the proper quantity, is a good delivery; at least where the article is ordered from a correspondent who is agent for buying it.

and the act of separation throws no additional

2. A tender of 400 hectolitres of nuts to a purchaser, to be taken from a ship's hold containing 582 hectolitres of uniform quality, where the nuts are shipped as ordered except as to additional quantity, which is consigned to the seller and not to the buyer to whom the quantity ordered is consigned, the purchaser having agreed to furnish bags, is a good delivery as to the 400 hectolitres, especially where it was common to ship small orders of nuts in common

bulk in this manner.

When it is sought to compel a party to pay for goods which he has refused to accept, there can be no recovery unless the order has been strictly and literally fulfilled.

Clark v. Wright, 5 Phila. 439; Norrington v. Wright, 115 U. S. 188 (29 L. ed. 366). See Hare, Cont. 569; Borres v. Shand, L. R. 2 App. Cas. 455; Welsh v. Gossler, 89 N. Y. 540; Filley v. Pope, 115 U. S. 213 (29 L. ed. 372); Cash v. Hinkle, 36 Iowa, 623.

If more is sent than the purchaser agreed to buy, he may decline the risk and trouble of selecting part and return the whole.

See Hare, Cont. p. 425; Jackson v. Anderson, 4 Taunt. 28; Gardner v. Dutch, 9 Mass. 430.

Clark, J., delivered the opinion of the court:

A complete understanding of the rules of law governing this case involves a brief statement of the material facts. On the second day of December, 1886, Brownfield & Co., the de fendants, gave an order to Lawrence Johnson & Co., to purchase for them, in Brazil, 300 bags best quality of new Brazil nuts of the first receipts; payment to be made in cash on arrival, or by sixty-day note, etc., at the defendants' option,-the plaintiffs to cable price at the time of shipment. On the same day the plaintiffs replied, stating that Brazil nuts were not bought by the bag, but by hectolitres, a measure which, in past years, averaged from 100 to 120 pounds; that the nuts came in bulk in the steamer and the defendants would have to furnish the bags on arrival in New York; and as

the out-turn of the measure is uncertain" they proposed to order 450 hectolitres, etc. To this the defendants replied by telephone, "Order 400 hectolitres, and buy only the very best nuts obtainable."

The plaintiffs placed the order in the hands of their correspondents, La Roque, Da Costa &

and on the 9th of February following advised the plaintiffs of shipment per steamer Portuense, upon board of which were nearly 6,000 hectolitres of Brazil nuts for other parties. Of this shipment, and of the price, notice was on the same day given to the defendants. Upon the arrival of the Portuense in New York, Lawrence Johnson & Co. handed to the defendants a delivery order for 400 hectolitres Brazil nuts, in bulk, in separate hold, on board the Portuense, with copy of original invoice, and the plaintiffs' bill, amounting to $3,441.18.

The invoice was for 312 hectolitres at 15,150 reis each, and 88 hectolitres at 14,000 reis each; showing that the nuts had been originally purchased in two separate lots, and at different prices. The defendants, with the delivery order in their possession, proceeded to New York and went on board the Portuense, where they found one consignment of nuts in the name of Brownfield & Co., but the plaintiffs' storekeeper informed them that the 400 hectolitres in question were embraced in a consignment of 582 hectolitres of Brazil nuts in separate hold, in the name of the plaintiffs. The defendants thereupon refused to receive any portion of these nuts as an execution of their

Hare, Cont. 570; Lery v. Green, 1 El. & El. 969; Cunliffe v. Harrison, 6 Exch. 903; Rommel v. Wingate, 103 Mass. 327; Rylands v. Kreitman, 19 C. B. N. S. 351; Cross v. Eglin, 2 Barn. & Ad. 106; Bostock v. Jardine, 3 Hurl. & C. 700, 11 Jur. N. S. 586; Tamraco v. Lucas, 1 El. & El. 581; Benjamin, Sales (1888); Bennet's Notes, p. 534; Reuter v. Sata, 48 L. J. N. S. C. P. 492; Blackburn Contract of Sale, 156-order. The plaintiffs tendered to the defend162, *215 et seq.

ants the whole 582 hectolitres or 400 hecto

litres thereof, at their option, at the invoiced | ity to constitute an agent in Para for its execuprices, which tender in either alternative the tion; and the nuts were bought in virtue of defendants declined to accept. The plaintiffs the authority thus conferred. The only quesafterwards tendered 400 hectolitres at the aver- tion, therefore, would seem to be upon the efage price, which the defendants also declined; fect of the shipping of the whole lot of 582 subsequently the plaintiffs separated the 400 hectolitres in one hold, although upon separate hectolitres from the lot, and notified the defend- invoices and to different consignees. It was ants of their weight, but the defendants abso-shown that this was the usual method of shiplutely declined to accept the nuts on any of the several propositions made by the plaintiffs. The 582 hectolitres were made up of two lots, one of 312 hectolitres, invoiced at 15,150 reis; the other of 270 hectolitres, invoiced at 14,000 reis; 88 hectolitres of the latter were invoiced to the defendants, and the residue, being 182 hectolitres, to Lawrence Johnson & Co., for account of La Roque, Da Costa & Co., who, it is said, according to the method of dealing in Brazil, in order to get 88 hectolitres to fill the order were obliged to buy a larger lot. That all parties acted in good faith is a fact found by the jury, and the case turns upon the question whether the defendants' order was properly and legally executed.

