108 Pa.

Volume 108 — Pennsylvania State Reports

82 opinions

108 Pa. 1Hill v. Nation Trust Co. (1885)
Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term, 1884, No. 180. Assumpsit, by Joseph Hill against Charles PI. Armstrong et al., doing business as the Nation Trust Company, to recover the amount of a certified check, of which the following is a copy:— Good T. D. Blair, A. teller. Pittsburgh, Sept. 1, 1873. Nation Trust Company : Pay to Michael O’Hara or order twenty-four hundred and forty dollars ($2440). [Indorsed) Michael O’PIara. Michael O’Hara. The death of plaintiff having been suggested, Annie D. Hill, his administratrix, was substituted as plaintiff. On the trial, before Kirkpatrick, J., the evidence on behalf of the-plaintiff was to the following effect: The defendants had been copartners, doing, a general banking business under the name of the Nation Trust Company, but had failed some time in the fall of 1873, subsequent to the date of the check in suit. T. I). Blair, who certified the check, had been in their employ three or four j’ears immediately prior to the failure, acting in the double capacity of messenger and assistant teller. Although no action had been taken by the board • of ■ directors, prescribing his 'powers and duties, yet during almost the entire period of his employment, he had exercised, under a general verbal authority from the cashier, the power to certify checks when the drawer had funds in bank. A great number of checks certified by. him had all been duly honored by the Nation Trust Company. The check in suit had been indorsed and delivered, so certified, by the drawer to Andrew F. Baum, and by him delivered to the original plaintiff, both of whom were bona fide holders for value without notice of any defect. At the time the'check was marked “good” the drawer had no funds in bank, but Blair’s recollection was that he had consulted the cashier, and had been directed by him so to mark it. A short time before the failure of the defendants, and before the check had passed out of his hands, Baum had gone to their place of business to get it cashed. It was not paid, but temporary embarrassment was the only reason given- for delay. He talked at the time with some of the officers and directors about it, who, having seen the check, said it would be made all right in a short time. Some testimony was given, going to prove a general custom, among the banking institutions of the' community, for assistant tellers to exercise the power of certifying checks. The court, on motion of defendants, granted a nonsuit, which the court in banc subsequently refused to take off. Plaintiff thereupon took this writ, assigning for error the granting of the nonsuit, and the refusal to take off the same.
108 Pa. 6Scott v. Dickson (1885)
1. Life insurance, unlike fire or marine insurance, is not a contract for indemnity, but is a contract to pay a certain sum of money in the event of death. 2. A man may insure his own life, paying the premium himself, for the benefit of another who has no insurable interest; such a transaction is not a wagering policy. 3. Where the intent of the insured, at the time he took out the policy, that the insurance should be for the benefit of a friend is apparent, the mere form in which such intent is executed is not essentially material to the validity of the beneficiary’s claim under the policy. 4. Where one has an insurable interest at the time an insurance is effected upon the life of another for his benefit, the fact that his interest ceases to exist at or prior to the death of the insured will not deprive him of the right to receive the insurance money as against the personal representatives of the insured. 5. A surety on an official bond has an insurable interest in the life of the obligor. His right to receive the amount of a policy on the obligor’s life, issued for his benefit, is not affected by the fact that no breach of the conditions of the bond ever occurred. 6. A. applied for a policy of insurance on his life. When he called to lift the policy, he told the company’s agent that he wanted the policy transferred to B. The agent furnished him with a blank form of assignment which A. 'then and there executed in duplicate, one being forwarded to the company, and the other retained by A., who also retained the policy, and paid all the premiums. Upon A.’s death the insurance company paid the amount of the policy to a stakeholder. In a suit to determine whether A.’s administrator or B. was entitled to the fund: Held, that while the assignment, as such, was invalid for want of delivery to B., yet, it being apparent that A.’s original intention was to insure his own life for B.’s benefit, the form of the transaction was immaterial, and the assignment would be treated as a direction by A. to pay the money to B., given simultaneously with the issuing of the policy, and with the same effect as if written therein: Held, therefore, that B. was entitled to said fund.
108 Pa. 17Young's Appeals (1885)
1. J0?. annuity, charged on the realty and personalty devised and bequeathed by a testator to his widow for life, is not extinguished by the refusal of the widow to take under the will, but the assets intended for her benefit will be sequestered in order to secure compensation to the disappointed annuitant. 2. In such a ease the annuity will be charged upon the general legacies payable at the widow’s death rather than on the residuary legacies. 3. A testator devised and bequeathed to his wife for life his real estate and his personal estate not otherwise disposed of, subject to the payment of an annuity of $300. Subject to this life estate he devised his real estate over. He then gave a legacy of $3,000, also other legacies aggregating $4,000, payable upon the decease of his widow, and, lastly, disposed of his residuary personal estate. The widow having elected not to take under the will, the Orphans’ Court, upon the audit of the account of the executor, awarded the legacy of $3,000 to the legatee absolutely, the legacies payable upon the death of the widow to a trustee in trust to pay the income thereof to the annuitant until the death of the widow or the further order of court, and awarded the residue to the legatees on their giving bond to pay such sums as might be charged upon their legacies, to compensate the disappointed annuitant. Held, to be a correct distribution.
108 Pa. 23Holmes' Appeal (1885)
Appeal from the Court of Cotfimon Pleas No. 2 of Allegheny county: Of October and November Term, 1884, No. 134. This was an appeal by 'John G. Holmes from a decree of the said court, dismissing his exceptions to and confirming the report of a Master appointed to make distribution of the proceeds of certain real estate, sold under proceedings in partition, in equity, wherein the .First National Bank of Birmingham was complainant and John G. Holmes and others were defendants. The Master found the following facts: On Septémbér 1st, 1877, the real estate of Williamlhmsen. deceased, was sold by his executrix under an order of the Orphans’ Court for the payment of his debts. The purchaser, C. Ihmsen Jr., paid the purchase.money on or before September 15th, 1877, the day on which the return of the sale was made to the court. Exceptions thereto were filed by various other parties in interest. On July 5th, 1879, and on March 12th, 1880, while the exceptions were still pending two judgments were entered against C. Ihmsen Jr. by W. G. Crawford & Son and Wing & Evans respectively. On June 5th, 1880, the Orphans’ Court entered a decree dismissing the exceptions and confirming the sale. On June 16th, 1880, the executrix delivered a deed for said real estate to C. Ihmsen Jr. and on the day following he conveyed a one third interest therein to John G. Holmes. On the death of C. Ihmsen Jr. proceedings for the partition of the said real estate were commenced by other parties in interest and the real estate was subsequently sold by the Master thereunder. One third of the proceeds of said sale was claimed on the one hand by Holmes and on the other hand by Crawford & Son and Wing & Evans, judgment creditors of Ihmsen as aforesaid. The master awarded the fund for distribution to the judgment creditors, on the ground that their judgments immediately upon the entay thereof became a lien on the real estate in question, C. Ihmsen, Jr. having acquired an inceptive interest therein by reason of his successful bid, which interest, on the subsequent confirmation of the sale and delivery to him of the deed, had ripened into a perfect title, which had relation back, for purpose of lien, to the day of the sale. Exceptions filed to said, report by John G. Holmes were dismissed by the court (no opinion filed) and the report confirmed. The exceptant thereupon took this appeal, assigning as error the dismissal of his exceptions and the entry of the said decree.
108 Pa. 29Appeal of Kelly (1885)
Appeals from the decree of the Court of Common Pleas No. 2, of Allegheny county: In Equity: Of October and November Term, 1884, Nos. 117, 145. Appeal by Edward Kelly, Jr., from the decree of said court requiring him to deliver up certain deeds to be cancelled, and to reconvey certain real estate. Appeal by Bridget Kelly, administratrix of the estate of Edward Kelly, Sr., deceased, from the same decree. This was a bill in equity, and amended bill, filed by Edward Kelly, Sr., against Edward Kelly, Jr., averring that the defendant had obtained from complainant certain conveyances of real estate and certain personal property without consideration, by fraud and undue influence, and at a time when the complainant was not of sound mind, memory and understanding, and praying for a decree that the defendant holds said property in trust for complainant; for a reconveyance, and an injunction, &c. The complainant died pending the suit, and his administratrix was substituted of record. The defendant filed» an answer, denying fraud, &c., and the cause was referred to a Master, who reported that the bill should be dismissed. On exceptions to this report the court reversed the Master’s finding, and decreed a reconveyance by defendant, and other relief. Both parties took appeals from, said decree. The pleadings, testimony and arguments, &e., were voluminous, covering nearly 1,000 printed pages. The plaintiff charged in his original bill, in substance— That in May, 1874, he was the owner of a large estate, consisting of real and personal property, which he had accumulated by his industry and economy, that he was not in debt to any considerable amount, and was in comfortable and easy circumstances. That during the fall of 1872 the defendant came to the city of Pittsburgh, without any means of any account, representing that he was a son of Michael Kelly and nephew of the plaintiff. That on the 9th day of May, 1874, he (plaintiff) was injured by being thrown from a buggy; that by reason of the injury so received he was deprived of his reason and memory, and has no recollection of anything that occurred until about December 1st, 1874, and no clear recollection of events as they happened until the early part of the summer of 1878; that prior to being hurt he had employed the defendant as his agent to collect the rents and attend to other matters of business for him, he providing for the defendant, who boarded and lived with him. That on August 3d, 1872, plaintiff’s only remaining child, John S. Kelty, was killed by being thrown from a buggy. That after the injury to the plaintiff on May 9th, 1874, the defendant took charge of all his property, real and personal, and of his business; that on November 10th, 1874, the defendant procured from him a conveyance, by two deeds of that date, of all his real estate, valued by him at $150,000. That the conveyance was without consideration, and was a gross fraud, perpetrated upon him when he was not of sound mind and memory, and when he did not know what he was doing, which facts must have been known to the defendant; that at the time of executing these deeds the defendant signed a paper (exhibit “C,”) providing that defendant should hold certain of said real estate in fee, and certain other thereof daring plaintiff’s life, and then convey the same to certain persons therein named, of which paper he has no knowledge or recollection, and which he charges was a part of the fraudulent transaction to deprive him of his real estate. That he has an indistinct recollection that, after his mind and memory were getting somewhat better, that the defendant gave him a paper signed by him (exhibit “D,”) assigning to plaintiff the rents to accrue'from certain real estate; that the date of said exhibit “ D ” appears to have been erased and filled in April 18th, 1876. That the defendant had the possession of his personal estate, and received the rents of his real estate from said May 9th, 1874, to May, 1878, and that with the receipts therefrom purchased certain real estate, described in the bill. That a part of the property of which the defendant has defrauded him he conveyed back to him, by two deeds dated May' 15th, 1878, and expressly charges that all and every transaction prior to the execution of the deeds of May 15th, 1878, and said deeds themselves, except so far as they are manifestly for his benefit, if made or done by him after May 9th, 1874, were done and made when he was not of sufficient mental capacity to know and determine what he was doing, were without consideration, and an attempt to plunder him of his property. To the allegations and averments of the bill the defendant answered— That prior to November, 1872, he was living in Ireland with his mother,, and in comfortable circumstances ; that after the. death of plaintiff’s son, about August 3d, 1872, the plaintiff wrote to him urging him to come to Pittsburgh to take charge of his property, promising him as an inducement that he would make him his sole heir-at-law if he would comply with his request; that yielding to these persuasions he left Ireland and came to. Pittsburgh in November, 1872, and presented himself to the plaintiff, who well knew him to be the son of his brother, Michael Kelly. That upon his arrival he found the plaintiff in good condition, sound in mind and perfectly competent to attend to business for himself and others, and' continued so until May 9th, 1874, when, as the result of an accident, the plaintiff: was injured very badly; that immediately after the injury for a couple of weeks plaintiff was perfectly sound in mind ; that after this, and for a period of one or two weeks, as a result of medicines and the fever consequent upon receiving the wound, he was slightly deranged in his mind; that after this time and up until the time of filing the answer, the plaintiff has been and continued in a perfectly sound condition of mind, fully competent to and did perform all kinds of business transactions, both for himself and for others. That on March 21st, 1874, some time before plaintiff received his injuries, the plaintiff, without any solicitation from him whatever and without his knowledge, procured to be written by his own attorney a deed of conveyance for all plaintiff’s real estate, and a bill of sale for all his personal property to him, purporting to be in consideration of one dollar in each instrument; that plaintiff took him down to his attorney’s office, and in the presence of witnesses executed the said deed and bill of sale, signed the receipts for the purchase money, was paid the two dollars purchase money by him, and then delivered both the completed instruments to him and delivered to him possession of all the property, real and personal; that the plaintiff was at this time in complete possession of mind, memory and understanding, and no advantage, fraud or imposition of any kind was practised upon him, it being considered, and so expressed by the plaintiff, a voluntary gift accompanied by delivery of possession, and done by him in furtherance of his promises made to induce him to come over from Ireland. That at the time of delivering said deed and bill of sale, plaintiff verbally reserved that he should provide a living for plaintiff all his life and give him the full use of the house, No. 105 Ross street, during life ; also,* that the property mentioned in the said deed should be held by him for about the same uses and purposes set forth and contained in exhibit “ C ” ; that long after plaintiff bad received the injury of May 9th, 1874, to wit: on November 10th, 1874, and having fully recovered from the effects of said injury, and being sound in memory, mind and understanding, and fully competent to do business of all kinds, the plaintiff “ desired ” him, as there was no written evidence of the trust, so verbally agreed upon, that the said trust be put into writing, to which he consented; whereupon the plaintiff caused to be made, executed and delivered, two deeds, and made and procured him to execute said exhibit “C”; that these last three instruments were made, executed and delivered, to take the place of the deed of March 21st, 1874; that he still remained in entire possession of all of said property, and that the agreement to provide for the plaintiff and allow him the use of the said house during life was continued. That in compliance with his agreement of March 21st, 1874, as soon as he took possession of the property he commenced to provide for the plaintiff in every way desired, and to attend to his wants, and allowed him the free, full, entire and uncontrolled use of the said house, keeping it in repair and paying’ all taxes until May 7th, 1878.' That from the .time of his arrival in 1872, the plaintiff and-he continued to live together upon terms of unusual friendship, sociability and companionship, he caring and providing for all the plaintiff’s wants, until in the..month of March-,' 1878, at which date'the plaintiff married a young wife.. That from the time of said marriage differences arose, and resulted in the plaintiff, through'his counsel, demanding from him a re-conveyance of the property; that on account of the relationship existing he took every measure possible to obtain-a compromise and avoid legal proceedings; that the plaintiff, assisted by his counsel and agent, finally agreed with him' upon a compromise, as set forth in a written agreement, dated: May 7th, 1878 (exhibit “ A,” infra) ; that the plaintiff was, at the time when he made said settlement, and signed the agree-, ment, of sound mind and memory, and expressed himself! fully satisfied therewith. That defendant has complied with all the conditions re-.-' quired of him by said agreement of compromise, and.from the time of signing it, had accepted it, and acted under it in full faith. That from the date of the original deed, until the date of the compromise, he had possession of, and received the profits of said property ; that the income so received, was almost, if not entirely used, in keeping and caring for plaintiff, paying debts, taxes, insurance, and in carrying out the terms of the agreement of compromise; that at the time of! said settlement, the plaintiff and his counsel were perfectly cognizant of the state of the property, and the encumbrances upon it. The “ compromise agreement,” annexed to the answer, was-as follows: EXHIBIT “A.” • By the aid and advice of counsel, the .undersigned agree to-' compromise and settle all disputes between them, on the following terms and conditions, viz.: . . 1. Edward Kelly, Jr., shall convey to Edward Kelly, Sen.,: the following described real estate, v.iz.: That known, as the-' Humbert property, situated on Fifth avenue, Pittsburgh,! being 112 x 200 -feet.; also that known as the Tannehill and; Webster street property; also that known as the Dinwiddie street property, being 44 x 90 feet; also that known as the Manor street property situate South Side, city of Pittsburgh.: For a more particular description the deed of Edward Kelly,Sen., to Edward Kelly, Jr., is referred to and made parti hereof. Said deed being known as the trust deed. Also lot No. 105 Ross street; also lot No. 103 Ross street; also lot corner Ross street and Fifth avenue; also lot 183 Fifth avenue, Pittsburgh. 2. The said Edward Kelly, Jr., also, to deliver to Edward Kelly, Sen., the one half of the whiskey stored at No. 14 Wylie avenue,. Pittsburgh ; also the one half of all personal property, including the Dean mortgage, Pan Handle Railroad claim ; also the one half of all cho'ses in action and claims due said parties of every kind, including all uncollected rents. 3. Each party to pay the one half of all the debts incurred for the benefit of the real estate above described, including the personal debts of the said Edward Kelly, Sen., for borrowed money from the following persons, viz. : William Wilkinson, Pat. Shaugnessy, Frank Shaugnessy,, Mary Miley, Julia McCaully, Fergus Hawley, Bridget Hall, and Ellen Cavenaugh. 4. Edward, Jr., shall furthermore pay counsel fees for Edward, Sen., to the amount of $1,500. Witness our hands and seals this 7th day of May, 1878. Edward Kelly, Jr. [l. s.] Edward Kelly, Sr. [l. s.] After the filing of the answer and reference to an examiner, the plaintiff filed an amended bill charging— That since his partial restoration to health, he has learned that by reason of the shock he sustained by the killing of his son, on August 3d, 1872, his general health and mental faculties became seriously impaired, and at the time he executed the deed and bill' of sale, of March 21st, 1874, he was in a broken and feeble condition physically, and of weak and unsound mind, wholly unfit to transact business, or to execute said, instruments, and that by reason of his weak mental state, was completely under the influence of the defendant; that at that time, and for a considerable- period prior thereto, the defendant was his confidential and trusted agent in all his business affairs, and had the entire management of his estate and that said deed and bill of sale were procured by the undue influence exercised by the defendant over him; that in accepting said deed and bill of sale, the defendant was guilty of a gross violation of the duty he owed to him by reason of the- confidential relation in which he stood to him. That in the so.-called agreement of compromise, a cruel deception was practised upon him by the defendant; that the defendant retained the productive and unincumbered real estate, while he turned over to him property yielding but little income and heavilj’ encumbered with liens. The cause was referred to Albert N. Sutton, Esq., as Master, whose findings of fact and conclusions of law were as follows : The testimony in the cause is very voluminous.....and may be briefly stated as showing— That the plaintiff was and had been for many years prior to 1872, a resident of the city of Pittsburgh, that during this time he had established a reputation of being an unusually shrewd business man, and had by his industry and business tact accumulated a large amount of real and personal property — that on August 3d, 1872, his son and only living child was killed by being thrown from a buggy, that shortly after the death of the son correspondence was had between the plaintiff and the defendant, a son of Michael Kelly, brother of plaintiff, and then living in Ireland, that as a result of this correspondence the defendant came to Pittsburgh in November, 1872; he was received by the plaintiff as his nephew and the two continued to live together upon terms of intimate social and business relationship from the time of his arrival up to the time of plaintiff’s marriage, the plaintiff having shortty after the arrival of the nephew, intrusted him with the charge of his business; that on the 21st of March, 1874, the plaintiff executed and delivered to the defendant a deed for all of his real estate and bill of sale of all his personal estate for the consideration expressed of $1.00 each, which sum was paid by the defendant and possession delivered by the plaintiff; that at the time of the transfer a verbal agreement was entered into between the plaintiff and the defen•dant, whereby the defendant agreed to provide for all the wants of the plaintiff during life, including the use and occupancy of the house No. 105 Ross street, and to convey a certain portion of the real estate after the death of the plaintiff to certain beneficiaries then agreed upon. On the 9th of May, 1874, the plaintiff was injured by being thrown from a buggy and was confined to his room some time on account of it. On November 10th, 1874, having recovered from the effects of his injuries, two deeds were prepared under his instructions, duly executed and delivered by him to the defendant. These covered the same property embraced in the deed of March '21st, 1874, and were absolute conveyances. At the same time the plaintiff had a declaration of trust (Ex. 0, plaintiff’s bill) covering the property conveyed by one of the deeds (Ex. A, plaintiff’s bill) which was executed by the nephew (defendant) and delivered to the plaintiff and was in substance the verbal agreement of March 21st, 1874, so far as said verbal agreement related to the disposition of the property after plaintiff’s death. In the latter part of December 1874, or early in January, 1875, these papers were by direction of the plaintiff submitted to J. E. McKelvy, Esq., for examination, and if found to be in proper form, recorded, and the deeds were on January 7th, 1875, recorded in the office for recording deeds in Allegheny county. In the spring of 1876 these papers were by the plaintiff in person again submitted to Mr. McKelvy, and under the instructions of plaintiff a paper similar to Exhibit D, plaintiff’s bill, was prepared, signed by defendant and delivered to the plaintiff. This paper was. a transfer-to the plaintiff by defendant of all the rents, issues and profits of the property during life for the period intervening from the spring of 1876 to March, 1878. There does not appear from the testimony to have been any change either in th*e social or business relationship of the parties. About March, 1878, the plaintiff married and shortly after made a demand upon the defendant for a reconveyance of the property. Counsel were employed by both parties, and on May 7th,- 1878, resulted in the compromise agreement and the execution and delivery of the deeds of May 15th,. 1878, and division and delivery of the personal property as provided for by the agreement. In the consideration of this cause we deal exclusively with the parties to the several conveyances and contracts, no intervening rights or parties are involved, and from this position the pleadings and testimony present as' questions for our determination — Is the conveyance of March 21st, 1874, voidable, by reason .of. the mental incapacity of the grantor, or by reason of the confidential relationship existing between the parties ? If voidable by the grantor for either of the above reasons, what effect is to be given to the execution and delivery of the -deeds of November 10th, 1874; the recording of said deeds under the instructions of the plaintiff on Jan7 uary 7th, 1875; the transfer of the rents during plaintiff’s life by articles of agreement prepared under his instructions by Mr. McKelvy in the spring of 1876; the agreement of compromise of May 7th, 1878; acceptance of deeds and .of possession of property, real and personal, in pursuance of it ? The first branch of the first proposition involves an examination as to' the mental capacity of the plaintiff to make the conveyance-of March 21st, 1874, as the execution and delivery of the instrument does not admit'of question. It is well established both at law and in equi,ty that a man may allege his own incompetency to avoid his deed ; in other words, may stultify himself, and that the. burden of proving the incompetency of a contracting party is upon the one who objects to ■¡the validity of the contract: Clifton v. Davis, 1 Parson’s Eq. Cas. 31. . This .question jiould_not arise, upon, the original pleadings, the original bill alleging in the second' paragraph, “ that the plaintiff was injured on the 9th of May, 1874,” and in the third paragraph, “ the facts to be that -he was by his injuries entirely deprived of his reason and mémory,” while in the eighth'paragraph he expressly alleges and charges that all and every transaction made prior to the . ... . 15th day of May, 1878,......and subsequent to the 9th of May, 1874, were done and made when he was not of sufficient mental capacity to-know and properly determine what he was doing.” It is thus plainly presented that at the time of the filing of the bill, the 9th of May, 1874, was the date and the injury received upon that date the cause of the alleged mental incapacity, by reason of which the plaintiff sought to have the “ deeds, trusts and agreements as in the bill set forth decreed null aud void.” The answer was filed, to the allegations contained in the bill, issue joined, master appointed and the taking of testimony proceeded with for more than six months when the amended bill was filed, setting up a new cause of injury and extending the time of the alleged incapacity back to August, 1872. Upon the question of fact as to the competency of the plaintiff to intelligently make a disposition of his property at the time of the execution of the deed of March 21st, 1874,'the burden of proof is upon the plaintiff. The testimony shows that prior to August, 1872, the plaintiff had the reputation of being a shrewd business man, was made the custodian of the savings and acted as the business adviser'for many of his neighbors; that the violent and unexpected death of his son at this time was a great shock to him. Upon this point some of the plaintiff’s witnesses testify to what seems to them strange remarks and peculiar conduct upon.the part of the plaintiff during the “wake” preceding the burial of his son’s body and immediately succeeding the time of his loss. These, facts,'wlién considered under the circumstances in which they took place, are, in our opinion, more indicative of the grief and excitement attendant upon the loss he had sustained than of mental weakness or permanent impairment of mental capacity; but time, the great assuager of grief, seems to have relieved the plaintiff from the excitement .immediately attendant upon the event, for shortly afterwards we have the testimony of Mr. Doloughty, showing knowledge and capacity to attend to matters of business in the making of the contracts for a monument to be erected over his son’s grave, and in September, 1873, taking charge of a complicated partnership settlement then pending before a board of arbitrators, in which his son had been one of the partners, and which continued for over two years; that he was during this .time au acceptable indorser of notes for different parties, and, in fact, was attending to business in about tbe same manner that he had prior to his son’s death. Covering the time from the death of the son to and including the date of the conveyance, we have the testimony of John J. Mitchel, Esq., a member of the bar of Allegheny county for almost forty years, of high standing and reputation in the community and among the profession, who had known the plaintiff for thirty years, was a member of the same church, and was at this time acting as attorney-for the plaintiff before the arbitrators in the partnership matters above referred to, and who was employed by the plaintiff to prepare the deed of March 21st, 1871. Mr. Mitchel states: “ At the time Mr. Kelly (plaintiff) made those first deeds in March, 1874, the question of Mr. Kelly’s sanity never presented itself to my mind. I had no reason whatever to entertain a doubt upon the subject......I certainly considered he was then of sound mind.” The long personal acquaintance of Mr. Mitchel with the plaintiff, his professional experience and training, with his immediate association with the plaintiff on professional business, entitles his opinion and testimony to great weight; and being corroborated, as it is, by the facts stated, we are of the opinion that the plaintiff has not sustained the allegation of mental incapacity at the time of the execution and delivery of the deed of March 21st, 1874, as alleged in the amended bill. . Upon the second branch of the first proposition, arising, as it does, from the admitted confidential relation existing between the parties, we are called upon to examine into the circumstances attendant upon the execution and delivery of the deed, as also any indication of undue influence upon the part of the defendant, or advantage taken by reason of the existing relationship, and upon this point we submit, as a general proposition of law that is well established— That the perfect right of a proprietor to divest himself of his estate by way of gift, uninduced by pecuniary consideration, is among those which do not admit of question, and when such a gift is executed or otherwise fixed in the beneficiary, either by the direct conveyance of an estate or the creation of a use, it is beyond the power of the donor or his representative to revoke it; but when, as in the present case, a relation of trust and confidence is admitted to exist between the parties, the burden is thrown upon the beneficiary to establish the perfect fairness of the transaction, and that it was the deliberate act of the confiding party, after being fully informed of his rights, interests and duties, and put upon his guard against even the suggestions of his own inclinations. 