biehl, "Mary Ann" Guckenbiehl and "Marian" Guckenbiehl was one and the same person, and the position of the defendants to the effect that they were not terre tenants, is not well taken, for the reason that they were actual terre tenants, but now seek to be relieved for the reason that they were not put upon notice of that fact. This in our opinion should have been raised by an affidavit of defense to the scire facias, and it would be inequitable to open the judgment now and permit them to make a defense after all the plaintiff has done and especially is this true in view of the fact that they are protected by a warranty deed. The rule, therefore, granted January 2nd, 1919, to show cause why the judgment should not be opened is now, April 7, discharged.

JOURDAN V. BOETTINGER.

Contracts-Breach of-Defective Workmanship-Measure of Damages-Instruction to the Jury-Request to be made before Jury retire.

Where plaintiff contracts to build for defendant, the defendant, in an action to recover the contract price, will be permitted to introduce evidence that the building was not built in a good and workmanlike manner, and that some of the work was defective and of poor workmanship and the defendant has a right to have the defective work remedied and made according to the contract and specifications agreed upon, and can set off the reasonable and proper cost of such work and materials against the claim of the plaintiff.

After introducing evidence as to what it would cost to place the building in a condition required by the specifications and damage for not completing building at the date specified, defendant will not be permitted to offer evidence to show the difference in the value of the building at the time it was completed and the value it would have had if the contract had been completed according to the plans and specifications, for the reason that two rules of the measure of damages for breach of the same contract would at least be confusing in the minds of the jury.

If counsel desire the Court to instruct the jury on any point, such request should be made before the jury retire, to give the Court an opportunity to act upon the request, and in the absence of such request council will not be permitted to complain at the argument of the motion for a new trial.

Motion for a new trial. C. P. Erie County, No. 232, February Term, 1915.

W. J. Young and J. O. Hertzler for Plaintiff.
Marsh & Eaton for Defendant.

Jourdan v. Boettinger.

WHITTELSEY, J., April, 1919-The evidence in this case shows that the plaintiff entered into a written contract with the defendant, dated October 10th, 1911, in and by which the plaintiff agreed to erect and construct a building for the defendant for the sum of five thousand one hundred seventy-five ($5,175) dollars. Subsequently the defendant wished to have some additional work done not provided for in the plans and specifications, for which he agreed to pay the plaintiff twenty-five ($25) dollars, and in addition to that he further agreed to pay an additional one hundred fifty ($150) dollars for the lumber, to be bought of James D. Johnson & Company, making a total of five thousand three hundred fifty ($5,350) dollars. The work was to be completed on or before April 1st, 1912, and the plaintiff "to guarantee the durability of all work and material for one year from the date of acceptance."

The plaintiff proceeded with the construction of the building, and according to the evidence on the part of the plaintiff, substantially completed it according to the plans and specifications, and the defendant entered into possession of it, and has used and occupied, and is now in possession of it; and the defendant paid him from time to time payments amounting in the aggregate to five thousand three hundred thirteen and 20-100 ($5,313.20) dollars, leaving a balance owing on the contract above mentioned of thirty-six and 80-100 ($36.80) dollars.

During the progress of the work there were a number of alterations made in the plans and specifications at the request of the defendant. For this extra work the plaintiff claimed the sum of three hundred fifty-two ($352) dollars. The defendant admitted that plaintiff was entitled to two hundred fifty-six and 40-100 ($256.40) dollars for extra work. The defendant claimed that he had suffered damages by reason of plaintiff's failing to complete the work by April 1st., 1912, and according to the plans and specifications, amounting to four hundred ninety-nine and 24-100 ($499.24) dollars; and he was allowed to show the defects alleged in the construction of the building, and the different amounts he claimed to have paid, and also estimates of the amounts that it had cost to make it good according to the plans and specifications; also the damage sustained by the defendant by reason of the failure of the plaintiff to complete the building on or before April 1st, 1912.

In addition to the evidence of these items as to what it would cost to put the building in the condition required by the specifications, and damage for not completing building by April 1st, 1912. Counsel for defendant offered to show the difference in the value of the building at the time it was completed and the value of it had it been constructed according to the plans and specifications. We

Jourdan v. Boettinger.

rejected this evidence as in our opinion, two rules of the measure of damages for breach of the same contract would at least be confusing in the minds of the jury. He was entitled to recover the actual damages, if any he may have sustained by reason of the breach of the contract.

In our opinion, all that the defendant could reasonably ask is to have the defects in the construction of the building made good, and he has not been restricted in his evidence for that purpose; and his evidence seems to show that he has searched the entire building for defects in the construction, and has claimed payment therefor. We instructed the jury at the request of the defendant, contained in his fourth point as follows: That "if the jury finds from the evidence that the building was not built in a good and workmanlike manner, but that some of the work was defective, and of poor workmanship, the defendant had a right to have the defective work remedied and made according to the contract and specifications agreed upon, and can set off the reasonable and proper cost of such work and materials against the claim of the plaintiff; and to the same effect in answer to the defendant's third point."

This statement of the law seems to be sustained by the decisions in the following cases cited by counsel for the defendant: Ellis vs. Lane, 85 Pa. 265.