If the purchase had been of 400 hectolitres only, shipped in separate hold, there could be no question as to the defendants' liability for the price. What, then, was the effect of placing the 182 hectolitres in the same hold with the 400 consigned to the defendants? It may be conceded as a general rule that, as between vendor and vendee, when it is sought to compel a party to pay for goods which he has refused to accept, there can be no recovery unless the order has been strictly and literally fulfilled. The buyer is entitled to refuse the whole of the goods tendered if they exceed the quantity agreed, and the vendor has no right to insist upon the buyer's acceptance of all, or upon the buyer's selecting out of a larger quantity delivered. Benjamin, Sales, § 1030. To the same effect are the cases cited by the plaintiffs in error. With reference to quantity, however, the rule is less rigid where goods are ordered from a correspondent who is agent for buying them (Ireland v. Livingston, L. R. 2 Q. B. 99, 36 L. J. N. S. Q. B. 50, L. R. 5 H. L. 395); for the relation of vendor and vendee, which finally results, is preceded by the relation of principal and agent, and the agent in such a transaction is necessarily invested with some degree of discretion in making_the_purchase. See also Johnston v. Kershaw, L. R. 2 Exch. 82, 36 L. J. N. S. Exch. 44; Jefferson v. Quer ner, 30 L. T. N. S. 867.

It must be conceded, however, that the purchase and tender of 582 hectolitres, upon an order for 400, would involve a wider discretion than would be allowable under the special facts of this case, even as between principal and agent.

ping, especially when the orders were small. There was no effort to establish a custom of this kind, but simply to show that this was the usual and ordinary method pursued in the shipping trade. The defendant had a right to suppose these goods would be shipped in the usual manner, unless he directed otherwise, and that, although intermingled with others in the forward hold of the vessel for transportation, they would be separated at the place of delivery. The nuts in question were of the same quality; they were bought at different prices, but the evidence is clear that they were of uniform quality.

The weight of American authority supports the proposition that when property is sold to be taken out of a specific mass of uniform quality, title will pass at once upon the making of the contract, if such appears to be the intent. Oil in a tank and grain in an elevator may serve as illustrations of this rule. Where, however, the property sold is part of a mass made up of units of unequal quality or value, such as cattle in a herd, selection is essential to the execution of the contract, and of course the rule cannot apply. Benjamin, Sales, 477, 531, and cases there cited.

The storage of oil in tanks and of grain in elevators, although not universal, is the usual and ordinary means employed by large dealers in those commodities; and whilst no custom of that kind, technically speaking, could be established, the usage of the trade and general course of business in this country is well known. In view of the necessities which grow out of such usage, the American courts have departed from the rule adhered to in England, and have recognized a rule for the delivery of this class of property more in conformity with the commercial usages of the country. A distinction is made between those cases where the act of separation is burdensome and expensive or involves selection, and those where the article is uniform in bulk and the act of separation throws no additional burden on the buyer. In the latter class of cases a tender of too much, from which the buyer is to take the proper quantity, is a good delivery. Benjamin, Sales, 1030, note. See also Kimberly v. Patchin, 19 N. Y. 330; Hutchison v. Com. 82 Pa. 472, Wilkinson v. Stewart, 85 Pa. 255; Bretz v. Diehl, 117 Pa. 589, 10 Cent. Rep. 731.

The case at bar bears no analogy whatever to Stevenson v. Burgin, 49 Pa. 44, for all that is decided by that case is "that in a contract for a fixed quantity of merchandise to be delivered on board a vessel, the purchaser is not bound to accept and pay for a larger quantity." The principle has no application to the evidence in this case.

In this case, however, the plaintiffs' correspondent purchased for and invoiced to the defendants 400 hectolitres only, and that quantity was tendered; the remaining 182 hectolitres were not invoiced to the defendants, although the plaintiffs proposed that the defendants might have them if they chose to take them. The 400 hectolitres of nuts unquestionably be. The case at bar bears a closer analogy to came the property of the defendants when pur- Lockhart v. Bonsall, 77 Pa. 53. In that case chased in Brazil, for they were purchased upon a tender of 5,000 barrels of oil was made by their order. By force of that order the plain- Lockhart to Bonsall out of a bulk of 5,981 tiffs became the defendants' agent with author-barrels contained in 118 bulk cars.

.