'Under the facts in this cause the burden of proof is upon the defendant to establish the perfect fairness of the transaction. Upon the circumstances attendant upon the preparation and execution of the deed we have the testimony of Mr. Mitchel, who in this instance seems to have acted not Only as attorney, but also as friend, counselor and adviser. From his testimony it appears that the deed was prepared under the instructions of the plaintiff; that he (the plaintiff) had the custody and possession of all the title papers of his property; that the defendant was not present, and took no part either in the consultation regarding the transfer or the preparation of the deed; that his (plaintiff’s) intention to -make such a transfer was made known to his counsel, who advised him fully as to all the consequences thereof, as stated by Mr. Mitchel: “ I told him that would be a very unwise thing for him to do. If you make a deed of all your property to your nephew, you will place yourself absolutely in his power. . . . We had considerable conversation on the subject, in which I» raised all the objections I could.” After this consultation with his counsel the plaintiff left the office, but returned either the same or the next daj-, bringing with him the several deeds for his real estate, and gave instructions for the preparation of the deed of March 21st, 1874. A day or two was consumed in preparing the deed, during which the plaintiff called several times at tile office to make inquir}- as to the progress being made. After its preparation and before execution, it was submitted to the plaintiff, who upon examination found it to contain a piece of property which he had previously sold, and this was made the subject of consultation with his counsel. These matters having been disposed of, the plaintiff brought the defendant to Mr. Mitchel’s office, when the deed and bill of sale were signed and acknowledged, the consideration paid and the papers delivered to the defendant, Mr. Mitchel being one of the subscribing witnesses. In no instance during this whole transaction does the hand or influence of the defendant appear, either directly or indirectly. On the contrary, the testimony of Mr. Mitchel, as above stated, and the declaration of the plaintiff, made in 1878, four years after the transaction as testified to by, Captain Ward, “ that all the lawyers in town would not have made him deviate from what he intended to do,” show this transfer to have been the deliberate act of the plaintiff, when in the full possession of all his faculties, after consultation with able and disinterested counsel of his own selection, who had fully informed him of the consequences of his act, cautioned him against it, and done after time for deliberation after having been advised of the consequences of the proposed act. The facts in the cause do not, in our opinion, justify judicial ■interference by the setting aside o'f the'contract so deliberately entered into, and that the said deed is nob Voidable by reason .of the confidential relationship of the' parties. , This leavés for our consideration the effect o'f the deeds of November 10th, 1874, the recording of these deeds under instructions of the plaintiff in January, 1875, the preparation .by Mr. McKelvy of the' agreement for the transfer of the .rents, under the direction of' the plaintiff, in the spring of 1876, and plaintiff’s acceptance; the agreement of compromise 'of May 7th, 1878; the acceptance of the deeds, and delivery of .property?;, real and personal, in pursuance 'of it. The consideration of this proposition involves an examination into the .issue, presented by .'the original bill and answer and the testimony thereon. The original bill, as before stated, fixed May ■9th, 1874, as the date and the injury of that date the cause of .the. alleged mental incapacity'. The effect of .¡the testimony upon this'point is weakened by the-, fact that prior to sustaining this injury the'plaintiff, had executed and delivered to the defendant a deed for -the sanie real'estate. In' respect to the injuries we find as facts: That on- May 9th, 1874, the plaintiff was injured by being thrown from a buggy; that from the effects of the injury his life was despaired or, even by his attending physician; that on June 26th, 1874, he had so far recovered as to render further medical attendance unnecessary, and was, able to go about the yard. His attending physician, Dr. Shaw, testifies «that from the time he quit attending him (June 26th) in 1874,'he frequently saw him .on the'street and regarded him physically7 all right, and saw nothing wróng'with him mentally,; that passing him on the street he would suppose him to be mentally all right. Immediately after his recovery7, Mr. Kelly resumed his attendance before the arbitrators, and Mr. McLean testified that he saw no material change in his condition from what it had "been before the injury. In the preparation of the deeds ■and declaration of trust of November 10th, 1874, .Mr. Mitchel was employed by the plaintiff, and the papers were prepared under .instructions received from him (the plaintiff). Mr. •Mitchel,testifies “that at the time his mental condition was good; that he saw no perceptible failing in his ..mental condition from the preceding spring.” . ¡ . The deeds and declaration of trust of November 10th, 1874, were, prior to January 7th, 1875, within two. months of their execution, submitted to J. E. McKelvy7, Esq.; upon this matter Mr. Doloug.hty testifies, that under the instructions of the plaintiff, he.and the defendant submitted the deed to Mr. Mc-Kelvy for his examination and if found by him to be correct, they were to ..be recorded. ...Mr.-McKelvy having examined the papers, and reported that they were in proper legal form the deeds were with the approval of the plaintiff, on January, 7th, 1875, recorded. Afterwards the plaintiff called in person upon Mr. McKelvy to prepare a paper as' testified by Mi% ’McKelvy, as being similar to exhibit D., plaintiff's bill. This, paper was prepared linder the instructions of the plaintiff, in March, .1876, was executed by the defendant, and delivered to and accepted by the plaintiff. Mr. MeKelvy' further' testifies that at this time he considered the plaintiff “a sane man mentally, undoubtedly; physically he appeared to be in good health, looked as w.ell as he does to-day.” .... “I certainly regarded him as a sane man, or I would not have transacted any business with him.” From all the testimony bearing upon these transactions, we are of the opinion that they were the deliberate ’ acts of the plaintiff, made when fully competent and advised of their effect, and were the voluntary acts of the plaintiff unihflu■enced'by the defendant, and were 'but the carrying into pres;-ent effect the promises made to the defendant, by'which'he .was induced to come .to this country — and. in this view we are sustained by the declaration of the plaintiff testified to by Captain Ward, as made in the presence of himself and G. L. ■B. Fetterrnan, Esq., when in consultation over these deeds after the marriage of .the plaintiff in the spring of 1878. When Mr. Fetterrnan stated “ that if he (plaintiff) had come to him to get the papers drawn, he would never have drawn that kind of a deed, he (plaintiff) said, “ there was no use in talking that way; that all the lawyers in town would not have made him deviate from what he intended to do,”-and his statement to the same parties, “ that it was not such a foolish thing” as Mr. Fetterrnan and Captain Ward were talking about; “that he (plaintiff) had a paper drawn up by which he was to get all, the rents and profits.” . From the time of the execution and delivery of the paper prepared by Mr. McKelvy in March, 1876, transferring to the plaintiff the rents and profits of the property during life, until the marriage of the plaintiff, in March, 1878, there seems to have been no change .either in the status of the parties or of the property; but soon after this latter event trouble Arose between the plaintiff and defendant, resulting in a severance of their social relations, and a demand upon the part of the plaintiff for a re-conveyance. Counsel were employed by both parties, and after some time spent in negotiation between, the counsel and parties,'an agreement of compromise was entered into on May 7 th, 1878, which was signed by both plaintiff and defendant. This agreement was carried into effect by the execution and delivery of deeds for the real estate, and delivery' by the plaintiff to the defendant of the possession of the property, both real and personal, as provided for by the agreement, and the assumption of the debts mentioned. The deeds for the real estate were accepted by the plaintiff, and under his instructions entered for registry in the City Engineer’s office and for record in the Recorder’s office, and possession taken of the property, both real and personal. . The testimonj1- as to all the circumstances connected with this agreement of compromise is very full, and in our opinion establishes beyond.question the competency of the plaintiff to know and understand the nature of all that transpired; that he was consulted with and advised of its effect, and that during the negotiations took an active part in the management and direction, and that he understanding^ entered into the agreement of May 7th, 1878, received the consideration agreed upon, and has received and enjoyed the benefits thereof. The allegation that his signature to the agreement of compromise was obtained by misrepresentation, although in our opinion immaterial so far as the rights of the defendant are concerned, as it is not charged that he was a party to it nor is such an inference justifiable from the testimony, is contradicted by the subsequent acts of the plaintiff, as it is shown b3r the plaintiff’s testimony that on the morning after signing the agreement, to wit, May 8th, 1878, the plaintiff obtained a copy of the agreement, that this agreement was then made the subject of discussion and consultation with his counsel, that he accepted the deeds of May 15th, 1878, made in pursuance of its terms, that he took and has retained the possession of the property, both real and personal, obtained by means of this compromise agreement, and as a proposition of law, having accepted and retained the benefits of this contract after the discovery of the fraud alleged by -him, affirmed the validity of the original contract: Pearsoll v. Chapin, 8 Wright 9; Negley v. Lindsay, 17 P. F. S. 227; SeyJar v. Carson, 19 P. F. S. 88. In conclusion I am of the opinion from the testimon3' in the cause that the complainant has not sustained the allegations as set forth in the bill, and is not entitled to the relief prayed for, and I think therefore that the bill must be dismissed, with costs. Plaintiff filed the following exceptions to the Master’s report: 1. The Master erred in finding that the instruments of writing under which the defendant claims title were the free, voluntary and conscious act of the plaintiff; he should have found that they were each and all executed while said Edward ' Kelly was incapable of doing a binding act. 2. The Master erred in finding that they were not procured •each and all by undue influence; he should have found that they were procured, each and all of them, under circumstances of suspicion and through the fraudulent acts of the defendant. 3. The Master erred in finding that the«compromise arrangement, so called, was of any validity; he should have found that it was without consideration, fraudulent and void. 4. The Master erred in his finding as to the burden of proof. 5. The Master erred in his finding as to the law applicable to the facts in evidence. 6. The Master erred in not finding the defendant’s title void, or at least voidable, and in not decreeing that it be voided. ■ 7. The Master erred in not finding that the plaintiff was entitled to the relief prayed for in his bills, and in refusing to decree accordingly. ' 8. The Master erred in his conclusions as to the facts and law of the case. The court, after argument, sustained the material exeeptions, in the following opinion by White, J.: In the fall of 1872, the plaintiff, an old man, who had acquired, by great industry and frugality, considerable property, worth more than $100,000, was living by himself. The last member of his family, an only son, to whom he was devotedly attached, had been suddenly killed by an accident in August of that year. About the first of November the defendant, a nephew, arrived from Ireland, was most kindly received, and taken into his house and home by the uncle.- They lived together on the most intimate terms until the spring of 1878. During that time the nephew had the entire management and control of his uncle’s property. On the -21st of March, 1874, less than 18 months after the defendant’s arrival in this country, the plaintiff executed two deeds, for the consideration of two dollars, conveying to the defendant all his property, real and personal, absolutely. Those deeds were never recorded and not made public until after this bill was filed. On the 10th of November, 1874, the plaintiff executed two other deeds, nearly identical with those of March, conveying to defendant the same property, in fee simple. These deeds were recorded January 7th, 1875. At the time these last deeds were executed the defendant executed' a paper, which was not recorded, reciting that he held the property described in' one of the deeds, as trustee, (1), “ for his own use, profit, benefit and advantage and free from any impeachment of waste,” during the life of Edward Kelly, Sr, and (2), within three months after his death, to convey the same,' as therein stated, to certain relatives of Edward Kelly, Sr. ■ By these conveyance’s the old man divested himself of all his property, left nothing to live upon, and had nothing to show that his nephew, in whom he had vested all his property, without consideration, was even to-keep'him while he lived. ’ ■■ 1 I . ■ • Some time in 1876 an informal paper was drawn up, in which the defendant' assigned to the plaintiff-all rents accruing after that date, on all the properties, during plaintiff’s lifetime, he to pay all- taxes, repairs, &e. ■ This paper was never acted upon; the defendant continuing to rent and manage the property, and receive rents, the same as before. In March, 1878, the plaintiff married again, and soon after employed counsel, Messrs. Weir and Gibson to recover back his property. No suit was brought, but negotiations entered into for a compromise. A paper, called a “ compromise agreement,” was signed May 7th, 1878, by which.the defendant agreed to convey back a part of the property, the plaintiff to pay certain debts, and the defendant to pay counsel fees for the plaintiff to the amount of $1,500: In pursuance thereof the defendant executed-to the plaintiff a deed for that part of the property, May 15th, 1878. In October following this bill was filed, alleging fraud and imposition practiced upon the plaintiff, when he was not in a mental condition to understand what was done, and praying for a reconveyance of all the property. ; To enable- the plaintiff to recover he must establish two things: first,-fraud or imposition in the original conveyances ■to the defendant, and second, fraud or imposition in the alleged compromise.. The plaintiff claims that- he was so depressed by his son’s death in August, 1872, and by an accident that happened him in May, 1874, being thrown from a buggy and nearly killed, that for several years he was mentally incapacitated. Twenty-two witnesses have testified to this ■fact, and. stated the grounds- of their opinion, making out a strong ca&e. But the witnessesfordefendant, less in number but quite as strong in their statement of facts, testify to his •capacity,- except for a few weeks after the accident in May, .1874. On this point the Master finds against the plaintiff, and we cannot-say his finding is erroneous. Oii another ground, .however, we think the Master erred. ■He -should' have found the deeds of March 21st, 1874, and -November„10th,'.1874, fraudulent in law because of the confidential relations existing between the plaintiff and defendant. This relation of implicit trust and confidence — .of almost helplessness — of the uncle in his nephew, is clearly set forth in defendant’s answer : ‘‘Prior to November, 1872,” he says, “ I was living in Ireland with my mother; plaintiff wrote frequently to me urging upon me that be was a very old man, had a great deal of property .and ño person attending it; that it was wasting fast because he was unable to care for it, and that he desired me to come over and take care of it for him, promising as an inducement that he would make me his sole heir at law if I would comply with his request...... From the time of my first coming the plaintiff gave me entire and only charge and control of his ivhole property; we, the plaintiff and myselflived together, everything being in common; I did not charge anything for attending to the business on account of the understanding frequently expressed b3r plaintiff that the entire property was intended for me after plaintiff's decease......The plaintiff and myself, from 1872, the time of my first arrival, continued to he upon terms of unusual friendship, sociability and companionship, living together, and I cared for the plaintiff, supplying all his wants and cares until in the month of March, 1878, at which date plaintiff married a young wife.” The evidence also shows that the defendant did not think his uncle was fit to attend to his property. James Craggan testifies that young Edward told him that “ his uncle, wasn’t able to attend to any business ; that he wasn’t competent to. do anything.” Father Mollinger testifies to ■ conversations with the defendant in which he said, “that his uncle was in a state not able to administer his own estate; that he was incompetent ; that people imposed upon him.”.....“ His uncle was in such a state that he was incompetent to administer his affairs, and so, in order to protect it, the estate.of old Mr.. Kelly was transferred to him, with the best of intentions to preserve it.”.....“ That if the old gentleman had asked him nicely for it, he would have returned it 'to him.” ..... “ That it was only to preserve it, because the old man was acting in such a way that the whole estate would have been lost.”.....“ That he was interested in it, and therefore thought it was right he should take it in his name to preserve it.”.....“ That he was not of sound mind — he didn’t act as a man that was of .sound mind, because he did things, indorsed notes, etc., that he didn’t remember.” Christian Mueller, who was a tenant in one of the houses, testifies to a conversation with the defendant, in which he said • that his ‘uncle “ was unfit to attend to business, that he was nothing but an old fool] an old crazy fool.” ... The defendant, in a letter to J. D. W. White, April 19th, 1878, says, speaking of the plaintiff, “Now he is in his old age and in his dotage, his wife can command him as she would a child, and which is worse, he is not able to attend to any business, nor did he do so for over four years past” While the defendant denies he used the expressions testified to by those witnesses, yet it is very likely he said something of the kind, for they are in harmony with the language in his letter to Mr. White, which he admits is in his handwriting. These may not be sufficient to establish the incapacity of the plaintiff, but they have an important bearing on the deeds executed in 1874. Taken in connection with what is quoted from his answer, they show an eagerness oh the part of the defendant to make his “ sole heirship ” sure by getting the title to the property in advance of the old man’s decease. He says that when the deeds of March 21st, 1874, were executed, there- was a verbal understanding he was to support the plaintiff, give him the use of one house while he lived, and that a portion of the property was to be held in trust for other heirs at the plaintiff’s death. As the trusted agent and bosom friend of his old uncle, he should not have accepted such deeds with a verbal understanding such as he states, leaving his old uncle penniless and helpless in case of his own death, or with the power to cheat the other heirs in case of his uncle’s death. It was a gross imposition and fraud in law. Even when the deeds of November 10th, 1874, are executed, no provision whatever is made for the support of the plaintiff while he lives, except a verbal understanding. Good faith and common honesty towards his feeble old uncle, who implicitly trusted him and confided to him the entire management of all his affairs, required that he should not take all his property without making an adequate and safe provision for his support, and also make sure his trust by putting that deed on record. The evidence shows that the deeds of March, 1874, and also of November, were prepared at. the instance of Edward Kelly, Sr., and when Edward Kelly, Jr., was not present. But he was present when they were executed, and actually paid over the two dollars, the consideration mentioned in the deeds, to his uncle. The absurdity of such a payment is suggestive. Was it a childish freak of the old man? Or had he been told that such a formality was necessary to make the transaction stand? The evidence does not establish actual fraud in procuring the deeds from the plaintiff. Nor is that necessary. The case comes under the other branch of equity, constructive fraud, arising out of the peculiar confidential and fiduciary relations of the parties. “In this class of cases,” says Judge Story (Eq. Juris., § 807), “ there is often to be found some intermixture of deceit, imposition, .overreaching, unconscionable advantage, or other mark of direct and positive fraud. But the principle on which courts of equity act in regard thereto stands independent of any such ingredient, upon a motive of public policy; and it is designed, in some degree, as a protection to the parties against the effects of overweening confidence and self-delusion, and the infirmities of hasty and precipitate judgment.” “The general principle,” he continues (§ 308), “ which governs in all cases of this sort is, that if a confidence is reposed and that confidence is abused, courts of equity will grant relief.” The principle is applied to gifts between parent and child, guardian and ward, client and attorney, medical adviser and patient, principal and agent, etc. The doctrine is applied to many other cases (§ 323), “ wherever confidence is reposed and one party has it in his power, in a secret manner, for his own advantage, to sacrifice those interests which he is bound to protect, he will not be. permitted to hold any such advantage.” Nor is it a sufficient answer that Edward Kelly, Sr., knew what he was doing and appeared to act voluntarily, without any influence on the part of his nephew. He may have known at the time what he was doing, and have appeared to act of his ówu free will, and yet have been influenced by a mind and hand in the background. How came he to form such a purpose? To give away a large estate without reserving one dollar to himself or providing for his support in his old age. Undue influence in such a case may fairly be presumed. But more than that, the relations of the defendant to the plaintiff were such that it was his duty to protect his feeble old uncle from such an improvident act. It was unconscionable in him to accept such deeds, and he cannot, therefore, hold the property. These principles are clearly set forth in Huguenin v. Baseley, 14 Ves. 273; Houghton v. Houghton, 15 Beavan 299, and the later English and American cases cited in the foot notes of Stoiy. The second question to be considered is, is the compromise conclusive against the plaintiff? If he entered into that with a full knowledge of the facts, without fraud or imposition practiced upon them, then it should stand. But if he was misled, deceived or imposed upon, it is no barrier to his recovering the remainder of his property. The terms of compromise were so manifestly unfair and unjust as to raise a reasonable presumption he was deceived and imposed upon. His claim was for the whole of the property conveyed to his nephew, charging fraud and imposition in the execution of. the deeds. The nephew had obtained title to real estate valued"at more than one hundred thousand.dollars, for-which' he had paid nothing, or, at most, the nominal consideration of "two dollars. The old man is induced to compromise his claim' by getting a deed for about one fourth of the property, and. that encumbered to'nearly its full value, while the nephew gets three fourths unencumbered. The values put on the properties by competent witnesses before the Master, made the aggregate of the properties con-, veyed back to .the plaintiff, $21,100; those retained by the. defendant, $76,000, including the three properties he had pur-, chased, and without them, $55,850. The properties the plaintiff’got were encumberéd with liens and debts he assumed to pay, including counsel fees in effecting the settlement, to over eighteen thousand dollars, leaving the amount he gained by the “compromise” of real estate, less than five'thousand dol lars. The property retained by’defendant was unencumbered, and.his share of debts, including. $1,500 towards counsel fees, was less ■ than" $4,0.00, leaving' him real’ estate'clear, over $70,000. ' : - It is very-evident the plaintiff’ was mistaken in the amount and value of the property he was to get, for the defendant had' manifested a willingness to compromise on one half, before, the plaintiff had placed the matter in the hands of counsel, as appears from the testimony of .defendant and Wm. Ward. The counsel employed by the plaintiff never' brought suit but seemed intent on a compromise; and,, it would seem, engaged Capt. Ward to persuade the old gentleman to agree to one. After a few weeks of negotiation, the’ matter is' closed by getting him to sign a brief and .rather indefinite paper. There is no exhibit of the various properties and their values, and no proper statement of liens or debts. The defendant agrees to pay $1,500 for counsel fees for the plaintiff, but after the plaintiff gets his deed, he gives a mortgage to his counsel for $5,500 additional counsel fees. It is difficult to believe that a man of sound mind would understandingly make such a compromise and pay such counsel fees for effecting it. The paper was taken to the house of plaintiff by Capt. Ward and signed by him under circumstances which shows he did not fully comprehend it. A paper of that character and im-. portance, especially considering the age and feebleness of the plaintiff, should not have been presented .for his signature, except in the presence of his counsel, and after the whole, matter had been fully explained to him. Capt. Ward says he was acting as- the friend and agent of plaintiff. This the1 plaintiff denies. From the testimony of plaintiff’s counsel it. seems he was employed by them and paid by .them. Mrs. Kelly testifies that Capt. Ward came into the kitchen with the compromise paper and said, “ Mr. Kelly, I want you to sign this paper.” Mr. Kell}r said, “ what paper. Captain ? ” He said, “ that is to get all your property for you.” Says he, “ Captain, I will sign no paper; leave it with me until morning, until I understand what it means, and then I will sign it if I see that it is right.” “ No,” says he, “ I be damned if you do ; you must sign it now, because it is getting late.” Mr. Kelly says, “ I can’t sign it until I read it ancl understand what it means; can’t you' leave it- with me until morning ? ” He said, “No, he would be damned if he would do it;' that he should never get a brick unless he would sign it now.” After further talk and pressing of that kind, Capt. Ward read the paper. Mr. Kelly then said, “This is to get all my property ? That is what I-want. If you tell me for a fact it is to get all my property, because I can’t see very well.” He says, “ Mr. Weir and Gibson never mentioned anything about'the paper to me.” “ Well, they ordered and sent it to you, and I want you to sign it.” And he said, “ On those conditions I will sign it to get,all my property.” So he signed it. To the same effect is the testimony of Hannah Smith, who was present, and of the plaintiff. In opposition to this testimony stands that of Capt. Ward,- and the fact that the plaintiff afterwards accepted the deed for the property mentioned in the paper. It is not, however, controverted that the paper was signed by the plaintiff at his house, in the absence of his counsel, and that it took some persuasion to induce him to sign it. It, appears also from the testimony of his counsel that after he got the deed for a part of his property, he still supposed he could recover the whole, and wanted them to institute proceedings for that purpose. . In view of these facts, it is almost impossible to doubt that •the plaintiff was induced to sign the compromise by fraud and imposition. The defendant owns three properties which he did not obtain b}1- deed from the plaintiff. He purchased and paid for these while he was receiving the rents and acting as agent of the plaintiff. They are valued at $20,150. In his answer he claims he brought “some little means ” with him from Ireland, and since then -had “ earned large amounts of money frota business outside of Edward Kelly, Sr.’s former estate...... That most of the property purchased by me was with money earned by me outside of this Kelly property.” In the testimony before the Master, he does not claim to-have brought more than thirty or forty dollars from Ireland-Nor does he explain satisfactorily how he. made the money to pay for these properties. He does not show any transactions “outside of the' Kelty property,” in which he “earned large amounts of money.” He presented before the Master a very’brief and meager account of the rents he received from July 1st, 1873, to April 1st, 1878, and of expenses, &c. According’to this account he received from rents . . . . . $36,831 00 He paid “taxes, insurance and repairs” ; . . . . $13,372 24 He paid “ debts” .... .10,148 99 “ “ expenses ” and “ checks ” 4,558 76 “ ’ “boarding” . . . 1,556 00 “ loaned out . . . 4,225 15 $33,861 14 Balance ... . . . $2,969 86 Meager and unsatisfactory as this account is, it must be taken as true, for there is no other evidence on which an account could be stated. It may fairly be inferred from all the evidence that the defendant had no means, and made very little money “outside of the Kelly property.” But he would be entitled to a fair compensation for attending to his uncle’s business for five years. Besides, without referring the case back to the Master, to state an account, and ascertain how much of the plaintiffs money, if any, went into the purchase of these properties, we ought not’ to require him to convey, them to the plaintiff. There can be no doubt, however, that these three properties are a most ample compensation to the defendant for all his services, not counting the personal property he received and the balance of. rent, not accounted for. So far as indicated in the foregoing opinion, the exceptions to the Master’s report are sustained, and the others dismissed. Let decree be drawn requiring defendant to convey back all the properties conveyed to him by the deeds of March 21st, 1874, and November 10th, 1874, not heretofore conveyed back; and that defendant pay all the costs of these proceedings. The following decree was filed : And now, to wit, June 23d, 1884, this cause came on to be heard upon bill, supplemental bill, answer, Master’s report and exceptions thereto, and having been argued by counsel, it is now ordered, adjudged and decreed that the deed of Edward Kelly, Sr., to Edward Kelly, Jr., of date March 21st, 1874, as well as the two deeds of said Edward Kelly, Sr., to Edward Kelly, Jr., of date November 10th, 1874, referred to in the bill and supplemental bill in this case filed, were and are, .and are hereby delared to have been fraudulent in law and absolutely null and void. And it is ordered that the defendant do deliver to the plaintiff the said mentioned indentures to be 'cancelled, and that'the defendant do also forthwith re-convey by good and sufficient deed or deeds the premises described in the said deeds (except in so far as any portion thereof have been heretofore conveyed to Edward Kelly, Sr., by the said defendant, Edward Kelly, Jr.,) to the said plaintiff free and clear of any and all incumbrances done by him or any person claiming by, from or under him; and do also forthwith deliver up to the said plaintiff all the deeds and writings in his custody or power relating to the said premises in said deeds mentioned. And it is further hereby ordered, adjudged and decreed that the said so-called agreement of compromise of date the 7th day of May, 1878, in the said answer of the said defendant referred to, be and the same is hereby declared fraudulent in law and absolutely null and void. And it is ordered that the said Edward ■ Kelly, Jr., the defendant, his heirs and assigns, be and are hereby perpetually restrained and enjoined from using or setting up the same against the plaintiff. And it is further hereby ordered, adjudged and decreed that the said plaintiff shall be at liberty to apply to this court, b}r supplemental bill or other proper proceeding, for. an account of the rents, issues and profits of the said premises herein ordered to be so re-conveyed, accruing since the filing of the opinion of the court in this cause, to wit, since September 26th, 1883, and up to the time of such accounting, and for the appointment of a receiver, pending any delay arising by reason of an appeal or otherwise from this decree. And it is further hereby ordered, adjudged and decreed that the exceptions to the Master’s report be and the same are hereby sustained, in so far as said report conflicts with this decree. And it is ordered that the defendant, Edward' Kelly, Jr., pay all costs of this proceeding. Both parties appealed-from the above decree.. In the appeal of the defendant Edward Kelly, Jr., the specifications of error, (other than to findings of fact) were to the action of the court in overruling the Master’s findings and report, in not dismissing the bill'for want of equity jurisdiction, and to the said decree. In the appeal of the plaintiff, Bridget Kelly, administratrix, the single assignment of error was as follows:— The court below erred in not decreeing that Edward Kelly, Jr., the defendant, should convey to the plaintiff all of the real estate in said plaintiff’s bill described, including that described especially in the 8th paragraph thereof.
