Estate of C. W. Cross, alias Will Cross, Deceased. March, 1919, allege that the paper accompanying the said petition of Jay Cole, purporting to be the last will and testament of the said C. W. Cross, deceased, (which is attached to this petition) is informal in character and in many respects not clearly legible, and a question as to whether said instrument should be admitted to probate by the said Register constitutes in the opinion of the said Register a disputable and difficult matter, therefore in accordance with the provisions of Sec. 19 of the Act of Assembly approved June 7, 1917, P. L. 424, the said Register of Wills did certify the entire record in the said case to the Orphans' Court for determination by the said Court of the disputable and difficult matter referred to, and Whereas the said Edward M. Cherry, John W. Cherry and Laura Culver, the next of kin of the said C. W. Cross, deceased, did aver that the said paper writing is not the last will and testament of the said C. W. Cross, deceased, for as they say, it was not signed at the end thereof; and that the words "Will Cross” alleged to have been written by the said C. W. Cross, are not in the handwriting of the said C. W. Cross, deceased; and they aver that the words in the said paper writing are so illegible and blurred and indistinct that the said writing cannot be read in its entirety, and it is therefore not in writing as required by the Act of Assembly, and Whereas the Court has heard the testimony as to the facts averred on the one side and denied on the other, upon which it has been determined that there is a dispute as to matters of fact which ought to be submitted to a jury, therefore we command you that you cause an action to be entered upon the records of the Court of Common Pleas of the County of Erie as of the date of the delivery of this our precipe in the office of the Prothonotary of said Court, in which the said Mother Cole, Flora Cross, Crin Dearborn, Jay Cole, Mary Knickerbocker, Vina Knickerbocker and Charley Knickerbocker shall be plaintiffs and Edward M. Cherry, John W. Cherry and Laura Culver shall be defendants; that an issue may be formed upon the merits of the controversy to try all matters in dispute between the said parties in regard to said paper writing, in due course, according to the practice in our said Courts in actions commenced by writ; and further, that you cause all other persons who may be interested in the estate of C. W. Cross, deceased, his heirs, relations, or next of kin, devisees, legatees and executors, to be warned that they may come into our said Court and become party to the said action if they shall see cause; and that you certify the result of the trial so had in the premises to our said Court. In witness whereof, I, Edward L. Whittelsey, one of the Judges of the said Court, have hereunto affixed my hand and caused the seal of the said Court to be affixed this 16th day of June, A. D. 1919. ance ILLINOIS REFRIGERATOR CO. VS. H. S. SCHNEIDER. Contracts-Breach-Measure of Damages for non-accept If the buyer wrongfully neglects or refuses to accept and pay for goods, the seller may maintain an action against him for damages for not accepting. the measure of damages for non-acceptance is the estimated loss directly and naturally resulting from the breach of the contract in the natural course of events; and where there is an available market for the goods, is prima facie to be ascertained by the difference between the contract price and the market price at the agreed time and place of delivery. Affidavit of defense in nature of demurrer, No. 373 May Term, 1919. C. P. Erie County. James P. Rossiter for plaintiff. WHITTELSEY, J., June 21, 1919—In our opinion, the question of law raised by the affidavit of defense must be decided against the defendant. The affidavit of defense is in the nature of a demurrer and admits the truth of the matters of fact that are alleged in plaintiff's statement; among which are that the defendant ordered the refrigerators in question shipped to him at Erie, Penna., at an agreed price; that they were shipped and arrived at Erie; that the defendant was duly notified of the shipment and arrival at Erie; that he refused to accept and pay for them; that plaintiff sold the refrigerators at a loss and was compelled to pay freight and other expenses amounting together with the loss, to $402.89, for which amount he claims judgment. If the buyer wrongfully neglects or refuses to accept and pay for goods, the seller may maintain an action against him for damages for not accepting. The measure of damages for non-acceptance is the estimated loss directly and naturally resulting from the breach of the contract in the natural course of events; and where there is an available market for the goods, is prima facie to be ascertained by the difference between the contract price and the market price at the agreed time and place of delivery. Hale on Damages, page 237. ORDER And now, to-wit, June 21, 1919, the question of law raised in the affidavit of defense in the nature of a demurrer, is decided against the defendant, and he is permitted to file a supplemental affidavit of defense to the averrments of the statement within fifteen days. GHEROMATI V. WILLIAMS, EXECUTRIX. Life Insurance-Assignments of Policy may be made in certain cases by delivery-Possession prima facie evidence of title. Possession of a policy of life insurance is prima facie evidence that the person holding it has title to it and is entitled to the proceeds; and when possession is in a creditor it is a question for the jury whether or not the policy had been delivered as security for the debt. A life insurance policy payable to the legal representatives of the insured may be transferred by mere delivery, without written assignment. If the insurance company sees fit to pay, proof of interest does not diminish the rights of the assignee with no insurable interest, as against