76 Pa. 30 | Pa. | 1874
delivered the opinion of the court, May 11th 1874.
As to the main questions in these appeals — which is one-of fact merely — according to the well-settled principles upon which this court has always acted, we must consider the finding of the auditor upon all the evidence — after the second reference to him — to be conclusive, unless very plain mistake is shown. More particularly must that be so when his finding in that respect has been approved by the court below. We agree with the learned judge, that upon the reference back to the auditor, the whole case was necessarily reopened, and all parties before the auditor were bound to take notice of it. It would present a very strange anomaly if, as to some claimants upon a fund, a fact should be found one way, and in regard to other claimants on the same fund there should be a contrary finding, and a distribution awarded to some and denied to others, according to this double result, when it is manifest that in law and equity all stand upon the same platform. We hold, then, that the furnace in question was finished on the 1st of August 1871, when the mortgage of the premises to William E. Biddle was executed and recorded the next day. It is true that the weight of the evidence seems to be that the air and water-connections were not then made, though the pipes were all laid ready for the connection. Yet on the other hand the testimony of Reichard-, who laid the fire brick in the furnace in May 1872, —and it is not easy to see how he could be mistaken — is very positive and distinct. ■ “ The furnace had been in operation and was Mowed out before John E. Blandy came there; what was done after John E. Blandy was repairing and building that other kiln; the furnace had been in operation before I came there, and what I did was repairing; furnaces do sometimes chill when they are first started and require to be repaired.” It is not a point in dispute that John E. Blandy did take charge of the work on the 1st of August 1871, the date of the execution of the mortgage. Indeed, it can hardly be disputed that the furnace was started and run a short time before that day. The only contention is that it was for an experiment with the roasting kiln and not for the purpose of making iron. In either event we think the auditor and court below justified in coming to the conclusion, that the furnace was then finished according to its original plan, though that may have been defective, and repairs and alterations were afterwards made in order to remedy the defect.
Thus far upon the exceptions in the court below and the assign
Decree affirmed, and appeals dismissed at the costs of the appellants.