108 Pa. 55West Republic Mining Co. v. Jones & Laughlins (1885)
1. Although in Pennsylvania a sale by sample is a guaranty only that the artiSe to be delivered shall follow its kind and be merchantable, yet a stipulation that future deliveries will equal the sample, may become a term of the contract and be enforced as such. It is then unnecessary to determine whether the stipulation is a warranty or a condition. Wetherill v. Neilson, 8 Harris 448, distinguished. 2. A contract provided for the delivery of 5,000 tons of ore at $10 per ton, the buyer to pay for a certain number of tons per month, but contained no stipulation as to the number of tons to be delivered each month or when the delivery should be completed. Under the contract the first payment was made before any ore was delivered; and certain future payments were withheld, on the ground that the quality of the ore was inferior, not that the payments had not become due by reason of non-delivery of ore. Held, by virtue of the terms of the contract and the conduct of the parties, that the contract was entire. 3. A contract for the purchase of iron ore provided, that the quality thereof ‘ ‘ should be up to the sample car load sent us; ” and it appeared that the purchasers were induced to receive and test the sample carload upon the representation that it was equal to the best ore from a certain other mine. Held, that if the ore delivered under the contract was inferior to the sample car load, this fact could not be shown by comparing the former .with ore from the other mine. 4. Chemical analysis of ore received under the terms of a contract may be admitted in evidence, although no chemical analysis of tire sample, which the ore was stipulated to equal, has been made. 5. To determine the value of ore which has been found unfit for the uses for which it was sold, evidence is admissible to show its unfitness for other purposes. 6. The legal measpr'e of damages, when inferior ore has been furnished, is the difference between the contract price of the ore and the market - value. 7. When shipments have been received without any protest by the buyer, or inducements by the seller, the dates for estimating the market price are the dates when the shipments were received. 8. Interest should be allowed in all cases of contract where it is the duty of the debtor to pay money without. a previous demand by the creditor. A bona fide dispute as to the amount of the indebtedness is no bar to the accruing of interest, and if a tender of payment falls short of the sum found to be due at the time of- the tender, interest runs on the whole. 9. Under the circumstances of this case it was error to admit in evidence exhibits taken from an unculled pile of ore, more than a year after the last delivery under the contract.
108 Pa. 69Bown v. Morange ex rel. Hall (1885)
1. Parol evidence is admissible to show a verbal contemporaneous agreement which induced the execution of a written obligation though it may have the effect of varying or changing the terms of the contract. 2. Upon the trial of a scire facias to revive a judgment, it is competent to show by parol testimony that by reason of what has occurred since the judgment was entered, the plaintiff is not entitled, ‘according to the terms of a verbal ágreement between the parties, to have his execution. 3. Upon the trial of a scire facias to revive a judgment, the defendant offered to prove that at the time said judgment was confessed it was understood and agreed between the plaintiff and the defendant that the confession of the judgment should not prejudice the latter in obtaining his discharge in bankruptcy, for which an application was then pending in the proper court; that if the defendant procured his discharge plaintiff should stand upon the same footing as defendant’s other creditors and the judgment should not be enforced against him. The conditions of the compromise which led to the confession of judgment appeared in writing on the record, but no restriction on plaintiff’s right to revive his judgment or have execution thereon was there recited. The judgment was for a private debt contracted before the beginning of the bankruptcy proceedings. Held, reversing the ruling of the court below, that defendant’s offer was admissible. 4. In an action on a judgment obtained after the defendant therein was adjudicated a bankrupt and before his discharge, upon a debt provable under the bankrupt law, the original debt is merged in the judgment and the subsequently granted certificate of discharge is no defence ■ thereto.
108 Pa. 76Broe v. Boyle (1885)
Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term, 1884, No. 212. Case stated, filed October 14th, 1884, wherein William M. Broe was plaintiff, and Mary Boyle, defendant, setting forth the following facts : By articles of agreement dated September 3d, 1884, the defendant, a single woman, covenanted to convey in fee simple to the plaintiff, a certain lot of ground in Allegheny City, in consideration of $250. On the 10th of the same month she tendered the plaintiff a deed for said premises duly executed by her, and demanded payment of the purchase money, which he refused, averring that defendant could not by said deed convey title except as to the undivided one half of said premises which she had acquired in 1866, under a partition of her grandfather’s estate. By said partition the other undivided one h^lf of said premises became vested in Jane Boyle, sister of said Mary Boyle. On December 18th, 1866, said Jane Boyle, then a single woman, executed her last will and testament, wherein she devised all her property, real and personal, to her sister, Mary Boyle. After the date of her will, to wit, in September, 1867, said Jane Boyle intermarried with John Watson, who died November 17th, 1875, leaving said Jane to survive him, and she remained his widow until her death on July 80th, 1879. Her said will was duly admitted to probate by the Register of Wills of Allegheny county on September, 1st, 1879, and letters testamentary were duly granted thereon to Mary Boyle, the executrix named therein. In said letters testamentary, the Register certified that on said date before him “ was proved, approved and instituted the last will and testament of Jane Watson, formerly Boyle, late of Allegheny City,” &c. If the court should be of opinion that the decree of the said Register admitting said will to probate is conclusive upon all parties who might claim an interest in said real estate, as heirs at law of the said Jane Watson, formerly Jane Boyle, more than five years having elapsed since the date of said probate, and that a good title passed by said will to the said Mary Boyle for the undivided one half interest of the said Jane in said premises, then judgment to be entered in favor of the plaintiff and against the defendant above named, for the above sum of $250, with interest from the 10th day of September, a. d. 1884, and costs; otherwise judgment to be entered for the defendant for costs; either party reserving the right to sue out a writ of error herein. The court filed the following opinion and judgment: “We are of the opinion that the probate of the will is a conclusive adjudication that it was the will of the testatrix, republished after the death of her husband, — and that the plaintiff can convey a good title to the entirety of the real estate. “And now, 5th October, 1884, after argument and upon consideration, the court being of the opinion that the law is with the plaintiff,, judgment is entered in favor of the plaintiff for the sum of two hundred and fifty dollars, with interest from September 10th, 1884, and costs.” The defendant took this writ of error, assigning for error the judgment for plaintiff on the case stated.
108 Pa. 83Appeal of the Borough of Verona (1885)
1, of Allegheny county: In Equity, of October Term, 1884, No. 213. Bill in equity filed March 15th, 1884, between M. Graver, complainant, and the Borough of Yerona defendant. Said bill was substantially, as follows: Complainant alleges ownership of a tract of land in Yerona borough, fronting 510.9 feet on Railroad avenue. That said borough has unlawfully entered thereon for the purpose of opening and grading C street in the general plan.
108 Pa. 92Dilworth's Appeal (1885)
189. Appeal of Joseph Dilworth, surviving executor of William Dilworth, deceased, from a decree of said court surcharging him with the increase in value and the rents of certain property bought by said executor, individually, and conveyed by him to Mrs. Dilworth, his son’s wife, from the date of said convejmnce until the property was again conveyed by the latter to a third person.
108 Pa. 97Merchants & Manufacturers National Bank v. Spratt, Johnston & Co. (1885)
1. Under a contract for the sale of “ 300 tons of plow steel” of vari-’ ous specified brands and prices, in order-to entitle the purchaser-to set-’ off against his indebtedness for such part of the steel as he actually.! . received,-a claim for damages arising from the vendor’s alleged failure to fulfil the contract, he must prove that he made demand, designating, the kinds, and amounts of each kind, required, and that his demapdsi were not fulfilled. ' : , ' 2. In such case, mere insolvency by the vendor after partial execution of the contract, and his failure to furnish a partial lot which had been duly demanded, will not relieve, the purchaser from the. necessity of., making further specific demand,-in ofdór to claim damages as fdr-‘ breach of the contract. 3. In an attachment execution against A., as the garnishee of B., A. ad» mitted an indebtedness to B. /but churned to-set off a larger stun as dam-, ages due by B. for breach of a contract. By this contract A. had agreed?” to purchase from B. 300 tons of plow steel of .several different kinds anct prices, the whole to be taken on or before a certain date. Portions o£-> said steel were delivered upon demand and specifications furnished by A. An additional demand and specifications for a partial lot were furnished by A. but not complied with by B., who became insolvent, and his property was sold at sheriff’s sale, pending the running of the contract. A. (deeming it would be vain), made no further demand on B. under the contract. The market price of steel having advanced at the date of limitation of the contract, A. claimed to set off, against his indebtedness for the steel actually delivered, damages as for a breach by B. in failure to deliver the balance of the steel contracted for. Held, that, under the contract, demand by A. for specific, kinds and quantities of steel, specifying the time for delivery, was an essential pre-requisite to delivery; and that the facts that B. had failed to comply with one pai’tial demand, and had become insolvent, did not relieve A. from the necessity of making'further demand for specific kinds and quantities, up to the entire quantity agreed to be purchased. Without such specific demands B. could not make a tender, and non constat that such demands, if made, would not have been complied with by B. or by his assignee or creditors. Held, therefore, that (except as to the unfilled partial' demand), A. was not entitled to the set-off claimed.
108 Pa. 104Wessell & Co. v. Glenn (1885)
1. The addition of a place of payment in the body of a promissory note, by the maker, after its indorsement for his accommodation, by filling • ‘ in a blank in a printed form which was preceded by the word “ at,” is not such an alteration of the note as will discharge the indorser. 2. Where one indorses for the accommodation of the maker, a promissory note, in which the place of payment is left blank, it will be presumed that he knew that unless the blank were filled it could not be ■ used for the purpose, intended, and that he authorized the maker to fill in the place of payment. ■
108 Pa. 111Emerson & Penn Fuel Co. v. Commonwealth ex rel. Attorney General (1885)
1. The General Corporation. Act of 1874, providing, inter alia, for the incorporation of gas companies, does not authorize the creation of a corporation for the purpose of supplying “ natural gas ” to consumers. The Act contemplates only the supply of a manufactured product, whethpr gas, light, or heat. 2. The Fuel Gas Company was incorporated under the said Act of 1874, for the purpose of supplying “ heat to the public from gas, within the city of Pittsburgh.” A month afterwards the Penn Fuel Company was chartered under the said Act “for the purpose of supplying heat to the public within the city of Pittsburgh by means of natural gas conveyed from such adjoining counties as may be convenient.” Upon quo warranto against the Penn Fuel Company to test the validity of its charter, the co,urt of Common Pleas held: (1) “That the Act of April 29th, 1874, authorizes the incorporation of companies for supplying heat from natural gas, such as was granted the Fuel Gas Company.” (2) That clause 3 of section .34 of said Act, providing for an exclusive right, as therein defined, is not unconstitutional. (3) That the Penn Fuel Company, having been incorporated subsequently to the incorporation of the Fuel Gas Company, for the same purpose and within the same district, said charter to the Penn Fuel Company was in contravention of said clause 3 of section 34 of the Act of 1874, and void. Judgment of ouster was, therefore, entered against the Penn Fuel Company. Upon writ of error, the Supreme Court held: (1) That the franchises as described in the said two charters are not identical, and therefore not necessarily hostile to each other, under the 34th section of said Act granting an exclusive privilege to the company first chartered. / (2) That the said Act of 1874 did not authorize either of said companies; to supply “ natural gas ” to be converted into heat by the consumer. , (3) That as the respondent’s charter was to supply “ heat,” and there-' fore nominally within the terms of the Act, the court could not say that the charter was void. • . . (4) That the court below erred in holding that the franchise granted to. the Fuel Gas Company was exclusive as against the Penn Fuel Company; hence judgment of ouster was erroneous, and the same was reversed, and a venire faeias de novo awarded. • ■ ', • 8. Whether, under the said 34th section of die Act of 1874, a gas or water company may acquire or hold the exclusive privilege thereby conferred, as against a company subsequently chartered for the same purpose,covering the same district, not decided.
108 Pa. 129Forsythe v. Forsythe (1885)
2 of Allegheny county: Of October and November Term, 1884, No. 216. •Ejectment, by William JForsy the, James Forsythe and Peter Forsythe against Margaret Forsythe, to recover possession of a certain house and lot in the city of Pittsburgh.
108 Pa. 133Lewis's Appeal (1885)
222; ... Appeal of Anna W. Lewis from a decree of said court,' making distribution of the estate of Edward Duff, deceased. Edward Duff died' testate, November 10th, 1882, leaving a daughter, Mrs. Anna W. Lewis, one son, William Duff, and-children of a deceased son, George Duff.
108 Pa. 138Cook v. Petty (1885)
L. Where a testator by his will blended his residuary estate real, personal and mixed, and gave and devised the same to his five children share and share alike, Held, that this, by implication, made certain legacies, bequeathed by a previous clause of the will, a lien on the residuary estate; and that it was- immaterial that the jjersonal estate was sufficient to pay the debts and legacies, but was not so applied to the latter by the executors. The legacies, nevertheless, remained a charge on the land. 2. A., one of the residuary devisees bought the undivided one fifth share of B., another residuary devisee, in the above real estate, and gave a mortgage to secure the purchase money, A. then mortgaged his two fifths to a bank. The latter mortgage was foreclosed in the United States Circuit Court, and at a marshal’s sale in pursuance thereof the property was bought by C — testator’s administrator c. t. a. — to whom a marshal’s deed was made. Afterwards B. foreclosed his mortgage and bought in the property at the sheriff’s sale in pursuance thereof, and received a sheriff’s deed. The fund produced by the marshal’s sale was distributed by the United States Court, and at that distribution the judgment upon which the sheriff’s sale to B. was afterwards made, was presented and the fund claimed thereon, on the ground that the lien of the legacies had been divested because there was originally sufficient personal property to pay them. The United States Court decided against this, and held that said lien had not been divested. In an action of éjectment by B., relying on his sheriff’s deed, against C. et al., j Held that the decree of distribution in the United States Court, having never been disturbed, settled Hie question of the legacies remaining a lien on the land, and that it would not be reviewed by the court, in this action.
108 Pa. 142Gilliford v. Windel (1885)
Error to the Court of Common Pleas No. 2 of Allegheny county: Of October and November Term, 1884, Nos. 199 and 200. These were two actions on the case for malicious prosecution brought by Edward Windel and Michael Windel by their father and next friend, Thomas Windel, against Robert H. Gilliford. The two cases arose from the same facts, which, on the trial before Ewing, P. J., appeared as follows : The defendant, Dr. Gilliford, was the owner of a building on Juniata street,. Allegheny City, which he used as*a bromine factory. This business required him to use large quantities of chlorate of potash, which he kept upon the premises. In April, 1883, a nephew of the defendant told him that one Alfred Shore had seen Crawford Wallace, Albert Fritchley and the two Windels, the plaintiffs, go into his works, take the potash, throw some on the floor, and carry some out. Dr. Gilliford, upon asking Shore, received the same information, and acting upon it made an information before Alderman Callen against the boys for malicious mischief. The parents of Wallace and Fritchley paid the costs and Gilliford dropped the prosecution against them. The father of the Windel boys offered to pay the costs of one of the cases if Gilliford would pay the other. This offer was refused, and Gilliford made information against the boys for larceny. Both cases were ignored by the grand jury, and these suits were instituted. Edward Windel, one of the plaintiffs, aged thirteen, testified, according to the judge’s notes, as follows : “ We went to the factory, the door was shut but not locked; there was a fire on the street. Had a talk with a boy in reference to put something on the fire. I went into the shop and got some potash and put some on the fire, and then got a tin can and put some more in and took it down home. I threw some on the fire to make a little electric light......I went in by the ash hole and went out at the door. The door was shut when I went in ; it was open when I got out.” Michael Windel, aged fifteen, denied having taken any of the potash, or having thrown it on fire. Michael Maloney, called in behalf óf the plaintiff, testified that he was “ with the Windels at the works and talked with Michael Windel, but saw nothing done that day.” Mrs. Windel, the mother of the boys, admitted that Edward had had some of the stuff at home. W. M. Macrum, Esq., the plaintiffs’ attorney, then testified under objection by the defendant: “ I called on the defendant and urged him to drop the cases; told him I had heard he had paid 25 cents to the boy as a witness. He said he had brought the suits because the boys had been pestering him about the factory, and he was determined to put a stop to it; said he had given the parents a fair chance to settle the cases ; that if they7 would pay7 the costs he would drop the case, and he proposed to show them he could not be trifled with.” In behalf of the defendant Alderman Callen testified that at the hearing before him “Wallace, Shore and Fritchley testified that both Mike and Ed Windel had been in the bromine works and had taken out material; had scattered it over the floor and on the fire. Wallace testified that he saw Mike Windel come out of the bromine works carrying some of the stuff, and that he put it in a can and carried it home. Fritchley’s testimony was about the same. 'Dr. Gilliford was present at the hearing......After the hearing in the first cases an information was made for larceny. This was because at the hearing the testimony showed that the Windels had carried away the potash.” Edward Fritchley testified that at the hearing he was a witness, and then said: “All the boys were in the bromine works. Mike got some of the bromine and put it in a can and I went home with him, and he-took it and put it in the woodshed to hide. ..... Ed also took some away7. We all went in at the ash hole. Ed went in at the ash hole first, I next, then Mike.” Albert Shore testified that at the hearing before the Aider-man, “ I told there that these boys had taken potash and thrown it on the fire and floor, and that they had taken the potash.” The defendant requested the court to charge, inter alia, as follows: ' ■ (6) Under all the testimony'in the cause the verdict of the jury will be for the defendant. Refused. (7) As to the Edward Windel case, he having admitted the theft and there being no countervailing testimony7, the jury will find for the defendant. To which the court answered: “ Affirmed as to charge of larceny. Refused as to the charge of malicious mischief.” Verdict for the plaintiff in each case for $50 and judgment thereon. Whereupon the defendant took these writs, assigning for error, inter alia, the admission of the testimony of Mr, W- M. Macrum above noted, and the answers of the court to defendant’s points.
108 Pa. 147Oak Ridge Coal Co. v. Rogers (1885)
Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term, 1884, No. 209. This was an action of trespass quare clausum fregit, by Mary Rogers against tbe Oak Ridge Coal Company, limited, a partnership association, limited, organized under the Act of June 2d,' 1874, to recover damages for the unlawful entry of defendant upon her lands, and for mining coal therefrom and converting the same to defendant’s use. The narr. averred that the defendant “ well knew that the last mentioned close and the coal therein were not the property of said defendant, but that said coal was the exclusive property of said plaintiff, and was upon and formed part of the close and land aforesaid.” The plaintiff therefore claimed to recover double the value of the said coal mined by defendant, and triple the value of so much thereof as defendant had converted to its own use. Plea, not guilty, with leave, etc. On the trial, before Collier, J., it was not disputed that defendant had taken some coal from the plaintiff’s land, but the defendant claimed that its servants got over the line dividing its land from the plaintiff’s accidentally and not wilfully or knowingly. Defendant presented the following points:— 1. “ That the defendant company is neither a person nor a corporation within the meaning of the Act of May 8th, 1876, and is not subject to the penalties and liabilities prescribed by.that Act.” Refused — (First assignment of error.) 5. “That even if defendant, did know that it was taking plaintiff's coal, she can, in this action of trespass, vi et armis, only recover double the value thereof.” Refused — (Fourth assignment of error.) The court charged the jury, inter alia, as follows: — “ To repeat: You first fix the amount of coal taken, then the value of it under the rule I have given you, and then determine whether the defendant company knew they were over on this plaintiff’s land; that is, did they, or their agent who had authority to manage the mine, know it. The plaintiff must prove that they had knowledge, to get this penalty'-. She may prove it by direct evidence or by irresistible evidence, such as will satisfy a jury, beyond a reasonable doubt, that the manager or person who had the power actually knew he was on her land, and knowing it went on and took out the coal. The plaintiff must prove that, to get the penalty. She contends that the manager of the defendant company'- knew perfectly well that they were on her property, and if you are satisfied that lie did, she is entitled to the penalty. If he did not know it, but after being warned that he was trespassing, went on and took out more coal, with knowledge that he was on her land, then the plaintiff can recover the penalty.”— (Second assignment of error.) '“There is another claim for damages arising from the sinking, of the ground and injury to a spring. If ,you should think - the spring was damaged by the defendant company’s work, you may give whatever you may think it reasonably worth — Avhat she Avill suffer by being deprived of the use of it.” — (Third assignment of error.) “ The Act says what the punishment will be — three times the value of the coal taken. You therefore fix the value of the coal. You will observe that there was a good, deal of evidence admitted in the case about the country custom of going into the bank — banking mines. That was all properly admitted, because at'that time there was no proof yet of what the value of the coal was at the place where it Avas taken, but when the evidence of the value at the pit mouth, or of the coal in place was given, that custom of the country wouldn’t amount to anything, and wouldn’t be the evidence of value — that alone. “ The measure of damages is the fair value of the coal at the place there. If there is a market price in place, in the pit or mine, that would be the value you Avould put upon it, and if there is evidence from which you can find what it was worth before it was touched, it is your duty to do so. If there is no evidence to fix the value in place, what would it be worth at the pit mouth, deducting all the cost of bringing it there, or if there is no evidence from which you can fix the value either in place or at the pit mouth, then you may find Avhat it was worth at a distant market, deducting what it was worth to take it there, even if you had to go to Europe to sell it.” — (Fifth assignment of error.) Verdict for the plaintiff, for $6,801.44, and judgment thereon. Whereupon the defendant took this writ of error, assigning for error, the refusal of the above points, and the portions of the charge above quoted.