As it was

the duty of Bonsall to pump the oil from the cars into the tanks of the Anchor Works, which had been designated as the place of delivery, it was held that Lockhart was not bound to set apart the precise quantity named in the contract before offering to deliver. So here, the measuring of the nuts and their removal from the vessel was the work of the defendants, and as the article was uniform in bulk, selection was of no consequence, nor was the act in any sense burdensome or expensive; for, assuming

that the whole bulk was to be measured, yet the expense attached to the whole, and each part owner was liable to share it.

We are of opinion that, when the nuts were delivered on board the Portuense at Para the title to 9 of the bulk belonged to the defendants and that upon the arrival of the vessel at New York the tender of the 582 hectolitres from which the defendants were invited to take their share was a good delivery. The judgment is affirmed.

IOWA SUPREME COURT.

Messrs. Powers & Lacy, for plaintiff: The certificates of redemption do not constitute the redemption; they are only prima facie evidence of redemption.

Shawler v. Johnson, 52 Iowa, 477.

The sale is not discharged until the proper amount is paid.

Blackwell, Tax Titles, 4th ed. p. 500.

There is no such thing under our Statute as a partial redemption; there must be a complete redemption or it is no redemption at all. In this case, the requisite amount not having been paid, the fault as to its nonpayment before the deed issued must not in any manner be attributable to the fee owner; and he will not be allowed to set aside the tax deed and to redeem, unless he is free from negligence, and unless the evidence shows strong equities entitling him to the relief.

Harrison v. Owens, 57 Iowa, 314; Bolinger v. Henderson, 23 Iowa, 167; Playter v. Cochran, 37 Iowa, 260; Moore v. Hamlin, 38 Iowa, 483.

The certificates of redemption are but prima facie evidence of redemption, and marking the land "redeemed" on the tax books did not make a redemption when it was a mistake, and the land, in fact, had not been redeemed.

Blackwell, Tax Titles, 4th ed. p. 501; State v. School & U. Land Comrs. 13 Wis. 409; Shawler v. Johnson, 52 Iowa, 477.

Especially is this true when the fee owner is notified of the mistake and is asked and is offered to be allowed to redeem before the deed issued. If the party attempting to redeem has not paid all that was requisite to complete it,

The owner cannot be damaged by neglect of the officer. Price v. Mott, 52 Pa. 315.

The redemption is effectual, though by mistake all the taxes were not included which should have been. Bubb v. Tompkins, 47 Pa. 359.

It is the duty of the proper officers to impart correct information to parties seeking to redeem from tax sales, and their mistake, error or negligence will support the right of redemption after the execution of the tax deed. Corning Town Co. v. Davis, Although redemption is a statutory right, yet a 44 Iowa, 628; Bubb v. Tompkins, 47 Pa. 359; Baird v. party attempting, in good faith, to make it, may be Cahoon, 5 Watts & S. 540; Laird v. Hiester, 24 Pa. relieved against the mistakes or frauds of the offi452; Dougherty v. Dickey, 4 Watts & S. 146; Price v.cers of the law or of the purchaser. Gage v. Scales, Mott, 52 Pa. 315; Lamb v. Irwin, 69 Pa. 436; Dietrick v. Mason, 57 Pa. 40; Van Benthuysen v. Sawyer, 36 N. Y. 150; Kinsworthy y. Austin, 23 Ark. 375; 2 Desty, Taxn. 877.

It is the duty of the treasurer, on an offer to redeem, to state the taxes and costs to be paid; and if he misstate the amount it will not affect the redemption. Dietrick v. Mason, 57 Pa. 40; Price v. Mott, 52 Pa. 315; Bubb v. Tompkins, 47 Pa. 359; Baird v. Cahoon, 5 Watts & S. 540.

If redemption is prevented by the officer refusing to give a statement and receive the amount, the title is not cut off. Van Benthuysen v. Sawyer, 36 N. Y. 150.

100 Ill. 218.

The sale will be discharged even though, in consequence of the mistake, he has paid less than the proper amount, if he will pay the deficiency. Ibid.

Where the owner of real estate sold for taxes applied to the county clerk to redeem the same, and paid the sum required of him by the clerk, and took a certificate of redemption, but the clerk, by mistake, failed to require the payment of taxes subsequent to the sale, a court of equity may relieve the owner as against such mistake, and protect the owner's title. Ibid.

he should make a clear showing that no re- | neglected to do. No effort was made to set sponsibility for not paying rests upon him. aside or avoid the redemption; but the treasCooley, Taxn. 2d ed. 541. urer, because of the deficiency in payment, When defendants performed what was re-treated the redemption as of no effect, and made quired of them by the decree, and thus, so far the deed to the plaintiff.

as they were concerned, derived the benefits to The record presents the question if a treasthem arising from it, and assented to it, it be-urer's deed, under such circumstances, is valid came fixed and absolute as to them, and they cannot appeal from it.