the personal representatives of the insured. Motion for judgment non obstante veredicto, No. 131, November Term, 1918. C. P. Erie County. W. G. Crosby for plaintiff. ROSSITER, P. J., June 21, 1919—This was an action brought by Joseph Gheromati against the Equitable Life Assurance Society of the United States, Flora Williams, Executrix, intervening. The testimony in the case, briefly stated, is as follows: That in the lifetime of Simon Williams, deceased, the Equitable Life Assurance Society of the United States issued an ordinary life policy No. 1,932,493 to Simon Williams, by which it assured his life and agreed to pay at its home office in the City of New York one thousand ($1,000) dollars to his executors, administrators or assigns, *upon proof of his death, etc. That Simon Williams died on the 20th day of March, 1918, and at the time of his death the life insurance policy so issued was in possession of plaintiff, and has been in his possession since; that Simon Williams in his lifetime became largely indebted to the plaintiff, as evidenced by judgments Nos' 655, 656, 657, 658 and 659 May term, 1917, all of which still remain unsatisfied of record. The Insurance Co. made no contest, but paid the money into a Trust Company by order of Court, where it now lies. At the trial we were of the opinion that possession of a policy of life insurance was prima facie evidence that the person holding Gheromati v. Williams, Executrix it had title to it, and we left it to the jury to say from the fact of the possession of the policy being in the plaintiff, and from the further fact that the deceased, Simon Williams, was largely indebted to him, as evidenced by the record super, whether or not the inferences were that the policy had been delivered to the plaintiff as part security for the debt. It has been held that the possession of a policy of life insurance is prima facie evidence that the person holding it has title to same, and consequently a right to the proceeds. 4 Joyce Law of Insurance, 2nd. Ed., page 3981, Sec. 2333. Dagen on Life Insurance, Sec. 297. Ruling Case Law, Vol. 14, page 1001, Sec. 174. That a life insurance policy payable to the legal representatives of the insured may be transferred by mere delivery, without written assignment: Gledhill vs. McCombs, 45 L. R. A. (new series) 26. That if the company sees fit to pay, proof of interest does not diminish the rights of the assignee with no insurable interest, as against the personal representatives of the insured. Grigsby vs. Russell, 322 U. S. 149; 36 L. R. A. (N. S.) 642. It was undisputed that the policy was in the possession of plaintiff at the time of Simon William's death. There was no contention that that possession was wrongfully obtained. The policy being payable to the legal representatives of the insured, was transferrable by delivery without written assignment, and the company saw fit to pay. Therefore if this delivery was an assignment to the plaintiff, his right to recover was not diminished as against the personal representatives of the deceased, and there was no one else claiming. Hence we said to the jury that "a written assignment of an insurance policy is not always necessarythat an assignment may be made of a policy of insurance by delivery; and if you find that this policy was delivered to the plaintiff、 in this case in the lifetime of Simon Williams, and that it continued on in his possession down to the present time, and you further find that Simon Williams was largely indebted to him, then we leave it to you to say whether or not the inference is that this policy was assigned and delivered to the plaintiff as a security for this debt. Simon Williams having died the plaintiff's mouth is closed as to what took place between him and Simon Williams. But if you find the inferences, meager as they are in this case, from all this evidence, that this policy was assigned to the plaintiffff as a security for this debt, or in any other lawful manner to secure the pavment of this debt, you would be warranted in finding a verdict in favor of the plaintiff for the amount of the policy." In this we find no error, and as that was about all there was to the case, it follows that the rule should be discharged. And now, to-wit, June 21st, 1919, the rule granted December 6, 1918, to show cause why judgment should not be entered N. O. V. is discharged, and the prothonotary is directed to enter judgment on the verdict upon payment of the fee bill. MERCHANTS BANK V. BROWN. Judgment-Rule to open-Burden of proof-Contemporaneous parol agreement. In the application to open a judgment, the burden of proof is on the defendant to establish the facts necessary to relieve him from the payment of the judgment against him. Parol evidence is admissable of a contemporaneous agreement which induced the execution of a written contract, though it may vary, change or reform the instrument; but such oral agreement must be shown by evidence that is clear, precise and indubitable. Where a chancellor would not reform, or ought not to reform, a written instrument because of the doubtfulness of the parol evidence to set it aside, he should not allow twelve chancellors in a jury box to nullify it. Rule to open judgment, No. 512 February Term, 1919. С. Р. Erie County. Gunnison, Fish, Gifford & Chapin and Otto A. Stolz for plaintiff. Shreve & Shreve for Defendant. WHITTELSEY, J., June 21, 1919—This is an application to open a judgment entered upon a note under seal, with power of altorney attached, authorizing judgment to be entered thereon. From the evidence taken it appears that the defendant on the 29th day of December, 1916, subscribed for twenty shares of the capital stock of the Meadville Brewing Company, a corporation, of the par value of fifty ($50) dollars each; and in payment thereof he gave his note to the company for one thousand ($1,000) dollars. Subsequently thereto he paid two hundred fifty ($250) dollars on |