108 Pa. 152Appeal of Lusk (1885)
1 of Allegheny county; Of October Term, 1884, No. 131. This was an appeal by J. S.'Lusk and some one hundred and sixty others from a decree of the Court of Common Pleas of Allegheny county dismissing a bill in equity filed on October 10th, 1881, by said J. S. Lusk et al. against James Gallery and others and the Pittsburgh & Western Railroad Company, for the purpose of having set aside a sheriff’s sale of the Pittsburgh, Newcastle & Lake Erie Railroad, at which sale said…
108 Pa. 162Appeal of Whelen (1885)
2, of Atteqheny county. In Equity: Of October and November Term, 1884, No. 221.
108 Pa. 220Culin v. Woodbury Glass Works (1885)
Error to the Court of Common. Pleas No. 4, of Philadelphia county: Of January Term, 1884, No. 195. Assumpsit by the “ Woodbury Glass Works ” against Robert 5. Culin, trading as Knight Cooking Extract Company. Nanv in common counts. Pleas, non- assumpsit, set-off, payment with leave, &c. ■ On the trial the following facts appeared: In March, 1882, the plaintiff contracted to furnish the defendant one hundred gross of 8-oz. syrup bottles, to be made from a special mould, at $2.97 per gross. The plaintiff furnished 62^ gross, but failed to supply the rest. Defendant purchased in the market 28 gross at an excess over the contract price of $17.41, but was unable to obtain in the market, at any price, the remaining gross, to complete the 100 gross contracted for. This was admitted.. Plaintiff claimed to recover the price of 62^. gross, furnished' under the contract, at $2.97 per gross, viz., .....$218 14 And admitted the above set-off, claimed by defendant, of.....$17 41 Aud also admitted a further set-off of . 10 65 28 06 And claimed.to.recover, with interest, the balance, . $190 08 The additional amount of $10.65, admitted by plaintiff as set-off, was computed at the excess the defendant would have paid if he had1 been able to purchase in the market, and had purchased, the 9^- gross, at the highest rate he had paid for any part of the 28 gross. The defendant claimed to set off, in addition to the $17.41, the damages he sustained by the plaintiff’s failure to deliver the 9^ gross, which he was unable to purchase in the market. Defendant, in pursuance of an offer to prove that the 9^ gross had, or would have had, a market value in his hands of $9.97 per gross "testified as follows: We don’t sell empty bottles, we sell bottles filled with different commodities. Q. What could you have sold 9-^ gross for in the market in the way in which you sold them as prepared by yon ?, : Ans. They are filled with drinking syrup by the dozen after we buy them, and then they are labeled and packed in cases and sold to the trade. We could have solcl them in the market at prices ranging from" $15 to $18 per gross, We had.orders at those prices. We had orders predicated on the delivery of these very goods from plaintiff, and failed to fulfil them. We have sold some at these prices. We sold all they supplied at these prices. The market value of the bottles alone when prepared for sale by us was between $7 and $8. Cross-examined. — We sold syrup. There was an increase in price of $7 per gross in our hands of syrup in bottles as we prepared the packages. The bottles originally cost $2.97 per gross. Say bottles . . . . . $2 97 Profit per gross .... -7 00 $9 97 Syrup and labor, corks, labels, etc. 5 08 $15 00 Value of bottles alone $9.97. Bottles arose in value in our hands $7.00. Benjamin S. Haldeman, defendant’s book-keeper, testified: This $7 per gross profit was an increase on the value of the bottles, in my individual opinion. Cross-examined. — :I said in my'opinion the increase was on the bottles. We made our own syrup, and we buy corks. We have people to ‘pack and fill, etc.; we pay them wages. We manufacture a reputation for the bottles also. What we do for the bottles is not the smallest part of the work. It requires more people for the bottles than for the other parts of the packages. We make the profit on the bottles, in the syrup line of our business. Defendant offered to show by this witness that he went down to plaintiff’s place, pending the filling of the contract, to hurry up the bottles after an accident had happened, and was told by one of plaintiff’s agents (Mr. Voorhees), at the place of plaintiff, that the non-fulfilment of the contract was due to the negligence of Mr. Madden, plaintiff’s superintendent, in not filling the defendant’s order before the accident to the furnace. Objected to. Objection sustained. Exception. Lewis A. Hewitt, a witness for the plaintiffi testified : I was agent for plaintiff. Q. Why did not yon furnish the bottles of the one hundred gross of vials ordered by the defendant ? Objected to unless it is proposed to show that plaintiff was prevented by the act of God, or defendant’s act, or default. Objection overruled. Exception. Ans. It was owing to the fact that the cap of the furnace fell in and stopped the blast 'altogether. This was about middle of June, 1882. The court charged the jury as follows: ■ . . The material point in the case is the amount of damage you are to allow the defendant. The plaintiffs failed to furnish 37| gross. The defendant bought twenty-eight gross at an increase of $1.13 per gross. For that, he is entitled to damages. We then get down to the small balance of 9t52 gross, and the question is how are we to measure the damage". Plaintiffs admit the lowest market price to be $1.13 per gross, and the defendant says" if he had had these bottles on hand, he could have made, by filling them and selling them, seven dollars per gross, and he claims this for -a loss 9-^2 gross at seven dollars. The general rule is that a party failing to comply with his contract is liable for the value in open market of the goods, at the time of his failure, so that if the defendant might have bought them when the contract was broken for a higher price; the difference is all he could claim. But this is a peculiar case, and we are without the ordinary rule, because the defendant could not buy. The ordinary rule of damage will not remunerate the party when he cannot buy the articles elsewhere. ■ ' But if an article of the same quality cannot be procured in the market, the measure of damages is the actual loss which the vendor sustains in his own manufacture by not receiving the advance on the contract price upon any contracts which he had himself made in reliance upon the fulfilment of the contract by the vendor. His legitimate loss is the difference between the contract price he was to pay to his vendor and the price he was to receive: McHose v. Fulmer, 23 P. F. S. 365. Now what did the defendant actually lose? It is said he lost $7 per gross. Haldeman says that is his opinion, and he is not positive. Culin says: “We sold syrup at a profit of $7 per gross. On the whole package we got a profit of $7.” Cost of bottles was $2.97. Profit on whole article $7, cost of syrup $5.03. Quaere: was the $7 a profit on the bottles alone, or on the whole article. If it was on the bottles it was a set-off. If you are of opinion the loss was on the bottles alone you must allow it to the defendant or if it was less, allow less. In the amount of damages the figures are for you. On the 28 gross the defendant, it is admitted, is entitled to $1.13 damages. As to the other 9 or 9-i52- gross, the defendant is entitled to such loss as he suffered by not being able to get bottles in the market. Deduct the price on the 28 gross, then on the 9^2- gross allow the defendant all actual loss suffered by him in not having the .bottles furnished. In charging you that the defendant is entitled to any loss on contracts he had made: himself in reliance on contracts of the plaintiff, I lebave to you whether'or not the defendant had any contract on hand'when the plaintiff failed to furnish the bottles. His testimony is; that he had orders and could not fill them. If this is so, lie had a set-off/ If the orders came in subsequently, he had no. claim on them. • - Verdict for plaintiff, for $212.81, and judgment thereon.The defendant took this writ of error, and filed the following assignments of error: 1. That the learned court below erred in admitting as evidence (notwithstanding the objection of the plaintiff in error) that the reason the defendant in error did not furnish the bottles was owing to the fact that the cap o'f the furnace fell in and stopped tire blast altogether. - 2. That the learned court" below erred in refusing to allow, the plaintiff in error to show that the failure on the part of the defendant in error ,to furnish the bottles was due to the negligence of Mr. Madden, the superintendent of the defendant in error. 3. That the learned court below erred in 'Overruling the-objection of the plaintiff in error to the following question asked by defendant in error of it's witness, Lewis A. 'Hewitt, viz :. “.Why did you not furnish the one hundred gross ordered by the defendant? ” the question being objected to unless it was proposed to show that the plaintiff (below) was prevented by the act of God or defendant’s act or default.
108 Pa. 226Dreer v. Pennsylvania Co. for Insurance (1885)
1. Testator devised and bequeathed the income of his estate to his wife for life,she paying thereout” the interest or incumbrances on his real estate. She accepted the bequest and received moneys in excess of such interest on incumbrances: Held, that the holders of the incumbrances could maintain assumpsit against her for interest accruing thereon. In accepting the bequest she assumed to pay that which became her own debt, for which the party entitled to receive the money had a right to sue. 2. One of said incumbrances was a bond and mortgage given by the testator to secure the payment of the principal debt “ at and immediately after the death of A.” Prior to the death of A., testator’s executors tendered the full amount of the principal debt, together with interest due at the date of tender, which was refused. Held, that such tender was no defence in the above brought suit.by the mortgagee to recover the interest.
108 Pa. 230Foulke v. Millard (1885)
4, of Philadelphia county: Of January Term, 1884, No. 196. Ejectment, by J. Roberts Foulke against William Millard, for a lot of ground in the city of Philadelphia. Plea, the general issue. On the trial, before ELCOCK, J., both parties deduced title from the following ground rent deed: 1863, October 26th. Deed. Curtis Clayton to Patrick Neville and his heirs, for the lot in question, reserving thereout a yearly ground rent of $32.
108 Pa. 236Haviland v. Fidelity Insurance, Trust & Safe Deposit Co. (1885)
Error to the Court of Common Pleas No. 1, of • Philadelphia county: Of January Term, 1884, No.-193. Assumpsit, by James Haviland against the Fidelity Insurance, Trust and Safe Deposit Company, executor of the will of Lucas Hirst, deceased. The narr. consisted of the common counts. The bill of particulars of plaintiff’s claim consisted of a statement of items for salary and commissions on collections of rent and interest, for which it was alleged the testator was indebted to plaintiff. Pleas, non assumpsit; non assumpsit testator; non assumpsit infra sex annos; set:off; payment with leave, &c., and a special plea that upon the adjudication of the account of defendant as executor of said testator in the Orphans’ Court of Philadelphia county, the plaintiff presented the same claim and demands sued for in this suit, and the same were adjudicated upon and rejected by the auditing judge in his adjudication filed, to which adjudication the plaintiff filed no exceptions, and said adjudication was confirmed absolutely by the decree of said court, which decree “ now stands as the judgment of said court upon the said claims and demands of the said plaintiff, -and is unreversed, whereby the said plaintiff is barred from recovering upon said claims and demands-in this suit, and this the said defendants are ready to verify, where-. fore they pray judgment,” &c. In the body of said special plea was recited and set forth in hcec verba the said adjudication of the auditing judge upon the plaintiff’s claims, by which it appeared that at the audit the plaintiff had presented three separate items of claim, to wit: (1) A claim for a sum loaned by plaintiff to testator with interest thereon. (2) A claim for special services- rendered to the executors immediately following the death of testator. (3) A claim for services rendered to the testator in his lifetime, being the same claim now sued for. It further appeared from said adjudication that pending said, audit, and before adjudication upon said claims, the plaintiff presented to the auditing judge a paper re-stating the first two items of bis claim, as above, omitting the third item, and stating that the “ further claim for services rendered deceased in his lifetime is now withdrawn, without prejudice to claimant’s right to proceed elsewhere.” The accountants objected to such withdrawal. The adjudication upon this point was as follows: “It is very certain that the withdrawal cannot be without prejudice, for the distribution awarded by the adjudication will cut out all claims not now presented so far as the fund distributed is concerned (Hammett’s Appeal, 2 Norris 392.) Whether a claimant who voluntarily permits the personal estate, the primary fund for the payment of debts, to be distributed can afterwards proceed against the real estate — the surety, so to speak, is perhaps a question (see Hanna’s Appeal, 7 Casey 53.) The real estate is only liable in case of a deficiency of assets, and the creditor ought not to be permitted to let the personal estate go to the legatees to the prejudice of the heir or devisee. “Whether a claim once presented in the Orphans’ Court can be there abandoned or withdrawn so as to permit its renewal in another court at such time as the creditor may think fit to present it, is a question whidr will perhaps more properly arise when the attempt is made to do so, but subject to this question and with such right on the part of the claimant as he may have by reason of his withdrawal, or attempted withdrawal of his' claim, the claim for services to the decedent in his lifetime is disallowed.” The other two items of plaintiff’s claim were allowed by the adjudication. To the above special plea the plaintiff filed the following replication: And the plaintiff as to the plea of the defendant last above pleaded, saith that the claim, demand and cause of action for which this suit has been brought by this plaintiff, was withdrawn by him from the consideration of the said auditing judge of the said Orphans’ Court of the county of Philadelphia, sitting to audit' the account of the defendant as executor on the occasion referred to in said plea, before any determination, decision, or judgment was rendered therefor by said auditing judge ; without this, that by the judgment of the said Orphans’ Court for the county of Philadelphia, the said claim and demand of the plaintiff for which this suit is brought, hath been adjudicated upon and rejected in the manner and form as in said plea alleged, and this he is ready to verify. The defendant demurred to the replication, on the grounds (1) That the said replication is not responsive to said plea, and does not answer the same, or put in issue any fact therein alleged. (2) That the said replication is indirect arid argumentative, and attempts to traverse a conclusion of law from the facts set out in the said plea. (3) That the said replication sets forth in the inducement thereof ,no new affirmative matter which is thereby put in issue. (4) That the said replication is, in other respects, uncertain and insufficient. Wherefore the defendant prays judgment, and that the said plaintiff may be barred from having or maintaining his aforesaid action, &c. The court entered judgment for the defendant on the demurrer, whereupon the plaintiff took this writ of error, assigning for error the said judgment, and the not entering judgment for the plaintiff on the whole record.
108 Pa. 244Gibson's Appeal (1885)
208. This was an appeal by Mrs. Florence I. Gibson, from a decree of said court dismissing exceptions filed by her to the adjudication of the auditing judge, in the matter of the distribution of the estate of John Y. Clark, deceased..
108 Pa. 247Bair v. Robinson (1885)
Error to the Court of Common Pleas No. 3, of Philadelphia county: Of January Term, 1884, No. 215. Assumpsit by Andrew J. Bair against Joseph Robinson and Mary Robinson his wife. The narr. was in the usual form to charge a married woman for necessaries, under the Act of April 11th, 1848 (P. L. 536). Pleas, non assumpsit, payment with leave, &c. On the trial, before Yerkes, J., the plaintiff testified : “ I am a furnishing undertaker. Mr. Pechin came to my place of business and told me old Mrs. MeClay was dead, and that her daughter, Mrs. Robinson, wanted me to come up. I went to Mrs. Robinson’s house, where Mrs. MeClay died. Saw Mrs. Robinson and received directions from her for the funeral. Mrs. Robinson made all arrangements. She was the only person I knew. u I furnished just what she ordered. I buried Mrs. MeClay from Mrs. Robinson’s house.” Plaintiff then testified as to items of the bill amounting to $95.95. Plaintiff offered in evidence will of Archibald McClaj', father of defendant and husband of decedent, to show that Fanny MeClay had but a life estate in her husband’s estate, and that Mrs. Robinson took real estate under the will. Objected to; objection sustained ; exception. Plaintiff offered to prove by a witness, “that Fanny Me-Clay, the decedent, resided in the family of defendant a number, of years prior to her death, and that said Fanny McChiy contributed all her means to the support and maintenance of defendant’s family.” Objected to ; objection sustained; exception. The Judge thereupon, on motion of defendant, entered a compulsory nonsuit, which the court in banc subsequently refused to take off (Ludlow, P. J., dissenting) ; whereupon the plaintiff took this writ of error, assigning for error the exclusion of his offers of testimony as above; the entry of the nonsuit and refusal to take it off.
108 Pa. 250Knight v. West Jersey Railroad (1885)
An action may be maintained in this state against a foreign coporation (process having' been served here) to recover damages in an action ex delicto, for negligence causing death in another state, where a statute of such state is similar to the Pennsylvania statute authorizing such an action. While the foreign statute has no extra territorial force, rights under it, not contrary to the policy of this state, will, by comity, be enforced by remedies according to the procedure of this state.
108 Pa. 255Peters v. Rand (1885)
Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term, 1884, No. 220. Assumpsit, by Theodore D. Eand, against Emanuel Peters, to recover costs and charges due the plaintiff as commissioner appointed by the Circuit Court for Kent County, Maryland, to take the testimony of witnesses in Pennsylvania, in certain proceedings in equity depending in .said court. Plaintiff claimed as follows:— 413 pages of testimony at 50 cents, . . $206 50 Paid for affidavit 50 cents, half of this, . . 25 Postage $3.50, proportion, . . . . . 2 80 $209 55 The court in Maryland fixed Ms compensation at a less sum. The facts are stated in detail in the opinion of this court. Plaintiff presented the following points 1. If the jury believe from the evidence that the plaintiff’s claim is for labor done and disbursements made under authority and by direction of a commission issued to Mm to take testimony, he cannot sustain such claim upon an implied contract between Mm and the defendant, tbe verdict under pleadings should be for tbe defendant. Refused. (Second assignment of error.) 2. If tbe jury believe from tbe evidence that plaintiff’s claim is for labor done and disbursements made under tbe authority of and by directions contained in a commission to bim to take testimony, issued by tbe Circuit Court for Kent County, in equity, in the State of Maryland, then Ms compensation for sucb labor and disbursements must be governed by tbe laws of that state and tbe orders and decrees made in respect to sucb compensation by tbe court issuing tbe commission, and be can recover no more than sucb laws, orders and decrees allow bim. Refused. (Third assignment of error.) Yerdict and judgment for tbe plamtiff, for the full amount claimed. Defendant took this writ of error, assigning for error, inter alia, tbe refusal of tbe above points.
108 Pa. 258People's Bank v. Etting & Groome (1885)
1. Where goods are in (he possession of a bailee, notice of a pledge thereof by the owner, in order to render the bailee liable to the pledgee, in trover an d conversion, for delivering the goods to a bona fide purchaser from the pledgor who took title discharged of the pledge, must be such as to convey information to the bailee or his authorized agent that the pledgee had loaned or would certainly loan money on the security of the goods. 2. Such notice cannot be proved or inferred from the testimony of an agent of the owner of the goods that at the time he obtained from the bailee’s store-keeper a receipt showing that the goods were on storage (not a “ warehouse receipt”) he told the storekeeper that “ he wanted to borrow money on it,” and “ in his presence ” indorsed such receipt to the order of a third party. Such evidence is insufficient to be submitted to a jury, from which to find such notice to the bailee of a pledge created after the obtaining of such receipt. The pledgee in such case should have protected himself by obtaining the transfer of a formal warehouse receipt, or by giving 'subsequent notice to the bailee of the fact of the pledge.
108 Pa. 264American Steamship Co. v. Landreth (1885)
1. A passenger on a steamship, after a severe storm, attempted to walk from a stateroom to the companion way, but was.thrown down by a sudden lurch of the vessel and injured. At the place where she fell the side of the saloon was finished from floor to coiling by a space of smooth panelling about twelve feet in length, along which there was no guard or railing to use for support. In an action by thfe passenger against the company for damages, alleging negligence on the part of Sie defendants in not having a guard rail at the place indicated : Held, that in view of these facts, taken in connection with the plaintiff’s testimony that she could have saved herself by a rail, and the further .evidence that other steamships had rails in similar places, and that this vessel was afterwards provided with one, the question of negligence on the part of the company was a proper one for submission to the jury. 2. 1 It was also in evidence that the floor of the saloon was wet and slippery at the time of the accident, and that the sea had been running high; but plaintiff testified that the accident was occasioned solely by the sudden lurch and not by the slippery floor, and that there was a lull when she started across the saloon: Held, that the question of contributory negligence on the part of the plaiutiff was properly for the jury. 3. American Steamship Company v. Landreth, 6 Out. 131 adhered to, and held to govern this case so far as applicable.
108 Pa. 270Marston v. Tryon (1885)
In order to maintain, an action to recover the penalty provided by the Act of April 13, 1791, 3 Sm. L. 32, for refusal or neglect by the plaintiff in any judgment to satisfy the same of record after payment thereof, within eighty days after request so to do, it must be shown that the party plaintiff in such judgment was personally requested to satisfy the same. A request made to the attorney-at-law who conducted the suit for the said party plaintiff, is insufficient.
108 Pa. 273Tagg v. Bowman (1885)
Error to the Court of Common Pleas, No. 1-, of Philadelphia county: Of January Term, 1884, No. 234.- Assumpsit, by John T. Tagg to the use of Horace F. Weeks, against Jonas Bowman, to recover certain rents collected by the defendant under a power of attorney from the plaintiff. Pleas, non-assumpsit, payment with leave, set-off, &c. On the trial, before Peirce, J., the following facts appeared: In January, 1877, Tágg purchased from Bowman a piece of land in Montgomery County, and as part consideration gave Bowman a bond and mortgage for $4,666.66, secured upon property, owned by him (Tagg), at the corner of Tenth and Pine streets in the city of Philadelphia. This property was already subject to the liens of two prior mortgages, one for $6,000, to the Philadelphia Savings Fund, and one for $2,500, to the St. Andrews Building Association. As further security to Bowman, Tagg also gave him the following letter of attorney: “ I, John T. Tagg, of the city of Philadelphia, do hereby constitute Jonas Bowman, of Montgomery County, Pennsylvania, my true and lawful attorney for me and in my name, to collect and receipt for the rents due and to become due from Thomas R. Kemp, tenant of the property at the southeast corner of Tenth and Pine streets, in the City of Philadelphia, during the present lease thereof; and out of such rents to pay first the taxes and water rent on said property, then the interest upon the mortgage thereon in the Philadelphia Saving Fund Society, then the interest and dues on the mortgage of $2,500 thereon in the Saint Andrew’s Building Association, and then the interest on the mortgage of $4,666.66 thereon given to the said Jonas Bowman, as the said interests become due, and the balance of said rents, if any, to pay over to me. Witness my hand and seal this thirty-first day of January, A. D. 1877.” In pursuance of this letter, and beginning in November, 1878, Bowman collected about $700 in rents, all of which, with the exception of $19.55, paid for water rents, he applied to his own claim against Tagg, instead of to the objects designated in the power of attorney. On April 4th, 1879, the Pine street property was sold in pursuance of foreclosure proceedings under the Building Association mortgage, whereby the lien of Bowman’s mortgage was discharged. Previous to this sale, however, Bowman had entered judgment on the bond accompanying his mortgage, in Common Pleas, No. 2, of Philadelphia County. This case was first tried in October, 1880, before Peirce, J., when the plaintiff, under his plea of set-off, offered his judgment on the bond in evidence. This was admitted by the court, and a verdict directed for defendant in consequence. Judgment entered on this verdict was afterwards reversed on writ of error to the Supreme Court. (3 Out. 376.) The case again came up for trial before Peirce, J., on October 2d, 1883. The plaintiffs proved the collection of the $700 by Bowman; his failure to apply it according to the terms of the power of attorney, and then closed. Defendant then moved for a nonsuit on the ground that there was interest due on Ms mortgage, and that this being one of the claims to be paid under the letter of attorney, he had' a right to apply the rents thereto. The court thereupon entered a nonsuit, which the court in bane subsequently refused to take off; whereupon the plaintiffs took tlris writ, assigning for error the refusal of- the court to take off said nonsuit.
108 Pa. 278Blair v. Wood (1885)
1. By force of the Act of April 11th, 1848, section 4 (P. L. 536) the estate of a deceased partner becomes liable for the whole debt of the firm of which he was a member, whether the surviving partner be solvent or insolvent. For the purpose of action against the representative the debt is treated as if it were the individual debt of the decedent. 2. So, likewise, in a suit by an administrator for a debt due his decedent, the defendant may set off a debt due him by the firm of which the decedent was a member; and if the set-off exceeds the demand, the jury will certify the balance in his favor.
108 Pa. 283Appeal of Edwards (1885)
While it is within the power of the legislature, by an Act of Assembly, to confer legitimacy upon an illegitimate child, so as to render him capable of inheriting from an ancestor, to the same extent as if he had been born in lawful wedlock, yet it is not possible, by legislation, to alter the fact of illegitimate birth so as to entitle such child to take, by purchase under a limitation in a prior deed of trust to “lawfully begotten children.”