Stricker vs. Overpeck, 127 Pa. 446.

Moore vs. Carter, 146 Pa. 492.

White vs. School District, 159 Pa. 201.

At the argument of the motion for a new trial, the learned counsel for the plaintiff claims that the Court erred in neglecting to instruct the jury that the plans and contract provided for a guarantee of the building for one year after the completion thereof. That he is mistaken as to this will appear by reference to the charge of the Court on page 265 of the notes of testimony taken at the trial.

In our opinion, if the counsel desired further instructions to the jury on this or any other point, he should have requested them before the jury retired, and given to the Court an opportunity to act upon his request and having failed to do so, he should not now be heard to complain.

Mastel vs. Walker, 246 Pa. 65.

Tolson vs. Phila. Rapid Transit Co., 248 Pa. 227.

Shade vs. Llewellyn, 250 Pa. 156.

Sellers-Pike Co. vs. Wetter, 2 Pa. 346.

In our opinion, this case was fairly tried and properly submitted to the jury, and they appear to have believed the evidence on the part of the plaintiff instead of that on the part of the defendant, and in our opinion that evidence was sufficient to sustain

the verdict. It was a question of fact to be decided by the jury, and that the jury might have rendered a verdict for the defendant if they had believed the evidence of the defendant instead of that of the plaintiff, is not sufficient reason for granting a new trial, and it is refused.

And now, to-wit, April 1919, the rule to show cause why a new trial should not be granted is discharged, and judgment to be entered on the verdict on payment of the jury fee.

COMMONWEALTH V. PHELPS, ET AL.

Criminal Libel-Inducement, colloquium or innuendo-Associate Editors-Sufficiency of Evidence.

The use of an inducement, colloquium or innuendo is only requisite when the real meaning of the alleged libellous article is camouflaged by the language or the words used, or such absence of direct accusation or imputation as to necessitate a deduction from facts or circumstances extraneous to or intricately concealed within the article itself. It would not be necessary to use an inducement, colloquium or innuendo where a direct accusation of the commission of a crime was imputed to a specified person; and any one, either or all of them are only requisite in so far as they are helpful in explaining why certain parts of a particular article are to be regarded as referring to a particular person, or falling within the inhibition of the law of libel. There are no set rules therefor by which it can be determined when, and to what extent, an inducement, colloquium or innuendo, or either of them, must be used; and whether any one or all of them are essential to establish the meaning contended for, or indicate the person libelled, must depend upon the particular article under consideration.

In a suit for criminal libel against a newspaper, the statement in the newspaper, required by the Act of 1907, P. L. 157, is not the idle declaration of a third party and hearsay, but is admissible in evidence and sufficient in itself for the jury to base its finding upon that the convicted defendants were associate editors and criminally responsible.

The law holds an editor of a newspaper responsible, and libel being a misdemeanor, it follows that all responsible for the creation or publication of a libellous editorial are responsible as principals.

Quarter Sessions of Erie

Motion in arrest of judgment. County, No. 97, September Sessions, 1918.

R. J. Firman, District Attorney, and W. Pitt Gifford for Commonwealth.

Commonwealth v. Phelps, Et. Al.

Milloy & Gilson and M. Levant Davis, for Defendants.

ROSSITER, P. J., April 1, 1919-The defendants, Frederick S. Phelps, George Reid Yaple and Nelson Baldwin were indicted and tried for libel. The jury found a verdict, of which the following is а сору:

"We, the jury empannelled and sworn to try the issue joined between the Commonwealth of Pennsylvania, and Frederick S. Phelps, George Reid Yaple and Nelson Baldwin, find defendant Frederick S. Phelps not guilty; but do find that George Reid Yaple and Nelson Baldwin, by reason of being associate editors, guilty as indicted. Dated November 14th, 1918.. Geo. D. Selden, Foreman." On the next day the convicted defendants, George Reid Yaple and Nelson Baldwin, moved the Court to arrest judgment for the following reasons:

First. The indictment does not charge an indictable of

fence.

Second. The matters set forth in said indictment do not constitute a libel on the prosecutrix.

Third. The indictment is fatally defective, in that the alleged libelous articles not being directly defamatory of any named person, no extrinsic facts are averred to connect the matter alleged to be libelous with the prosecutrix, Annie W. S. Strong. In other words, the indictment contains no inducement setting forth any facts connecting the said Annie W. S. Strong with the alleged libellous matter, and the innuendoes in said indictment cannot be deemed a substitute therefor.

Fourth. The language of the alleged libellous publication is not in itself susceptible of the meaning attributed to it by the innuendoes contained in said indictment, and no extrinsic facts are averred exhibiting any such meaning.

Fifth. The publication is not, per se, libellous of a person named, and an indictment based thereon requires a sufficient inducement, a colloquium and the necessary innuendoes.

Sixth. The evidence in the case against the defendants George Reid Yaple and Nelson Baldwin was not sufficient to sustain a conviction.

Seventh. The form in which the verdict was returned by the jury does not constitute a conviction of the charge set forth in the indictment, and the verdict must therefore be set aside.

The questions raised by the motion, and the only reasons urged at the argument were:

First. That the indictment was fatally defective because