108 Pa. 291Singerly v. Thayer (1885)
Error to the Court of Common Pleas, No. 4, of Philadelphia county : Assumpsit, by Eli Thayer against William M. Singerly. The narr. averred that the said parties had entered into an agreement whereby plaintiff was to put a hydraulic elevator of a certain kind into a building then being erected by the defendant, for the sum of $2800; that plaintiff had in great part performed his part of the agreement, and “ hath always been ready and willing to perform and complete the whole of said work in pursuance of the said agreement ” yet the defendant “ did not nor would permit or suffer the said plaintiff to proceed to complete the said work, and then and there wholly hindered and prevented him from so doing, and did wholly neglect and refuse to comply with his said agreement, and then and there wrongfully discharged and prevented the said plaintiff from any further preformance or completion of his said agreement, promise, and undertaking, to the damage of the said plaintiff” etc. Pleas, non assumpsit, payment with leave, etc., and set-off. On the trial, before Thayer, P. J., the. following facts appeared:— The defendant having in course of erection a large and high building on Chestnut Street, Philadelphia, known as the “ Record Building,” and desiring to put in a passenger elevator, the plaintiff made the following proposition which was accepted by the defendant:— 15th and Market, Phila., Pa., 8,16, 1881. ¥m. M. Singerly, Esq.: I propose to put my patent hydraulic hoist in your new building on Chestnut Street (including a duplex pump worth $800), according to verbal specifications given by your architect for $2,300, warranted -satisfactory in every respect. Yours, Eli Thayer. The plaintiff proceeded to build and put in place the elevator, pump, guides, etc., and when the same was substantially erected, though not completed nor adjusted, defendant requested plaintiff to permit the machine to be used for the purpose of hoisting workmen and material, etc., in the finishing of the top stories of the building. Tins permission was granted, and for about two months the elevator was so used by defendant’s employés. It was not, however, tendered by plaintiff to defendant as a completed passenger elevator, under the contract, and the price-was not demanded. While so used it ran irregularly, “ it went1 from side to side, jarred some, would •stick in the cut-off rings.” One witness, who ran the elevator, in defendant’s employ, for about a month, testified: “ I would take the elevator from the first to-the sixth floor; it would almost drop from the sixth to the third floor, and then it would almost stop, and then go slowly down,” etc. Plaintiff testified that the defects in the running were caused by reason of its unfinished condition,' the arms and guides were to be made plumb, some of the cut-off rings required to be taken out and filed, and it required adjustment. Plaintiff and Ms agent and foreman testified that there was no structural defect, and that it could have been made perfect, if they had had an opportunity to finish it; “ Montjoy (the boss) was to send word when they were ready to have it finished.” Plaintiff testified “ I saw Mr. Singerly once; I was going in to see whether they were through with it, and when we could finish it; he said “Are you the elevator man? I won’t have it; there are no safety ropes and it don’t run smooth. I was amazed; he then moved away and I had no opportumity to say anything.....I was never notified to finish it; never was finished; these defects are always m every elevator; they have to be finished first; I was ready any day to compíete the work; there was no defect which would have prevented its being perfect; whether it would have been satisfactory or not, I don’t know.” Other testimony is quoted in the opinion of this court. In April, 1882, the plaintiff received this letter:— Office of Willis G. Hale, Architect, 518 Walnut Street. Philadelphia, April 18th, 1882. Dear Sir: — Mr. Singerly has made positive decision that he will not have your elevator in his building. He offers you $500 to take your work out at once, and you will please .attend to the matter. Yours, etc., Willis G. Hale. About the time of the receipt of this letter by plaintiff, the defendant’s employees began to dismantle the pump, and very soon afterwards they took out the entire elevator, and stored the parts. Subsequently plaintiff brought this suit. The court charged the jury as follows :— “The meaning of. the contract contained in the written proposal and letter of August 16th, 1881, signed by the plaintiff, is not that the defendant shall be satisfied with the machine, but that it shall be of such a character that he ought to be satisfied with it; that the work shall be done in a workmanlike manner, and that the elevator when completed shall be reasonably fit for the purpose for which it was intended, and shall accomplish the purpose for which it was intended with a reasonable degree of perfection. Then it should satisfactorily perform the work of such an elevator as the defendant ordered. It does not resemble at all the case of a sale of goods on approval. If you buy an article at a store upon approval and it is sent to you, if upon further examination you do not approve it you may return it and will not be bound to pay for it. This contract does not resemble such a purchase. The building of such an elevator in the defendant’s building was a work involving a large outlay of money and the consumption • of much time in the construction. The pump which he furnished for it cost him alone $850. It is not to be supposed that the plaintiff would incur the great expense necessarily attending upon the erection of such a machine, and that the defendant should then be permitted to reject it at his own caprice and not pay for it. The contract does not say that it shall be satisfactory-to him, but that it is “warranted satisfactory in every respect;” that is, that it shall perform its functions in a satisfactory man■ner, but it was not intended that the defendant should be the exclusive judge of that. When such a machine is ordered to be constructed there is always an implied contract that the work shall be done in a workmanlike manner, and that the machine shall be reasonably fit for the purpose for which it is intended to be used; that it shall accomplish the object for which it is erected in a satisfactory manner. Such an implied warranty would have existed in this case if nothing had been said about it in the contract, and the contract expresses no more than would have been implied under such circumstances. “ The objection made to the elevator by the defendant seems to have been that it did not run smoothly, that it vibrated in the guides and moved unsteadily. On the other hand the plaintiff testified that these defects, if they existed, could have been remedied very speedily, and at slight cost, if he had been allowed an opportunity to do it; that at the time the defendant rejected the elevator it had not been completely finished and adjusted. If this is so, if you believe that when the defendant repudiated the machine it had not been finished or adjusted, and that such defects as existed might have been remedied by the plaintiff, if he had been allowed to complete it, and if he was not allowed to complete it by the defendant, then you ought to find a verdict for the plaintiff. , “ A great deal of testimony has been put in about the elevator; you will decide whether it was built in a workmanlike manner and performed the purpose for which it was intended in a manner which ought to have been satisfactory to the defendant ; or if there were defects, whether they could and would have been remedied by the plaintiff if he had been permitted to do so. If so, the verdict should be for the plaintiff. If, on the contrary, the machine did not answer in a satisfactory manner the purposes for which it was intended, or if such defects as existed could not have been remedied by the plaintiff, or if the plaintiff was not deprived of the opportunity to remedy them and failed .to do so, and if the defects were of a character to render the elevator unsatisfactory and unfit to perform the purpose for which it was erected, in a satisfactory manner and with a reasonable degree of perfection, then your verdict should be for the defendant.” Verdict and judgment for the plaintiff for $2,300. The defendant took this writ of error assigning for error the charge of the court as above.
108 Pa. 300Campbell v. City of Philadelphia (1885)
1. The Court of Quarter Sessions has exclusive jurisdiction of the assessment of damages for the establishment of the grade of streets on a confirmed plan, and for a change of regulation thereof. 2. Such damages are a personal claim to be assessed in favor of the owner of property abutting on the street at the time of the injury. The claim for them is ripe when the grade is confirmed, and a subsequent sale of the land before the grading is actually done does not pass the claim for damages to the purchaser.
108 Pa. 304Hambleton v. Yocum (1885)
On a feigned issue to try the validity of a will, a verdict in support of the will was taken under an agreement of counsel of some of the parties, judgment entered thereon, and the will, with certificate of the verdict and judgment, was remitted to the Register, who admitted it to probate. Áfter the expiration of the term at which this judgment was entered, petitions were filed by other parties in interest, alleging that the verdict was taken by collusion, without notice to them and in prejudice to their rights, and praying that the verdict and judgment be set aside and a new trial ordered. The court granted the prayer of said petition and made absolute a rule for a new trial in pursuance thereof, whereupon a writ of error was taken, alleging said action of the court: Held, That the jurisdiction of the Court of Common Pleas was exclusive of the Register; that its judgment was final, not interlocutory, and as fully within the control of the court as any of its records, even though a certified copy of the verdict and judgment had been remitted to the Register: Held, further, That said court had the right to open and set aside this judgment and grant a new trial, for proper cause, even after the expiration of the term at which it was entered: Held, further, That the writ of error would therefore be quashed as premature.
108 Pa. 311Philadelphia Trust, Safe Deposit & Insurance Company's Appeal (1885)
A deed of marriage settlement between A. & B., after providing that A. would not malee any claim to the property of B., his intended wife, except as provided in said deed, conveyed all her real and personal estate to certain trustees, in trust to hold and manage the same for the sole and separate use of B. and pay her the income thereof, and in case A. should survive B. in trust to pay said income to him during his natural life and at his death to pay the same to such of B.’s children as should then be living, if any, during their minority, and to convey the corpus of the estate to them as they became of age; in case there were no such children, nor issue of such children, living at the death of A. “ then in trust for the next of kin of B.” their heirs and assigns forever. If B. should survive A. she was to have the right to change said deed by her will, but if she should die before A. without making a will then the ' trustees were.to convey the estate to her next of kin. B. died before A., and subsequently, their only child C., died during his minority unmarried • and without issue. Afterwards, upon A.’s death B.’s estate was claimed by C.’s administrators for those who were her next of kin at her death, and also by those who were her next of kin at A.’s death. By sustaining the latter claim the estate was kept in B.’s family, otherwise it went to the second wife of A. and the children of that marriage. Held, that by the terms of the marriage settlement, the death of A. was the time to determine the next of kin of B. and that the estate should, therefore, be awarded to the latter claimants, especially as this distribution gave effect to B.’s intention, as shown by the language of the settlement, to pass her estate to those of her own blood.
108 Pa. 314Perkins's Appeal (1885)
Appeal from the Court of Common Pleas, No. 1, of Philadelphia county. This was an appeal by Samuel C. Perkins from a decree of said court sustaining the exceptions of certain parties to the report of an Auditor in the distribution of the fund in the hands of the appellant, as substituted trustee under a marriage settlement. The facts were as follows: By a settlement executed in 1838 upon the marriage of John F. White and Carolina Peace, certain property of the latter was conveyed and transferred to Joseph Peace and Edward Peace, in trust for the uses and purposes therein expressed. Joseph Peace died in 1845, and Edward Peace, the surviving trustee, died September 10th, 1879, and on March 13th, 1880, Samuel C. Perkins was appointed by the court substituted trustee under the said marriage settlement, and entered security, as required, in the sum of $20,'000. Neither of the former trustees had ever filed an account, but in 1882 the account of Edward Peace, as trustee, was filed by his exdcutors, and was referred to an Auditor. At this audit Mr. Perkins took an active part in the investigation of the account, which was a voluminous one, extending from 1838 to 1879, a period of forty years; the Auditor of that account stating in his report that the services rendered by Mr. Perkins as succeeding trustee involved on his part “a degree and. character of skill and attention such as would ordinarily have been performed by a professional adviser, as being over and beyond the duties strictly pertaining to the office of a trustee.” The account of Mr. Perkins, as trustee, was filed June 14th, 1883. In it he claimed credit for commissions at the rate of five per cent, upon income (about $225), and in his account of principal he claimed the following credits: For professional services before his appointment as trustee, including drawing petition, &c., for his appointment,.......$100 For compensation as trustee, .... 1,500 Before the Auditor (Charles W. Beresford, Esq.), appointed to audit this account, certain parties who claimed to be entitled to the fund as next .of kin of Carolina P. White, formerly Peace, deceased, objected to the above two items of credit in the principal account, on the ground that the professional services charged for in the first item were not rendered to the estate, but-for the benefit of the beneficiary for life, John F. White; and that the charge for compensation as trustee was excessive. The Auditor, however, allowed the credits, holding that a trustee who was also a lawyer, who rendered services of a professional character was entitled to compensation therefor, in addition to compensation for Ms services as trustee ; and that the compensation claimed in both capacities was reasonable, in view of the services rendered to the estate in such capacities. Exceptions filed to these rulings of the Auditor were sustained by the court, and commissions on the principal and income of the estate at the rate of five per cent, were allowed the trustee for all services rendered. No opinion was filed. The trustee thereupon took tliis appeal, assigning for error the said decree.
108 Pa. 319Providence Steam & Gas Pipe Co. v. Chase, Bartholow & Co. (1885)
Error to the Court of Common Pleas No. 1, of Philadelphia Qounty: Of January Term 1884, No. 276. This was, in the court below, a contest over a fund derived from a sheriff’s sale of certain real estate known as Brown’s ■ Mills in the City of Philadelphia which was sold under a mortgage, the fund paid into court, and E. Greenough Platt, Esquire, was appointed Auditor to make distribution of the same. By agreement of counsel $6,500, of the fund were set aside to abide the determination of a contest between certain parties claiming to have liens thereon, and the remainder distributed immediately. On February 24th, 1883 the Providence Steam and Gas Pipe Company, one of said lien claimants, presented to the Auditor in writing its request, in accordance with the Acts of Juné 16th, 1836 and April 20th, 1846, for an issue to determine alleged disputed facts. This request was returned to the court by the Auditor and after being amended by the said company, the court referred a rule for an issue to the said Auditor, who on April 21st, 1883 reported adversely to the awarding thereof. To this report the company filed exceptions. On May 5th, 1883 the rule for an issue was discharged, and on the same day the company filed a more definite written request for an issue accompanied by an affidavit that there were material facts in dispute and setting out those facts at length. The Auditor reported this last mentioned request to the court and on May 12th, 1883 it was marked “filed ” in the court docket. On May 19th, following, this last application for an issue was also refused by the court and a few days later the company filed exceptions to this refusal. In June 1883 the Auditor filed his report awarding the entire fund to Chase et al., lien claimants other than said company. Exceptions filed by the latter to this report were dismissed and the same confirmed absolutely September 2lst, 1883, and the fund was distributed by order of court on December 8th, 1883. In "January 1884 the said The Providence Steam & Gas Pipe Company took this writ of error, and a certiorari was also issued the same day. The errors assigned were, the rulings of the court below in refusing the issue demanded; and the decree excluding the company from any share of the fund.
108 Pa. 325Quein v. Smith (1885)
1, of Philadelphia county: Of January Term 1884, No. 276. Held: Quein being present, at which it was resolved that the “interest of all parties, stockholders as well as creditors would be best served by the affairs of the association passing into the hands of a receiver,” and on April 7th, 1881, the annual meeting of the stockholders was held at which the appointment of a Receiver was determined…
108 Pa. 332Ryan v. Ulmer (1885)
Error to tbe Court of Common Pleas, No. 3, of Philadelphia county: Of January Term, 1884, No. 290. 1 Assumpsit, by Jacob Ulmer against Wiliam Ryan and-Thomas J. Ryan, trading as William Ryan & Son, to recover ■ damages for a breach of an alleged implied warranty of certain meat sold by the defendants to the plaintiff. The narr. was in the following form: “.....That in consideration that the said plaintiff at the special instance and request of the said defendants would buy of the said defendants a large quantity of cured pork for the food of man at and for a certain price or sum of money, to wit, &c., to be therefor paid by the said plaintiff. They the said defendants undertook and then and there faithfully promised the said plaintiff that the said cured pork then was good, sound, sweet, merT chan table and wholesome and in a condition fit for human consumption. And the plaintiff avers, that he, confiding in the said promise and undertaking of the said defendants, did afterwards, to wit, &c., buy the said cured pork of the said defendants, and then and there paid him for the same, the said sum of money, nevertheless the said defendants contriving and fraudulently intending to injure the said plaintiff did not perform or regard their said promise and undertaking so by them made as aforesaid, but thereby craftily and subtly deceived and defrauded the said plaintiff in this, to wit: that the said cured pork at the time of the making of the said promise and undertaking of the said defendants was not sound, sweet, merchantable and wholesome and in a condition fit for human consumption, but on the contrary thereof was at the time unsound, not sweet, unmerchantable, and not in a condition fit for human consumption, whereby the said cured pork became and was of no use or value to the said plaintiff; and he the said plaintiff hath been put to great charges and expenses of his money in and about the said cured pork for payment of freight thereon, in taking care thereof, in making allowances for the worthless quality thereof to persons to whom he had sold a portion of the same, in the whole amount to a large sum of jnoney, to wit: the sum of five hundred dollars, at Philadelphia county aforesaid.” Pleas, non-assumpsit, payment with leave, &e., and set-off. On the trial, before Finletter, J., the facts appeared as follows: William Ryan & Son were pork packers at Dubuque, Iowa. Jacob Ulmer, the plaintiff, was in the same business and conducted a meat smoking establishment at Pottsville, Pa. Roloson, a provision broker in Chicago, as agent for both parties, negotiated a sale from Ryan to Ulmer of certain pork, from which this controversy arose. On August 3d, 1881, Ryan & Son wrote to Roloson, “You may offer five car loads fully cured pickled shoulders, average not above twelve pounds, at not below six and one half cents, f. o. b., Dubuque.” On August 9, 1881, Roloson, in pursuance of an order from Ulmer, bought for him two car loads of the shoulders referred to in this letter of instructions and reported the sale to Ryan & Son. “ I sold to-day two cars S. S. (sweet pickled) shoulders. Make them 12 ave. if you can at $6.85 f. o. b., Dubuque. Ship them to my order, Pottsville, via. Star Union line; better ship about 12th to 14th.” . The pork was shipped on August 16th, 1881, to order of R. W. Roloson, Pottsville, and the hill of lading was sent him. On its receipt,on August 17th he drew on Ulmer for the price and charges, $2,808.19, and attached to the draft the bill of lading and invoice. The draft arrived at Pottsville on August 19th, and was paid by Ulmer, who received the meat afterwards, on August 23d. When opened the cars were found to contain about five hundred pounds of ice. The meat was packed in tierces, some of which were full of pickle and some about one third or one half full. The pickle was thick and ropy, instead of being thin, an indication that it had been kept too long. The meat was placed in Ulmer’s refrigerator, where the temperature was from 40° to 46°. Some of the meat was unpacked and after soaking placed in smoke. In the course of the next day and the day following the meat was found to be sour and unfit for use, and then the remainder was found to have spoiled also. Nearly all was returned by Ulmer’s customers, and the total loss incurred for freight, return charges, &e., amounted to $1,239.59. The defendants showed that the meat before shipment was inspected by their own inspector, Thomas Duffy, who testified that at that time the meat was sound, sweet, merchantable and fit for human consumption. That sufficient ice was packed in the ears to last until they reached Chicago. It did not appear whether or not they were re-iced at that place except from the fact that they were found on arrival at Pottsville to contain at least the usual quantity of ice. The plaintiff, Ulmer, was pffered as a witness to show: “ That on arrival of this meat at Pottsville, on opening of the cars, the cars were found to coutain a considerable quantity of ice; that the meat being taken out of the cars, opened and prepared for smoking and smoked it was found to be bad, unmerchantable meat ;■ that other parts of the meat were prepared for smoking and found to be bad before smoke; that other was treated in different ways, in order to avoid the bad smelling of the meat, and others were not smoked at all. In other words, the had quality of the meat, and if the meat had been sound and merchant-an table when it left Dubuque, and some of the ice remaining iu the cars on its arrival at Pottsville, it would have been good.” Objected to and objection overruled. This with other similar offers of expert witnesses, formed the subject of the 1st to ] 2th assignments of error. The court charged inter alia, as follows:.....The plaintiff’s claim in this case is for damage which he has suffered by reason of the meat being unsound when he received it. The terms of the contract under which these parties acted have been offered in evidence, and they are comparatively simple. It is, however, for me to give an interpretation of that contract so far as the legal responsibilities of the parties are concerned and to give that in brief, it is this : — that the defendant was bound to furnish under the terms of the contract meat that was sweet and sound and in fit condition to be sold in the trade. Therefore the only question that you will be called upon to consider in this case is the condition of the meat at the time it was put upon the cars at Dubuque. I do not intend to enter at all events at any length, into the consideration of the facts in this case. They are entirely for you, but all the testimony that has been given on either side is and ought to have been directed to that particular question — was or was not the meat sound when it was put upon the cars at Dubuque. In considering a question of this kind of course it is proper that facts antecedent to that time should be considered by the jury, and facts subsequent, because they may have a very important bearing upon the question. Therefore all that we know in relation to this shipment of meat, all that has been said about it here, is proper for your consideration, but all for the express purpose of ascertaining its condition at the time of shipment. .....If upon the testimony- you are satisfied that tins meat was in an. unsound condition when it was'put upon the cars at Dubuque, your verdict, of course, ought to be for the plaintiff, and as there is no dispute upon the question of the amount of damages, of course you will not be troubled in ascertaining what that is, because I understand it is conceded that .if the plaintiff recovers he is entitled to recover the amount specified by the witnesses on the stand — about $1,200. If, however, on the other hand, this meat was put upon the cars in proper condition, sweet and sound, then your verdict must be for the defendant. Verdict for the plaintiff for $1,239.59 and judgment thereon. Whereupon defendant took this writ assigning for error the admission of the evidence noted above, and also 13. The court erred in entering judgment for plaintiff below, because the contract proved on the trial was substantially a different contract from that averred in the narr. 14. The court erred in entering judgment for plaintiff below, because there was no sufficient evidence of the contract of warranty. 15. The court erred in entering judgment for ■ the plaintiff below, because there was no evidence of a breach of contract proved at the trial of the cause.
108 Pa. 339Appeal of Fidelity Insurance Trust & Safe Deposit Co. (1885)
1. The design of the Act of April 27th, 1864, (P. L. 641) was to place the parties upon a relative equality as to the necessary expenses of effecting a partition. The Act intended that those expenses should include not only the docket costs proper, as fixed by the equity foe bill, but also a reasonable allowance (which must be fixed by the court below) for plaintiff’s counsel fees, graduated according to the nature and extent of the services necessarily rendered for the common benefit of all. 2. The “reasonable allowance” for counsel fees does' not include fees to plaintiff's counsel for conducting adversary proceedings, resulting from a defence to plaintiff’s demand for a partition, or from any other cause.
108 Pa. 344Wilson's Appeal (1885)
Appeal from the Orphans’ Court of Philadelphia County: Of January Term, 1884, No. 303. Appeal of Ellwood Wilson, Jr., and Emily Y. Wilson, his wife iii right of said wife, from a decree of said court sustaining exceptions filed on behalf of the executrix of Lewis A. Truefitt deceased, to. the adjudication of the account of the Phila. Trust Safe Deposit & Insurance Co. substituted trustees, under the will of Frances Y. Truefitt. Frances V. Truefitt died, testate, leaving a husband, Lewis A. Truefitt, and an adopted daughter, Emily V. Truefitt, subsequently intermarried with Ellwood Wilson, Jr. By her will, the testatrix bequeathed the residue of her estate to trustees, in trust to pay one half the net income to her husband for life, and to apply the remaining half, and after the death of her husband, the whole of said income, to the maintenance and education of her adopted daughter, until the arrival of the latter at the age of twenty-one years, and thereafter to pay over the said income to said adopted daughter for life — with remainder to her children. Lewis A- Truefitt died December 27th, 1882, and the question which arose at the audit was whether the semi annual interest which was due April 1st, 1883, on certain bonds of the city of Pittsburgh, and certain other bonds of the Reading Coal & Iron Company, and which were part of the residuary estate, should be paid in full to Emily V. Wilson, or divided between her and the executrix of Lewis A. Truefitt. The auditing Judge held that this interest on said bonds was not apportionable and awarded it all to Mrs. Wilson; but upon exceptions filed to this adjudication the court in banc decided that said interest was apportionable, and entered a decree dividing it between Mrs. Wilson and the executrix of Mr. Truefitt; whereupon Elwood Wilson, Jr., and Emily V. his wife, in the right of the latter, took this appeal assigning for error the decree of the court.'
108 Pa. 349Moore v. Philadelphia, Wilmington & Baltimore Railroad (1885)
Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term, 1884, No. 311. Case, by Alexander Moore against the Philadelphia, Wilmington & Baltimore Railroad Co. to recover damages for bodily and mental injuries received by the plaintiff, through the alleged negligence of the defendants’ servants. On the trial the following facts appeared from the plaintiff’s evidence : — The plaintiff was injured at a public railroad crossing at Thirty-First Street and Gray’s Ferry Road, Philadelphia. As he approached the crossing in daylight on a clear day, he stopped and looked in both directions and saw nothing approaching except -a passenger train which was just reaching the crossing on the track furthest from him. He crossed the first track and waited there between two trades for the passenger train to pass. While standing in this position one of defendants’ engines with the tender foremost came down the track which he had just crossed, and struck the plaintiff injuring Mm severely. Plaintiff testified, inter, alia, as follows: “ I got between the two tracks and waited for the passenger train to go past. An empty engine backed upon the other track, and struck me. That was while I was waiting for the passenger train to pass. I didn’t see the engine backing up. There was no notice given of it. There was no whistle blown or bell rung. I didn’t see the engine when I went to cross. I didn’t see it at all. I looked down and up, both. I saw one passenger train and waited for it to pass. The other one I didn’t see at all. I didn’t hear it at all. The engine struck me in the left side and over the left eye — the brow.” It was also given in evidence that from the place where plaintiff stood, between the tracks, there was a clear view of the track for half a mile in the direction from which the engine came. Upon this evidence the judge granted a compulsory non-suit which upon argument the court refused to take off; whereupon the plaintiff took this writ assigning for error the refusal of the court to take off the nonsuit.
108 Pa. 354M. Thomas & Sons v. Cummiskey (1885)
Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term, 1884, No. 312. Case, by Maria G. Cummislcey, administratrix of Eugene Cummiskey, deceased, against Thomas S. Ellis and Napoleon Á. Jennings, lately trading as M. Thomas & Sons, to recover the value of certain books destroyed by fire while in the custody of the defendants as auctioneers.' On the trial, the following facts appeared: In February, 1882, Dr. James Cummiskey, as agent for the plaintiff, deliVr ered certain books to the defendants for sale at auction. Part of them were sold on February 28th and March 1st, 1882, and the remainder held for future disposition. Those remaining unsold were left in the store at the instance of S. S. Ellis, who was not a member of the firm, but had general-charge of the book department; and who, when Dr. Cummiskey spoke of having the books insured, told him that the defendants carried' sufficient insurance tó cover all the goods in the establishment, including these books. On July 1st, 1882, defendants’ store was destroyed by fire ' with its contents, including plaintiff’s books. After the fire, it transpired that the defendants had $12,500 insurance on both the goods owned by them and those held by them in trust and on consignment. The loss being in excess of tins amount, the entire sum of $12,500 was paid to the defendants by the insurance companies. Some time afterwards, Dr. Cummiskey received a communication from the defendants, offering him $199, and on application to them to know what it meant he was referred to Mr. Keele, an employe, who informed him that as the insurance was not enough to cover all claims, they would apportion it, and give him $199. This offer Dr. Cummiskey refused; and his principal, Maria G. Cummiskey, administratrix, brought suit for the value of the books destroyed. •Plaintiff offered Dr. Cummiskey’s testimony of his conversation with S. S. Ellis in regard to leaving the books in the store. Objected to by defendants on the ground that the plaintiff had not shown that Ellis was authorized to bind the firm. Objection overruled and evidence admitted, as follows: “ I then went to see Mr. S. S. Ellis. Mr. S. S. Ellis was the one who settled the account sales with me. Not member of firm. Did not suppose him member of firm. He seemed to have general charge. I saw Mr. S. S. Ellis and I told-. I saw Mr. S. S. Ellis, and asked him what he would charge for storage for the goods, and -he replied nothing. I then asked him what about insuring them, as I had thought of insuring them. He replied what is the use of doing that, we carry a line of $50,000 on our stock, but if you do not think it is sufficient you can insure them. I told him I thought that was ample, and left feeling secure.” (First assignment of •error.) Plaintiff also offered Dr. Cummiskey’s evidence of his conversation with Ellis after the fire; which was objected to for the same reason. Objection overruled and evidence admitted as follows: “ Shortly after the fire I saw Mr. S. S. Ellis and ,he said-. I saw S. S. Ellis about the fire and he said I ■had better send on my account of books destroyed, and he ■would have the matter settled. I asked him what price would be put in. I did not get a satisfactory reply. I made out the ■account.” (Second assignment of error.) Stan. Y. Henkels, also employed by the defendants in the book department, was called by plaintiff in regard to an interview between Dr. Cummiskey and S. S. Ellis. Objection by defendants on same ground. Objection overruled and evidence admitted, as follows: “Dr. Cummiskey saw Mr. Ellis in my presence and told him he would like to place an insurance on his books. Mr. S. S. Ellis said it was not necessary, for we carry $50,000 insurance, which is sufficient to cover all goods in the place; that is all I remember of the conversation. Dr. Cummiskey said that .would be sufficient, and that he would leave the books there. He did leave them and they were burned up July 1st, 1882.” (Third assignment of error.) The defendants submitted the following points: “1. If the jury believe that Samuel S. Ellis said to Dr. .Cummiskey, when the latter said he thought of insuring: .‘What’s the use of that? We carry a line of $50,000 on our stock; if you don’t-think that’s sufficient you can insure,’ this did not amount to an agreement on the part of the firm to indemnify the plaintiff for loss of goods by fire.” Answer. — -“Affirmed. This alone does not amount to an .agreement.” (Eighteenth assignment of error.) . “ 2. That if the plaintiff, in suing for indemnity, on account <>f the loss by fire, relies only on what was said by Samuel S. Ellis, according to Dr. Cummiskey’s testimony, and that of Mr. Henkels, no agreement of the firm to indemnify the plaintiff has been shown.” i. Answer. — “Affirmed. If that only was in the case.” (Nineteenth assignment of error.) “ 3. That it is not disputed that Samuel S. Ellis was not a .member of the firm. He was merely a clerk, and there has .been shown no authority in him to bind the firm by any agreement .to indemnify the plaintiff.” Answer. — Refused. (Twentieth, assignment of error.) “4. That if the jury believe that Samuel S. Ellis was empowered, as the clerk in charge of the book department, to superintend sales, make out accounts and pay sales, and that these were all his duties, then his authority was not adequate to the making of an agreement to indemnify the plaintiff set up in this case.” Answer. — “ Affirmed. If these were all his duties, he had not sufficient authority to make an agreement to indemnify the plaintiff.” (Twenty-first 'assignment of error.)- “ 5. That there has been shown no express contract by the defendants to indemnify the plaintiff on account of the loss of the goods by fire.” Answer. — Refused. (Twenty-second assignment of error). “ 8. That the goods of the plaintiff are not shown to have •been covered by the two policies of insurance in evidence:” Answer. — Refused. (Twenty-third assignment of error.) In the general charge the court instructed the jury, inter alia, as follows: “ Where the business is of a public nature, where it is such as to invite the entire community into communication then there is perhaps not so much evidence required to satisfy you of the authority of an agent to act, as there is where a man in his private and individual transactions is operating with a private individual, or where a person professing to be an agent is acting for one private individual with another. This business in which the defendants, as you have heard, have been engaged for fifty years, is that of auctioneers —that is, the business of selling goods to the public by public outcry and vendue.” (Fourth assignment of error.) “ Not so much evidence of authority would be required in the case of a general employment, such as that of the defendants, as would be needed in the case of a private transaction between a private person and another. As a matter of course, it cannot be expected, where there is an extensive business like this, probably the largest of the kind in the United States, embracing every kind of goods that are sold at second hand, books, pianos, etc., and every conceivable thing, that in every transaction with their customers, those who deal with then:, those who consign goods to them, and those who buy goods, the head of the firm or the members tff the firm can see to and attend to all the details of? the business. Therefore it is necessary, as they have shown by their own testimony, not onijr to have agents, but to have departments; that is, a department for one subject and a department for another. As far as this case is concerned, there was a department for the sale of books. It is in evidence that Mr. Ellis was head of that department, and that as such he had the exclusive custody and control of the books.” (Fifth assignment of error.) “ In other words, that department, as you have learned from the testimony, was to a certain extent independent of all other departments. As head of that department Mr. Ellis had authority to sav anything touching the safe custody and sale of books and the insurance of those who dealt with him in books against loss or damage by fire.” (Sixth assignment of error.) “I have said what it was the duty of Dr. Cummiskey todo. He had also a right to ask the agent of the defendant, Mr. Ellis, who had charge of his property, or the property for which he was agent, any questions touching the protection and safety of the books and touching their insurance against loss by fire.” (Seventh assignment of error.) “ The policies of insurance show that the firm had an insurance which covered these particular books together with goods of their own, and those of other customers, or other persons, who made consignments to them or gave them goods to take care of or sell for them.” (Eighth assignment of error.) .“If the information that was sought on that occasion by Dr. Cummiskey and communicated by Mr. Ellis was' calculated to advance or increase the business of the defendants and induce the public to leave goods there, it was the duty of Mr. Ellis to make known the information.” (Ninth assignment of error.) “If the defendants, after the fire, requested or invited Dr. Cummiskey to present an account, it is evidence that the defendants made the agreement to insure through Ellis, or that they ratified the arrangement already made.” (Tenth assignment of error.) “ And, of course, if the jury believe that they acquiesced in Ellis’ statement it is just as strong as if they had given him written power and authority when they appointed him head of that department to make such a statement to customers or dealers with the firm.” (Eleventh assignment of error.) “There is, however, another matter which the jury and the court are compelled to consider in this case, that is, if the jury are against the plaintiff upon all the questions that I have suggested as to the authority of Mr. Ellis, and other matters pertaining thereto, there is this most important point. There is evidence, the evidence of two policies of insurance, which shows that the defendants received a certain amount of money from the insurance companies. The policies show for exactly what purposes they received that money. In substance, it was for goods which they themselves owned, for goods which they held in trust and for goods which they held from their customers. It is not contested, I think, by the defendants, that the goods in question were consigned by Dr. Cummiskey to them, and that they were held in trust by them. The defendants, therefore, must account to the plaintiff for this money. The defendants must show that she is not entitled to receive all of this.” (Twelfth assignment of error.) “ As this money was many times larger than the plaintiff’s claim the defendants must show that she was not entitled to receive all of the money, or at most only a portion of it. It is in evidence that they tendered either as an offer of compromise or as a gratuity, §199. Have they shown what was done with the rest? Have they shown that the plaintiff was not entitled to receive more? Have they shown that any one else ■was interested in the money which they received from the insurance company ? It is not enough for the defendants to say that that was plaintiff’s share of what.was left. They must show how they used the money; what was paid to themselves; what gbods others had. They must show how much in value of goods they held in that establishment. They must show in detail how much in value of other people’s goods they had in addition to those of Dr. Cummiskey. They were trustees of that- fund whatever it amounted to. They were trustees under the terms of the policy of insurance for themselves, for goods they held in trust, and for goods they held on consignment from the plaintiff. It was their duty to account for the money, to show a detailed statement of how it was distributed if they would desire or did desire to pay the plaintiff a less amount than his claim.” (Thirteenth assignment of error.) “ Have they done anything of this kind ? Have they shown how much goods they had there or how much they lost? Have they shown how much goods of their customers to whom they have said they paid a portion of the money which they received, they had. there. Until they have done that, gentlemen of the jury, there are-no data from which a jury cau infer that they paid anything. It is not, as I have already said, enough for them to say that we paid ourselves first, and we distributed what was in excess of our claim as a gratuity. , They could not have obtained the money from the insurance companies if these goods were not covered without a fraud upon the insurance companies; because if the interj>retation which their counsel has put upon these insurance policies was that no goods were covered bjr it except their own, it would have been a fraud on the insurance company for them to have received one cent above the amount of their insurance.” (Fourteenth assignment of error.) “ No one, perhaps, in the course of the trial, has ever described the defendants as anything but honorable and fair dealing men. Therefore yon may take the defendants’ integrity as an answer to the argument of their counsel on these, policies.” (Fifteenth assignment of error'.) “ Have they shown' how they appropriated this money ? It was their duty to do that. Whenever a man holds money or property in trust, it is not enough for him to say, I paid this out to a party that had a right to it. You or Í, or any other man, who has the slightest interest in a fund of that character, a trust fund, have a right to receive a fair and proper account of the manner in which money of that kind has been distributed, and that more especially, gentlemen, when they ask to decrease your money or to pay you a less amount than you had thought yon had a right under all the facts of the case to demand from them.” (Sixteenth assignment of error.) “In a case of this kind it is not an easy matter, no matter what theory you adopt, to give exact justice between the parties. It must in any event be a sort of guess or a sort of calculation from the testimony, because the evidence upon which you are to base your verdict is of an uncertain kind and character.” (Seventeenth assignment of error.) Verdict for plaintiff for #574.35 and judgment thereon : whereupon the defendants took this writ assigning for error, the admission of evidence, as above set out; the answers to their points and the parts of the general charge cited.
108 Pa. 362Bradlee & Co. v. Whitney & Kemmerer (1885)
4, of Philadelphia county: Of January Term, 1884, No. 333. Amicable action, submitted to a referee without the intervention of a jury, under the Act of May 14th, 1874, in which W. B. Whitney and M. S. Kemmerer, trading as Whitney & Kemmerer, were plaintiffs, and Thomas F. Dixon and William Gerhard, trading as Bradlee & Co., were defendants, to recover the price of a cargo of coal.
108 Pa. 369Pennsylvania Railroad v. Garvey (1885)
Á., with his wife and another woman, approached a railroad crossing where there were five tracks. The party stopped, looked and listened, hut neither saw nor heard any approaching train. Thereupon they started across, the women a little ahead, carrying an umbrella. When the women got on the fourth track they saw a passenger train approaching close upon them. They hurried over and were uninjured. A., just behind them, was struck by the engine and killed. The track was straight for some distance each side of the crossing. There was a freight train standing just alcove the crossing, on the fifth track, with an engine attached, from which were issuing smoke and steam. The evidence was conflicting as to whether the bell was rung or whistle blown on the passenger engine. In an action by A.’s wife against the company for damages: Held, That the question of A.’s negligence was one of fact for the jury, and that the court committed no error in refusing to charge, as a. matter of law, that A. was guilty of contributory negligence.
108 Pa. 372Wright v. Darlington, Runk & Co. (1885)
1, of Philadelphia, county : Of January Term, 1884, No. 244. Case by Joseph G. Darlington and William M. Bunk, trading as Darlington, Bunk & Co., against William H. Wright, sheriff, to recover damages for an alleged false return by said sheriff to a writ of foreign attachment.
108 Pa. 377Leiper's Appeal (1885)
2 of Philadelphia county: Of January Term, 1884, No. 808. This was a bill in equity filed by Mary B. Leiper and James G. Leiper in right of the said Mary against Charles Kane, administrator of E. Ii.
108 Pa. 384Yard v. Pancoast (1885)
1. Where no exceptions were taken in the court below to the matters assigned for error, the Supreme Court will not review the judgment. 2. The court below, on the trial of a cause, directed the jury to find for the plaintiff, and reserved a point, “whether upon the evidence the plaintiff was entitled to recover,” but no exception was taken by defendant to the form of the reservation, and judgment was afterwards entered on the verdict, to which no exception was taken. The defendant took a writ of error, and assigned as error the form of the reservation and the judgment: Held, that the Supreme Court could not, on such a record, review the correctness of the judgment.
108 Pa. 386Carroll v. Burns (1885)
1. A testatrix devised real estate mito lier “ three daughters, to have and to hold to them during thfeir natural lives, and alter their death then to the lawful issue of her said three daughters and the heirs and assigns of such issue Held, that the devise was within the operation of the rule in Shelley’s Case, and definitely vested in the daughters an estate-tail, which was converted into an estate in fee simple by virtue of the Act of April 27th, 1855, (P. L., 368.) 2. Technical words, or words of a definite meaning in a will, must be construed according to their legal or definite effect, unless from other inconsistent words in the will it be clear that the testator intended to use them in some other definite sense. 3. The rule is unquestioned that prima facie in a will, the word “ issue” means “ heirs of the body,” and will be construed as a word of limitation, unless there be explanatory words showing it was used in a restricted sense. 4. The clause, to the “ issue of my said three daughters and the heirs and assigns of such issue,” is the equivalent for “ issue and their heirs and assigns.” 5. Robins v. Quinliven, 79 Pa. St., 333, explained and distinguished.
108 Pa. 395Yardley v. Cuthbertson (1885)
1, of Philadelphia county : Of January Term, 1883, No. 382. This was an issue devisavit vel non, framed by order of the said court, upon a precept issued from the Orphans’ Court of Philadelphia county, to' determine the following questions, viz.: 1. Whether a certain writing dated December 2d, A. D. 1876, is a codicil to the will of said John L. Neill, deceased. 2.
108 Pa. 466Haddington Methodist Episcopal Church v. City of Philadelphia (1885)
Error to the Court of Common Pleas, No. 2, oí Philadelphia county: Of January Term, 1884, No. 411. The record in this case showed the following: 1873. Municipal claim for paving, filed by the city of Philadelphia to the use of John Sunderland against the Haddington Methodist Episcopal Church, owner, and a lot of ground at the northeast corner of Haverford and Sixty-seventh Streets in the 'city of Philadelphia, containing in front on Haverford street 61 feet, and in depth 300 feet. 1877, March 12th. Scire facias sur claim. Made known by posting and advertising, and nihil habet as to defendant. 1877, October 1st. Judgment for want of an affidavit of defence. 1882, October 4th. Scire facias to revive judgment. Nihil habet. 1882, December 28th. Alias scire facias to revive judgment. Nihil habet. 1883, January 20th. Judgment fox want of an affidavit of defense, on two returns of nihil habet. -Rule to strike off judgment. --Rule discharged. The defendant thereupon took this writ of error assigning for error the entering of the said judgment of January 20th, 1883. The scire facias to revive and alias scire facias to revive were in the ordinary form of writs of scire facias to revive a judgment, but specifically referred to the lot against which the claim had been filed, as the premises of which the debt was to be levied. There had been no change in the ownership of the lot in question.
108 Pa. 473White's Appeal (1885)
Appeal from the Court of Common Pleas No. 3, of Philadelphia county: Of January Term, 1884, No. 397. Bill in equity, by Alexander M. White, for John Hill, his assignee, against John F. Davis. After answer and replication filed, an examiner was appointed to take testimony. The parties then filed an agreement in writing to submit the matters in controversy to arbitrators, whose award, when filed, should be final. Pending this reference the plaintiff obtained a rule to show cause why the reference to arbitrators should not be set aside, which rule the court discharged. Plaintiff then filed a formal revocation of the agreement to submit to arbitrators and gave notice thereof to the arbitrators and to defendant. The arbitrators subsequently filed an award in favor of defendant. Plaintiff took a rule to strike off the agreement of submission and the award, which rule the court discharged, and entered a decree confirming the award. Plaintiff then took this appeal, assigning for error the discharge of said rule and the decree.
108 Pa. 474Fire Ass'n v. Rosenthal (1885)
Error to tbe Court of Common Pleas No. 3, of Philadelphia County: Of July Term 1884, No. 16. This was an action of covenant on -a policy of fire insurance by Solomon Rosenthal against the Fire Association of Philadelphia. There was no dispute as to the facts, which are fully reported in the opinion of this court. In brief, there was a partial loss by the burning of the frame portion of the insured building, and the defendant company elected, under a provision of the policy, to repair and rebuild', but after beginning work the building inspectors forbade the erection of a frame structure. After delay the plaintiff rebuilt with brick, and sued to recover the cost, and damages for delay and consequent loss of rents, &c. The defendant presented the following points:— 1. That the plaintiff cannot, in any event, recover more than the cost of putting the property in the same condition that it was in before the fire occurred; and if the burnt portion' of the house was built of frame or wood, there can be no recovery beyond the value or cost of such frame or wooden structure. 2. That even if the defendants did elect to re-build instead of paying the loss in money, they were relieved from any obli gations which might arise from such election, if • the building inspectors prohibited them from re-building the house as it was before the fire. 3. If the jury find that a bona fide offer was made to repair the loss sustained for the price of $649, and that the repairs or re-building in wood could have been procured for this sum under such offer if there had.been no prohibition by the building inspectors — that a payment of such sum by the defendants would be a compliance with their undertaking and a discharge of their liability. All of which points were refused by the court. The substance of the charge of the Court, as given’ in the paper book of plaintiff in error was as follows :■ — • “ At the conclusion of the trial the learned judge said that he would charge the jury that the defendants were liable for the cost of repairing with brick. Also, for rents lost through their failure to carry out their undertaking to repair, and further suggested that if there be no dispute as to the amount of the plaintiff’s claim upon that basis that a verdict be taken 1 herefor, which was done with the defendants’ approval, subject to their exception to the failure to charge as requested; the defendants also excepting to the instruction to find a verdict for the cost of repairing with brick, and the instruction to find a verdict for loss of rents.” Verdict for plaintiff for $1,411.60, and judgment thereon. 'Che defendant took this writ of error, assigning for error the í efusal of their points and the instruction given in the charge.
108 Pa. 481Forrest v. Nelson Bros. (1885)
2, of Philadelphia County: Of January Term, 1884, No. 425. This was, in the court below, a feigned issue under the Sheriff’s Interpleader Act, in which John Forrest was plaintiff, and .Thomas S. Nelson et al., trading as Nelson Bro’s. & Co., were defendants to determine the ownership of certain looms, levied on by the sheriff, as the property of Chas.
108 Pa. 489Fow v. Roberts (1885)
2, of Philadelphia county: Of July Term, 1884, No. 17. Case, by George Fow against Elizabeth Roberts. On the trial, before Mitchell, J., the following facts appeared: The plaintiff owned and occupied the house No. 1133 Marlborough Street, in the city of Philadelphia. Immediately adjoining on the north are certain premises owned by defendant, and leased to certain tenants.
108 Pa. 492Appeal of Fidelity Insurance Trust & Safe Deposit Co. (1885)
A testatrix bequeathed to A “eighty-one shares of Provident Life and Trust Company of Philadelphia now standing in my name on the books of said company.” The will was executed February 21st, 1881, when the testator owned eighty-one shares of the stock mentioned. In February, 1882, the Provident &e. Company increased their capital from $500,000 to $1,000,000, and also increased the par value of their stock from $50 to $100, giving to their stockholders the option to subscribe before December 15th, 1888, at par for an amount equal to their holdings. The testator accepted this privilege, surrendered her certificate for 81 shares, received a new certificate for 41 shares of the new par value, paying $50 cash for the extra half share, and on June 2d, 1882 paid for the amount of her new subscription, which by its terms was to draw interest until December 15th, 1883, when new certificates were to be issued. Before that time, on August 13th, 1883, the testatrix died having made no change in her will. The Act of June 4th, 1879, (P. L., 88, sec. 1) provides “ Every will shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.” Reid, under the foregoing Act, that the contrary intention sufficiently appeared; that the will should speak from the date of its execution, and that the legacy therein bequeathed was of 81 shares as they then existed, and not of Hie 81 shares of which the testatrix died possessed.
108 Pa. 503Furbush v. Greene & Co. (1885)
1. Sheriff’s sales of personal property in mass may be evidence of fraud, but they are not fraudulent per se. 2. B. confessed judgments for .$22,701.89 to C., who the same day issued execution thereon. The sheriff levied on machinery and goods belonging to B., and sold them at sheriff’s sale for $16,116, C. being the purchaser. Subsequently A. issued an attachment execution against B., and served C. as garnishee, claiming that the sheriff’s sale was fraudulent and void. Upon the trial in the Court below, in support of this claim, A. proved that the sheriff sold the machinery in one lump, and the goods in another; that there were but two bidders, and the sale lasted but twenty minutes; that B. was C.’s son-in-law; that at a meeting of B.’s creditors, C. stated that the sheriff’s sale would not take place until he came back from New England, and that it did take place turn or three days prior to Ms return; and that both B. and C. wrote to the creditors that C. had agreed to husband all of B.’s effects, and that it mattered not what the goods were bought in for at the sheriff’s sale, C. would receive only ids net claim, and the rest would be distributed among his creditors: Hela, that the evidence was insufficient to prove fraud, and should not have been submitted to the jury. 3. Klopp v. Witmoyer, 7 Wright, 219, distinguished.
108 Pa. 508Smith's Appeal (1885)
32. Appeal of Charles E. Smith from a decree of the Orphans’ Court of Philadelphia County, in the matter of the distribution of the trust estate of Elizabeth T. Bunting, deceased. • Before the Auditing Judge, Hanna, P. J., the following facts appeared: Sarah Clark died in 1869, leaving a will bequeathing and devising a share in her residuary estate to her executors to sell and distribute the proceeds among the children of her sister, Elizabeth A. Bunting, and in trust as to…
108 Pa. 510Baker's Appeal (1885)
Appeals from the Court of Common Pleas, No. 3, of Philadelphia County: Of July Term, 1884, No. 47; January Term, 1885, No. 85; and July Term, 1884, No. 134. Appeals of Alfred G. Baker, Benjamin F. Barge, and the American Academy of Music from a decree of the said Court, restraining the two first named appellants from making transfers of their stock in the corporation appellant for certain purposes. Bill in equity, wherein Hartman Kuhn and others, stockholders of the American Academy of Music, were complainants, and the said American Academy of Music, Alfred G. Baker, Benjamin F. Barge, and others, stockholders therein, were defendants. The bill averred that the original charter of incorporation of said corporation contained the following:— “ Section 9. That it shall and may be lawful for the said corporation to purchase and hold such real estate as they may deem necessary for the purposes of this Act, and to erect thereupon and furnish a building or buildings suitable for the representation of operatic and dramatic performances, and to lease the said building and appurtenances from time to time, to such person or persons as they may deem proper, for the purpose of giving such representations, or to employ-or contract with persons for doing the same: Provided, That every five shares of stock shall entitle the holder thereof to a perpetual, free, and transferable ticket of admission to all such representations, and a permanent seat in the house thereat; the said seat or seats to be located in any part of the house the said stockholder may choose, subject to such regulations as the directors may impose in relation thereto.” That subsequently by a supplement to said charter it was, inter alia, provided as follows:— “That the proviso at the end of the ninth section of the said Act to which tins is a supplement, be, and the same is hereby repealed, and in lieu thereof the -following proviso is hereby enacted and declared to have the same force and effect as though the same had been inserted in the said Act before its passage, instead of the proviso hereby repealed, to wit: Provided, That every five shares of stock shall entitle the holder thereof to a free ticket of admission to all such representations, and the directors shall set apart, for the exclusive use of persons holding such number of shares, a portion of the house which they the said directors shall deem sufficient for the convenient accommodation of such holders.” That among the by-laws adopted by said corporation were the following: “ Section 1. One free ticket of admission for an operatic and dramatic representation shall be issued to each person holding five shares of the common stock of the corporation. Such free ticket shall be exhibited by the holder thereof, on entering the house, if required. “ Sec. 2. Every stockholder shall have free admission (so long as he holds his ticket) to all parts of the auditorium except the proscenium boxes. There shall be reserved for the accommodation of the stockholders retaining their tickets of admission such number of seats as the directors may deem sufficient, to which they alone shall have the privilege of entrance. “ Sec. 3. Any stockholder holding such ticket of admission, may transfer the same to any other person, which transfer will entitle the transferee to admission to all parts of the auditorium, except the seats reserved for the stockholders and the proscenium boxes; but such ticket cannot be again transferred. All transfers shall be made on the books of the corporation. “Sec. 4. Every stockholder who shall transfer his stock shall at the same time surrender the ticket issued in respect thereof (unless the same shall have been previously transferred on the books of the corporation), and a new ticket shall be issued to the party to whom said stock is transferred.” That certain stockholders, and particularly defendants Baker and Barge, had without authority of law been from time to time selling and continued to sell their seats without the sale of their stock, and to accomplish this, merely colorable transfers of stock are made, by which the sellers retain the ownership of the stock, and the purchasers obtain the tickets only, entitling them to seats in the American Academy of Music; that is to say, the following method is pursued for the purpose: The owner of five shares of stock sells the seat to which as a stockholder he is entitled. Before or at the time of making a nominal transfer, he gets from the purchaser of the seat an irrevocable power of attorney to transfer all his right, title, and interest in any such stock of said American Academy of Music; with this power thus executed, the seller or his representative presents himself at the office of the Academy, makes a transfer of the stock to the purchaser of the seat, obtains certificate in said purchaser’s name, also a ticket of admission entitling Mm to a seat. The. certificate of stock and the power of attorney are retained by the seller, and the ticket of admission is delivered to the purchaser. The bill alleged that such transfers were unlawful, but that the directors of the corporation had made no regulations prohibiting the same. That the complainants, holders of stock of the American Academy of Music, had not for some time received any dividends thereon, but that the only benefit and advantage wMch arise from their ownerslrip of said stock is the privilege of a seat in the Academy of Music at dramatic and operatic entertainments and admission to concerts given there, which privilege is a personal one, and an incident to the ownership of stock. That the Board of Directors of said corporation defendant set apart for dramatic and operatic performances for the use of the stockholders, seven rows containing seats. That, taking into consideration sickness, absence from the city, and other causes detaining stockholders from attendance, the said seats are generally sufficient for the bona fide .or real owners of the stock. That the sale of seats by means of the alleged sham transfers increases the number of occupants so that they frequently more than fill up the seats or'space thus set apart for such bona fide or real owners of the stock, by reason whereof many of the bona fide stockholders have at times not been able' to obtain seats, and that complainants have on occasions been excluded, in consequence of the seats being all occupied, and have been deprived of their seats durrng performances. The complainants therefore prayed that said transfers be declared illegal, that the directors be ordered to make proper regulations to prohibit the same, and that defendants Baker and Barge be restramed by injunction from making such transfers. The separate answers of the defendants admitted the facts set out in the bill, but denied that the transfers were illegal, or that the result was prejudicial to complainants and others. The Examiner and Master (Edward Willard, Jr., Esq.), to whom the case was referred, reported the facts to be as follows : (1) That a method has been resorted to for the purpose of disposing of tickets with stockholders’ privileges attached, and that the certificates upon which the tickets issue, together with the powers of attorney, are retained by the sellers of the tickets; and where transfers are made simply for the purpose of selling tickets, such transfers are only color-able, and do not make the transferee a Iona fide holder, entitling him to the privileges of a stockholder. (2) That the sale to a limited extent of tickets with stockholders’ privileges attached, began within a few years after the opening of the building; but that within the past few years, beginning at about the year 1879, the number of tickets put up for sale and sold has greatly increased, so much so that, for the season of 1881 — 82, over one hundred tickets were disposed of. (3) That by reason of the sales made as before set forth, the privileges incidental to. the ownership of stock in the Academy of Music have been impaired, and consequently an injury has resulted to the stockholders. The Master reported a decree in accordance with the prayers of the bill. Separate exceptions were filed thereto by the defendants Baker, Barge, and the Academy of Music. After argument the court dismissed all the exceptions in the following opinion by Yerkes, J.:— The defendant company was incorporated by the Act of March 24th, 1852. The ninth section of that Act contained this proviso, “ That every five shares of stock shall entitle the holder thereof to a perpetual, free and transferable ticket of admission to all such representations, and a permanent seat in the house thereof, the said seat or seats to b,e located in any part of the house the said stockholder may choose', subject to such reasonable regulations as the directors may impose in relation thereto.” By the Act of May 4th, 1852, this proviso Avas repealed and another substituted, containing these words, “That every five shares of stock shall entitíe the holder thereof to a free ticket of admission to all su.oh representations, and the directors shall set apart for the exclusive use of persons holding such number of shares, a portion of the house Avhich said directors shall deem sufficient for the convenient accommodation of such holders.” These quotations comprise all of the charter material to the decision of the questions raised in this case. The Act of March certainly provided for stockholders’ tickets, which were to be transferable. And it is just as certain that the transferable character of such tickets was taken away by the Act of May. First, the word “transferable” is omitted, and instead of the said seat or seats to be located in any part of the house the said stockholders may “ choose,” we have in the later Act the words “ and the directors shall set apart for the exclusive use of persons holding such number of shares, a portion of the house which the said directors shall deem sufficient for the-convenient accommodation of such holders.” The contest here is, who are .entitled to the privilege of seats in the portion set apart by the directors? It must be conceded that this proviso confines it to holders of shares, but the difficulty is in determining who are holders of shares within the meaning of the charter. . The regulations of the Academy permit the issue of annual tickets to the persons whose names are on the stock-book as the owners of five shares each. The other defendants, owning many shares, transfer their stock in lots of five shares, and procure annual tickets in the names of their respective transferees. They take from the transferees, powers of attorney to transfer the stock, and deliver to them the annual tickets. Often the transferees do not see the certificates of stock and never have possession of them; they pay a consideration, but it is in no wise adequate for the stock, and it is simply a payment for a stockholder’s seat or privilege to a seat. The transaction between the defendant and the transferees, stripped bare, is simply the sale of a seat. The transfer of stock is simply to give to such sale the similitude of a real transfer, so as to apparently comply with the law and regulation in order to procure the issue of a stockholder’s ticket to the purchaser of a seat, without that purchaser becoming the owner of stock. The slender hold that these transferees,, or purchasers of annual tickets, have upon the stock, is shown by the seventeenth paragraph of the answers of the individual defendants. Each says, “I am the absolute owner of one huudred and twenty shares (this is Mr. Barge’s answer; in Mr. Baker’s answer the number is fixed at four hundred and twenty) of the stock of the corporation defendant, which is clear and free of all incumbrance whatever, some of ■ which is temporarily in the names of various holders, and I own all of them.for all the purposes and rights to which I am entitled under its charter.” If this is so it is difficult to see to what the transferees have a right. Indeed the continuance of the privilege for which they have paid is only because of the grace of the defendants. Section 6 of the Act of 24th March, 1852 requires the transfer of .stock upon power of attorney, and gives to the transferees the privileges of the former holders. It seems that this section would require the issue of a ticket to the transferee, notwithstanding there was a ticket outstanding. It is clear that the right to a seat could be destroyed by the exercise of the power, and it is probable that it could be conferred upon another. Notwithstanding all this, it is contended the stock book is the only and conclusive evidence as to who are the .holders of the stock. It does not seem proper that cases which relate only to the commercial aspect, of the status, the rights and liabilities of stockholders, should control here. For most purposes those cases establish that the stock book is the proper test as to who are stockholders. Before following such cases, we should inquire if there is anything in the nature and history of this corporation, and in the nature and reason of the privilege now in controversy, that will aid us. The proof establishes that the company was organized to provide a more convenient place for operatic and dramatic performances than then existed in the city; that the enterprise was not expected to be pecuniarily profitable, and that in fact it has not been. It is apparent that the object of the two provisos was to give something to those who invested their money independently of the remote chance of a dividend. It was one of the only two advantages that could accrue to stockholders beyond other citizens which could induce the investment of money, and if the original stocMiolders were gifted with prescience it was the only inducement. It was thus annexed to a substantial share in the enterprise. The exercise of such a privilege in a building is more consistent with the character of an owner than with any other. The repeal' of the proviso permitting transfers rebuts the idea that the privilege of admission can exist by itself. This repeal should be held a prohibition of anything that is in substance a mere transfer. To say that the transfers in question are sufficient to carry the privilege, would authorize weekly or daily transfers, carrying with them the rights to tickets, and precisely the state of affairs foreseen and provided against in the repeals would occur; that is, the admission of persons not interested in the enterprise and the crowding of the house. To provide adequate room for all such stockholder^, if the practice became general, would make the Academy most undesirable to managers, and probably be fatal to its continuance as a place of amusement. It certainly never was expected or intended that the privilege of admitting a stockholder could or should be turned into a means for making money. We hold: 1st, that the words “holders of shares” and “holder,” in ijhe second section of the Act of May 4th, 1852, mean owners of stock and owner, and consequently that the privilege in question in confined to owners of stock. 2d, that the transactions complained of are merely transfers of seats and are unlawful. The third exception filed on behalf of Mr. Baker, demands special attention. It points out the fact of the absence of any proof that the complainants were injured by the acts of the defendant. We suppose this has reference to the failure to prove that either of the complainants failed to get a seat because it was occupied by a transferee of the defendant. This ordinarily would be fatal to the bill; but it is here complained that the corporation defendant is violating its charter in permitting the other defendants to make colorable transfers of stock as a cover to the sale of stockholders’ privilege. The power conferred upon us over corporations, we think, is a sufficient answer to this exception. A violation of a charter is an injury to every stockholder. All the exceptions are dismissed, and the decree is made as reported by the Master. The decree was as follows: And now, April 22d, 1884, this cause heard upon bill, answers, proof and exceptions to the Master’s report, it is ordered, adjudged and decreed that the exceptions to the Master’s report be dismissed and the report confirmed, and that the privilege of a seat is a personal privilege incident to the ownership of five shares of stock, and that the ownership of more than five shares does not entitle such owner to any additional privileges in regard to seats; that any transfers on the books of the defendant corporation, by which nominal transfers are made to the purchasers of the seats, who then execute irrevocable powers of attorney, giving the seller the certificates, are not bona fide transfers, and the holders thereof are not such owners as are entitled to tickets of admission, with the privileges of a seat among those reserved for the stockholders; that it be further ordered, adjudged and decreed that they do make such reasonable and proper regulations as will in the future prevent the making of such transfers for the purpose of effecting the sale of seats only; and that it be further ordered and decreed that the defendants, Alfred Gf. Baker and Benjamin F. Barge, as stockholders, or either of them, be enjoined and restrained from making any transfers of stock to effect the sale of seats only; and be it further ordered that the costs in this proceeding be paid by the American Academy of Music, a defendant in this cause. Jas. R. Ludlow, P. J. The several exceptants took separate appeals, each assigning for error, respectively, the dismissal of their said exceptions, and the above decree.
108 Pa. 521Rehfuss v. Gross (1885)
Error to the Court of Common Pleas, No. 3, oí Philadelphia county: Of July Term, 1884, No. 154. This was, in the court below, an appeal by Mary E. Gross, from a judgment entered by a magistrate on October 7th, 1882, for $89.02, in favor of Ulrich and William Rehfuss, trading as U. & W. Rehfuss, against' Adolph Gross and Mary E. his wife, on a bill contracted for butcher’s meat. On February 5th, 1883, upon application and proof by Mary E. Gross alone, an appeal was allowed nunc pro tunc. On April 12th, 1883, plaintiffs obtained a rule to show cause why the name of Mary E. Gross should not be stricken off on the ground that she had been joined by mistake. This rule was discharged. Plaintiffs then filed a narr. in assumpsit, charging the defendants “ for necessaries contracted for and purchased by the said Mary E. Gross upon her credit, for the support of the ■family of herself and her said husband, and furnished on her order and credit by the said plaintiffs.” On the trial, the evidence was not sufficient to establish liability- on the part of a married woman. Plaintiffs then offered ■to' prove that Mary E. Gross was originally made a party to the action by mistake. Objected to. Offer overruled. Plaintiffs then asked leave to amend by striking out the name of Mary E. Gross as a co-defendant. The court refused permission thus to amend and entered a compulsory nonsuit, which the court in banc afterwards refused to take off. Plaintiffs thereupon took this writ, assigning for error the refusal of the court to allow the above amendment.
108 Pa. 524West Philadelphia Passenger Railway Co. v. Gallagher (1885)
1. It is not contributory negligence per se, for a passenger to ride on the lower step of the front platform of a crowded street ear without objection by the driver or conductor. 2. A boy under fourteen got upon the lower step of the front platform of a crowded street car and rode for a long distance as a passenger, holding on with but one hand. He was finally knocked off by the jolting of the car, run over and injured. In an action against the street car company to recover damages: Held, that the questions of negligence and contributory negligence, taking into consideration the age and capacity of the lad, were both for the jury. 3. The absence of a guard or fender on the front platform of a street car is a fact which may be taken into consideration with other facts in determining the question of the company’s negligence. The court will not, howéver, say, as a matter of law, that it is negligence on the part of the company not to furnish such a guard. 4. In the above case the court instructed the jury that' if they were of opinion that the existence of a fender or guard would have prevented the accident, they were at liberty to find that the company was negligent in failing to provide it. Held, that this was error, as it was tantamount to saying that it was the duty of the company to provide the fender or guard.
108 Pa. 529Brooke v. New York, Lake Erie, & Western R. R. (1885)
1- A principal is bound by all the acts oí Ms agent witMn the scope of the authority wMch he held him out to the world to possess, notwithstanding the agent acted contrary to instructions. 2. Where one oí two persons must suffer by the act of a third person', he who has held that person out as worthy of trust and confidence, and as having authority in that matter should bo bound by it. 3. Whatever concerns the rights of parties in matters of contract is governed by the lex loci contractos; while the remedy, and whatever relates to the limitation of actions, by the lex fori. 4. A. was a railroad company, and its authorized shipping clerk at one of its stations issued a bill of lading in the company’s name for certain goods that the company had never received. This bill of lading came to the hands of an innocent third person, who made advances of money upon it. Upon suit brought against the railroad company to recover such advances by said third party: Held, that the company was estopped by the act of its agent from denying the receipt of the goods, although the clerk had no authority to give bills of lading without receiving the goods, and although the compiany had never done anything to lead any one to suppose that he had spch authority.
108 Pa. 546Cunningham's Appeal (1885)
1, oí Philadelphia county: Of July Term, 1884, No. 100. Appeal of William T. Cunningham, Graham P. Cunningham and Winthrop B. Cunningham co-partners trading as Winthrop Cunningham & Sons; the same parties individually, and Joseph I. Keefe, from the decree of the Court of Common Pleas No. 1 of Philadelphia County dismissing a bill in equity filed by said appellants against the President and Directors of the Insurance Company of North America.
108 Pa. 559Douglass v. Commonwealth ex rel. Senior (1885)
Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of July Term, 1884, No. 112. This was a petition by the Commonwealth of Pennsylvania ex relatione John R. Senior for a writ of alternative mandamus directed to William S. Douglass et al., County Commissioners, commanding them to duly schedule, examine and consider the relator’s proposal or bid to furnish' books, stationery and supplies for certain of the county offices during 1884, and to award the contract to said relator, if he proved to be the lowest bidder, or else to show cause. The petition set forth: That the County Commissioners, on December 29th, 1883, advertised for proposals for supplies for the county offices. That the relator bid for some of the said supplies, and under the law is entitled to have his proposal scheduled with the proposals of the other bidders, to have it considered and examined, and if it shall appear that he is the lowest bidder for any of said supplies, then it is the duty of said County Commissioners to award to him, and he is entitled to have awarded to him a contract to furnish said supplies; that relator is regularly engaged in the business of maldng and supplying the articles for which he bid, and is so known to the respondents, they having in 1883 awarded a contract to him. That on 23d January, 1884, the respondents opened the bids they had received, but refused to schedule, examine or consider the relator’s proposal, then and there falsely and unlawfully pretending that relator is not known to be engaged in the stationery or printing business, and that he is not a responsible person. That respondents are engaged in scheduling the proposals, excepting therefrom relator’s proposal, and that they will proceed then to make awards of contracts. The petition prayed for a writ commanding respondents to duly schedule, examine and consider relator’s proposal, and if he be found to be the lowest bidder, that they thereupon award him a contract, or show cause, &c. The writ was allowed. The respondents demurred, assigning the following reasons: 1. Because the petition does not show in the relator any specific legal right, independent of that which he holds in common with the public at large. 2. Because the petition discloses that the respondents in rejecting the relator’s bid, and deciding him not to be a responsible person, exercised a discretion vested in them by law, and which this court cannot coerce. 3. Because the respondents, by the terms of their advertisement, reserved the right to reject any and all bids. 4. Because if the relator has any rights they are those arising under a contract, and such rights must be enforced by an action at law on the contract. 5. Because the. petition does not allege that the respondents have acted dishonestly or fraudulently in deciding that the relator was not a responsible person, and' tbeir decision cannot' be overruled or coerced by this court. After argument, the court entered judgment for the plaintiff on the demurrer; and ordered the respondents to perform the duties incumbent on them by the ordinances of the city, relating to the subject-matter in dispute, specified in the petition, and awarded a peremptory writ. Thereupon the respondents took this writ assigning for error the decision of the court, in entering judgment for the plaintiff on the demurrer, and in refusing to quash the alternative writ of mandamus.
108 Pa. 564Dolan's Appeal (1885)
1. The Courts of Quarter Sessions have power under the Act of March 22d, 1867, section 1 (P. L. 40) to revoke duly granted licenses to sell intoxicating liquors, upon'sufficient cause being shown. 2. Upon certiorari to an order of the Quarter Sessions-revoking a license, where the record shows the jurisdiction of the Court and the regularity of the proceedings, the order will be affirmed. It is not necessary in such case that the existence of sufficient cause for revoking the license should appear on the face of the record; in the absence of record evidence to the contrary, it will be presumed that the discretion of the Court below was properly exercised. The Supreme Court cannot consider the testimony taken in the Court below. 3. An appeal does not lie in such case.
108 Pa. 567Wilkey's Appeal (1885)
1. The fact that the widow of a decedent is illiterate, and over seventy years of age, does not deprive her of her statutory preferred right to letters of administration on the estate of her husband, where she appeared to have “ as good business capacity as the ordinary run of farmers’ wives.” Bowersox’s Appeal, 4 Out., 434, followed. 2. On an appeal from the refusal of the Orphans’ Court to order the revocation of letters of administration granted by the Register of Wills, the Supreme Court will not review the discretion of the Register in granting such letters unless it appears that his discretion was abused, or his duty was manifestly disregarded. 3 On an appeal in a case such as the above, evidence offered by the appellant to show errors in the inventory filed by the administratrix and to show the extent of the decedent’s estate and the position of the heirs in regard to a certain contest pending about it, is irrelevant and inadmissible.
108 Pa. 569Eliot v. Himrod (1885)
49. Assumpsit, by J ohn Eliot, Treasurer of the German Sayings Institution of Erie, Pa., against Wm. Himrod et al., who, with John W. Hammond,now deceased, were late partners, doing business under firm name of Keystone Boot and Shoe Company, Limited.
108 Pa. 581Grayson's Appeal (1885)
1. The payment of interest upon an overdue note from the date of its ma-turity to a date in the future, by the maker to the payee, is a valid consideration for an agreement to extend payment of the note to such future date; and such payment and agreement, if made without the knowledge and assent of a surety on the note, will discharge the surety. It is immaterial that such interest was paid at a usurious rate; the excess over the legal rate was applicable to the principal; but the lawful interest paid in advance was nevertheless a sufficient consideration for a binding extension. 2. Hartman v. Danner, 24 P. P. S., 36, and kindred eases, distinguished.
108 Pa. 585Post v. Buffalo, Pittsburgh, & Western Railroad (1885)
29. This was an action on the case by .Samuel Post and C. B. Post, partners, trading as S. Post & Son against the Buffalo, Pittsburgh and Western Railroad Company to recover damages for the destruction of about 160,000 feet of lumber by fire from the defendant’s locomotive. At the trial it appeared that the defendant had built a siding near Glyndon, Crawford County, for convenience in loading cars with hay, bark, wood, lumber, &c., for shipment by the patrons of the road.
108 Pa. 588Sargeant v. Clark (1885)
89. Ejectment, by Iianiel Clark, Edwin P. Clark, and Henry A. Drake against Wm. G. Sargeant, Thomas J. Shonts, Charles Stewart, William Shonts, John Fetterman, and Samuel Gil lett for a tract of land containing about forty acres. After the cause was on the trial list the following agreement of reference was entered into by the parties or their attorneys.
108 Pa. 591County of Fayette v. Batton (1885)
Error to the Court of Common Pleas of Fayette county: Of January Term, 1885, No. 28. Case stated, wherein John A. Batton was plaintiff, and the County of Fayette was defendant, as follows : John A. Batton, the plaintiff, is and was on the 20th day of February, 1884, coroner in and for the county of Fayette. On that day an explosion from fire-damp occurred in a coal mine at West Leisenring in said county, which resulted in the death of nineteen men. As soon after the explosion as the circumstances would permit,"the bodies of the deceased were removed from said mine to their' respective homes or late boarding places in the adjoining village of West Leisenring. In two of the houses two bodies were left in the same room; in two other'houses, two bodies were placed in each house, but each body in a separate room. The eleven remaining bodies were each taken to different houses. The plaintiff was then notified, and going upon the ground where the accident occurred he summoned a jury of six men, and proceeded from house to house, qualified the jury over each body, called a ’witness to identify the respective bodies, and after in this manner viewing each separate body he adjourned the hearing to the Market House in Uniontown, where they again met and examined a number of witnesses as to the cause of the explosion, &c., making in all thirty-nine witnesses qualified and examined by the plaintiff. After the examination of witnesses the inquest then returned a separate finding in each case. The plaintiff alleges that it was necessary to swear the jury in each case and hold a view upon each separate body, and that for these services he is entitled to the following fees, to wit: — • Summoning and qualifying jury in 19 views, at $1.37......$26.03 Viewing 19 bodies at $2.75 .... 52.25 Traveling 5 miles direct at 12 cents . .60 Qualifying 39 witnesses at 25 cents . . 9.75 Total.......$88.63 It was generally known and undisputed at the time the coroner began to hold said inquisition that all of the deaths had resulted from the same explosion, and the coroner knew that all of the deaths resulted from the same explosion upon holding the first inquisition. It is claimed on the part of the defendant county, that the plaintiff is entitled to fee for summoning and qualifying jury only in one case, and in like manner for the same fee for viewing body as if but a single view had been made, and hence claim that plaintiff is entitled only to the following fees in all, to wit:— Summoning and qualifying jury . . . $1.37 Viewing bodies . ' . . . . 2.75 Mileage 5 miles direct at 12 cents. . . .60 Qualifying 39 witnesses at 25 cents . . 9.75 Total . $14.47 If the court be of opinion that tbe plaintiff is entitled to fees in each view, in manner as above claimed by him, tben judgment to be entered for tbe plaintiff, for the sum of $88.63, but if be is entitled to fees only in manner claimed by tbe defendant, tben judgment to be entered for plaintiff for tbe sum of $14.47. Either party reserving tbe right to sue out a writ of error thereon. Tbe court to dispose of tbe costs. Tbe court (Inghram P. J.) entered judgment on tbe case stated for tbe plaintiff for $88.63. Tbe defendant took this writ of error, assigning for error the said judgment.
108 Pa. 595Browning v. Cover (1885)
Error to tbe Court of Common Pleas of Fayette County: Of January Term, 1885, No. 208. Assumpsit, by John Cover against Frank T. Browning and Goldsboro M. Serpell, to recover one balf tbe amount received by defendants as tbe price of a certain portable saw mill sold by defendants as tbeir own property, and in wbicb plaintiff claimed a one balf interest. Pleas: Tbe general issue and tbe Statute of Limitations. At tbe trial, before Inghram, P. J., tbe following facts appeared : John Cover (tbe defendant in error), Isaac Hurst, I. W. Butter, and one Sellers formed a partnership in 1871, and bought tbe saw mill which formed tbe subject of tbe controversy in tbe present case. Soon afterwards Sellers and Hurst sold tbeir interests to George W. Cover, and in tbe year following Ratter sold bis interest to John Cover, who soon after sold one balf interest to Jacob Rist. On October 12th,-1872, East’s interest in the saw mill and fixtures was sold at sheriff’s sale to John Cover. The mill thus became the joint property of John Cover and George W. Cover. The latter had possession of the mill at the time, and retained possession until November 21st, 1872, when he sold the mill to Browning and Serpell, the defendants, for $2,000. There was at this time a judgment obtained against John Cover, Isaac Hurst, George W. Cover and Isaac W. Rutter, trading as John Cover & Co., for $188.75, (in which execution had issued against the mill. Browning and Serpell paid this judgment as part of the consideration, and the balance in cash to George W. Cover. When the sale was about to be made, John Cover, learning of the intention of the parties to it, objected, claiming an interest in the mill himself. George W. Cover insisted on his right to sell the mill on the ground that he had paid debts of the firm amounting to more than its value; and on the same day consummated the sale and received the purchase money as stated. Browning and Serpell were given possession of the mill and continued to use it as their own until October 18th, 1877, when they sold it to one Wilmarth for $1,100. The defendants requested the Court to charge:— 1. That upon all the evidence in the case the plaintiff is not entitled to recover. Refused. (First assignment of error.) 2. That if the jury find from the testimony that Browning and Serpell bought and took possession of the mill in November, 1872, and claimed and used it as their own until they sold it in 1877, then the plaintiff is not entitled to recover, as this action was barred by the Statute of Limitations when it was brought in 1879. Refused. (Second assignment of error.) 3. If the jury find from the evidence that Jacob Rist’s interest in the saw mill was that of a partner when it was sold by the sheriff, then the plaintiff is' not entitled to recover. Refused. (Third assignment of error.) The Court, in reviewing the testimony, charged, inter alia: [It is claimed on the part of the plaintiff .that when the defendants bought of George Cover, they bought but the half interest, and that his interest remained, in the mill as it had always done, and that therefore when they sold the whole mill they sold his interest and must account to him for his interest, and we instruct you that that is true in this case.] 'If they sold the interest of the plaintiff and received the price of that interest, they should account to him now for what they received for it with its interest down to the present time, and that is correct. On the part of the defendants it is not denied that they bought the mill from George Cover, but they claim they bought the whole mill and paid him the full value of the mill, and all that they agreed to pay him. [If you find from the evidence that the plaintiff had a half interest in that mill, and that the defendants sold it and received the money for it, then the plaintiff would be entitled to recover the one half of whatever they sold it for, with its interest down to the present time from the date of the sale.] If-you are not satisfied that he had a half interest, or any interest, or are satisfied that he acquiesced in the sale made by his brother, then he would not be entitled to recover as against these defendants. But if you are satisfied that he had a half interest in that mill and they sold it, and he has not received the money for it, then he is entitled to recover the one half of the amount it sold for, with its interest from the sale down to the present time. Verdict for the plaintiff for $783.75 and judgment thereon. Whereupon the defendants took this writ assigning for error the refusal of their' points submitted to the Court, and those portions of the general charge enclosed in brackets, the latter being the fourth and fifth assignments of error respectively.
108 Pa. 600Appeal of the City of Titusville (1885)
Appeal from tlie Court of Common Pleas of Crawford County: Of January Term, 1885, No. 156. Appeal of the City of Titusville from a decree of the said court awarding to Roger Sherman, trustee, the sum of $12.26 out of the proceeds of a sheriff’s sale on a mortgage under proceedings instituted by said Roger Sherman, trustee. The facts as they appeared in a case stated for the opinion of the court, were as follows:— The City of Titusville duly accepted the provisions of the Municipal Corporation Act of May 23d, 1874 (P. L. 230) •and its supplement of March 18th, 1875 (P. L. 15)* the latter of which provided that in case -of failure to pay promptly municipal taxes levied on real estate additional sums should be added thereto. The language of this Act is recited in full in the opinion of this court. On October 31st, 1883, the real estate of Patch and Almas was sold by the sheriff of Crawford County under proceedings instituted upon a mortgage made to Roger Sherman, trustee. This mortgage was recorded May 31st, 1882, thus becoming a lien on the property from that date. Before the sale, the sheriff was notifed of the non-payment of taxes of the city and school district of Titusville for the year 1883. These were levied on June 1st, of that year, amounting to $122.67, of which $74..67 were due to the city and $48 to the school district. On September 2d, an additional sum of five per cent. -was added, likewise on October 2d, making the total amount due $134.93. Payment of this having been demanded out of the proceeds of the sale, the sheriff retained in his hands an amount sufficient to cover it, together with certain labor claims, and distributed the balance. The question before the court was whether the sum of $12.26, the increase added to the taxes under the Act of March 18th, 1876 (P. L. 16), in consequence of their non-payment, was a prior lien to the plaintiff’s mortgage. If such were the case it was to be paid over to the city and school district of Titusville, otherwise to the plaintiff in the mortgage proceedings. The court, in an opinion by Church P. J. decided that the percentage added to the taxes by way of penalty was not a lien on the real estate, and entered a decree that the sum in the sheriff’s hands of $37.26, of which $12.26 was the increase or penalty added to the taxes, and the only amount in dispute, should be paid to the plaintiff in the execution, Roger Sherman, trustee. The City of Titusville took this appeal (as a test case) assigning for error the said decree of the court.
108 Pa. 604Dull's Appeal (1885)
1. The Act of March 29th, 1832, § 6 (P. L. 191) forbids the appointment as guardian of one who is executor or administrator of an estate in which the minor is interested. Where, however, such an appointment has been made, and the guardian has acted in good faith and performed the duties of his office for a space of ten years, his appointment will not be revoked at the instance of one who has not a direct and personal interest therein. 2. In proceedings in partition in the Orphans’ Court the real estate was awarded to' the guardian of a minor heir, who was the highest bidder therefor. The guardian’s appointment had been made some ten years previously, in violation of the provisions of the Act of March 29th, 1832, § 6. (P. L. 191), and the other heirs applied for the revocation of his appointment, and for the setting aside of the award so made to him, joining in their petition an offer to take the real estate at a higher valuation. Held, (1.) That the prayers of the petition were not only incongruous and improperly united, but also that the desired revocation of the appointment was evidently used as a cover to defeat the guardian’s right to take the real estate for his ward. (2.) That the petitioners, in working against the guardian’s efforts in behalf of his ward were not in a position to object to the irregularity of his appointment. 3. The Supreme Court, in hearing an appeal from the Orphans’ Court, will hear, try and determine the merits of the case, and decide the same according to justice and equity.
108 Pa. 607Dunlap v. Commonwealth (1885)
Error to the Court of Quarter Sessions of Hrie county: Of January Term, 1885, No. 289. Indictment against M. E. Dunlap for placing pond nets in Lake Erie contrary to the provisions of the Act of May 16th, 1878 (P. L. 57), entitled, “An Act for the protection of fish in the waters of Lake Erie and bays, ponds and bayous adjacent thereto.” TMs Act provides, inter alia, as follows: § 1. Be it enacted, &e., that from and after the passage of this Act it shall not (be) lawful for any person or persons to place any set net or set nets, fish baskets, pond nets, &c.,.....or any other permanently set means of taking fish or otherwise in the nature of seines in any of the waters of Lake Erie, or bays, ponds and bayous adjacent thereto, within the jurisdiction of this Commonwealth; any person violating the provisions of this section shall be liable to a penalty of fifty dollars for each and every offence.” The defendant pleaded not guilty, and specially to the jurisdiction of the court. At the trial, before Galbraith, P. J., the facts appeared as follows: In the spring of 1884 the defendant caused eight pond nets to be set in the open waters of Lake Erie, about seven or eight miles northwest of Erie at a. place called “ the Head,” near the point where the peninsula which forms the harbor of Erie or Presque Isle Bay joins the mainland. The nets were placed at distances from the shore varying from about 100 rods to a mile and a half. Dunlap continued to use the nets until late in the fall for the purpose of catching sturgeon. The Act of June 3d, 1878 (P. L. 160), entitled, An Act to amend and consolidate the several Acts relating to game and game fish, provided, inter alia, as follows: Section 22. “ It shall not be lawful for any person or persons to place any fish basket, gill nets, pond nets, eel weirs, kiddles, brush' or facine nets, or any other permanently set means of taking fish, in any waters of this Coikmonwealtb; any person violating the provisions of this section shall be liable to a penalty of twenty-five dollars for each and every offence; Provided, That this section shall not apply to the fishing with gill nets in the river Delaware below Trenton Falls.” Section 25. “ No person shall by any means or device whatsoever catch or kill in any of the waters of this state any black bass, green bass, yellow bass, willow bass, rock bass, Lake Erie or grass bass, [like or pickerel, or wall-eyed pike, commonly known as Susquehanna salmon, between the first day of January and the first day of June, nor shall catch or kill any of said species of fish at any other time during the year, save only Avith a hook and line, scroll or spear; any violation of this section shall subject the offender to a penalty of ten dollars for each and every offence: Provided, This section shall not apply to the waters of Lake Erie, except in the ponds on the island or peninsula forming the north and east shore of the harbor of Erie.” Section 40. “Nothing in this Act shall be construed to apply to any stream forming the boundary line between this and any state over which this state has concurrent jurisdiction with such state so far as such streams form such boundary line, nor to any lake partly within the boundaries of this state.” Section 41. “ All Acts or parts of Acts which are inconsistent with this Act be and the same are hereby repealed.” The Act of Congress of September 4th, 1788,1 Laws of U. S., 575, provided:— “Resolved, That the United States do hereby relinquish and transfer all their right, title and claim to the government and jurisdiction of the said tract of land, to the State of Pennsylvania forever. And it is hereby declared and made known that the laws and public Acts of the said state shall extend over every fart of the same tract, to all intents and purposes, as if the same had been originally within the charter hounds of the said state ; provided that the inhabitants of the said tract shall be maintained in all the rights and privileges which other citizens of the said State of Pennsylvania are now, or may hereafter be, constitutionally entitled to enjoy. In pursuance of which Act and the subsequent Act of January 3d, 1792 (2 Laws, U. S. 241), the president by letters patent dated March 3d, 1792, conveyed to the State of Pennsylvania the triangular tract of land, including what is now a portion of Erie County, fronting on Lake Erie. The defendant requested the Court to charge, inter alia, as follows:— 1. The Court is requested to charge the jury that the boundary line of Pennsylvania is the margin of the lake, and if the jury find from the evidence that the pond nets were set thirty or forty rods from the margin of the lake, that they were outside of the jurisdiction of Pennsylvania, and the defendant must be acquitted. Refused. (First assignment of error.) 2. That the United States sold to the State of Pennsylvania 202,187 acres of land, bounded on the north by the margin of Lake Erie, and that Pennsylvania does not extend north beyond the margin of the lake, as called for and described on the map accompanying the sale. Refused. (Second assignment of error.) 3. That the Act of Assembly of June 3d, 1878, is a substitute for tlie Act of May 16th, 1878, and repeals said Act of May 16th, 1878, on the subject of pond 'nets, &c., as is mentioned in the first section of the Act of May 16th, 1878. Refused. (Third.assignment of error.) 4. That the Act of June 3d, 1878, expressly provides that the Act shall not apply to any lake partly within this state, and therefore does not apply to Lake Erie, and the defendant must be acquitted. Refused. (Fourth assignment of error.) 5. That by virtue of the Act of Assembly of June 27th, 1883, the catching of sturgeon is not unlawful, and the defendant must be acquitted unless it has been shown that he has caught other fish, in violation of the laws of the Commonwealth. [The Act of June 27th, 1883 (P. L. 164), in the last proviso of § 1 provides: “ That the catching of sturgeon in any of the waters of this Commonwealth shall not be unlawful.] Answer of the Court: “ This is refused. The evidence shows that in the pond nets a great variety of fish were caught besides sturgeon.” 6. That there is no evidence to show that the offence charged in the indictment was committed within the county of-. Erie, Pa., and the defendant must be acquitted. Refused. (Sixth assignment of error.) The Court further charged as follows :• — • [On the part of the defence it is alleged and argued that the defendant cannot be made liable because a later Act of Assembly allows the fishing for sturgeon in general terms. That don’t repeal the previous positive prohibition againsí pond nets. The legislature are not presumed to have meant by that general provision to have intended to repeal the positive prohibition of the previous Act. There may be other ways of catching sturgeon which we know nothing about. We have no evidence that they may not be caught in other ways. At all events you are instructed, so far as my opinion goes in this matter, that this Act of Assembly.urged to you as giving the leave and liberty to this defendant to set pond nets, does not give him that liberty.] It is claimed that the Act of May 16th, 1878* was repealed by the later Act of June 3d of the same year. This Act is entitled “ An Act to amend and consolidate the several Acts relating to game and game fish.” It consists of forty-one sections and is a general Act applicable to the entire state. Tile Act under which the defendant is indicted is a local Act and applicable onl/ to Lake Erie and the bays, etc., adjacent thereto. [It is not alleged that the general Act contains any words repealing in express terms this local Act, but it is 'urged that inasmuch as the 22d section of the general Act prohibits pond nets and provides for a penalty of $25 only, while the local Act fixes a penalty of $50 and a forfeiture of the boats, lake implements, etc., used in such pond net fishing, that the Acts are repugnant, and that the former must be held as being repealed by implication.] It might perhaps be a sufficient answer to this to refer to the 40th section of the later Act, by which it is provided that “ nothing in this Act shall be construed to apply to any stream forming the boundary line between this and any state over which this state has concurrent jurisdiction with such state, so far as such streams form such boundary lines, nor.to any lake partly within the boundaries of this state.” But as the question is, in my judgment, conclusively settled by a well known rule, it is not necessary to place it upon the possibly doubtful meaning of the language of the section just quoted. [The rule referred to is that a subsequent general Act does not repeal a prior particular or local Act, in so far as their provisions are inconsistent. Such repeals are not favored and are never allowed except in cases of strong repugnancy or irreconcilable inconsistency. In the case of Wright v. Vickers, 81 P. F. S., 126, the Supreme Court, Judge Woodward delivering the opinion, said: “ To repeal a statute by implication there must be such a positive repugnancy between the provisions of the new law and the old that they cannot stand together or be consistently reconciled.” In the case of Brown against Commissioners, 9th Harris, 37, it was held by the Supreme Court that a general statute ivithout negative words will not repeal a previous statute which is particular, though the provisions in the two be different. In this case, as was said in the case of Harrisburg v. Scheck, the two Acts may be executed each within its appropriate sphere, without any repug-' nancy whatever, and hence there can be no repeal by implication. In Seifried v. Commonwealth, 5 Out., 200; Judge Trunkey said: “ It is against reason to suppose that the legislature in forming a general system for the state intended to repeal a special Act which the local circumstances of one county had made necessary.”] Verdict, guilty as indicted, and defendant sentenced to pay a fine of $50 and the costs of prosecution, and to stand committed until the sentence was complied with. Defendant thereupon took this writ assigning for error the answers to his points, and the portions of the charge of the court inclosed in brackets above.
108 Pa. 615McKelvy's & Sterrett's Appeals (1885)
Appeals from the Court of Common Pleas of Crawford County: Of January Term, 1885, Nos. 150 and 151. Appeals of David MeKelvy and W. B. Sterrett, from a decree of the said court, dismissing exceptions to an Auditor’s report and awarding the sum of $800 to be paid out of a fund in court to S. T. Neill, as attorney of W. B. Sterrett.
108 Pa. 621Pennsylvania Co. v. Erie & Pittsburgh Railroad (1885)
106. Amicable action by the Erie & Pittsburgh Railroad Company against the Pennsylvania Company, in which it was stated that “ the matter to be tried is the liability of the defendant to pay to the plaintiff the amount of three judgments recovered in the Court of Common Pleas of Crawford County ” against the Erie & Pittsburgh Railroad Company in favor of William Gibson, James McMasters and William Douthett for $2,100, $302.50 and $500 respectively, with interest and costs.
108 Pa. 630Tide Water Pipe Co. v. Kitchenman (1885)
Error to the Court of Common Pleas of Crawford county: Of January Term, 1885, No. 146. Attachment sur judgment, by James Kitchenman for use of Samuel Lyons against D. B. Stewart, defendant, and the Tide Water Pipe Company, Limited, garnishee. The facts as they appeared from the answers filed by the garnishee to the plaintiff’s interrogatories were as follows:— The Tide Water Pipe Company, Limited, is an association organized under the Act approved June 2d, 1874, entitled “ An Act authorizing the formation of partnership associations in which the capital subscribed shall alone be responsible for the debts of the association, except under certain circumstances,” (P. L. 271) and its supplements. Prior to December 3d, 1883, Kitchenman recovered a judgment against Stewart for $965. Upon that date Stewart was the owner of 168 shares of stock of the association, of the par value of $100 each, which stood in his name upon the books of the association. As a member of the association he had subscribed to its •rules. Rule 10 was as follows: “ Interests in said association shall only be transferred upon the transfer book of said association in person or by proxy, and in such form as shall be prescribed or adopted by the Board of Managers, and upon the surrender of the certificate's therefor ; but no transfer shall be made of any fractional part of a share or of a less amount of capital than one hundred dollars. No change of ownership can be accomplished in any other mode or form, or by any other means than a transfer as above specified; provided however, that until some other form shall be prescribed or adopted by the Board of Managers, such transfers shall be in the following form:— TRANSFER OF CAPITAL. ' No-- For a valuable consideration, one part of which consideration is the signing of the stipulation hereto attached, I -hereby self, assign and set over-shares (of the par value of $100 each) of capital in The Tide Water Pipe Company, Limited, to-, and I agree that $-, has been paid to said company on account of subscription to said shares, leaving $-to be paid thereon to make said capital full paid. Witness my hand and seal this-day of--A. d. 18- I-hereby accept the above assignment and transfer of -shares of capital in The Tide Water Pipe Company, Limited, from-and in consideration thereof agree with the said assignor and tbe said The Tide Water Pipe Co., Limited, that I will hold said shares and interest in capital subject to the rules and regulations of the said Tide Water Pipe Co., Limited, that in all respects I assent to and will be bound by said mies and regulations, whether this transfer be followed by my election to membership in said company or not; and that I assume and agree to pay to said company the sum of $-remaining to be paid on said capital to make the same full paid. Witness my hand and seal this-day of-A. D. 18 And, provided f urther, that one provision in all transfers shall be, that the transferee shall assent to and agree to be bound by the rules and regulations of the association in force at the date of such transfer. If any interest in capital of the said association shall be transferred, and such transfer shall not be followed by the election of the transferee to membership in such association and participation in the subsequent business thereof, and the interest of the owner in the association shall be ascertained by the fixing of the price and terms to be paid therefor as provided by law, such interests in capital shall thereby become the property of said association. On December 3d, 1883, Stewart by a written instrument, not in the form prescribed by the rtile quoted above, assigned to George W. Colton for a valuable consideration 168 shares of the stock of the Tide Water Pipe Company, Limited, standing in his name on the books of the company, and appointed W. S. Benson his attorney, irrevocable, for him and in his stead to assign all the said stock and for that purpose to execute all necessary acts of assignment thereof. On the same day Stewart by another instrument in writing also assigned to Coltou, all and every claim which he then had against the Tide Water Pipe Company, Limited, and particularly a suit against the said company then pending in Crawford County. This suit had#been brought to recover certain dividends declared by the company, which had been retained by it on account of an alleged claim against him. If this claim were allowed there would be a balance due Stewart of $1036.90. On April 9th, 1884, the writ of attachment was served, prior to which time the garnishees had received notice of the assignments to Colton. On June 2d, 1884, Colton constituted David McKelvy his attorney to receive for him from David B. Stewart an assignment of the 168 shares of stock, and to do all necessary acts to effect the premises and to comply with the regulations and requirements of the company; and on August 11th, 1884, an assignment of the 168 shares in the form prescribed by rule 10, was executed -by Benson and McKelvy as attorneys respectively for Stewart and Colton. Colton was then elected to membership in the association. The court below entered judgment against the garnishee on its answers to the interrogatories, delivering the following opinion:— “ The law is with the attaching creditor in this ease. The garnishee answers that- the defendant was a shareholder in the Tide "Water Pipe Company, Limited, partnership association, on the 9th of April, 1884, the date of the service of the attachment, and so continued until the 11th of August, 1884. On this last named day a formal transfer of his shares was made to Colton, in accordance with' the terms, conditions and provisions of the rules and regulations or the limited partnership, and which were binding upon all parties. I have heretofore held that these rules and regulations were a law with the contracting and assenting parties. Rule 10 expressly declares that interests in said association shall only be transferred upon the transfer books of the association in person or by proxy and in such form as shall be prescribed, etc., etc., and furthermore explicitly, that ‘No change of ownership can be accomplished in any other mode or form, or by any other means, than a transfer as above specified.’ In supplemental answers of the garnishees there is exhibited a copy of an alleged assignment of Stewart to Colton under date of December 3d, 1883. It is a very informal paper, and not in the form and the manner prescribed by the rules and regulations. If we may judge from the paper accompanying it, executed by the transferee, the transfer was not accepted by such transferee until June 2d, 1884...... I have said that the transfer and acceptance of August 11th. 1884, were the first and only formal papers executed according to .the provisions of the rules and regulations. ' But it is argued that these rules can only be obligatory so far as the partnership company is concerned, that a creditor may not take advantage of a non-compliance with the rules, and that the shares being private property, no restriction may be made in the free sale and transfer of such property, but that the owner may do with it as and in such manner as he pleases. The answer to this is plain. The sale and transfer of all property owned by an individual may be said to be free, provided the owner makes such sale and transfer according to law, that is to- say, the rules prescribed for making and regulating such transfer and sale...... Rule 10 is a good one for share-holder, share-purchaser and for creditor, and for the latter more particularly, as it prevents a false display of property and of credit by a person about to become a debtor. At the time of the service of this attachment Stewart was a legal share owner in the Tide Water Pipe Company, Limited, and as such his shares were liable to attachment. The record, however, shows that the attaching creditor need not touch, and indeed does not need to touch the corpus of these shares. Dividends were declared from time to time from 12th July, 1883, to 1st April, 1884, inclusive, more than sufficient to. satisfy this debt of the plaintiff, even after deducting an alleged claim of the garnishee against the defendant. The title to these dividends is in the true owner of the shares, and hence these must be applied to satisfy the attachment. Thus much for the law of the case as I understand it. I had thought in the argument of this motion that to conserve the rights of all parties, the transferee, Colton, ought to be brought into court and given opportunity to defend any claim he might have, but if I understand correctly the counsel who appeared to this motion for the garnishees, he also appeared for Colton, the defendant’s transferee, and as such argued this motion for judgment on its merits, as a question of law and upon the availability of the transfer to Colton of the 3d December, 1883. If this be correct then Colt.on is represented in this motion, and his rights determined therein.” The Tide Water Pipe Company, Limited, then took this writ of error, assigning for error the entry of judgment against the garnishee on its answers to interrogatories, and the decision of the court that the transfers by Stewart to Colton of December 3d, 1883, carried out August 11th, 1884, in accordance with the rules and regulations of the company did not vest the property in the shares in Colton together with accrued dividends as against the attaching creditor.
108 Pa. 637Cock v. Thornton (1885)
Error to the Court of Common Pleas of Jfayettc county : Of January Term, 1885, No. 270. • Ejectment, by Henry B. Cock against John R. Thornton and D. M. Thornton, to recover possession of an undivided one third part of a certain tract of land in Redstone township, known as the “ Rush Farm.” On the trial the plaintiff made the following offer of evidence as a link in his chain of title:— “Sheriff’s deed from David L. Walker, sheriff, to Edward Campbell, dated the blank day of December, 1871, acknowledged the 13th day of December, 1871, in open court, and recorded the same day in the Court of Common Pleas of Fayette county, in sheriff’s Deed Docket No. 1, page 403, and recorded in the office for recording deeds in and for said county, in Deed Book No. 46, page 189, on the 4th day of January, 1882.” ^dward Campbell was attorney for John Cock, from whom the plaintiff derived his title. The defendants objected to the admission of this sheriff’s deed for the following reasons :— First. “ The venditioni exponas under which the sale is alleged to have been made was not returned by the sheriff, but was brand among his papers after his death in 1881, without any indorsement of return thereon, said sheriff having gone out of office on the 1st of January, 1872.” Second. “ The purchase money was not paid to the sheriff.” Third. “ The deed was never delivered by the sheriff, but was found among his papers after his death in 1881, by his administrator, and at the request of the present plaintiff’s counsel, the purchaser at the sheriff’s sale, was handed to him by the administrator, the counsel agreeing to pay the purchase money.” Fourth. “ The purchase money has never been paid.” This sheriff’s deed was based on a valid judgment held by John Cock upon which a writ of fieri facias was is'sued, a levy and condemnation of the land made thereunder; and a venditioni exponas, directing the sale, issued. The facts set out in the defendant’s objections to the admission of the deed were conceded, except as to the payment of the purchase money. The bid at the sale was $70. Of this sum $64.84 were applied to the payment of costs, and Cock claimed the right to apply the balance to Ms judgment, which was the first in order of priority against the debtor. The defendants denied that the costs were payable out of tMs purchase money or that the balance of $5.46 was applicable to the Cock judgment. The court sustained the defendants’ objections and refused to admit the sheriff’s deed in evidence. Verdict for defendants and judgment thereon. Whereupon the plaintiff took this writ, assigning for error the refusal of Ms offer.